Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document

 Download WordDownload Word  Download PDFDownload PDF 


Bill home page
Table Of Contents
Previous Fragment    
Australian Securities and Investments Commission Bill 2001

Part 16 Transition from the old ASIC legislation

Division 1 Preliminary

253   Object of Part

             (1)  The object of this Part is to provide for a smooth transition from the regime provided for in the old ASIC legislation of the States in this jurisdiction and the Northern Territory to the regime provided for in the new ASIC legislation, so that individuals, bodies corporate and other bodies are, to the greatest extent possible, put in the same position immediately after the commencement as they would have been if:

                     (a)  that old ASIC legislation had, from time to time when it was in force, been valid Commonwealth legislation applying throughout the States in this jurisdiction and the Northern Territory; and

                     (b)  the new ASIC legislation (to the extent it contains provisions that correspond to provisions of the old ASIC legislation as in force immediately before the commencement) were a continuation of that old ASIC legislation as so applying.

Note:          The new ASIC legislation contains provisions that correspond to most of the provisions of the old ASIC legislation. Generally, the only exceptions to this are provisions of the old ASIC legislation that related to the fact that the ASIC Law operated separately in each of the States and Territories (rather than as a single national law).

             (2)  The object of this Part is also to provide for a smooth transition from the regime provided for in the old ASIC legislation of the Commonwealth to the regime provided for in the new ASIC legislation as if the new ASIC legislation (to the extent it contains provisions that correspond to provisions of the old ASIC legislation as in force immediately before the commencement) were a continuation of that old ASIC legislation as so applying.

             (3)  In resolving any ambiguity as to the meaning of any of the other provisions of this Part, an interpretation that is consistent with the object of this Part is to be preferred to an interpretation that is not consistent with that object.

254   Definitions

             (1)  In this Part:

carried over provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory means a provision of that legislation that:

                     (a)  was in force immediately before the commencement; and

                     (b)  corresponds to a provision of the new ASIC legislation.

commencement means the commencement of this Act.

corresponds has a meaning affected by subsections (2), (3) and (4).

instrument means:

                     (a)  any instrument of a legislative character (including an Act or regulations) or of an administrative character; or

                     (b)  any other document.

liability includes a duty or obligation.

made includes issued, given or published.

new ASIC legislation means:

                     (a)  this Act; and

                     (b)  the new ASIC Regulations (as amended and in force from time to time) and any other regulations made under this Act; and

                     (c)  the laws of the Commonwealth referred to in subparagraphs (a)(ii) and (b)(iii) of the definition of old ASIC legislation , being those laws as they apply after the commencement; and

                     (d)  the preserved instruments.

new ASIC Regulations means the regulations that, because of section 264, have effect as if they were made under section 251 of this Act.

old application Act for a State or the Northern Territory means:

                     (a)  in the case of New South Wales—the Corporations (New South Wales) Act 1990 of New South Wales as in force from time to time before the commencement; or

                     (b)  in the case of Victoria—the Corporations (Victoria) Act 1990 of Victoria as in force from time to time before the commencement; or

                     (c)  in the case of Queensland—the Corporations (Queensland) Act 1990 of Queensland as in force from time to time before the commencement; or

                     (d)  in the case of Western Australia—the Corporations (Western Australia) Act 1990 of Western Australia as in force from time to time before the commencement; or

                     (e)  in the case of South Australia—the Corporations (South Australia) Act 1990 of South Australia as in force from time to time before the commencement; or

                      (f)  in the case of Tasmania—the Corporations (Tasmania) Act 1990 of Tasmania as in force from time to time before the commencement; or

                     (g)  in the case of the Northern Territory—the Corporations (Northern Territory) Act 1990 of the Northern Territory as in force from time to time before the commencement.

old ASIC Act means the Australian Securities and Investments Commission Act 1989 as in force from time to time before the commencement.

old ASIC Law of a State in this jurisdiction or the Northern Territory means the ASIC Law or ASC Law of the State or Territory (within the meaning of the application Act of the State or Territory as in force from time to time before the commencement).

old ASIC legislation means:

                     (a)  when used in relation to the Commonwealth—the following:

                              (i)  the old ASIC Act and old ASIC Regulations, and any instruments made under that Act or those Regulations (including provisions as they had effect as the ASIC Law or ASIC Regulations of the Australian Capital Territory);

                             (ii)  the laws of the Commonwealth as applying of their own force in relation to the old ASIC Act and old ASIC Regulations of the Commonwealth from time to time before the commencement, and any instruments made under those laws as so applying; and

                     (b)  when used in relation to a State in this jurisdiction or the Northern Territory—the following:

                              (i)  the old ASIC Law and old ASIC Regulations of the State or Territory, and any instruments made under that Law or those Regulations; and

                             (ii)  the old application Act for the State or Territory, and any instruments made under that Act; and

                            (iii)  the laws of the Commonwealth as they applied in relation to the old ASIC Law and the old ASIC Regulations of the State or Territory from time to time before the commencement as laws of, or for the government of, that State or Territory because of Part 8 of the old Application Act for that State or Territory, and any instruments made under those laws as so applying.

old ASIC Regulations means:

                     (a)  when used in relation to the Commonwealth—the regulations made under section 251 or 252 of the old ASIC Act as in force from time to time before the commencement (including regulations as they had effect as the ASIC Regulations of the Australian Capital Territory); and

                     (b)  when used in relation to a State in this jurisdiction or the Northern Territory—the ASIC Regulations or ASC Regulations of that State or Territory (within the meaning of the old application Act for the State or Territory) as in force from time to time before the commencement.

order , in relation to a court, includes any judgment, conviction or sentence of the court.

pre-commencement right or liability has the meaning given by subsection 276(1) or 277(1).

preserved instrument means an instrument that, because of section 275, has effect after the commencement as if it were made under a provision of the new ASIC legislation.

right includes an interest or status.

substituted right or liability has the meaning given by subsection 276(2) or 277(3).

this Part includes regulations made for the purposes of any of the provisions of this Part.

