New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Financial Services Reform
(Consequential Amendments) Bill 2002
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Corporations (Ancillary Provisions) Act 2001
No 32 2
4 Amendment of other Acts and Regulations 2
5 Repeal of State Owned Corporations (National Electricity
Market) Regulation 1996 2
6 Explanatory notes 2
Schedules
1 Amendment of Corporations (Ancillary Provisions) Act 2001 3
2 Amendment of references in other Acts 8
3 Amendment of references in Regulations 24
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2002
New South Wales
Financial Services Reform
(Consequential Amendments) Bill 2002
Act No , 2002
An Act to amend the Corporations (Ancillary Provisions) Act 2001 and certain
other Acts and Regulations consequent on the enactment by the Parliament of the
Commonwealth of the Financial Services Reform Act 2001 and the Financial
Services Reform (Consequential Provisions) Act 2001; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Financial Services Reform (Consequential Amendments) Bill 2002
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Financial Services Reform (Consequential
Amendments) Act 2002.
2 Commencement
(1) This Act commences on the date of assent to this Act, except as
provided by subsection (2).
(2) Schedule 2.8 and 2.9 commence on a day or days to be appointed by
proclamation.
3 Amendment of Corporations (Ancillary Provisions) Act 2001 No 32
The Corporations (Ancillary Provisions) Act 2001 is amended as set
out in Schedule 1.
4 Amendment of other Acts and Regulations
Each Act or Regulation specified in Schedules 2 and 3 is amended as
set out in those Schedules.
5 Repeal of State Owned Corporations (National Electricity Market)
Regulation 1996
The State Owned Corporations (National Electricity Market)
Regulation 1996 is repealed.
6 Explanatory notes
The matter appearing under the heading "Explanatory note" in any of
the Schedules does not form part of this Act.
Page 2
Financial Services Reform (Consequential Amendments) Bill 2002
Amendment of Corporations (Ancillary Provisions) Act 2001 Schedule 1
Schedule 1 Amendment of Corporations (Ancillary
Provisions) Act 2001
(Section 3)
[1] Section 22 Power to amend certain statutory rules
Omit "Act." from section 22 (2) (e). Insert instead:
Act, or
(f) an Act amending an Act referred to in paragraph (d)
or (e).
[2] Section 22A
Insert after section 22:
22A Power to make regulations construing certain references in Acts
(1) In this section, affected reference means:
(a) a reference in an Act to a provision of the new ASIC
Act or the new Corporations Act, or
(b) a reference in an Act to a term, expression or concept
defined or used in the new ASIC Act or the new
Corporations Act,
that is, or is to be, affected in any way by the enactment or
proposed enactment by the Parliament of the Commonwealth
of an Act amending the new ASIC Act or the new
Corporations Act.
(2) The Governor, on the recommendation of the Minister, may
make regulations providing that an affected reference in any
Act is to be construed as set out in the regulations.
(3) The Minister may make a recommendation under
subsection (2) only if he or she considers that:
(a) each substantive provision of the proposed regulations
is necessary as a consequence of the enactment, or
proposed enactment, by the Parliament of the
Commonwealth of an Act amending the new ASIC Act
or the new Corporations Act, and
Page 3
Financial Services Reform (Consequential Amendments) Bill 2002
Schedule 1 Amendment of Corporations (Ancillary Provisions) Act 2001
(b) subject to subsection (4), the proposed regulations do
not deal with any other matter.
(4) Regulations made under this section may deal with matters of
a transitional nature (including matters of application or savings
nature) consequent on the enactment of the amending Act
referred to in subsection (3) (a).
Note. Section 25 (6) and (7) enable a provision of the regulations made
under this section to have effect from a time that is earlier than the day on
which they are made.
(5) Regulations made under this section have effect according to
their tenor.
[3] Section 25 Regulations
Insert "or, in the case of regulations made under section 22 (2) (f) or 22A,
the time when the amending Act (or the relevant provision of that Act)
comes into operation or is taken to come into operation" after "relevant
time" in section 25 (6).
[4] Section 28
Insert after section 27:
28 Savings and transitional provisions consequent on enactment of
other Acts
Schedule 4 has effect.
Page 4
Financial Services Reform (Consequential Amendments) Bill 2002
Amendment of Corporations (Ancillary Provisions) Act 2001 Schedule 1
[5] Schedule 4
Insert after Schedule 3:
Schedule 4 Savings and transitional provisions
consequent on enactment of other
Acts
(Section 28)
Part 1 General
1 Savings and transitional regulations
(1) The regulations may contain provisions of a savings or
transitional nature consequent on the enactment of the
following Acts:
Financial Services Reform (Consequential Amendments)
Act 2002
(2) Any such provision may, if the regulations so provide, take
effect from the date of assent to the Act concerned or a later
date.
(3) To the extent to which any such provision takes effect from a
date that is earlier than the date of its publication in the
Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other
than the State or an authority of the State), the rights of
that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State
or an authority of the State) in respect of anything done
or omitted to be done before the date of its publication.
Page 5
Financial Services Reform (Consequential Amendments) Bill 2002
Schedule 1 Amendment of Corporations (Ancillary Provisions) Act 2001
Part 2 Provisions consequent on enactment of
Financial Services Reform (Consequential
Amendments) Act 2002
2 Definition
In this Part:
amending Act means the Financial Services Reform
(Consequential Amendments) Act 2002.
