Mr JACOBI(8.5) —This clause relates to re-operation. The National Companies Bill, a private member's Bill introduced by the honourable member for Kingsford-Smith (Mr Lionel Bowen) in 1976, abolished the articles of memorandum distinction and simply adopted the concept of company rules. Clause 73(1) provides that the memorandum of a company may be altered to the extent and in a manner provided by the Act, but not otherwise. Clause 73 (2) provides:

Subject to this section, sub-section 78 (3) and section 320, if a provision of the memorandum of a company could lawfully have been contained in the articles of the company, the company may, unless the memorandum prohibits the alterations of that provision, alter that provision by special resolution.

Clause 73 (5) states:

Nothing in sub-section (2) permits the alteration of a provision of the memorandum of a company that relates to rights to which only members included in a particular class of members are entitled.

In other words, class rights clauses cannot be altered under this provision. The question I raise with the Minister for Business and Consumer Affairs (Mr Moore) is whether clause 125 (2) permits the alteration of a class rights clause which is contained in the company's memorandum of association, where there is no existing variation procedure, prohibition or variation. Clause 125 (2) (a) applies where rights are attached to shares included in a class of shares. But nowhere in clause 125 is there any express reference to the rights clause itself, as distinct from the variation of the rights clause-that is important-being in the memorandum of association. Clause 125 (2) expressly allows the memorandum to be altered so as to include a variation of the rights clause. I can see the ministerial advisers are certainly following the problem.

Clause 125 (2) does not expressly or by necessary implication state that class rights provisions in the memorandum of association may be altered by adhering to the stated procedure. It must therefore be considered doubtful that such a provision could be altered under clause 125 when clauses 72 and 73 are borne in mind. I suggest that that is where the conflict exists. Perhaps this doubt could be resolved. I ask the Minister to reconsider this and perhaps the Ministerial Council and the advisers could look at it and amend clause 125 (2) to read: 'Rights are attached to shares included in a class of shares whether in the memorandum of articles of association of the company or otherwise'. It seems clear from clause 125 (3) that rights clauses in the memorandum are included and intended to be altered. The consequential amendment to clause 126 is obvious. It would have to read: 'Rights are attached to shares in a company whether in a memorandum of articles of association or the company, or otherwise'. There would also have to be a consequential amendment to clause 127. I ask the Minister to look at that. I believe there are some anomalies and that at least that part of the legislation should be straightened up.