             (2)  Subject to subsection (4), for the purposes of this Part, a provision or part (the old provision or part ) of the old ASIC legislation of the Commonwealth, a State or the Northern Territory corresponds to a provision or part (the new provision or part ) of the new ASIC legislation (and vice versa) if:

                     (a)  the old provision or part and the new provision or part are substantially the same, unless the regulations specify that the 2 provisions or parts do not correspond; or

                     (b)  the regulations specify that the 2 provisions or parts correspond.

Note:          The range of provisions of the new ASIC legislation that may be corresponding provisions for the purposes of this Part is affected by sections 277 and 284, which take certain provisions of the old ASIC legislation to be included in the new ASIC legislation.

             (3)  For the purposes of paragraph (2)(a), differences of all or any of the following kinds are not sufficient to mean that 2 provisions or parts are not substantially the same:

                     (a)  differences in the numbering of the provisions or parts;

                     (b)  differences of a minor technical nature (for example, differences in punctuation, or differences that are attributable to the correction of incorrect cross references);

                     (c)  the fact that one of the provisions refers to a corresponding previous law, or a relevant previous law, and the other does not;

                     (d)  other differences that are attributable to the fact that the new ASIC legislation applies as a Commonwealth law throughout Australia;

                     (e)  other differences of a kind prescribed by the regulations for the purposes of this paragraph.

This subsection is not intended to otherwise limit the circumstances in which 2 provisions or parts are, for the purposes of paragraph (2)(a), substantially the same.

             (4)  The regulations may provide that a specified provision of the old ASIC legislation of the Commonwealth, a State or the Northern Territory does, or does not, correspond to a specified provision of the new ASIC legislation.

255   Relationship of Part with State validation Acts

             (1)  This Part applies to an invalid administrative action of a Commonwealth authority or an officer of the Commonwealth (within the meaning of a State validation Act) as if the circumstances that made the authority’s or officer’s action an invalid administrative action had not made the action invalid.

Note:          For the status and effect of invalid administrative actions in relation to times before the commencement, see the State validation Acts.

             (2)  However, if there are other circumstances that affect or may affect the validity of the action, neither this section, nor anything else in this Part, is taken to negate the effect of those other circumstances.

             (3)  If:

                     (a)  a person would have had a right or liability under a provision (the old provision ) of the old ASIC legislation of a State if the circumstances that made the authority’s or officer’s action an invalid administrative action (within the meaning of the State validation Act) of that State had not made the action invalid; and

                     (b)  the effect of that State validation Act in relation to that action is to declare that the person has, and is taken always to have had, the same rights and liabilities as they would have had under the old provision if the invalid administrative action had been taken, or purportedly taken, at the relevant time by a duly authorised State authority or officer of the State (within the meaning of that Act);

this Part applies as if:

                     (c)  a reference to a right or liability arising under the old ASIC legislation included a reference to the right or liability that the person is declared to have by the State validation Act; and

                     (d)  that right or liability arose under the old provision.

             (4)  In this section:

State validation Act means an Act of a State in this jurisdiction under which certain administrative actions (within the meaning of that Act) taken, or purportedly taken, before the commencement by Commonwealth authorities and officers of the Commonwealth (within the meaning of that Act) pursuant to functions or powers conferred, or purportedly conferred, by or under laws that include the old application Act for that State have, and are deemed always to have had, the same force and effect as they would have had if they had been taken, or purportedly taken, at the relevant time, by a duly authorised State authority or officer of the State (within the meaning of that Act).

256   References to things taken or deemed to be the case etc.

                   If:

                     (a)  a law of a State or Territory in this jurisdiction had effect before the commencement:

                              (i)  to take or deem something to have happened or to be the case, or to have a particular effect, under or for the purposes of the old ASIC legislation (or a provision of that legislation) of the Commonwealth, a State in this jurisdiction or the Northern Territory; or

                             (ii)  to give something an effect for the purposes of the old ASIC legislation (or a provision of that legislation) that it would not otherwise have had; and

                     (b)  that effect was continuing immediately before the commencement;

this Part applies as if that thing had actually happened or were actually the case, or as if that thing actually had that other effect.

257   Existence of several versions of the old ASIC legislation does not result in this Part operating to take the same thing to be done several times under the new ASIC legislation etc.

                   If, apart from this section, a provision of this Part (the transitional provision ) would, because the Commonwealth, each State in this jurisdiction and the Northern Territory had its own old ASIC legislation (containing parallel provisions) before the commencement, operate so that:

                     (a)  a particular thing done before the commencement would be taken to be done, or have effect, 2 or more times by, under, or for the purposes of, a provision of the new ASIC legislation; or

                     (b)  a right or liability would be created 2 or more times in respect of a particular event, circumstance or thing that happened before the commencement; or

                     (c)  a particular result or effect would be produced 2 or more times for the purposes of the new ASIC legislation in relation to the same matter;

the transitional provision is taken to operate so that:

                     (d)  if paragraph (a) applies—the thing is taken to be done or have effect only once by, under, or for the purposes of the provision of, the new ASIC legislation; or

                     (e)  if paragraph (b) applies—the right or liability is created only once in respect of the event, circumstance or thing; or

                      (f)  if paragraph (c) applies—the result or effect is produced only once in relation to the matter.