3 Validation
(1) In this section, relevant period means the period:
(a) starting on the commencement of Part 1 of Schedule 1
to the Financial Services Reform Act 2001 of the
Commonwealth, and
(b) ending immediately before the date of assent to the
amending Act.
(2) Anything done or omitted to be done by a person or body
during the relevant period that would have been valid and
lawful had the amending Act been in operation at the time at
which the thing was done or omitted, is taken to be, and to
have always been, valid and lawful.
(3) Anything done or omitted to be done by a person or body
during the relevant period that would have been valid and
lawful had none of the provisions of the Financial Services
Reform Act 2001 or the Financial Services Reform
(Consequential Provisions) Act 2001 of the Commonwealth
been in operation at the time at which the thing was done or
omitted, is taken to be, and to have always been, valid and
lawful.
Explanatory note
Item [1] of the proposed amendments amends section 22 of the Corporations (Ancillary
Provisions) Act 2001 to enable the Governor to make regulations under that section that
amend references in other statutory rules that refer to provisions of, or terms, concepts
or expressions used in, the Corporations Act 2001 or the Australian Securities and
Investments Commission Act 2001 of the Commonwealth that have been, or are to be
amended, by another Act of the Parliament of the Commonwealth.
Item [2] of the proposed amendments to the Act inserts a new section 22A in the Act. The
new section will enable the Governor to make regulations that specify how references in
State Acts to provisions of, or terms, concepts or expressions used in, the Corporations
Act 2001 or the Australian Securities and Investments Commission Act 2001 of the
Page 6
Financial Services Reform (Consequential Amendments) Bill 2002
Amendment of Corporations (Ancillary Provisions) Act 2001 Schedule 1
Commonwealth that have been, or are to be amended, by another Act of the Parliament
of the Commonwealth are to be construed.
Item [3] of the proposed amendments to the Act makes an amendment to section 25 that
is consequential on the amendments made by items [1] and [2].
Items [4] and [5] of the proposed amendments to the Act insert provisions of a savings
and transitional nature that are consequent on the enactment of the proposed Act. In
particular, a provision is inserted in a new Schedule 4 to the Act that validates certain acts
and omissions of persons and bodies done or omitted to be done on or after the
commencement of Part 1 of Schedule 1 to the Financial Services Reform Act 2001 of the
Commonwealth but before the date of assent to the proposed Act.
Page 7
Financial Services Reform (Consequential Amendments) Bill 2002
Schedule 2 Amendment of references in other Acts
Schedule 2 Amendment of references in other Acts
(Section 4)
2.1 Co-operative Housing and Starr-Bowkett Societies Act 1998
No 11
[1] Section 16 Excluded matter
Omit section 16 (2) (b). Insert instead:
(b) provisions applying to or about bodies or bodies
corporate included in the official list of any prescribed
financial market (including provisions of Chapter 6
applying to or about a company as defined for that
Chapter),
[2] Section 16 (2) (e)
Omit the paragraph. Insert instead:
(e) Part 7.10 (Market misconduct and other prohibited
conduct relating to financial products and financial
services),
Explanatory note
Item [1] of the proposed amendments amends section 16 of the Co-operative Housing
and Starr-Bowkett Societies Act 1998 to replace a reference to provisions of the
Corporations Act 2001 of the Commonwealth applying to or about bodies or bodies
corporate included in the official list of a securities exchange with a reference to
provisions of the Commonwealth Act applying to or about bodies included in an official
list of any prescribed financial market within the meaning of the Commonwealth Act (as
amended by the Financial Services Reform Act 2001 of the Commonwealth).
Item [2] of the proposed amendments also amends section 16 of the Act to replace a
reference to Part 7.11 (Conduct in relation to securities) of the Corporations Act 2001 of
the Commonwealth with a reference to the new Part 7.10 (Market misconduct and other
prohibited conduct relating to financial products and financial services) of that Act (as
amended by the Financial Services Reform Act 2001 of the Commonwealth).
Page 8
Financial Services Reform (Consequential Amendments) Bill 2002
Amendment of references in other Acts Schedule 2
2.2 Co-operatives Act 1992 No 18
[1] Section 9 Excluded matter
Omit "the futures industry" from section 9 (2) (h).
Insert instead "derivatives".
[2] Section 9 (2) (i)
Omit the paragraph. Insert instead:
(i) provisions relating to:
(i) financial services licensees (as defined in
section 761A of the Corporations Act) whose
licence covers dealing in, or providing advice
about, securities, or
(ii) regulated principals (as defined in section 1430
of the Corporations Act) when dealing in, or
providing advice about, securities as authorised
by Subdivision D of Division 1 of Part 10.2 of
that Act,
[3] Section 9 (2) (j)
Omit "conduct of a securities business".
Insert instead "carrying on of a financial services business (as defined in
section 761A of the Corporations Act) relating to securities".
