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CORPORATIONS (NEW SOUTH WALES) BILL 1990*
NEW SOUTH WALES
EXPLANATORY NOTE
(This Explanatory Note relates to this Bill as introduced into Parliament)
1. The objects of this Bill are:
(a) to apply certain provisions of laws of the Commonwealth relating to
corporations, the securities industry and the futures industry as laws of New
South Wales; and
(b) to provide for their administration and enforcement and related matters.
2. The Bill forms part of a legislative scheme that involves the enactment o f Bills by
the Commonwealth, the States and the Northern Territory. The scheme is based on an
agreement reached at a meeting of Ministers at Alice Springs on 29 June 1990.
3. The Northern Territory is treated as a State for the purposes of this Explanatory
Note, and accordingly references to a State extend to the Northern Territory.
Key definitions
4. Important expressions used in the Bill or this Explanatory Note include:
applicable provision: a provision of the laws applied by this Bill or a
corresponding law of another State or Territory. In the case of the Australian
Capital Territory, the expression includes certain Commonwealth laws applying of
their own force.
ASC: Australian Securities Commission.
ASC Act: Australian Securities Commission Act 1989 of the Commonwealth, as
amended.
Commonwealth Bill: Corporations Legislation Amendment Bill 1990 of the
Commonwealth.
co-operative scheme laws: the various Acts and Codes currently applying to
companies, securities and the futures industry.
Corporations Act: Corporations Act 1989 of the Commonwealth, as amended.
jurisdiction: a State, the Northern Territory or the Australian Capital Territory
(including the Jervis Bay Territory). Sometimes the expression is used in its
normal sense in connection with a court: this is clear from the context.
* Amended in committee -- see table at end of volume.
The background
5. The Corporations Act 1989 ("the Corporations Act") and the Australian Securities
Commission Act 1989 ("the ASC Act") were enacted by the Parliament of the
Commonwealth as laws applying of their own force throughout Australia.
6. Following the High Court's decision in NSW and Others v The Commonwealth
(the Corporations Case), the Commonwealth and the States agreed that the Corporations
Act and the ASC Act should form the basis for future corporate regulation and that an
applied law regime should be adopted by the States to enable those Acts to apply
Australia-wide. This approach is also designed to overcome the constitutional
uncertainty which would persist if the Commonwealth proclaimed those parts of the
Corporations Act which were not affected by the decision in the Corporations Case.
The Commonwealth Bill
7. The Commonwealth component of the scheme is contained in the Corporations
Legislation Amendment Bill 1990, which was introduced into the Commonwealth
Parliament on 8 November 1990.
8. In giving effect to the agreement, the Commonwealth Bill provides for the
Corporations Act and the ASC Act to be amended to remove the current constitutional
underpinning and to be recast as laws for the Australian Capital Territory. The aim of
those amendments is to produce Acts which are in a form that can be applied by each
State as the law of the State.
9. The Commonwealth Bill will insert at the beginning of the Corporations Act a
series of sections ("covering provisions"), and will convert the current text of the
Corporations Act (with other amendments) into a document called the "Corporations
Law". The Corporations Law will be capable of being applied to any State or Territory
by legislation of or applying in the State or Territory.
10. The covering provisions will apply the Corporations Law to the Australian
Capital Territory.
11. The Commonwealth Bill will amend the ASC Act to convert it from a
Commonwealth law applying of its own force throughout Australia, into a law relating
to the regulation of corporate activities and the securities and futures industries in the
Australian Capital Territory. As with the Corporations Act, it has been agreed that the
States will pass legislation applying the bulk of the provisions of the ASC Act to their
own jurisdictions, and conferring powers on the ASC to administer the Corporations
Law of their respective jurisdictions. The various bodies involved in the administration
of corporations legislation will continue to be constituted under the ASC Act; these
bodies are the ASC, the Companies and Securities Advisory Committee, the
Corporations and Securities Panel, the Companies Auditors and Liquidators Disciplinary
Board and the Australian Accounting Standards Board.
12. Other matters are dealt with by the provisions of the Commonwealth Bill. Some
of these provisions have counterparts in the State Bills and are discussed below. Other
provisions are necessary to the operation of the scheme, but will not be duplicated in the
State Bills (eg the power to make regulations for the purposes of the Corporations Law).
13. Provisions relating to the buy-back of shares have been included in the
Commonwealth Bill. These will update the Corporations Law to bring it into line with
the current co-operative scheme law.
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Corporations (New South Wales) 1990
14. The Commonwealth Bill inserts a new section 243D into the ASC Act, which
imposes a duty on a cash dealer to provide the Cash Transactions Report Agency with
information that may be relevant to the investigation and prosecution of persons for an
offence against the ASC Law or the Corporations Law.