258   Penalty units in respect of pre-commencement conduct remain at $100

             (1)  If, because of this Part, an offence can be prosecuted after the commencement in respect of conduct that occurred before the commencement, the amount of a penalty unit in respect of that offence is $100.

             (2)  This section has effect despite section 4AA of the Crimes Act 1914 .

259   Ceasing to be a referring State does not affect previous operation of this Part

                   If, after the commencement, a State ceases to be a referring State, that does not undo or affect:

                     (a)  the effects that this Part has already had in relation to matters connected with that State; or

                     (b)  the ongoing effect of this Act as it operates because of the effects referred to in paragraph (a).



 

Division 2 Carrying over bodies established etc. or persons appointed under the old ASIC Act

260   Division has effect subject to Division 7 regulations

                   This Division has effect subject to regulations made for the purposes of Division 7.

261   Carrying over bodies established under the old ASIC Act

                   A body that was established under the old ASIC Act continues in existence as if it had been established under this Act.

262   Carrying over the Chairman and Deputy Chairman of the Financial Reporting Council

             (1)  A member of the FRC who was Chairman of the FRC immediately before the commencement continues as if he or she had been appointed as Chair of the FRC under this Act.

             (2)  A member of the FRC who was Deputy Chairman of the FRC immediately before the commencement continues as if he or she had been appointed as Deputy Chair of the FRC under this Act.



 

Division 3 Carrying over the old ASIC Regulations

263   Division has effect subject to Division 7 regulations

                   This Division has effect subject to regulations made for the purposes of Division 7.

264   Old ASIC Regulations continue to have effect

                   The old ASIC Regulations that were made for the purposes of provisions of the old ASIC Act that correspond to provisions of this Act and that were in force immediately before the commencement continue to have effect (and may be dealt with) after the commencement as if:

                     (a)  they were regulations in force under section 251 of this Act; and

                     (b)  they were made for the purposes of the corresponding provisions of this Act.



 

Division 4 Court proceedings and orders

265   Division has effect subject to Division 7 regulations

                   This Division has effect subject to regulations made for the purposes of Division 7.

266   Definitions

             (1)  In this Division:

appeal or review proceeding , in relation to an order of a court, means a proceeding by way of appeal, or otherwise seeking review, of the order.

enforcement proceeding , in relation to an order made by a court, means:

                     (a)  a proceeding to enforce the order; or

                     (b)  any other proceeding in respect of a breach of the order.

federal ASIC proceeding means a proceeding of any of the following kinds that, immediately before the commencement, was before a court:

                     (a)  a proceeding in respect of a matter arising under the Administrative Decisions (Judicial Review) Act 1977 involving or related to a decision made under a provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory;

                     (b)  a proceeding in respect of a matter arising under Division 2 of Part 2 of the old ASIC Act;

                     (c)  a proceeding for a writ of mandamus or prohibition, or an injunction, against an officer or officers of the Commonwealth (within the meaning of section 75 of the Constitution) in relation to a matter to which a provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory applied;

                     (d)  a proceeding in the court’s accrued federal jurisdiction in relation to a matter to which a provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory applied.

interlocutory application means an application that:

                     (a)  is made during the course of a proceeding; and

                     (b)  is for an order that is incidental to the principal object of that proceeding, including, for example:

                              (i)  an order about the conduct of that proceeding; or

                             (ii)  an order assisting a party to that proceeding to present their case in that proceeding; or

                            (iii)  an order protecting or otherwise dealing with property that is the subject matter of that proceeding;

                            but not including an order making a final determination of existing rights or liabilities.

interlocutory order means:

                     (a)  an order made in relation to an interlocutory application; or

                     (b)  an order or direction about the conduct of a proceeding.

interlocutory proceeding means a proceeding:

                     (a)  dealing only with; or

                     (b)  to the extent it deals with;

an interlocutory application.

primary proceeding means a proceeding other than an interlocutory proceeding.

proceeding means a proceeding, whether criminal or civil, before a court.

             (2)  For the purposes of this Part, if an interlocutory proceeding relates to a proceeding that is itself an interlocutory proceeding, the first-mentioned proceeding is taken to relate also to the primary proceeding to which the second-mentioned proceeding relates.

267   Treatment of court proceedings under or related to the old ASIC legislation—proceedings other than federal ASIC proceedings

             (1)  This section applies to a proceeding, other than a federal ASIC proceeding, in relation to which the following paragraphs are satisfied:

                     (a)  the proceeding was started in a court before the commencement; and

                     (b)  the proceeding was:

                              (i)  under a provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory; or

                             (ii)  brought as, or connected with, a prosecution for an offence against a provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory; and

                     (c)  the proceeding was not an enforcement proceeding, or an appeal or review proceeding, in relation to an order of a court; and

                     (d)  the proceeding had not been concluded or terminated before the commencement; and

                     (e)  either:

                              (i)  if the proceeding is a primary proceeding—no final determination of any of the existing rights or liabilities at issue in the proceeding had been made before the commencement; or

                             (ii)  if the proceeding is an interlocutory proceeding—this section applies to the primary proceeding to which the interlocutory proceeding relates.

