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Corporations (Repeals, Consequentials and Transitionals) Bill 2001
Schedule 2 Amendment of the new ASIC and corporations legislation on commencement of that legislation

   

Australian Securities and Investments Commission Act 2001

1  Section 122

Repeal the section, substitute:

122   Staff seconded to ASIC

                   In addition to the other staff members, officers and employees of Agencies (within the meaning of the Public Service Act 1999 ), and of authorities of the Commonwealth, whose services are made available to ASIC in connection with the performance or exercise of any of its functions or powers are to assist ASIC.

2  Subsection 254(1)

Insert:

old corporations legislation has the meaning given by subsection 1371(1) of the Corporations Act 2001 .

3  Subsection 255(4)

Repeal the subsection, substitute:

             (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, at or before the commencement by Commonwealth authorities or officers of the Commonwealth (within the meaning of that Act) pursuant to functions or powers (the relevant 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 for all purposes as they would have had if:

                     (a)  they had been taken, or purportedly taken by a State authority or officer of the State (within the meaning of that Act); and

                     (b)  the relevant functions or powers had been duly conferred on those authorities or officers.

4  Subsection 266(1) (after paragraph (c) of the definition of federal ASIC proceeding )

Insert:

                    (ca)  a proceeding 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:

                              (i)  in which the Commonwealth was seeking an injunction or a declaration; or

                             (ii)  to which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, was a party;

                    (cb)  any other proceeding in relation to a matter to which a provision of the old ASIC legislation of a State in this jurisdiction applied that was in the exercise of federal jurisdiction;

                    (cc)  any other proceeding in relation to a matter to which a provision of the old ASIC legislation of the Northern Territory applied that would be covered by paragraph (cb) if the Northern Territory had been a State;

                    (cd)  any other proceeding under the old ASIC legislation of the Commonwealth that was in the exercise of federal jurisdiction;

5  After section 268

Insert:

268A   Appeals etc. in relation to some former federal corporations proceedings

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

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

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

                     (c)  the proceeding had been concluded or terminated before the commencement.

             (2)  A decision or order made in the proceeding may be appealed against, or otherwise reviewed, as if it had been made in a proceeding that related to a matter to which a provision of this Act applied.

             (3)  An order made in the proceeding may be enforced as if it had been made in a proceeding that related to a matter to which a provision of this Act applied.

268B   Effect of decisions and orders made in federal corporations proceedings before commencement

             (1)  For the avoidance of doubt, if:

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

                     (b)  the proceeding was a federal ASIC proceeding that related to 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)  a decision was made or an order given in the proceeding before the commencement;

the decision or order continues to have effect after the commencement despite the provision of the old ASIC legislation ceasing to have effect.

             (2)  This section does not limit the operation of section 268 in relation to the decision or order.

6  Subsection 271(4) (after paragraph (a) of the definition of non-federal proceeding )

Insert:

                    (aa)  a proceeding in relation to which paragraphs 1383(1)(a), (b) and (d) of the Corporations Act 2001 are satisfied but paragraph 1383(1)(e) of that Act is not satisfied;

7  Subsection 271(4) (after subparagraph (b)(i) of the definition of non-federal proceeding )

Insert:

                            (ia)  under a provision of the old corporations legislation of a State or Territory in this jurisdiction; or

8  Subsection 271(4) (at the end of paragraph (b) of the definition of non-federal proceeding )

Add:

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

9  Subsection 271(4) (paragraph (c) of the definition of non-federal proceeding )

After “paragraph (a)”, insert “or (aa)”.

10  Subsection 272(1)

Omit “that is a relevant Act for the purposes of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 ”, substitute “that was a relevant Act for the purposes of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 as in force immediately before the commencement”.

11  Subsection 272(2)

Omit “that is a relevant Act for the purposes of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 ”, substitute “that was a relevant Act for the purposes of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 as in force immediately before the commencement”.

Corporations Act 2001

12  Subsection 9(1) (definition of person )

Repeal the definition, substitute:

person , when used in Division 2 of Part 2D.2 (sections 200A to 200J), includes a superannuation fund.

13  At the end of Part 7.1A

Add:

Division 3 Functions and powers

766J   The Exchange’s functions and powers

             (1)  In addition to the legal capacity and powers it has because of section 124, the Exchange has such functions and powers as are conferred, or expressed to be conferred, on it by this Act.

             (2)  Section 125 does not apply in relation to a function or power conferred, or expressed to be conferred, as mentioned in subsection (1) of this section.

             (3)  The Exchange is to perform the functions, and may exercise the powers, that are conferred on it by or under this Act.

14  Subsection 1372(4)

Repeal the subsection, substitute:

             (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, at or before the commencement by Commonwealth authorities or officers of the Commonwealth (within the meaning of that Act) pursuant to functions or powers (the relevant 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 for all purposes as they would have had if:

                     (a)  they had been taken, or purportedly taken by a State authority or officer of the State (within the meaning of that Act); and

                     (b)  the relevant functions or powers had been duly conferred on those authorities or officers.

15  Subsection 1382(1) (after paragraph (b) of the definition of federal corporations proceeding )

Insert:

                    (ba)  a proceeding that relates to a matter to which a provision of the Corporations Act 1989 applied (other than a proceeding that relates to a matter to which a provision of the Corporations Law of the Australian Capital Territory applied);

                    (bb)  a proceeding in relation to a matter to which a provision of the old corporations legislation of a State or Territory in this jurisdiction applied:

                              (i)  in which the Commonwealth was seeking an injunction or a declaration; or

                             (ii)  to which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, was a party;

                    (bc)  any other proceeding in relation to a matter to which a provision of the old corporations legislation of a State in this jurisdiction applied that was in the exercise of federal jurisdiction;

                    (bd)  any other proceeding in relation to a matter to which a provision of the old corporations legislation of a Territory in this jurisdiction applied that would be covered by paragraph (bc) if the Territory had been a State;

16  After section 1384

Insert:

1384A   Appeals etc. in relation to some former federal corporations proceedings

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

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

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

                     (c)  the proceeding had been concluded or terminated before the commencement.

             (2)  A decision or order made in the proceeding may be appealed against, or otherwise reviewed, as if it had been made in a proceeding that related to a matter to which a provision of this Act applied.

             (3)  An order made in the proceeding may be enforced as if it had been made in a proceeding that related to a matter to which a provision of this Act applied.

1384B   Effect of decisions and orders made in federal corporations proceedings before commencement

             (1)  For the avoidance of doubt, if:

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

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

                     (c)  a decision was made or an order given in the proceeding before the commencement;

the decision or order continues to have effect after the commencement despite the provision of the old corporations legislation ceasing to have effect.

             (2)  This section does not limit the operation of section 1384 in relation to the decision or order.