15. A small number of provisions have also been included in the Commonwealth Bill
to clarify the operation of, and correct anomalies in, the fundraising provisions and to
facilitate the operation of the ASC's national information system for computerisation of
corporate affairs records.
16. Some technical amendments to provisions of the Corporations Act that are in
need of correction or clarification are also included in the Commonwealth Bill.
The State Bill
17. This Bill applies the Corporations Law set out in the Corporations Act as a law of
this State. This Law may be referred to as the Corporations Law of New South Wales.
The Bill also applies the provisions of the regulations made for the purposes of the
Corporations Law. These regulations will be made under the Corporations Act, and may
be referred to as the Corporations Regulations of New South Wales. Provisions are
included to make it clear that references in the applied laws to "this jurisdiction" will
mean New South Wales.
18. The Bill also applies the substantive provisions of the ASC Act as a law of this
State ("the ASC Law of New South Wales"). The provisions relate to the functions of
the ASC, and in particular to its investigatory powers, and to the functions of other
bodies established under the ASC Act.
19. The Bill also applies the accounting standards made by the Australian
Accounting Standards Board to this State.
20. The Bill contains provisions for the vesting and cross-vesting of both civil and
criminal jurisdiction in matters arising under the Corporations Law.
21. The Bill contains provisions that apply provisions of Commonwealth laws (to the
exclusion of relevant State laws) relating to offences, so that for all practical purposes
offences against the applied laws will be treated as if they were offences against
Commonwealth law.
22. The Bill confers powers on the ASC, the Australian Federal Police and the
arising Commonwealth Director of Public
Pr
os
ec
utio
n
connection with matters
under the applied laws. These powers will not be exercised by State authorities, except
in accordance with arrangements made between the Commonwealth and this State.
23. The Bill applies administrative law of the Commonwealth to matters arising
under the applied laws. This regime will extend to the Administrative Appeals Tribunal
Act, the Administrative Decisions (Judicial Review) Act, the Freedom of Information
Act, the Ombudsman Act and other Commonwealth legislation, and will apply to the
exclusion of relevant State laws.
24. The Bill deals with other matters, including matters of a savings or transitional
nature. The existing co-operative scheme legislation will be excluded to the extent that it
is inconsistent with the applied law. Otherwise, the effect of current State law will, as a
general rule, be preserved. References in existing State law to the existing co-operative
scheme legislation will be automatically read as including references to the new laws,
subject to mechanisms to deal with inappropriate or special cases.
25. The new national scheme will involve the establishment of the Corporations Law
to be the substantive law of the Australian Capital Territory providing for the regulation
of companies, the securities industry and the futures industry. The national operation of
the new scheme will come about by each State passing complementary application
legislation. That legislation will apply the Corporations Law as the law of each of those
jurisdictions. The Corporations Law will be applied in a way that ensures that any
further amendments to the Corporations Law by the Commonwealth Parliament will
automatically apply in the States. In this way the Corporations Law will state the
uniform text of the new national law applying in all jurisdictions.
26. In a similar way, the substantive provisions of the ASC Act will also be applied
in each jurisdiction. This will result in the Corporations Law being administered by the
ASC on a national basis. The ASC is to be formally accountable to the Commonwealth
Minister and the Commonwealth Parliament.
27. The revised Corporations Act will substantially preserve the policy of the
Corporations Act and to the fullest extent possible the language of that Act. As a result
of the agreement, the applied laws will have the characteristics of, and will be treated
for all practical purposes within each jurisdiction as if they were, Commonwealth laws
rather than State laws. The Commonwealth Bill amends the Corporations Act and the
ASC Act to confer these characteristics on the applied laws regime. The Commonwealth
Bill also amends the ASC Act to facilitate the conferral of full administrative authority
by State Acts on the ASC.
28. The legislative scheme will enable Commonwealth and State laws regulating
companies, the securities industry and the futures industry to operate, to the greatest
extent possible, as national laws. By the use of citation provisions, the law governing
these matters in the States and Territories will be able to be referrend to as simply the
"Corporations Law'' (similar provisions apply for the ASC Law). There will be a
uniform text of companies and securities law applying throughout Australia, and
companies and persons dealing with companies will be able to operate on the basis that
there is a single national law. Companies will be able to lodge documents, including an
application for incorporation, with the ASC anywhere in Australia and, in effect, operate
as if they were incorporated Australia-wide.