             (2)  In this section:

                     (a)  the proceeding to which this section applies is called the old proceeding ; and

                     (b)  the provision of the old ASIC legislation referred to in whichever of subparagraphs (1)(b)(i) and (ii) applies is called the relevant old provision .

             (3)  A proceeding (the new proceeding ) equivalent to the old proceeding is, on the commencement, taken to have been brought in the same court, exercising federal jurisdiction:

                     (a)  if subparagraph (1)(b)(i) applies—under the provision of the new ASIC legislation that corresponds to the relevant old provision; or

                     (b)  if subparagraph (1)(b)(ii) applies—as, or connected with, a prosecution for an offence against the provision of the new ASIC legislation that corresponds to the relevant old provision.

To the extent that the old proceeding, before the commencement, related to pre-commencement rights or liabilities, the new proceeding relates to the substituted rights and liabilities in relation to those pre-commencement rights and liabilities.

Note 1:       See sections 276 and 277 for the creation of the substituted rights and liabilities.

Note 2:       In all cases, there will be a provision of the new ASIC legislation that corresponds to the relevant old provision, either because:

(a)           the new ASIC legislation actually contains a provision that corresponds to the relevant old provision; or

(b)           the new ASIC legislation, because of section 277 or 284, is taken to include the relevant old provision (whether with or without modifications), in which case the provision so taken to be included will be the corresponding provision.

             (4)  The following provisions apply in relation to the new proceeding:

                     (a)  the parties to the new proceeding are the same as the parties to the old proceeding;

                     (b)  subject to subsections (5) and (6), and to any order to the contrary made by the court, the court must deal with the continued proceeding as if the steps that had been taken for the purposes of the old proceeding before the commencement had been taken for the purposes of the new proceeding.

             (5)  If:

                     (a)  an interlocutory order was made before the commencement for the purpose of, or in relation to, the old proceeding; and

                     (b)  that interlocutory order was in force immediately before the commencement;

the rights and liabilities of all persons (including rights and liabilities arising wholly or partly because of conduct occurring before the commencement) are declared to be, for all purposes, the same as if the interlocutory order had instead been made by the same court, in the exercise of federal jurisdiction, for the purpose of, or in relation to, the new proceeding.

             (6)  The court may make orders doing all or any of the following:

                     (a)  cancelling or varying rights or liabilities that a person has because of subsection (5);

                     (b)  substituting other rights or liabilities for rights or liabilities a person has because of subsection (5);

                     (c)  adding rights or liabilities to the rights or liabilities a person has because of subsection (5);

                     (d)  enforcing, or otherwise dealing with conduct contrary to, a right or liability a person has because of subsection (5) in the same way as it could enforce, or deal with, the right, liability or conduct if the right or liability had arisen under or because of an order made by the court in the exercise of federal jurisdiction under the new ASIC legislation.

268   Treatment of court proceedings under or related to the old ASIC legislation—federal ASIC proceedings

             (1)  This section applies to a proceeding in relation to which the following paragraphs are satisfied:

                     (a)  the proceeding was started in a court before the commencement; and

                     (b)  the proceeding was a federal ASIC proceeding that related to a matter to which a provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory applied; and

                     (c)  the proceeding had not been concluded or terminated before the commencement.

             (2)  In this section:

                     (a)  the proceeding to which this section applies is called the continued proceeding ; and

                     (b)  the provision of the old ASIC legislation referred to in paragraph (1)(b) is called the relevant old provision .

             (3)  Subject to subsection (4):

                     (a)  the continued proceeding continues after the commencement in the same court as if it were, and always had been, a proceeding in relation to a matter to which the provision of the new ASIC legislation that corresponds to the relevant old provision applies; and

                     (b)  to the extent that the proceeding, before the commencement, related to pre-commencement rights or liabilities, the proceeding, as continued, relates, and is taken always to have related, to the substituted rights and liabilities in relation to those pre-commencement rights and liabilities.

Note 1:       See sections 276 and 277 for the creation of substituted rights and liabilities.

Note 2:       In all cases, there will be a provision of the new ASIC legislation that corresponds to the relevant old provision, either because:

(a)           the new ASIC legislation actually contains a provision that corresponds to the relevant old provision; or

(b)           the new ASIC legislation, because of section 277 or 284, is taken to include the relevant old provision (whether with or without modifications), in which case the provision so taken to be included will be the corresponding provision.

             (4)  Subject to any order to the contrary made by the court, the court must deal with the continued proceeding as if:

                     (a)  the steps that had been taken for the purposes of the proceeding before the commencement had been taken for the purpose of the proceeding as continued by this section; and

                     (b)  any orders made in relation to the proceeding before the commencement had been made in relation to the proceeding as continued by this section.

269   References to proceedings and orders in the new ASIC legislation

             (1)  Subject to subsection (5), a reference in the new ASIC legislation to the taking of a proceeding, or a step in a proceeding, in a court under or in relation to a part or provision of the new ASIC legislation includes a reference to the taking of a proceeding, or the equivalent step in a proceeding:

                     (a)  before the commencement under or in relation to the corresponding part or provision of the old ASIC legislation of the Commonwealth, a State or the Northern Territory; or

                     (b)  after the commencement under or in relation to the corresponding part or provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory, as that legislation continues to have effect after the commencement.

             (2)  Subject to subsections (3), (4) and (5), a reference in the new ASIC legislation to an order made by a court under or in relation to a part or provision of the new ASIC legislation includes a reference to an order made:

                     (a)  before the commencement under or in relation to the corresponding part or provision of the old ASIC legislation of the Commonwealth, a State or the Northern Territory; or

                     (b)  after the commencement under or in relation to the corresponding part or provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory, as that legislation continues to have effect after the commencement.