[4] Section 9 (2) (k)
Omit the paragraph. Insert instead:
(k) provisions relating to financial statements, and audits of
financial statements, of:
(i) financial services licensees (as defined in
section 761A of the Corporations Act) whose
licence covers dealing in, or providing advice
about, securities, or
Page 9
Financial Services Reform (Consequential Amendments) Bill 2002
Schedule 2 Amendment of references in other Acts
(ii) regulated principals (as defined in section 1430
of the Corporations Act) when dealing in, or
providing advice about, securities as authorised
by Subdivision D of Division 1 of Part 10.2 of
that Act,
[5] Section 9 (2) (l)
Omit the paragraph. Insert instead:
(l) provisions relating to money and scrip of clients of:
(i) financial services licensees (as defined in
section 761A of the Corporations Act) whose
licence covers dealing in, or providing advice
about, securities, or
(ii) regulated principals (as defined in section 1430
of the Corporations Act) when dealing in, or
providing advice about, securities as authorised
by Subdivision D of Division 1 of Part 10.2 of
that Act,
[6] Section 9 (3) (d)
Omit the paragraph. Insert instead:
(d) Part 7.10 (Market misconduct and other prohibited
conduct relating to financial products and financial
services).
[7] Section 266 Application of Corporations Act to issues of debentures
Omit "Part 7.11 (Conduct in relation to securities)" from section 266 (1).
Insert instead "Part 7.10 (Market misconduct and other prohibited conduct
relating to financial products and financial services)".
Explanatory note
Item [1] of the proposed amendments amends section 9 of the Co-operatives Act 1992
to replace a reference to the futures industry within the meaning of the Corporations
Act 2001 of the Commonwealth with a reference to derivatives within the meaning of the
Commonwealth Act (as amended by the Financial Services Reform Act 2001 of the
Commonwealth).
Items [2], [4] and [5] of the proposed amendments amend section 9 of the Act to replace
references to participants in the securities industry and dealers within the meaning of the
Corporations Act 2001 of the Commonwealth with references to financial services
Page 10
Financial Services Reform (Consequential Amendments) Bill 2002
Amendment of references in other Acts Schedule 2
licensees and regulated principals within the meaning of the Commonwealth Act (as
amended by the Financial Services Reform Act 2001 of the Commonwealth) who deal
in, or provide advice about, securities.
Item [3] of the proposed amendments amends section 9 of the Act to replace a reference
to the conduct of a securities business within the meaning of the Corporations Act 2001
of the Commonwealth with a reference to carrying on a financial services business
within the meaning of the Commonwealth Act (as amended by the Financial Services
Reform Act 2001 of the Commonwealth) relating to securities.
Items [6] and [7] of the proposed amendments amend sections 9 and 266 of the Act to
replace references to Part 7.11 (Conduct in relation to securities) of the Corporations
Act 2001 of the Commonwealth with references to the new Part 7.10 (Market misconduct
and other prohibited conduct relating to financial products and financial services) of that
Act (as amended by the Financial Services Reform Act 2001 of the Commonwealth).
2.3 Duties Act 1997 No 123
[1] Section 250 Cancellation of registration by the Chief Commissioner
Omit section 250 (1) (a). Insert instead:
(a) if the insurer's authorisation under the Insurance
Act 1973 of the Commonwealth is revoked, or
[2] Dictionary
Omit the definition of insurance intermediary. Insert instead:
insurance intermediary means:
(a) a person who arranges contracts of insurance in New
South Wales:
(i) for reward, or
(ii) as an agent for a person carrying on a business
of insurance, or
(b) a financial services licensee (as defined in section 761A
of the Corporations Act 2001 of the Commonwealth)
whose licence covers arranging contracts of insurance as
an agent for a person carrying on a business of
insurance, or
(c) a regulated principal (as defined in section 1430 of the
Corporations Act 2001 of the Commonwealth) when
carrying on business as an insurance broker as
authorised by Subdivision D of Division 1 of Part 10.2
of that Act.
Page 11
Financial Services Reform (Consequential Amendments) Bill 2002
Schedule 2 Amendment of references in other Acts
[3] Dictionary
Insert after the definition of public unit trust scheme:
quoted, in relation to marketable securities:
(a) includes marketable securities that have stopped being
listed for quotation on a stock exchange merely because
they belong to a class of securities the quotation of
which has been temporarily suspended, and
(b) does not include marketable securities that belong to a
class of securities referred to in paragraph (a) if the body
that issued the securities has ceased to be included in the
official list of the stock exchange.
Explanatory note
Item [1] of the proposed amendments amends section 250 of the Duties Act 1997 to
replace a reference to the registration of insurers under the Insurance Act 1973 of the
Commonwealth with a reference to an authorisation under that Act. The amendment is
in the nature of statute law revision.
Item [2] of the proposed amendments replaces the definition of insurance intermediary
in the Dictionary to the Act with a new definition. The current definition provides that the
term has the same meaning as in the Insurance (Agents and Brokers) Act 1984 of the
Commonwealth. However, the Insurance (Agents and Brokers) Act 1984 was repealed
by the Financial Services Reform (Consequential Provisions) Act 2001 of the
Commonwealth.
Item [3] of the proposed amendments inserts a new definition of quoted in relation to
shares and other securities in the Dictionary to the Act. The new definition is drawn from
the provisions of section 1097A of the Corporations Act 2001 of the Commonwealth (as
in force immediately before the commencement of the Financial Services Reform
Act 2001 of the Commonwealth). That section provided that certain securities that were
temporarily suspended from quotation on a stock exchange were to be treated as still
being listed for quotation on the exchange for the purposes of the Corporations Act 2001.