29. In most cases, the discharge of an obligation under the Corporations Law of one
jurisdiction will be recognised as discharging the same obligation for the Corporations
Law of each jurisdiction. In some cases, however, multiple acts will be required to
ensure that a proper constitutional nexus is present: the Commonwealth Bill inserts a
new section 102A into the Corporations Law to require some kinds of applications to be
made and dealt with under the Corporations Law of each jurisdiction. This will not
result in any practical inconvenience as an application can be made under the Law of
each jurisdiction by expressing it to be made under "the Corporations Law", in which
case it will be taken to be made under the Law of each jurisdiction. The proposed
section provides that such an application is not to be granted unless it is granted under
each of those Laws. However, in practice only a single decision will need to be made.
30. The Commonwealth and State Bills contain provisions for the cross-vesting of
civil jurisdiction of the Supreme Courts of each jurisdiction and the Federal Court with
respect to matters arising under the Commonwealth and State laws. The purpose of
these provisions is to permit relatively simple administration and enforcement of the
Corporations Laws.
31. The Bills contain provisions for the cross-vesting of the relevant State and
Territory Courts with jurisdiction to deal with offences under the Corporations Law of
each other jurisdiction.
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Corporations (New South Wales) 1990
32. The Bills result in the national administration and enforcement of the
Corporations Law hough the "federalising" of offences under the Corporations Law
of each jurisdiction, so that they are treated as if they were offences under
Commonwealth law.
33. The language of the Corporations Act and the ASC Act is to be made as
"neutral" as possible. The purpose of these amendments is to reduce the need for State
translator provisions. Application orders will provide for local matters relevant to
particular jurisdictions.
34. To enhance the national character of the Corporations Law, a State law will only
be able to override the Corporations Law where it expressly purports to do so.
35. The overall objectives of the legislative arrangements are therefore to:
(a) replace the existing co-operative companies and securities scheme laws with
virtually one system of uniform law; and
(b) to establish a single national regulatory authority (the ASC), with the capacity
to effectively administer the laws throughout Australia, and to be accountable
to the community through the normal principles of responsible government at a
federal level.
36. The agreement contemplates that the Ministerial Council for Companies and
Securities is to continue, although with a revised role in the light of the new national
arrangements. The Commonwealth Attorney-General will become the permanent
chairman of the Council. The Council is to have no power of direction or control over
the ASC. The Council is to be consulted in relation to all legislative proposals involving
amendment of corporations legislation. In respect of legislative proposals relating to
matters covered by Chapters 6 to 8 of the Corporations Law (takeovers, securities,
public fundraising and futures) the Ministerial Council is to have a consultative role
only. In respect of other legislative propsals, the Council is to have a deliberative role.
PART 1 - PRELIMINARY
Clause 1 provides for the citation of the proposed Act and states its purposes.
Clause 2 provides for the proposed Act to commence on a proclaimed day or days.
Clause 3 contains definitions of expressions used in the Bill. One of the definitions
is that of "applicable provision", which is defined to mean a provision of the
Corporations Law, the Corporations Regulations, the ASC Law, the ASC Regulations,
and certain Commonwealth laws, applying as laws of a jurisdiction. This definition
refers to the laws that are to be applied by the proposed Act.
Clause 4 provides that the Jervis Bay Territory is taken to be part of the Australian
Capital Territory for the purposes of the national scheme laws.
Clause 5 provides that a later Act or statutory instrument is not to be interpreted as
amending, repealing or otherwise affecting the Act or the applicable provisions (ie the
corporations Law, the Corporations Regulations etc. of this State), unless it expressly so
provides.
Clause 6 provides that nothing i n the Act or the applicable provisions affects the
operation of an Act or statutory instrument enacted or made before the commencement
of the clause.
REGULATIONS, OF NEW SOUTH WALES
Clause 7 applies the Corporations Law (set out in section 82 of the Corporations
Act as amended by the Commonwealth Bill, and as in force for the time being) as a law
of this State. The applied law amounts to the bulk of the present Corporations Act, as
amended by the Commonwealth Bill.
Clause 8 applies the regulations in force for the time being under the Corporations
Act as regulations in force for the purposes of the Corporations Law of this State.
Provision is made to protect private persons from any prejudicial effect of any
retrospective regulations.
Clause 9 defines some of the basic expressions used in the Corporations Law and
Corporations Regulations of this State.
Clause 10 provides that the Acts Interpretation Act of the Commonwealth, as in
force at the commencement of the relevant Commonwealth legislation, applies to the
interpretation of the Corporations Law and Corporations Regulations of this State.
However that Act will have only a residual operation as there are extensive
interpretation provisions contained in Part 1.2 of the Corporations Law, and those
provisions will prevail over the Acts Interpretation Act. The clause also makes it clear
that the Interpretation Act of this State does not apply.