             (3)  Nothing in subsection (2) is taken to produce a result that would:

                     (a)  make a person liable, under the new ASIC legislation, to any penalty (whether civil or criminal) provided for in an order referred to in paragraph (2)(a) or (b); or

                     (b)  enable an enforcement proceeding, or an appeal or review proceeding, in relation to such an order to be taken in a court under the new ASIC legislation; or

                     (c)  enable proceedings by way of appeal, or other review, of such an order to be taken in a court under the new ASIC legislation.

             (4)  If, after the commencement, an order referred to in paragraph (2)(a) or (b) is varied or set aside on appeal or review, subsection (2) applies, or is taken to have applied, from the time from which the variation or setting aside takes or took effect, as if:

                     (a)  if the order is varied—the order had been made as so varied; or

                     (b)  if the order is set aside—the order had not been made.

             (5)  The regulations may provide that subsection (1) or (2) does not apply in relation to a particular reference or class of references in the new ASIC legislation.



 

Division 5 Functions and powers of ASIC

270   Division has effect subject to Division 7 regulations

                   This Division has effect subject to regulations made for the purposes of Division 7.

271   Non-federal proceedings etc.

             (1)  ASIC has the functions and powers in relation to a non-federal proceeding that are expressed to be conferred on it by or under a law of the Commonwealth or the Northern Territory.

             (2)  ASIC also has the functions and powers in relation to a non-federal proceeding that are expressed to be conferred on it by or under a law of a State in this jurisdiction. However, ASIC:

                     (a)  is not subject to any directions in the performance of such functions or the exercise of such powers; and

                     (b)  is not under a duty to perform such functions or exercise such powers.

             (3)  If a Minister of a State or Territory appoints a person to bring or continue a non-federal proceeding in the State or Territory, ASIC may give the person any information and documents that ASIC has in relation to the proceeding.

             (4)  In this section:

appeal or review proceeding has the same meaning as in section 266.

enforcement proceeding has the same meaning as in section 266.

non-federal proceeding means:

                     (a)  a proceeding in relation to which paragraphs 267(1)(a), (b) and (d) are satisfied but paragraph 267(1)(e) is not satisfied; or

                     (b)  an enforcement proceeding, or an appeal or review proceeding, in relation to an order of a court made before the commencement in relation to a proceeding that was:

                              (i)  under a provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory; or

                             (ii)  brought as, or connected with, a prosecution for an offence against a provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory; or

                     (c)  an enforcement proceeding, or an appeal or review proceeding, in relation to an order of a court made after the commencement in relation to a proceeding referred to in paragraph (a).

272   NCSC’s functions and powers

             (1)  ASIC has the functions and powers expressed to be conferred on the NCSC by or under any Act, as in force immediately before the commencement, that is a relevant Act for the purposes of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 .

             (2)  ASIC also has the functions and powers expressed to be conferred on the NCSC by or under any law, as in force immediately before the commencement, of a State or the Northern Territory that corresponds to an Act that is a relevant Act for the purposes of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 . However, ASIC:

                     (a)  is not subject to any directions in the performance of such functions or the exercise of such powers; and

                     (b)  is not under a duty to perform such functions or exercise such powers.



 

Division 6 General transitional provisions relating to other things done etc. under the old ASIC legislation

273   Provisions in this Division have effect subject to the other Divisions

             (1)  This Division has effect subject to:

                     (a)  the provisions of Divisions 2, 3, 4 and 5 (which deal with matters in more specific terms); and

                     (b)  regulations made for the purposes of Division 7.

             (2)  Nothing in this Division applies to:

                     (a)  an order made by a court before the commencement; or

                     (b)  a right or liability under an order made by a court before the commencement; or

                     (c)  a right to:

                              (i)  appeal to a court against an order made by a court before the commencement; or

                             (ii)  apply to a court for review of such an order; or

                            (iii)  bring an appeal or review proceeding, or an enforcement proceeding, within the meaning of section 266, in respect of such an order; or

                     (d)  a proceeding taken (including an appeal, review or enforcement proceeding) in a court before the commencement, or a step in such a proceeding.

Note:          Division 4 deals with court orders and proceedings made or begun before the commencement, and with related matters.

             (3)  Except as mentioned in subsections (1) and (2), nothing in Division 2, 3, 4 or 5, or in regulations made for the purposes of Division 7, is intended to limit the generality of the provisions in this Division.

274   Provisions of this Division may have an overlapping effect

                   The provisions of this Division deal at a broad level with concepts and matters in a way that is intended to achieve the object of this Part as set out in section 253. Some of the provisions of this Division will (depending on the situation) have an effect that overlaps or interacts to some extent with the effect of other provisions of this Division. This is intended, and the provisions of this Division should be not be regarded as dealing with mutually exclusive situations.

275   Things done by etc. carried over provisions continue to have effect

             (1)  Subject to this section, a thing that:

                     (a)  was done before the commencement by, under, or for the purposes of, a carried over provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory; and

                     (b)  had an ongoing significance (see subsections (4) and (5)) immediately before the commencement for the purposes of that legislation;

has effect (and may be dealt with) after the commencement, for the purposes of the new ASIC legislation, as if it were done by, under, or for the purposes of, the corresponding provision of the new ASIC legislation.

Note:          This section covers all kinds of things done, including things of a coercive nature or done for coercive purposes.

