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Hansard
- Start of Business
- CHILD SUPPORT LEGISLATION AMENDMENT BILL 2000
- AVIATION LEGISLATION AMENDMENT BILL (NO. 1) 2000
- MINISTERIAL STATEMENTS
- ABORIGINALS: STOLEN GENERATION
- BILLS RETURNED FROM THE SENATE
- AVIATION LEGISLATION AMENDMENT BILL (NO. 1) 2000
- QUESTIONS WITHOUT NOTICE
- DISTINGUISHED VISITORS
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QUESTIONS WITHOUT NOTICE
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Tax Reform: Freight Costs
(Crean, Simon, MP, Anderson, John, MP) -
Member for Fremantle: Legal Costs
(Pyne, Chris, MP, Fahey, John, MP) -
Aboriginals: Stolen Generation
(Beazley, Kim, MP, Howard, John, MP) -
Industrial Relations: Australian Workplace Agreements
(Elson, Kay, MP, Reith, Peter, MP) -
Indigenous Australians: Numeracy and Literacy
(Lee, Michael, MP, Howard, John, MP) -
Aviation: Reform
(Lieberman, Lou, MP, Anderson, John, MP) -
Indigenous Australians: Aged Care
(McFarlane, Jann, MP, Bishop, Bronwyn, MP) -
Tax Reform: Exports
(Thompson, Cameron, MP, Vaile, Mark, MP)
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Tax Reform: Freight Costs
- DISTINGUISHED VISITORS
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QUESTIONS WITHOUT NOTICE
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Aboriginals: Stolen Generation
(Jenkins, Harry, MP, Howard, John, MP) -
Health: Mental Illness
(Billson, Bruce, MP, Wooldridge, Dr Michael, MP) -
Minister for Employment Services
(Price, Roger, MP) -
Exports: Horticulture
(Neville, Paul, MP, Truss, Warren, MP) -
Welfare Reform: Reference Group Interim Report
(Swan, Wayne, MP, Howard, John, MP) -
Rural and Regional Australia: Centrelink
(Lloyd, Jim, MP, Anthony, Larry, MP) -
Rural and Regional Australia: Australia Post
(Smith, Stephen, MP, Howard, John, MP) -
Immigration: Parent Migration Applications
(Gallus, Christine, MP, Ruddock, Philip, MP)
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Aboriginals: Stolen Generation
- ANSWERS TO QUESTIONS WITHOUT NOTICE
- QUESTIONS TO MR SPEAKER
- PERSONAL EXPLANATIONS
- PAPERS
- MATTERS OF PUBLIC IMPORTANCE
- PARLIAMENTARY ZONE
- BILLS RETURNED FROM THE SENATE
- AVIATION LEGISLATION AMENDMENT BILL (NO. 1) 2000
- A NEW TAX SYSTEM (FAMILY ASSISTANCE AND RELATED MEASURES) BILL 2000
- JURISDICTION OF COURTS LEGISLATION AMENDMENT BILL 2000
- MANDATORY SENTENCING LEGISLATION
- A NEW TAX SYSTEM (TRADE PRACTICES AMENDMENT) BILL 2000
- ADJOURNMENT
- Adjournment
- NOTICES
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Main Committee
- Start of Business
- STATEMENTS BY MEMBERS
- A NEW TAX SYSTEM (FAMILY ASSISTANCE AND RELATED MEASURES) BILL 2000
- COMMITTEES
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QUESTIONS ON NOTICE
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Health: Hearing Impairment Programs
(Theophanous, Dr Andrew, MP, Wooldridge, Dr Michael, MP) -
Aged Persons Saving Bonus: Qualification
(Ripoll, Bernie, MP, Costello, Peter, MP) -
Prospect Electorate: Nursing Homes and Aged Person Hostels
(Crosio, Janice, MP, Bishop, Bronwyn, MP) -
Coal Industry: Face Emplaced Services Support Device
(Hollis, Colin, MP, Moore, John, MP) -
Mobile Phones: Contract Complaints
(Hall, Jill, MP, McGauran, Peter, MP)
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Health: Hearing Impairment Programs
Page: 15329
Mr WILLIAMS (Attorney-General) (6:54 PM)
—by leave—I table a supplementary explanatory memorandum relating to all government amendments. I move government amendments Nos 1 and 6:
(1) Clause 2, page 2 (after line 4), at the end of the clause, add:
(4) Schedule 3 is taken to have commenced immediately after the commencement of the items in Schedule 4 to the Corporate Law Economic Reform Program Act 1999.
(6) Page 40 (after line 8), at the end of the Bill, add:
Schedule 3—Amendments relating to dealings in securities
Australian Securities and Investments Commission Act 1989
1 At the end of Division 2 of Part 2
Add:
Subdivision J—Dealings in securities
12JA Operation of this Subdivision
In applying this Subdivision, the other Subdivisions of this Division are to be disregarded.