PART 3--CITING THE CORPORATIONS LAW AND THE
CORPORATIONS REGULATIONS
Clause l1 enables the Corporations Law of this State to be referred to simply as
the Corporations Law. Similarly, the Corporations Regulations of this State may be
referred to simply as the Corporations Regulations.
Clause 12 recognises references to the Corporations Law and Corporations
Regulations of other jurisdictions.
Clause 13 provides that a reference in an Act of this State or an instrument of any
kind to the Corporations Law is to be taken (for the purposes of the laws of this State)
to be a reference to the Corporations Law of this State and to include a separate
reference to the Corporations Law of each other jurisdiction. Similar provision is made
for references to the Corporations Regulations. These provisions yield to a contrary
intention. The object of these provisions is to help ensure that the Corporations Law and
Corporations Regulations of this State, together with those of other jurisdictions,
operate, so far as possible, as if they constituted a single national law operating of its
own force throughout Australia. The Commonwealth Act and each State Act will have a
similar provision. The interlocking of these provisions will enable in most instances
persons and companies to refer to the Corporations Law without specifically identifying
the Corporations Law of a particular jurisdiction.
PART 4--APPLICATION OF THE CORPORATIONS LAW TO THE
CROWN
This Part states whether certain provisions of the Corporations Law apply to the
Crown or emanations of the Crown.
Clause 14 makes it clear that a reference to the Crown includes an instrumentality
or agency of the Crown.
7
Corporations (New South Wales) 1990
Clause 15 (1) provides that the Crown in all its Australian capacities (or rights)
will be bound by the external administration provisions of the corporations Law
(Chapter 5), except in relation to offences committed by officers of companies that are
in some form of external administration. The purpose of so binding the Crown is to
displace the Crown's special priority in relation to the payment of debts, except so far as
a priority is specifically preserved by other legislation, and to treat the Crown for the
purposes of the insolvent administration of a company like any other creditor of a
company.
Clause 15 (2) expressly provides that the securities provisions (Chapter 7) of the
Corporations Law do not bind the Crown in these capacities.
Clause 16 provides that the Crown in right of this State will be bound by the external
administration provisions of the Corporations Law of other jurisdictions (except in
relation to offences committed by officers of companies that are in some form of
.external administration).
Clause 17 provides that nothing in this Part or in the Corporations Law renders the
Crown liable in any right to be prosecuted for an offence.
Clause 18 makes it clear that where Chapter 5 (other than Part 5.8) of a Corporations
Law of another jurisdiction binds the Crown in right of this State by virtue of this Part,
that Law overrides any prerogative right or privilege of the Crown, eg in relation to the
payment of debts.
PART 5--APPLICATION ORDERS
The Corporations Law provides for the making by the Commonwealth Minister of
application orders, which are designed to specify matters relevant to particular
jurisdictions. Additionally, the Corporations Regulations may require or permit matters
to be specified by or in application orders made by the Commonwealth Minister.
Clause 19 provides that an application order may only be made with the consent of
the State Minister.
Clause 20 extends the provisions of the Corporations Law of the State relating to the
making of applications orders, so as to enable the making of such orders for the
purposes of the ASC Law of the State.
PART 6--ACCOUNTING STANDARDS
Clause 21 applies the accounting standards made by the Australian Accounting
Standards Board to the State.
PART 7--IMPOSITION OF FEES AND TAXES
Clause 22 imposes the fees that the Corporations Regulations prescribe.
Clauses 23--25 impose contributions and levies payable under various provisions of
the Corporations Laws.
PART 8--NATIONAL ADMINISTRATION AND ENFORCEMENT OF THE
CORPORATIONS LAW
Division 1--Preliminary
Clause 26 states the object of this Part, which is to help ensure that the Corporations
Laws and ASC Laws of this and each other jurisdiction are administered and enforced
Clause 27 provides that this Part has effect subject to the Act, the Corporations Law
of this State and the ASC Law of this State. Particular reference is made to Part 9 of the
Act, which contains provisions for the vesting and cross-vesting of jurisdiction. That
Part makes provision for the courts in which offences against applicable provisions are
to be dealt with; that issue would otherwise have been dealt with by reference to the
principles set out in other provisions of this Part (especially clause 29, which would
have had the effect of applying the Judiciary Act of the Commonwealth), but is
specifically dealt with in clause 55.
Division 2--Offences against applicable provisions
Clause 28 states the object of this Division, which is to further the object of this Part
(as stated in clause 26) by providing that offences against the applicable provisions of
this or any other jurisdiction are to be treated as if they were offences against
Commonwealth law. Examples of the extent of this formula are set out in clause 28 (2),
and include the investigation and prosecution of offences.