2.4 Freedom of Information Act 1989 No 5
Schedule 1 Exempt documents
Insert at the end of clause 18:
(2) A document is an exempt document if it contains matter that
appears in:
(a) a document for the purposes of the Ministerial Council
for Corporations that has been prepared by, or received
by an agency or Minister from, the Commonwealth or
another State, or
Page 12
Financial Services Reform (Consequential Amendments) Bill 2002
Amendment of references in other Acts Schedule 2
(b) a document the disclosure of which would disclose the
deliberations or decisions of the Ministerial Council for
Corporations, other than a document by which a
decision of the Council has been officially published, or
(c) a document that has been furnished to the Australian
Securities and Investments Commission by the
Commonwealth, or by this or any other State, and that
relates solely to the functions of the Commission in
relation to the law of the Commonwealth or the law of
this or any other State, or
(d) a document (other than a document referred to in
paragraph (c)) that is held by the Australian Securities
and Investments Commission and that relates solely to
the exercise of the functions of the Commission under
the law of the Commonwealth or the law of this or any
other State.
(3) In this clause:
Australian Securities and Investments Commission means the
body established by section 7 of the Australian Securities and
Investments Commission Act 1989 of the Commonwealth and
continued in existence by section 261 of the Australian
Securities and Investments Commission Act 2001 of the
Commonwealth.
Ministerial Council for Corporations:
(a) means the Ministerial Council for Corporations
originally established by the Corporations Agreement
dated 23 September 1997 between the Governments of
the Commonwealth, the States and the Northern
Territory, and
(b) includes any body that is a continuation of, or a
successor to, the Council under any subsequent
agreement between those Governments.
Explanatory note
The amendment to clause 18 of Schedule 1 to the Freedom of Information Act 1989
ensures that certain documents containing matter relating to the Ministerial Council for
Corporations or the Australian Securities and Investments Commission are exempt
documents for the purposes of that Act. Currently, clause 18 makes similar provision in
respect of documents containing matter that related to the former Ministerial Council for
Companies and Securities and National Companies and Securities Commission.
Page 13
Financial Services Reform (Consequential Amendments) Bill 2002
Schedule 2 Amendment of references in other Acts
2.5 Insurance (Application of Laws) Act 1986 No 13
[1] Section 3 Definitions
Insert "or" after "Commonwealth," in paragraph (a) of the definition of
applied provision in section 3 (1).
[2] Section 3 (1), definition of "applied provision"
Omit paragraph (b).
[3] Section 3 (4)
Insert after section 3 (3):
(4) Notes included in this Act do not form part of this Act.
[4] Section 6 Application of Insurance (Agents and Brokers) Act 1984 of the
Commonwealth etc
Omit the section. Insert instead:
6 Application of Corporations legislation to State insurance matters
(1) The regulations may declare any State insurance matter to be an
applied Corporations legislation matter for the purposes of
Part 3 of the Corporations (Ancillary Provisions) Act 2001
(with such modifications as may be specified in the declaration)
in relation to the following:
(a) all or any of the provisions of Chapter 7 (Financial
services and markets) of the Corporations Act 2001 of
the Commonwealth,
(b) all or any of the provisions of the Australian Securities
and Investments Commission Act 2001 of the
Commonwealth relating to financial products or
financial markets.
Note. Part 3 of the Corporations (Ancillary Provisions) Act 2001 provides
for the application of provisions of the Corporations Act 2001 and Part 3
of the Australian Securities and Investments Commission Act 2001 of the
Commonwealth as laws of the State in respect of any matter declared by
a law of the State (whether with or without modification) to be an applied
Corporations legislation matter for the purposes of that Part in relation to
those Commonwealth provisions. Section 14 (2) of the Corporations
(Ancillary Provisions) Act 2001 ensures that a declaration made for the
Page 14
Financial Services Reform (Consequential Amendments) Bill 2002
Amendment of references in other Acts Schedule 2
purposes of Part 3 of that Act only operates to apply a provision of the
Corporations legislation to a matter as a law of the State if that provision
does not already apply to the matter as a law of the Commonwealth. If a
provision referred to in a declaration already applies as a law of the
Commonwealth, nothing in the declaration will affect its continued
operation as a law of the Commonwealth.
(2) Without limiting subsection (1), any such regulations may:
(a) specify modifications to the definitions and other
interpretative provisions of the Corporations legislation
relevant to any provision of the Commonwealth
legislation that is the subject of the declaration, and
(b) provide for ASIC to exercise a function under any
provision of the Corporations legislation that is the
subject of the declaration, but only if:
(i) ASIC is to exercise that function pursuant to an
agreement of the kind referred to in
section 11 (8) or (9A) (b) of the Australian
Securities and Investments Commission
Act 2001 of the Commonwealth, and
(ii) ASIC is authorised to exercise that function
under section 11 of the Australian Securities
and Investments Commission Act 2001 of the
Commonwealth, and
(c) specify that a reference to ASIC in any provision of the
Corporations legislation that is the subject of the
declaration is to be read as a reference to another
person, and
(d) identify the provisions of the Corporations legislation to
which the declaration relates by reference to that
legislation as in force at a particular time, and
(e) specify a court of this State (other than the Supreme
Court) to exercise any function conferred on a court or
the Court by any provision of the Corporations
legislation to which the declaration relates.