             (2)  Examples of things done include:

                     (a)  the making of an instrument or order (but not including the making of an order by a court); and

                     (b)  the making of an application or claim (but not including the making of an application or claim to a court); and

                     (c)  the granting of an application or claim (but not including the granting of an application or claim by a court); and

                     (d)  the making of an appointment or delegation; and

                     (e)  the commencement of a procedure or the taking of a step in a procedure (including an investigation, but not including the commencement of a proceeding in a court); and

                      (f)  the making of an agreement; and

                     (g)  requiring a person to do, or not to do, something (but not including a requirement contained in an order made by a court); and

                     (h)  the giving of a notice or document.

             (3)  The examples in subsection (2) are not intended to limit the generality of the language of subsection (1).

             (4)  Subject to subsection (5), for the purposes of this section, a thing done by, under, or for the purposes of, a carried over provision of the old ASIC legislation of the Commonwealth, a State or the Northern Territory had an ongoing significance immediately before the commencement for the purposes of that legislation if:

                     (a)  if the thing done was the making of an instrument or order—the instrument or order was still in force immediately before the commencement; or

                     (b)  if the thing done was the making of an application or claim—the application or claim had not been decided, and had not otherwise ceased to have effect, before the commencement; or

                     (c)  if the thing done was the granting of an application or claim—the thing granted had not been revoked, and had not otherwise ceased to have effect, before the commencement; or

                     (d)  if the thing done was the making of an appointment or delegation—the appointment or delegation had not been revoked, and had not otherwise ceased to have effect, before the commencement; or

                     (e)  if the thing done was the commencement of a procedure or the taking of a step in a procedure—the procedure was still in progress immediately before the commencement or was otherwise still having an effect; or

                      (f)  if the thing done was the making of an agreement—the agreement was still in force immediately before the commencement; or

                     (g)  if the thing done was requiring a person to do, or not to do something—the requirement was still in force immediately before the commencement; or

                     (h)  if the thing done was the giving of a notice or document, or the doing of some other thing—the notice or document (or the giving of the notice or document), or the thing (or the doing of the thing), had an ongoing effect or significance immediately before the commencement for the purposes of the old ASIC legislation of the Commonwealth, the State or the Northern Territory.

             (5)  The regulations may provide that a specified thing done by, under, or for the purposes of, a carried over provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory did, or did not, have an ongoing significance immediately before the commencement for the purposes of that legislation.

276   Creation of equivalent rights and liabilities to those that existed before the commencement under carried over provisions of the old ASIC legislation

             (1)  This section applies in relation to a right or liability (the pre-commencement right or liability ), whether civil or criminal, that:

                     (a)  was acquired, accrued or incurred under a carried over provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory; and

                     (b)  was in existence immediately before the commencement.

However, this section does not apply to a right or liability under an order made by a court before the commencement.

             (2)  On the commencement, the person acquires, accrues or incurs a right or liability (the substituted right or liability ), equivalent to the pre-commencement liability, under the corresponding provision of the new ASIC legislation (as if that provision applied to the conduct or circumstances that gave rise to the pre-commencement right or liability.

Note:          If a time limit applied in relation to the pre-commencement right or liability under the old ASIC legislation, that same time limit (calculated from the same starting point) will apply under the new ASIC legislation to the substituted right or liability—see subsection 278(3).

             (3)  A procedure, proceeding or remedy in respect of the right or liability may be instituted after the commencement under the new ASIC legislation (as if that provision applied to the conduct or circumstances that gave rise to the pre-commencement right or liability).

Note:          For pre-commencement proceedings in respect of substituted rights and liabilities, see sections 267 and 268.

277   Creation of equivalent rights and liabilities to those that existed before the commencement under repealed provisions of the old ASIC legislation

             (1)  This section applies to a right or liability (the pre-commencement right or liability ), whether civil or criminal, that:

                     (a)  was acquired, accrued or incurred under a provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory that was no longer in force immediately before the commencement; and

                     (b)  was in existence immediately before the commencement.

However, this section does not apply to a right or liability under an order made by a court before the commencement.

             (2)  For the purposes of subsections (3) and (4), the new ASIC legislation is taken to include:

                     (a)  the provision of the old ASIC legislation (with such modifications (if any) as are necessary) under which the right or liability was acquired, accrued or incurred; and

                     (b)  the other provisions of the old ASIC legislation (with such modifications (if any) as are necessary) that applied in relation to the right or liability.

             (3)  On the commencement, the person acquires, accrues or incurs a right or liability (the substituted right or liability ), equivalent to the pre-commencement right or liability, under the provision taken to be included in the new ASIC legislation by paragraph (2)(a) (as if that provision applied to the conduct or circumstances that gave rise to the pre-commencement right or liability).

Note:          If a time limit applied in relation to the pre-commencement right or liability under the old ASIC legislation, that same time limit (calculated from the same starting point) will apply under the new ASIC legislation to the substituted right or liability—see subsection 278(3).

             (4)  A procedure, proceeding or remedy in respect of the right or liability may be instituted after the commencement under the provisions taken to be included in the new ASIC legislation by subsection (2) (as if those provisions applied to the conduct or circumstances that gave rise to the pre-commencement right or liability).

Note:          For pre-commencement proceedings in respect of substituted rights and liabilities, see sections 267 and 268.