Clause 29 applies Commonwealth laws as laws of this State in relation to offences
against the applicable provisions as if those provisions were laws of the Commonwealth
and not laws of this State. For the purposes of the laws of this State, such an offence is
taken to be an offence against Commonwealth law, except as prescribed by regulations.
Clause 30 contains similar provisions to those in clause 29, but applies to offences
against the applicable provisions of other jurisdictions.
Clause 31 confers the appropiate functions and powers on officers or authorities of
the Commonwealth in connection with the application of Commonwealth law under
clauses 29 and 30. There is provision in the Commonwealth Bill for such functions and
powers to be received by such officers or authorities.
Clause 32 deals with the technical point of how references in the applied
Commonwealth laws to laws of the Commonwealth are to be construed.
Clause 33 makes it clear that officers and authorities of the State may not perform or
exercise functions or powers conferred by this Division on officers and authorities of the
Commonwealth. This provision is, however, subject to arrangements under Part 12.
Division 3--Administrative law
Clause 34 states the object of this Division, which is to further the object of this Part
(as stated in clause 26) by providing that the Commonwealth administrative laws apply
to the applicable provisions, as if the applicable provisions were those of the Capital
Territory. This has the effect of applying the Commonwealth administrative law regime
to the national scheme laws. The Commonwealth administrative laws are the
Administrative Appeals Tribunal Act, the Administrative Decisions (Judicial Review)
Act, the Freedom of Information Act, the Ombudsman Act and the Privacy Act of the
Commonwealth.
Clause 35 applies the Commonwealth administrative laws as laws of this State in
relation to anything arising in respect of an applicable provision of this State. For the
purposes of the law of this State, anything arising under an applicable provision of this
State is taken to arise under Commonwealth law, except as prescribed by regulations.
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Corporations (New South Wales) 1990
Clause 36 contains similar provisions to those in clause 35, but applies in relation to
the applicable provisions of other jurisdictions.
Clause 37 confers the appropriate functions and powers on officers or authorities of
the Commonwealth in connection with the application of Commonwealth law under
clauses 35 and 36. There is provision in the Commonwealth Bill for such functions and
powers to be received by such officers or authorities.
Clause 38 deals with the technical point of how references in the applied
Commonwealth laws to laws of the Commonwealth are to be construed.
Clause 39 makes it clear that officers and authorities of the State may not perform or
exercise functions or powers conferred by this Division on officers and authorities of the
Commonwealth. This provision is subject to arrangements under Part 12.
PART 9--JURISDICTION AND PROCEDURE OF COURTS
Division 1--Vesting and cross-vesting of civil jurisdiction
Clause 40 ( l ) states the operation of this Division. It applies to civil matters arising
under the Corporations Law of this State and other jurisdictions. The Division operates
in relation to those matters to the exclusion of the cross-vesting scheme under the
Jurisdiction of Courts (Cross-vesting) Act 1987.
Clause 40 (2) provides that nothing in the Division affects any other jurisdiction of
any court (eg cross-vested jurisdiction arising under the Jurisdiction of Courts
(Cross-vesting) legislation in relation to a matter unconnected with the corporations
legislation).
Clause 41 defines certain expressions used in the Division. The expression
"Corporations Law" is defined to include the Corporations Regulations, the ASC Law,
the ASC Regulations, any other applicable provisions, the Act, regulations made under
the Act and certain rules of court.
Clause 42 confers jurisdictions with respect to civil matters arising under the
Corporations Law on the Federal Court, the Supreme Court of this State and the
Supreme Court of each other jurisdiction.
Clause 43 restricts appeals from courts, so that appeals may not be instituted in
courts of different jurisdictions. The purpose of this provision is to ensure that,
notwithstanding the cross-vesting of jurisdiction, the normal hierarchy of appeals will
apply.
Clause 44 enables proceedings to be transferred from one superior court to another,
where it appears, having regard to the interests of justice, that it is more appropriate for
the proceedings to be determined by the other court. Regard however is to be had to the
principal place of business of any body corporate concerned in the proceedings, and to
the place where the relevant events took place.
Clause 45 ( l ) deals with the question of which rules of evidence and procedure
should be applied in a case involving cross-vested jurisdiction. The court is empowered
to apply such rules of evidence or procedure as the court considers appropriate in the
circumstances, being rules that are applied in a superior court in Australia.
Clause 45 (2) provides that where a proceeding is transferred from another court, the
accepting court must give reciprocal recognition to the steps that had been taken for the
purposes of the proceeding in the transferring court.
Clause 47 confirms that the Supreme Court of this State may exercise cross-vested
jurisdiction.
