Companies and Securities Legislation (Miscellaneous Amendments) Act 1983 (Cth)

Companies and Securities Legislation (Miscellaneous Amendments) Act 1983 No. 108 of 1983 TABLE OF PROVISIONS PART I—PRELIMINARY Section 1. Short title 2. Commencement PART II—AMENDMENTS OF COMPANIES (ACQUISITION OF SHARES) ACT 1980 3. Principal Act 4. Other interpretative and evidentiary provisions 5. Take-over offers 6. Part B statement 7. Offeror connected with target company 8. Provisions relating to dissenting shareholders 9. Rights of remaining shareholders and holders of options and notes 10. Liability for mis-statements 11. Orders where prohibited acquisitions take place 12. Orders where offers not dispatched pursuant to Part A statement 13. Orders to protect rights under take-over schemes or announcements 14. Miscellaneous provisions relating to orders 15. Power to exempt from compliance with Act 16. Power to declare that Act applies as if modified 17. Repeal of section 60 and substitution of new section— 60. Power of Commission to declare acquisition of shares or other conduct to be unacceptable Section 18. Power of Commission to make certain orders 19. Schedule PART III—AMENDMENTS OF COMPANIES ACT 1981 20. Principal Act 21. Interpretation 22. Relevant interests in shares 23. Insertion of Subdivision heading 24. Registration of auditors 25. Registration of liquidators 26. Register of Auditors 27. Registers of Liquidators and Official Liquidators 28. Notification of certain matters 29. Repeal of section 27 30. Certain persons not to apply for registration as auditor or liquidator 31. Insertion of new Subdivision- Subdivision B—Cancellation or Suspension of Registration 30a. Interpretation 30b. Cancellation at request of registered person 30c. Official liquidators 30d. Powers of Board in relation to auditors and liquidators 30e. Hearings 30f. Power to summon witnesses and take evidence 30g. Proceedings at hearings 30h. Failure of witnesses to attend and answer questions 30j. Contempt of Board 30k. Protection of members, &c. 30l. Hearings deemed to be judicial proceedings 30m. Notice of Board's decision 30n. Time when Board's decision comes into effect 30p. Effect of suspension 30q. Costs 30r. Appeal from decision of Board 30s. Operation of section 27 32. Registers 33. Requirements as to memorandum 34. Repeal of sections 67 and 68 and substitution of new sections— 67. Powers 68. Restrictions on companies 68a. Persons having dealings with companies, &c. 68b. Certain assumptions not to be made 68c. Lodgment of documents, &c., with Commission not to constitute constructive notice 68d. Effect of fraud 35. General provisions as to alteration of memorandum 36. Alterations of provisions of memorandum 37. Confirmation of contracts and authentication and execution of documents 38. Certificate authorizing application for transfer of incorporation 39. Application by foreign company for registration under Division 40. Establishment of registers and minute books 41. Interpretation 42. Forms of application for shares or debentures to be attached to prospectus 43. Invitations or offers in relation to borrowings by a corporation 44. Certain notices, &c., not to be published 45. Certain reports referring to prospectuses not to be published 46. Registration of prospectuses 47. Repeal of section 109 48. Restriction on application of capital of company 49. Power to make certain payments 50. Power of company to alter its share capital Section 51. Special resolution for reduction of share capital 52. Substantial shareholdings and substantial shareholders 53. Insertion of new section— 144a. Civil remedy where failure or default under Division 54. Knowledge of employee or agent imputed to employer or principal 55. Powers of Court with respect to defaulting substantial shareholder 56. Register of debenture holders and copies of trust deed 57. Branch registers 58. Compliance with laws of State or other Territory sufficient compliance for certain companies 59. Interpretation 60. Approved deeds 61. Approval of deeds 62. Approval of trustees 63. Covenants to be included in deeds 64. Statement to be issued 65. Register of holders of prescribed interests 66. Power to exempt from compliance with Division and non-application of Division in certain circumstances 67. Duties of company with respect to issue of certificates 68. Insertion of new Division— Division 10—Exemption from, and modification of the application of, Divisions of this Part 215b. Banking business 215c. Powers of Commission 69. Vacation of office 70. Insertion of new section— 227a. Court may order