278   Old ASIC legislation time limits continue to run

             (1)  An old ASIC legislation time limit (see subsection (4)):

                     (a)  the starting point of which:

                              (i)  was known or had been determined before the commencement (whether that starting point occurred or would occur before, on or after the commencement); or

                             (ii)  would have become known, or have been determined, after the commencement if the old ASIC legislation had continued to apply (whether that starting point would have occurred before, on or after the commencement); and

                     (b)  that had not ended at or before the commencement;

continues to run, or starts or started to run, as if that same time limit (starting from the same starting point) were applicable under the new ASIC legislation.

             (2)  If:

                     (a)  under the old ASIC legislation, a process, a status of a person or body, or an instrument, commenced from a particular time before the commencement; and

                     (b)  that process, status or instrument is continued after the commencement for the purposes of the new ASIC legislation by a provision of this Part;

that process, status or instrument as so continued is still taken to have commenced from the time referred to in paragraph (a).

             (3)  If an old ASIC legislation time limit related to a pre-commencement right or liability, the same time limit applies in relation to the substituted right or liability.

             (4)  In this section:

old ASIC legislation time limit includes:

                     (a)  a period for the doing of a thing specified or determined under a provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory; or

                     (b)  a period specified or determined under a provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory as the duration of a particular instrument or status.

279   Preservation of significance etc. of events or circumstances

             (1)  An event, circumstance or other thing:

                     (a)  that occurred or arose before the commencement under or as mentioned in a provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory; and

                     (b)  that had a particular significance, status or effect for the purposes of a carried over provision of that legislation (including because of an interpretative provision);

has that same significance after the commencement for the purposes of the provision of the new ASIC legislation that corresponds to that carried over provision.

             (2)  Without limiting subsection (1), an event, circumstance or other thing has a particular significance for the purposes of a carried over provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory if:

                     (a)  the carried over provision creates an obligation in respect of the event, circumstance or thing (whenever it arose); or

                     (b)  the carried over provision provides for the event, circumstance or thing to be dealt with in a particular way; or

                     (c)  the carried over provision states that the event, circumstance or thing (whenever it arose) is to be disregarded for the purposes of that provision or not covered by that provision.

280   References in the new ASIC legislation generally include references to events, circumstances or things that happened or arose before the commencement

             (1)  Subject to this section, a reference in the new ASIC legislation to an event, circumstance or thing of a particular kind that happens or arises, or that has happened or arisen, is taken to include a reference to an event, circumstance or thing of that kind that happened or arose at a time before the commencement, unless the contrary intention appears. The fact that the provision uses only the present tense in referring to an event, circumstance or thing is not, of itself, to be regarded as an expression of a contrary intention.

             (2)  Nothing in subsection (1) is taken to produce a result that a right or liability exists under a provision of the new ASIC legislation that relates solely to events, circumstances or things that occurred before the commencement.

Note:          Instead, an equivalent right or liability will be created by section 276 or 277.

             (3)  The regulations may provide that subsection (1) does not apply in relation to a particular reference or class of references in the new ASIC legislation.

281   References in the new ASIC legislation to that legislation or the new corporations legislation generally include references to corresponding provisions of the old ASIC legislation or old corporations legislation

             (1)  Subject to subsection (4), a reference in the new ASIC legislation to:

                     (a)  an Act, or to regulations or another instrument that is part of the new ASIC legislation; or

                     (b)  a provision or group of provisions of such an Act, regulations or other instrument;

is taken, in relation to events, circumstances or things that happened or arose at a time before the commencement when the old ASIC legislation was in force, to include (in the absence of an express provision to the contrary) a reference to the corresponding part, provision or provisions of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory.

             (2)  Subject to subsection (4), a reference in the new ASIC legislation to:

                     (a)  an Act, or to regulations or some other instrument that is part of the new corporations legislation; or

                     (b)  a provision or group of provisions of such an Act, regulations or other instrument;

is taken, in relation to events, circumstances or things that happened or arose at a time before the commencement when the old corporations legislation was in force, to include (in the absence of an express provision to the contrary) a reference to the corresponding part, provision or provisions of the old corporations legislation of the States and Territories in this jurisdiction.

             (3)  In subsection (2):

                     (a)  new corporations legislation and old corporations legislation have the same meanings as they have in Part 10.1 of the Corporations Act; and

                     (b)  the question whether a provision or part of the old corporations legislation corresponds to a provision of part of the new corporations legislation is to be determined in the same way as it is determined for the purposes of Part 10.1 of the Corporations Act.

             (4)  The regulations may provide that subsection (1) or (2) does not apply in relation to a particular reference or class of references in the new ASIC legislation.

282   Carrying over references to corresponding previous laws or relevant previous laws

             (1)  If a carried over provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory contained a reference (whether in its own terms or by operation of another provision) to:

                     (a)  a corresponding previous law (as defined for the purposes of that provision or provisions including that provision), or a thing done by, under, or for the purposes of, such a law; or

                     (b)  a relevant previous law (as defined for the purposes of that provision or provisions including that provision), or a thing done by, under, or for the purposes of, such a law;

the corresponding provision of the new ASIC legislation is taken to contain an equivalent reference to that previous law, or to such a thing done by, under, or for the purposes of, that previous law.

             (2)  The following references in the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory are covered by subsection (1) in the same way as they would be if they used the “corresponding previous law” form of words:

                     (a)  the reference in section 15 to a “previous law corresponding to”;

                     (b)  any other references prescribed by the regulations for the purposes of this subsection.