Clause 48 will enable barristers and solicitors involved in transferred proceedings to
have the same entitlement to practise in relation to transferred proceedings as would be
available if the accepting court were a federal court exercising federal jurisdiction.
Clause 49 provides that a decision under the cross-vesting provisions as to whether a
proceeding should be transferred to another court, or as to which rules of evidence and
procedure are to be applied, is not subject to appeal.
Clause 50 will enable a judgment of the Federal Court or the Supreme Court of this
State given in the exercise of cross-vested jurisdiction to be enforceable in this State as
if it were a judgment entirely given in the court's ordinary jurisdiction.
Clause 51 empowers rules of court to be made for the Supreme Court of this State
with respect to proceedings arising under the Corporations Law of this State. When the
Supreme Court of this State is exercising cross-vested jurisdiction, it is required to apply
its own rules of court, with such alterations as are necessary. Similarly, the Supreme
Court of another jurisdiction is required, when exercising cross-vested jurisdiction in
matters arising under the Corporations Law of this State, to apply its own rules of court,
with such alterations as are necessary.
Clause 52 provides that when the Federal Court is exercising cross-vested
jurisdiction in matters arising under the Corporations Law of this State, it is required to
apply its own rules of court, with such alterations as are necessary.
Division 2--Vesting and cross-vesting of criminal jurisdiction
This Division provides for a cross-vesting regime for criminal jurisdiction for
offences against the Corporations Law, based on Part X of the Judiciary Act of the
Commonwealth. As a result of the agreement, offences against the Corporations Law are
to be "federalised", ie treated as though they were offences against Commonwealth
law. Jurisdiction will be conferred on the several courts of the States and Territories.
Consistently with the approach adopted in relation to the conferral and exercise of
civil jurisdiction, the Bill sets out in detail the regime for the conferral and exercise of
criminal jurisdiction rather than take the more complex and circuitous route of relying
on the application of Part X of the Judiciary Act of the Commonwealth under the
general federalising formula.
In summary, the cross-vesting of criminal jurisdiction in respect of offences against
the Corporations Law provides for the following courts to exercise jurisdiction.
In respect of summary offences, the several courts of the States and Territories
exercising jurisdiction with respect to the summary conviction of offenders or persons
charged with offences against the laws of that State or Territory will have equivalent
jurisdiction with respect to persons charged with summary offences against any
Corporations Law.
However, the courts exercising jurisdiction in relation to summary offences against
any Corporations Law may decline to exercise that jurisdiction, in relation to an offence
committed outside the particular jurisdiction, if satisfied that it is appropriate to do so.
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Corporations ( N e w South W a l e s ) I 9 9 0
In respect of indictable offences:
committed outside Australia (including offences committed in the coastal sea),
the several courts of each State and Territory exercising jurisdiction with
respect to the trial and conviction on indictment of offenders against the laws
of that State or Territory have the equivalent jurisdiction with respect to
persons charged with indictable offences against any Corporations Law;
committed partly in one jurisdiction and partly in another, the several courts of
those States and Territories in which the offence was partly committed
exercising jurisdiction with respect to indictable offences against the laws of
those States and Territories have equivalent jurisdiction with respect to
indictable offences against the Corporations Law;
committed wholly within one jurisdiction, the several courts of that State or
Territory in which the offence was committed exercising jurisdiction with
respect to indictable offences against the laws of that State or Territory have
equivalent jurisdiction with respect to indictable offences against the
Corporations Law;
wherever committed, the courts of the State or Territory against whose
Corporations Law the offence was committed which exercise jurisdiction with
respect to indictable offences against the laws of the State or Territory, have
equivalent jurisdiction with respect to indictable offences against the
Corporations Law of that jurisdiction.
The application of the Crimes Act of the Commonwealth by the general federalising
formula for Corporations Law offences will govern which offences under the
Corporations Law are indictable.
Clause 53 states the operation of this Division. It applies to criminal matters arising
under the Corporations Law of this State and other jurisdictions.
Clause 54 defines certain expressions used in the Division. The expression
"Corporations Law" is defined to include the Corporations Regulations, the ASC Law,
the ASC Regulations, any other applicable provisions, the Act, regulations made under
the Act and certain rules of court.
Clause 55 confers criminal jurisdiction in respect of offences arising under the
applicable provisions of this State on the several courts of each State and Territory
exercising criminal jurisdiction. It also accepts jurisdiction conferred on courts of this
State by corresponding laws of other jurisdictions. Provisions of the clause are based on
the principles contained in section 68 of the Judiciary Act of the Commonwealth.
Clause 56 provides that State laws applying to the arrest and custody of offenders or
persons charged with offences, and the procedure for their summary conviction,
committal for trial etc., will apply to persons charged with offences against the
Corporations Law of this State.