persons not to manage corporations 71. Duty and liability of officers 72. Loans to directors 73. Insertion of new section — 238a. Register of Disqualified Company Directors and Other Officers 74. Convening of general meeting on requisition 75. Circulation of members' resolutions, &c. 76. Repeal of section 261 and substitution of new sections— 261. Power of company to obtain information as to beneficial ownership of its shares 261a. Powers of Court 77. Exemption of certain companies 78. Interpretation 79. Insertion of new sections— 266a. Dormant corporations 266b. Approved accounting standards 266c. Application of approved accounting standards 266d. Board to have regard to possibility of disallowance 266e. Interpretation, &c., of accounting standards 266f. Power of Board to require copy of accounts or group accounts 80. Profit and loss account, balance-sheet and group accounts 81. Directors' reports 82. Repeal of section 272 and substitution of new section— 272. Directors of holding company to obtain all necessary information 83. Failure to comply with this Division 84. Removal and resignation of auditors 85. Powers and duties of auditors as to reports on accounts 86. Examination of officers 87. Power of Commission to make certain orders 88. Application for winding up 89. Remedy in cases of oppression or injustice 90. Repeal of section 321 and substitution of new section— 321. Interpretation 91. Disqualification for appointment as receiver, &c. Section 92. Liability of receiver 93. Insertion of new sections— 324a. Powers of receiver 324b. Duties of receiver with respect to bank accounts and accounting records 324c. Reports by receiver 324d. Prosecution of delinquent officers and members 324e. Supervision of receivers 324f. Receiver may apply to Court 94. Power of Court to fix remuneration of receivers 95. Insertion of new section— 325a. Receiver to enjoy qualified privilege in certain circumstances 96. Notification of appointment of receiver 97. Statement that receiver appointed 98. Provisions as to information where receiver appointed 99. Receiver may require reports 100. Insertion of new section— 329a. Receiver may inspect books 101. Lodging of accounts of receiver 102. Payment of certain debts out of property subject to floating charge in priority to claims under charge 103. Enforcement of duty of receiver to make returns 104. Notice of appointment and address of official manager 105. Effect of resolution 106. Six-monthly meetings of creditors and members 107. Circumstances in which company may be wound up by Court 108. Repeal of section 380 109. Final meeting and dissolution 110. Reports by liquidator 111. Supervision of liquidators 112. Insertion of new section— 421a. Regulations relating to money, &c., received by liquidator 113. Prosecution of delinquent officers and members 114. Power of Commission to deregister defunct company 115. Special requirements as to articles and prospectus 116. Notice to be lodged where documents, &c., altered 117. Cessation of business, &c. 118. Location of registers 119. Interpretation 120. Court may disqualify person from being a director, &c., in certain circumstances 121. Insertion of new section— 570a. Penalty notices 122. Continuing offences 123. Injunctions 124. Regulations 125. Repeal of Schedule 2 126. Amendment of Schedule 3 127. Amendment of Schedule 5 128. Further amendments PART IV—AMENDMENT OF COMPANIES (TRANSITIONAL PROVISIONS) ACT 1981 129. Principal Act 130. Registered auditors and liquidators PART V—AMENDMENTS OF COMPANIES AND SECURITIES (INTERPRETATION AND MISCELLANEOUS PROVISIONS) ACT 1980 131. Principal Act 132. Insertion of new section— 5a. Regard to be had to purpose or object of relevant Act Section 133. Definitions 134. Insertion of new section— 38a. Evidence PART VI—AMENDMENT OF NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979 135. Principal Act 136. Interpretation 137. Application of moneys 138. Power to summon witnesses and take evidence 139. Insertion of new section— 43a. Accounting Standards Review Board PART VII—AMENDMENTS OF SECURITIES INDUSTRY ACT 1980 140. Principal Act 141. Interpretation 142. Power of Court to make certain orders 143. Conditions to which licence is subject 144. Further provisions relating to revocation and suspension of licences 145. Deposits to be invested by stock exchange 146. Prohibition of dealings in securities by insiders 147. Insertion of new section— 141a. Penalty notices 148. Continuing offences 149. Injunctions 150. Regulations 151. Further amendments SCHEDULE 1 FURTHER AMENDMENTS OF COMPANIES ACT 1981 SCHEDULE 2 