(3) Words and expressions used in this section and also in Part 3
of the Corporations (Ancillary Provisions) Act 2001 have the
same meanings as they have in that Part.
Page 15
Financial Services Reform (Consequential Amendments) Bill 2002
Schedule 2 Amendment of references in other Acts
(4) In this section:
State insurance matter means:
(a) State insurance within the meaning of section 51 (xiv)
of the Commonwealth Constitution, or
(b) contracts of insurance and proposed contracts of
insurance entered into, or proposed to be entered into,
by the State and some other insurer as joint insurers, or
(c) conduct in connection with contracts and proposed
contracts of the kind referred to in paragraph (b).
Explanatory note
Item 245 of Schedule 1 to the Financial Services Reform (Consequential Provisions)
Act 2001 of the Commonwealth repealed the Insurance (Agents and Brokers) Act 1984
of the Commonwealth on the commencement of item 1 of Schedule 1 to the Financial
Services Reform Act 2001 of the Commonwealth. The Insurance (Agents and Brokers)
Act 1984 regulated insurance intermediaries, but did not extend to the regulation of
insurance intermediaries involved in State insurance. Provisions regulating such
insurance intermediaries are now located in the new Chapter 7 of the Corporations
Act 2001 of the Commonwealth, as inserted by the Financial Services Reform Act 2001.
Section 6 of the Insurance (Application of Laws) Act 1986 applies the provisions of the
Insurance (Agents and Brokers) Act 1984 to State insurance as a matter of State law.
However, the former Act has no Commonwealth provisions to apply to State insurance
on the repeal of the latter Act.
Item [4] of the proposed amendments to the Insurance (Application of Laws) Act 1986
replaces section 6 with a new section that enables the regulations to apply provisions of
the new Chapter 7 of the Corporations Act 2001 of the Commonwealth (and related
provisions of the Australian Securities and Investments Commission Act 2001 of the
Commonwealth) as State law to matters concerning State insurance. Item [3] of the
proposed amendments amends section 3 of the Act to ensure that notes included with
the proposed amendment made by item [4] are not treated as forming part of the Act .
Items [1] and [2] of the proposed amendments make consequential amendments to
section 3 of the Act.
2.6 Insurance Protection Tax Act 2001 No 40
[1] Section 3 Definitions
Omit the definition of insurance intermediary. Insert instead:
insurance intermediary means:
(a) a person who arranges contracts of insurance in New
South Wales:
(i) for reward, or
(ii) as an agent for a person carrying on a business
of insurance, or
Page 16
Financial Services Reform (Consequential Amendments) Bill 2002
Amendment of references in other Acts Schedule 2
(b) a financial services licensee (as defined in section 761A
of the Corporations Act 2001 of the Commonwealth)
whose licence covers arranging contracts of insurance as
an agent for a person carrying on a business of
insurance, or
(c) a regulated principal (as defined in section 1430 of the
Corporations Act 2001 of the Commonwealth) when
carrying on business as an insurance broker as
authorised by Subdivision D of Division 1 of Part 10.2
of that Act.
[2] Section 3, definition of "insurer"
Omit paragraph (c). Insert instead:
(c) who is authorised to carry on insurance business under
the Insurance Act 1973 of the Commonwealth.
[3] Section 19 Cancellation of registration by Chief Commissioner
Omit section 19 (1) (a). Insert instead:
(a) if the insurer's authorisation under the Insurance
Act 1973 of the Commonwealth is revoked, or
Explanatory note
Item [1] of the proposed amendments amends section 3 of the Insurance Protection Tax
Act 2001 by replacing the definition of insurance intermediary with a new definition. The
current definition provides that the term has the same meaning as in the Insurance
(Agents and Brokers) Act 1984 of the Commonwealth. However, the Insurance (Agents
and Brokers) Act 1984 was repealed by the Financial Services Reform (Consequential
Provisions) Act 2001 of the Commonwealth.
Items [2] and [3] of the proposed amendments amend both the definition of insurer in
section 3 and section 19 to replace references to the registration of insurers under the
Insurance Act 1973 of the Commonwealth with references to authorisations under that
Act. The amendments are in the nature of statute law revision.
Page 17
Financial Services Reform (Consequential Amendments) Bill 2002
Schedule 2 Amendment of references in other Acts
2.7 Legal Profession Act 1987 No 109
Section 43 Investment of Indemnity Fund
Omit "securities or shares listed on a stock exchange in Australia" from
section 43 (c).
Insert instead "securities or shares listed for quotation on a prescribed
financial market (within the meaning of section 9 of the Corporations
Act 2001 of the Commonwealth)".
Explanatory note
The proposed amendment to section 43 of the Legal Profession Act 1987 replaces a
reference to securities or shares listed on a stock exchange in Australia with a reference
to securities or shares listed for quotation on a prescribed financial market within the
meaning of section 9 of the Corporations Act 2001 of the Commonwealth Act (as
amended by the Financial Services Reform Act 2001).
2.8 Minors (Property and Contracts) Act 1970 No 60
[1] Section 28 Certified disposition by a minor
Omit "disposition," from section 28 (2) (a).