PART 10--COMPANIES LIQUIDATION ACCOUNT
Clause 57 will enable money standing to the credit of the Companies Liquidation
Account established by the Companies (New South Wales) Code to be dealt with in
accordance with the relevant provision of the Code.
SOUTH WALES
Division 1--Application of ASC Act and ASC Regulations
Clause 58 applies the ASC Act (other than the provisions listed in clause 58 (2)) as a
law of this State.
Clause 59 applies the regulations in force for the time being under the ASC Act as
regulations in force for the purposes of the ASC Law of this State.
Clause 60 defines some of the expressions used in the ASC Law and ASC
Regulations of this State. These definitions parallel the definitions in section 5 of the
ASC Act, which is one of the provisions not applied by clause 58.
Clause 61 provides a definition of "giving information", in the same terms as
section 6 of the ASC Act, which is one of the provisions not applied by clause 58.
Clause 62 provides that Part 1.2 of the Corporations Law and (subject to that Part)
the Acts Interpretation Act of the Commonwealth, as that Act is in force at the
commencement of the relevant Commonwealth legislation, apply to the interpretation of
the ASC Law and ASC Regulations of this State. However the Acts Interpretation Act
of the Commonwealth will have only a residual operation as there are extensive
interpretation provisions contained in clause 60 of the Bill and in Part 1.2 of the
Corporations Law, and those provisions will prevail over the Acts Interpretation Act.
The clause also makes it clear that the Interpretation Act of this State does not apply.
Division 2--Citing the ASC Law and the ASC Regulations
Clause 63 enables the ASC Law of this State to be referred to simply as the ASC
Law. Similarly, the ASC Regulations of this State may be referred to simply as the ASC
Regulations.
Clause 64 recognises references to the ASC Law and ASC Regulations of other
jurisdictions.
Clause 65 provides that a reference in an Act of this State or an instrument of any
kind to the ASC Law is to be taken (for the purposes of the laws of this State) to be a
reference to the ASC Law of this State and to include a separate reference to the ASC
Law of each other jurisdiction. Similar provision is made for references to the ASC
Regulations. These provisions yield to a contrary intention. The object of these
provisions is to help ensure that the ASC Law and ASC Regulations of this State,
together with those of other jurisdictions, operate, so far as possible, as if they
constituted a single national law operating of its own force throughout Australia.
Division 3--The Commission
Clause 66 formally confers on the ASC the functions and powers conferred on it by
the national scheme laws of this State, and also the functions and powers conferred on
the National Companies and Securities Commission by a co-operative scheme law.
Clause 67 empowers the State Minister to enter into agreements or arrangements
with the ASC for the performance of functions by the ASC as an agent of the State.
Clause 68 formally confers on the ASC the power to do acts in this State in the
exercise of functions conferred by national scheme laws of other jurisdictions.
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Corporations (New South Wales) 1990
Clause 69 empowers the Commonwealth Minister to give directions to the ASC in
relation to functions conferred on it by a national scheme law of this State. Such a
direction will not relate to a particular case, and must be gazetted.
Division 4--The Panel
Clause 70 formally confers on the Corporations and Securities Panel the functions
conferred on it under a national scheme law of this State. It also confers on the Panel the
power to do acts in this State in the exercise of functions conferred by national scheme
laws of other jurisdictions.
Division 5--The Disciplinary Board
Clause 71 formally confers on the Companies Auditors and Liquidators Disciplinary
Board the functions conferred on it under a national scheme law of this state. It also
confers on the Board the power to do acts in this State in the exercise of functions
conferred by national scheme laws of other jurisdictions.
Division 6--Miscellaneous
Clause 72 provides that where a person is appointed under the ASC Act to act in an
office, the law of this State applies as if the person were the holder of the office. This
provision supplements a similar provision in the ASC Law. The provision is necessary
to deal with cases where acting appointments are made under provisions of the ASC Act
that are not applied by the Bill.
Clause 73 is a formal provision that deals with future possible changes of names of
bodies or offices established under the ASC Act.
Clause 74 applies Part III of the Crimes Act of the Commonwealth for the purposes
of the investigation and information-gathering provisions of the ASC Law. That Part
relates to offences relating to the administration of justice, and applies for this purpose
as if an examination or hearing by the ASC were a judicial proceeding.
Clause 75 applies Part IIIA of the Evidence Act of the Commonwealth for the
purposes of the investigation and information-gathering provisions of the ASC Law.
That Part relates to the admissibility of business records.