283   References to ASIC legislation in instruments

             (1)  Subject to subsection (2), a reference in, or taken immediately before the commencement to be in, an instrument, other than:

                     (a)  an Act of a State, the Australian Capital Territory, the Northern Territory or Norfolk Island; or

                     (b)  an instrument made under such an Act;

to:

                     (c)  an Act, or to regulations or some other instrument, that is part of the old ASIC legislation (whether the reference is in general terms or in relation to the Commonwealth, or a particular State or Territory in this jurisdiction); or

                     (d)  to a provision or group of provisions of such an Act, regulations or other instrument;

is taken, after the commencement, to include a reference to the corresponding part, provision or provisions of the new ASIC legislation (unless there is no such corresponding part, provision or provisions).

Note:          In this Part, instrument means an instrument of a legislative or administrative character (see the definition in section 254), or any other document.

             (2)  The regulations may do either or both of the following:

                     (a)  provide that subsection (1) does not apply in relation to prescribed references in prescribed instruments;

                     (b)  provide that subsection (1) has effect in relation to prescribed references in prescribed instruments as if, in that subsection, the words “to be” were substituted for the words “to include”.

284   Old transitional provisions continue to have their effect

             (1)  Subject to subsection (3), this Act has the same effect, after the commencement, as it would have if:

                     (a)  the transitional provisions (see subsections (6) and (7)) of the old ASIC Act, the old ASIC Law of the States in this jurisdiction and the old ASIC Law of the Northern Territory (as in force from time to time before the commencement) had been part of this Act; and

                     (b)  those transitional provisions produced the same results or effects (to the greatest extent possible) for the purposes of this Act as they produced for the purposes of that Act and those Laws.

             (2)  Without limiting subsection (1) (but subject to subsection (3)), if a transitional provision of the old ASIC Act, the old ASIC Law of the States in this jurisdiction or the old ASIC Law of the Northern Territory could, if it had continued in force after the commencement, have operated to give rise to rights and liabilities (including civil or criminal liabilities) in relation to acts or omissions occurring after the commencement, this Act is taken to include that transitional provision (with such modifications (if any) as are necessary).

Note:          In relation to acts or omissions that occurred before the commencement, equivalent rights or liabilities are created by sections 276 and 277.

             (3)  The regulations may determine how a matter dealt with in a transitional provision of the old ASIC Act, the old ASIC Law of the States in this jurisdiction or the old ASIC Law of the Northern Territory is to be dealt with under or in relation to the new ASIC legislation (including by creating offences). The regulations have effect despite subsections (1) and (2), but subject to subsection (5).

Note:          In creating offences, the regulations are subject to the limitation imposed by section 258.

             (4)  For the purpose of determining whether the new ASIC legislation includes a provision that corresponds to a provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory, and for the purpose of any reference in this Part to a corresponding provision of the new ASIC legislation, this Act is taken to include the transitional provisions of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory, as they have effect because of subsections (1) and (2).

             (5)  Nothing in subsection (1) or (2), or in regulations made for the purposes of subsection (3), is taken to produce a result that a right or liability exists under a transitional provision as it has effect because of subsection (1) or (2), or exists under regulations made for the purposes of subsection (3), that relates solely to events, circumstances or things that occurred before the commencement.

Note:          Instead, an equivalent right or liability will be created by section 276 or 277.

             (6)  Subject to subsection (7), for the purposes of this section, a transitional provision is any of the following provisions of the old ASIC Act, the old ASIC Law of the States in this jurisdiction and the old ASIC Law of the Northern Territory:

                     (a)  section 12AB;

                     (b)  subsection 12GL(2);

                     (c)  section 12IA;

                     (d)  subsection 13(3);

                     (e)  subsection 13(5);

                      (f)  section 14A;

                     (g)  subsection 51(2);

                     (h)  subsection 68(4);

                      (i)  subsection 68(5);

                      (j)  section 122A;

                     (k)  section 127A;

                      (l)  subsection 246(2);

                    (m)  Part 16;

                     (n)  Part 17;

                     (o)  Part 18.

             (7)  The regulations may provide that certain provisions are to be taken to be included in, or omitted from, the list in subsection (6). The list then has effect as if the provisions were so included in it or omitted from it.



 

Division 7 Regulations dealing with transitional matters

285   Regulations may deal with transitional matters

             (1)  The regulations may deal with matters of a transitional nature relating to the transition from the application of provisions of the old ASIC legislation of the Commonwealth, a State in this jurisdiction and the Northern Territory to the application of provisions of the new ASIC legislation. The regulations have effect despite anything else in this Part, other than section 258.

             (2)  Without limiting subsection (1), the regulations may provide for a matter to be dealt with, wholly or partly, in any of the following ways:

                     (a)  by applying (with or without modifications) to the matter:

                              (i)  provisions of the old ASIC legislation, as in force immediately before the commencement or at some earlier time; or

                             (ii)  provisions of the new ASIC legislation; or

                            (iii)  a combination of provisions referred to in subparagraphs (i) and (ii);

                     (b)  by otherwise specifying rules for dealing with the matter;

                     (c)  by specifying a particular consequence of the matter, or of an outcome of the matter, for the purposes of the new ASIC legislation.

             (3)  The regulations may provide that certain provisions of this Part are taken to be modified as set out in the regulations. The provisions then have effect as if they were so modified.

             (4)  Despite subsection 48(2) of the Acts Interpretation Act 1901 , regulations for the purposes of this section may be expressed to take effect from a date before the regulations are notified in the Gazette .

             (5)  In this section:

matters of a transitional nature also includes matters of an application or saving nature.

 

 

 

 

[ Minister’s second reading speech made in—

House of Representatives on 4 April 2001

Senate on 18 June 2001 ]

 

(14/01)