Insert instead "disposition, and".
[2] Section 28 (2) (c)(e)
Omit section 28 (2) (c). Insert instead:
(c) state that the person giving the certificate is satisfied
that:
(i) the minor understands the true purport and
effect in law of the disposition, and
(ii) the minor makes the disposition freely and
voluntarily, and
(d) state that the person giving the certificate has received
a written statement from an independent and
appropriately qualified valuer or other financial adviser
to the effect that the consideration for the disposition is
not manifestly inadequate, and
Page 18
Financial Services Reform (Consequential Amendments) Bill 2002
Amendment of references in other Acts Schedule 2
(e) have annexed to the certificate a copy of the written
statement referred to in paragraph (d).
[3] Section 29 Certified disposition to a minor
Omit "disposition," from section 29 (2) (a).
Insert instead "disposition, and".
[4] Section 29 (2) (c)(e)
Omit section 29 (2) (c). Insert instead:
(c) state that the person giving the certificate is satisfied
that:
(i) the minor understands the true purport and effect
in law of the disposition, and
(ii) the minor takes the disposition freely and
voluntarily, and
(d) state that the person giving the certificate has received
a written statement from an independent and
appropriately qualified valuer or other financial adviser
to the effect that the consideration for the disposition is
not manifestly excessive, and
(e) have annexed to the certificate a copy of the written
statement referred to in paragraph (d).
Explanatory note
Item [2] of the amendments to the Minors (Property and Contracts) Act 1970 amends
section 28 of the Act to ensure that a solicitor or the Public Trustee is not required under
that section to certify matters that could constitute the provision of financial advice for the
purposes of Chapter 7 of the Corporations Act 2001 of the Commonwealth (as inserted
by the Financial Services Reform Act 2001 of the Commonwealth) for which the person
must be licensed under that Chapter. Currently, section 28 requires a solicitor or the
Public Trustee to certify that the consideration for a disposition by a minor is not
manifestly inadequate. Section 28, as amended, will require a solicitor or the Public
Trustee to certify that he or she has received a written statement from a qualified valuer
or other financial adviser concerning the consideration and annex a copy of that
statement to the certificate.
Item [4] of the amendments makes a comparable amendment to section 29 of the Act.
Currently, section 29 requires a solicitor or the Public Trustee to certify that the
consideration for a disposition to a minor is not manifestly excessive. Section 28, as
amended, will require a solicitor or the Public Trustee to certify that he or she has
received a written statement from a qualified valuer or other financial adviser concerning
the consideration and annex a copy of that statement to the certificate.
Items [1] and [3] of the amendments to the Act make consequential amendments to
sections 28 and 29.
Page 19
Financial Services Reform (Consequential Amendments) Bill 2002
Schedule 2 Amendment of references in other Acts
2.9 Property (Relationships) Act 1984 No 147
Section 47 Effect of agreements in certain proceedings
Omit section 47 (1) (d). Insert instead:
(d) that each party to the relationship was, before the time
at which the agreement was signed by him or her, as the
case may be, furnished with a certificate in or to the
effect of the prescribed form by a solicitor which states
that, before that time, the solicitor provided legal advice
to that party, independently of the other party to the
relationship, as to the following matters:
(i) the effect of the agreement on the rights of the
parties to apply for an order under Part 3, and
(ii) the advantages and disadvantages, at the time
that the advice was provided, to the party of
making the agreement, and
Explanatory note
The amendment to section 47 of the Property (Relationships) Act 1984 ensures that the
advice that a solicitor is required to give a party to a domestic relationship who enters into
a domestic relationship agreement or termination agreement does not extend to the
giving of advice that would constitute the provision of a financial service within the
meaning of Chapter 7 of the Corporations Act 2001 of the Commonwealth. A person
must be licensed under Chapter 7 of the Corporations Act 2001 in order to provide a
financial service.
The amendment will ensure that a solicitor must advise the party about the legal effect
of the agreement.
2.10 Property, Stock and Business Agents Act 1941 No 28
[1] Section 4 Act not to apply to certain persons or bodies
Omit "a dealers licence" from section 4 (5) (a).
Insert instead "an Australian financial services licence".
Page 20
Financial Services Reform (Consequential Amendments) Bill 2002
Amendment of references in other Acts Schedule 2
[2] Section 4 (5) (b)
Omit the paragraph. Insert instead:
(b) the person is an authorised representative of a financial
services licensee within the meaning of Chapter 7 of the
Corporations Act 2001 of the Commonwealth.
Explanatory note
Item [1] of the proposed amendments to the Property, Stock and Business Agents
Act 1941 amends section 4 of the Act to replace a reference to a dealers licence within
the meaning of the Corporations Act 2001 of the Commonwealth with a reference to an
Australian financial services licence within the meaning of the Commonwealth Act (as
amended by the Financial Services Reform Act 2001 of the Commonwealth).
Item [2] of the proposed amendments replaces section 4 (5) (b) that refers to a person
who holds a proper authority, within the meaning of the Corporations Act 2001 of the
Commonwealth, from the holder of such a dealers licence with a provision that refers to
a person who is an authorised representative of a financial services licensee within the
meaning of Chapter 7 of that Act (as amended by the Financial Services Reform
Act 2001 of the Commonwealth).