PA RT 12--GENERAL
Division 1--Arrangements
Clause 76 defines "relevant State law" for the purposes of the Division. It includes
matters of the kind referred to in section 13 (1) (b) of the ASC Act as well as other State
law, but excludes a co-operative scheme law.
Clause 77 provides for arrangements for the conferral of functions under a relevant
State law on Commonwealth authorities or officers, and for the conferral of functions
under applicable laws on State authorities or officers. Such an arrangement would be
made between the Attorney General and the Commonwealth Minister.
Clause 78 provides for notice of such arrangements to be gazetted.
Division 3--Regulations
Clause 80 empowers the making of regulations for the purposes of the Act. It also
empowers the making of regulations of a savings or transitional nature, but any such
regulations expire 12 months after the commencement of the clause. Provision is made
to protect private persons from any prejudicial effect of any retrospective regulations.
PART 13--TRANSITIONAL
Division 1--Staff
Clause 81 provides that a member of the staff of the ASC who was a public servant
of this State engaged in the administration of the co-operative scheme laws is authorised
to disclose to the ASC any information acquired while so engaged. This would override
any existing inappropriate secrecy provision.
Clause 82 confers a limited power to make regulations relating to transitional
superannuation arrangements for certain staff who transfer to the ASC. The regulations
will be able to supplement laws establishing State superannuation schemes so as to
enable arrangements agreed to between State and Commonwealth authorities to be given
effect to.
Clause 83 confers a limited power to make regulations modifying superannuation
legislation for the purposes of clause 82. The period during which such regulations have
effect is limited to 12 months after the commencement of clause 80, after which
legislation may have to be enacted to deal with the matter.
Division 2-- Co-operative scheme laws
Clause 84 defines the co-operative scheme laws. They include the various Acts and
Codes that regulate corporate activity at present.
Clause 85 provides that the national scheme laws prevail over the co-operative
scheme laws. The co-operative scheme laws continue to operate of their own force only
in relation to matters arising before the commencement of the clause and incidental
matters.
Clause 86 enables regulations to be made excluding the residual operation of
co-operative scheme laws.
Clause 87 contains a technical provision as to how the Interpretation Act applies in
relation to co-operative scheme laws affected by clauses 85 and 86.
Clause 88 enables regulations to be made modifying co-operative scheme laws.
Clause 89 is a technical provision that preserves the operation of co-operative
scheme laws that might be affected by certain Commonwealth regulations.
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Corporations (New South Wales) 1990
Clause 90 provides a mechanism for dealing with references to co-operative scheme
laws in existing legislation and other instruments.
Clause 91 confers enforcement powers on the Commonwealth Director of Public
Prosecutions and the Australian Federal Police in connection with offences against the
co-operative scheme laws. The Commonwealth Minister is also given the same
functions and powers in relation to such offences as he or she would have if they were
offences against the national scheme laws.
Clause 92 enables arrangements to be made between the Attorney General and the
Commonwealth Minister regarding the exercise of enforcement powers by State
authorities and officers in connection with the co-operative scheme laws.
Division 3--Exemptions
CIause 93 preserves the effect of any current exemptions in force under section 16 of
the Companies (Application of Laws) Act 1981.
Division 4--Australian Stock Exchange Limited
Clause 94 contains savings provisions regarding the Australian Stock Exchange,
which is dealt with under Part IIA of the Securities Industry (New South Wales) Code.
Division 5--Companies Auditors and Liquidators Disciplinary Board
Clause 95 continues the old Disciplinary Board in existence for the purpose of
dealing with certain applications made before the commencement of the clause.
Division 6--Miscellaneous provisions
Clause 96 provides that references in other Acts of this State and in instruments of
any kind to the Corporate Affairs Commission are to be read as references to the
Managing Director of Business and Consumer Affairs or to a prescribed officer or body.
The Managing Director is empowered to delegate functions arising under this clause.
PART 14--PROVISIONS AFFECTING CORPORATIONS LAW
Clause 97 preserves the effect of section 123 (15) of the Companies (New South
Wales) Code. The provision prevents certain transfers by a company of lots in a strata
plan from being regarded as a reduction of the share capital of the company.
PART 5--AMENDMENT OF ACTS
Clause 98 is a formal provision that gives effect to the Schedule of amendments.
SCHEDULE 1--AMENDMENT OF ACTS
The Associations Incorporation Act and the Business Names Act are amended to
replace references to the Corporate Affairs Commission with references to the Managing
Director of Business and Consumer Affairs. The Managing Director is empowered to
delegate functions conferred under these Acts.
The Revenue Laws (Reciprocal Enforcement) Act is amended to include the ASC
among the bodies to which information is able to be divulged. The National Companies
and Securities Commission is already such a body.