12JB Definitions
In this Subdivision, unless the contrary intention appears:
applied law means the securities provisions, as they have effect in accordance with this Subdivision.
constitutional corporation means any of the following:
(a) a body corporate to which paragraph 51(xx) of the Constitution applies;
(b) a body corporate that is incorporated in the Australian Capital Territory or the Northern Territory;
(c) a body corporate that carries on, as its sole or principal business, the business of:
(I) banking (other than State banking not extending beyond the limits of the State concerned); or
(ii) insurance (other than State insurance not extending beyond the limits of the State concerned);
(d) a body corporate that is a holding company of a body corporate covered by any of the above paragraphs.
securities provisions means the following provisions, so far as they relate to dealings in securities by a constitutional corporation:
(a) sections 670A, 726, 727, 728 and 995 of the Corporations Law (the primary provisions);
(b) the other provisions of the Corporations Law, the Corporations Regulations, the ASC Law or the ASC Regulations, so far as those provisions are incidental to the operation of the primary provisions;
(c) the provisions of any Act (including this Act), or of a law of a State or Territory that corresponds to the Corporations Act 1989, so far as those provisions are incidental to the operation of the primary provisions.
12JC Application of securities provisions as Commonwealth law
(1) The securities provisions apply as a law of the Commonwealth by force of this section.
Note: The Corporations Law consists of separate laws for the various Australian jurisdictions. Subsection (1) will therefore have the effect of applying the securities provisions with their separate operations in the various Australian jurisdictions.
(2) The application of the securities provisions in accordance with this Subdivision is in addition to the application that they have apart from this Subdivision.
(3) The securities provisions, as they have effect in accordance with this Subdivision, are referred to in this Subdivision as the applied law.
(4) A person is not liable to be prosecuted for an offence under the applied law.
12JD Federal Court has jurisdiction under the applied law
(1) Jurisdiction is conferred on the Federal Court with respect to civil matters arising under the applied law.
(2) The jurisdiction conferred by subsection (1) is exclusive of the jurisdiction of any other court (other than the High Court).
(3) This section has effect despite anything to the contrary in the applied law.
12JE Concurrent operation of securities provisions
(1) Subject to this section, this Subdivision is not intended to exclude the concurrent operation of the securities provisions.
(2) A person is not entitled to institute a proceeding under the applied law in respect of loss or damage arising out of a contravention of the applied law if:
(a) the person has recovered in respect of the loss or damage in an action brought under the securities provisions; or
(b) the person has brought proceedings under the securities provisions to recover in respect of the loss or damage, but judgment has been entered for the defendant in those proceedings.
(3) A person is not entitled to institute a proceeding under the securities provisions in respect of loss or damage arising out of a contravention of the securities provisions if:
(a) the person has recovered in respect of the loss or damage in an action brought under the applied law; or
(b) the person has brought proceedings under the applied law to recover in respect of the loss or damage, but judgment has been entered for the defendant in those proceedings.
2 After section 243C
Insert:
243CA Recognition of things done under Commonwealth law relating to dealings in securities
Anything done under, or for the purposes of, the applied law referred to in Subdivision J of Division 2 of Part 2 of the ASC Act is taken, for the purposes of a national scheme law of this jurisdiction, to have been done under, or for the purposes of, the corresponding provision of the relevant national scheme law of this jurisdiction.
This second group of amendments relates to the Australian Securities and Investments Commission Act 1989, which I will refer to as the ASIC Act. They are necessary to deal with the combined effect of the decision in re Wakim and the Corporate Law Economic Reform Program Act 1999, which I will refer to as the CLERP Act. The CLERP Act was passed in October and received royal assent in November last year. Among other things, the CLERP Act amended the ASIC Act so that, broadly speaking, actions for misleading or deceptive conduct in relation to securities could no longer be brought under the ASIC Act in the Federal Court. This was done to ensure that such actions, whether pursued in federal or state courts, were pursued in accordance with the requirements of the Corporations Law. However, following re Wakim, the unintended consequence is that no action for misleading or deceptive conduct can be brought in the Federal Court. Corporations Law is state or territory law creating state or territory cause of actions which can no longer be pursued in the Federal Court. The effect of the CLERP Act amendment is thus to exacerbate the loss of the Federal Court jurisdiction caused by the decision in re Wakim.
Amendment (6) will add schedule 3 to the bill, which will reinstate the Federal Court's jurisdiction under the ASIC Act by reference to the new Corporations Law actions. Amendment (1) provides that schedule 3 is taken to have commenced immediately after the commencement of the CLERP Act amendments which were proclaimed on 13 March this year. It thus has a retrospective commencement. It applies in relation to relevant conduct which occurs on or after 13 March. However, this is necessary to ensure there is no interruption in the availability of the relevant Federal Court jurisdiction and to avoid the jurisdictional lacuna which would otherwise result and thereby create a potential pitfall for litigants.
Any liability faced by a defendant under the amendment would simply mirror that which would apply under the Corporations Law in a state or territory court. The double-dipping provisions in proposed section 12JE would ensure that no-one would be exposed to double liability. The benefits to litigants of avoiding the potential uncertainty and pitfalls which would otherwise result from gaps in the coverage of the court's jurisdiction therefore justify a retrospective commencement in this case. As it did not prove possible to finalise these amendments before the bill was introduced last month, amendments (1) and (6) are being moved as a parliamentary amendment to the bill.