2.11 State Owned Corporations Act 1989 No 134
Section 20G Application of Commonwealth Corporations Act 2001
Omit "other than to the extent specified by the regulations for the purposes
of this subsection" from section 20G (1).
Insert instead:
other than:
(a) section 1101I (Gaming and wagering laws do not affect
validity of contracts relating to financial products) of
that Act to the extent that it applies to any contract that
is a financial product entered into by an energy services
corporation within the meaning of the Energy Services
Corporations Act 1995, or
(b) to the extent specified by the regulations for the
purposes of this subsection.
Explanatory note
Section 20G (1) of the State Owned Corporations Act 1989 provides that a statutory SOC
is declared to be an excluded matter for the purposes of section 5F of the Corporations
Act 2001 of the Commonwealth in relation to the whole of the Corporations legislation
other than to the extent specified by the regulations for the purposes of that subsection.
Section 5F of the Corporations Act 2001 provides that if a State law declares a matter to
be an excluded matter for the purposes of that section in relation to all or part of the
Page 21
Financial Services Reform (Consequential Amendments) Bill 2002
Schedule 2 Amendment of references in other Acts
Corporations legislation of the Commonwealth, then the provisions that are the subject
of the declaration will not apply in relation to that matter in the State concerned.
Currently, clause 3 of the State Owned Corporations (National Electricity Market)
Regulation 1996 applies the provisions of Chapter 8 of the Corporations Act 2001 of the
Commonwealth relating to the futures industry (as in force before its repeal by the
Financial Services Reform Act 2001 of the Commonwealth) as a State law. However, that
Regulation will be repealed by proposed section 5 of the proposed Act.
The amendment to section 20G of that Act ensures that section 1101I of the Corporations
Act 2001 (as inserted by the Financial Services Reform Act 2001) will apply as a federal
law to energy services corporations within the meaning of the Energy Services
Corporations Act 1995 that are statutory SOCs under the State Owned Corporations
Act 1989. Section 1101I of the Corporations Act 2001 provides that gaming and wagering
laws in a State or Territory do not affect the validity of contracts relating to financial
products.
2.12 Teacher Housing Authority Act 1975 No 27
Section 11 Vacation of office
Omit "listed for quotation on the official list of a stock exchange in
Australia" from section 11 (3) (a).
Insert instead "listed for quotation on a prescribed financial market within
the meaning of section 9 of the Corporations Act 2001 of the
Commonwealth".
Explanatory note
The proposed amendment to section 11 of the Teacher Housing Authority Act 1975
replaces a reference to a company whose shares are listed for quotation on the official
list of a stock exchange in Australia with a reference to a company whose shares are
listed for quotation on a prescribed financial market within the meaning of section 9 of the
Corporations Act 2001 of the Commonwealth (as amended by the Financial Services
Reform Act 2001 of the Commonwealth).
Page 22
Financial Services Reform (Consequential Amendments) Bill 2002
Amendment of references in other Acts Schedule 2
2.13 Workers Compensation Act 1987 No 70
Section 156A Misleading conduct by insurers and insurance
intermediaries
Omit the definition of insurance intermediary from section 156A (1).
Insert instead:
insurance intermediary means:
(a) a person who arranges contracts of insurance in New
South Wales:
(i) for reward, or
(ii) as an agent for a person carrying on a business
of insurance, or
(b) a financial services licensee (as defined in section 761A
of the Corporations Act 2001 of the Commonwealth)
whose licence covers arranging contracts of insurance as
an agent for a person carrying on a business of
insurance, or
(c) a regulated principal (as defined in section 1430 of the
Corporations Act 2001 of the Commonwealth) when
carrying on business as an insurance broker as
authorised by Subdivision D of Division 1 of Part 10.2
of that Act.
Explanatory note
The proposed amendment to section 156A of the Workers Compensation Act 1987
replaces the definition of insurance intermediary with a new definition. The current
definition provides that the term has the same meaning as in the Insurance (Agents and
Brokers) Act 1984 of the Commonwealth. However, the Insurance (Agents and Brokers)
Act 1984 was repealed by the Financial Services Reform (Consequential Provisions)
Act 2001 of the Commonwealth.
Page 23
Financial Services Reform (Consequential Amendments) Bill 2002
Schedule 3 Amendment of references in Regulations
Schedule 3 Amendment of references in Regulations
(Section 4)
3.1 Constitution (Disclosures by Members) Regulation 1983
Clause 7 Interpretation: Part 3
Omit the definition of public company in clause 7 (1). Insert instead:
public company means a listed company within the meaning
of section 9 of the Corporations Act 2001 of the
Commonwealth.
Explanatory note
The proposed amendment to clause 7 of the Constitution (Disclosure by Members)
Regulation 1993 replaces a definition that contains a reference to a company whose
shares are listed for quotation on the stock market of a stock exchange in New South
Wales with a reference to a listed company within the meaning of section 9 of the
Corporations Act 2001 of the Commonwealth Act (as amended by the Financial Services
Reform Act 2001). A company will be a listed company for the purposes of section 9 of
the Commonwealth Act (as amended) only if it is included in the official list of a prescribed
financial market within the meaning of that amended section.
3.2 Co-operatives Regulation 1997
[1] Clause 23A
Omit the clause. Insert instead:
23A Securities listing provisions to apply to co-operatives
(1) For the purposes of section 9 (2) (a) of the Act, the provisions
of the Corporations Act that relate to the listing of securities of
a co-operative for quotation on a financial market are not to be
excluded from the operation of the Corporations Act in relation
to a co-operative.
(2) For the purposes of section 9 (2) (a) of the Act, the provisions
of the Corporations Act that relate to the matters for which the
following provisions of that Act make provision are not to be
Page 24
Financial Services Reform (Consequential Amendments) Bill 2002
Amendment of references in Regulations Schedule 3
excluded from the operation of the Corporations Act in relation
to a co-operative in respect of securities that are listed for
quotation on a financial market:
(a) Part 1.2 (Interpretation), but only in relation to the
interpretation of the other provisions of the
Corporations Act applying under their own force to
co-operatives,
(b) Part 1.2A (Disclosing entities),
(c) Section 1020C (ASIC's power to prohibit short selling
in certain cases),
(d) Sections 792B792E (Market licensee's obligations to
provide information and assistance to ASIC),
(e) Section 793C (Market operating rules),
(f) Part 7.3 (Licensing of clearing and settlement facilities),
(g) Part 7.5 (Compensation regimes for financial markets),
(h) Part 7.10 (Market misconduct and other prohibited
conduct relating to financial products and financial
services),
(i) Divisions 3 (Transfer of certain securities effected
otherwise than through a prescribed CS facility), 4
(Transfer of financial products effected through
prescribed CS facility) and 5 (Exemptions and
modifications) of Part 7.11 (Title and transfer),
(j) Part 7.12 (Miscellaneous), but only to the extent to
which that Part relates to the other provisions of the
Corporations Act applying under their own force to co-
operatives,
(k) Chapters 2L (Debentures) and 6D (Fundraising), but
only in relation to securities of the same class, and
issued or offered on the same terms, as those already
listed by the co-operative on a financial market,
(l) Part 9.4 (Offences), but only to the extent to which that
Part relates to the other provisions of the Corporations
Act applying under their own force to co-operatives.
(3) To remove doubt, this clause extends to all the securities of a
co-operative, including CCUs.
Page 25
Financial Services Reform (Consequential Amendments) Bill 2002
Schedule 3 Amendment of references in Regulations
(4) In this clause, financial market has the same meaning as in the
Corporations Act.
[2] Schedule 3 Modifications of Corporations Act
Omit Division 2 of Part 2.
[3] Schedule 4 Prescribed information relating to proposed compromise or
arrangement
Omit "Corporations Law" from the definitions of marketable securities and
relative in clause 1 wherever occurring.
Insert instead "Corporations Act".
Explanatory note
Item [1] of the proposed amendments to the Co-operatives Regulation 1997 replaces
clause 23A with a new clause. Currently, clause 23A provides for certain provisions of the
former Chapter 7 of the Corporations Act 2001 of the Commonwealth (which has now
been replaced with a new Chapter 7 by the Financial Services Reform Act 2001 of the
Commonwealth) to apply to co-operatives. The new provisions reflect the terminology and
structure of the new Chapter 7.
Item [2] of the proposed amendments omits Division 2 of Part 2 In Schedule 3, which has
become redundant.
Item [3] of the proposed amendments amends Schedule 4 to the Regulation to replace
references to the Corporations Law with references to the Corporations Act 2001 of the
Commonwealth. The amendments is in the nature of statute law revision.
3.3 Local Government (General) Regulation 1999
Clause 40A Definitions
Omit the definition of public company. Insert instead:
public company means a listed company within the meaning
of section 9 of the Corporations Act 2001 of the
Commonwealth.
Explanatory note
The proposed amendment to clause 40A of the Local Government (General)
Regulation 1999 replaces a definition that contains a reference to a company whose
shares are listed for quotation on the stock market of a stock exchange in New South
Wales with a reference to a listed company within the meaning of section 9 of the
Corporations Act 2001 of the Commonwealth Act (as amended by the Financial Services
Reform Act 2001). A company will be a listed company for the purposes of section 9 of
the Commonwealth Act (as amended) only if it is included in the official list of a prescribed
financial market within the meaning of that amended section.
Page 26
Financial Services Reform (Consequential Amendments) Bill 2002
Amendment of references in Regulations Schedule 3
3.4 Protection of the Environment Administration (Disclosure by
Board Members) Regulation 1997
Clause 3 Definitions
Omit the definition of public company from clause 3 (1). Insert instead:
public company means a listed company within the meaning of
section 9 of the Corporations Act 2001 of the Commonwealth.
Explanatory note
The proposed amendment to clause 3 of the Protection of the Environment
Administration (Disclosure by Board Members) Regulation 1997 replaces a definition that
contains a reference to a company whose shares are listed for quotation on the stock
market of a stock exchange in New South Wales with a reference to a listed company
within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth Act
(as amended by the Financial Services Reform Act 2001). A company will be a listed
company for the purposes of section 9 of the Commonwealth Act (as amended) only if
it is included in the official list of a prescribed financial market within the meaning of that
amended section.
Page 27
[Index] [Search] [Download] [Related Items] [Help]