FURTHER AMENDMENTS OF SECURITIES INDUSTRY ACT 1980 Companies and Securities Legislation (Miscellaneous Amendments) Act 1983 No. 108 of 1983 An Act to amend laws relating to companies and securities [Assented to 8 December 1983] BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows: PART I—PRELIMINARY Short title 1. This Act may be cited as the Companies and Securities Legislation (Miscellaneous Amendments) Act 1983. Commencement 2. (1) Part I shall come into operation on the day on which this Act receives the Royal Assent. (2) The remaining provisions of this Act shall come into operation on such date as is, or on such respective dates as are, fixed by Proclamation. PART II—AMENDMENTS OF COMPANIES (ACQUISITION OF SHARES) ACT 1980 Principal Act 3. The Companies (Acquisition of Shares) Act 19801 is in this Part referred to as the Principal Act. Other interpretative and evidentiary provisions 4. Section 8 of the Principal Act is amended— (a) by omitting from sub-section (10) "a servant" and substituting "an employee"; and (b) by omitting from sub-section (10) "master" and substituting "employer". Take-over offers 5. Section 16 of the Principal Act is amended by omitting sub-sub-paragraph (2) (f) (viii) (B) and substituting the following sub-sub-paragraph: "(b) if the target company has, not later than 14 days after receipt of that Part A statement, given to the offeror a Part B statement in relation to the offers—a copy of that Part B statement and a copy of any report that accompanied that Part B statement.". Part B statement 6. Section 22 of the Principal Act is amended by omitting paragraph (1) (b) and substituting the following paragraph: "(b) not later than 14 days after receipt of a notice served pursuant to sub-section 24 (1)— (i) give a Part B statement to the offeror; and (ii) give, or cause to be given, a copy of that statement to each person to whom an offer to which the Part A statement relates was made.". Offeror connected with target company 7. Section 23 of the Principal Act is amended— (a) by omitting from sub-section (1) "stating whether" and substituting "setting out the particulars referred to in sub-section (1a), stating whether,"; and (b) by inserting after sub-section (1) the following sub-section: "(1a) The particulars that are required by sub-section (1) to be set out in a report made by an expert in relation to take-over offers are— (a) particulars of any relationship of the expert with the offeror, the target company or any person (in this paragraph referred to as a 'relevant associate') who is associated with the offeror or the target company, including, without limiting the generality of the foregoing, particulars of any circumstances in which the expert furnishes advice to or acts on behalf of the offeror, the target company or a relevant associate in the proper performance of the functions attaching to the expert's professional capacity or to the expert's business relationship with the offeror, the target company or the relevant associate; (b) particulars of any pecuniary or other interest of the expert that could reasonably be regarded as being capable of affecting the expert's ability to give an unbiased opinion in relation to the take-over offers; and (c) particulars of— (i) any fee; and (ii) any pecuniary or other benefit, whether direct or indirect, that the expert has received or will or may receive for or in connection with the making of the report.". Provisions relating to dissenting shareholders 8. Section 42 of the Principal Act is amended by omitting sub-section (5) and substituting the following sub-sections: "(5) An offeror to whom sub-section (2) applies in relation to a particular company shall, on the first day on which he gives a notice under sub-section (2) in relation to that company, lodge with the Commission a copy of that notice or, if on that first day he gives 2 or more notices under sub-section (2) in relation to that company, a copy of any one of those notices. "(5a) An on-market offeror to whom sub-section (3) applies in relation to a particular company shall, on the first day on which he gives a notice under sub-section (3) in relation to that company, lodge with the Commission a copy of that notice or, if on that first day he gives 2 or more notices under sub-section (3) in relation to that company, a copy of any one of those notices.". Rights of remaining shareholders and holders of options and notes 9. Section 43 of the Principal Act is amended by omitting sub-section (5) and substituting the following sub-sections: "(5) A notice given under sub-section (4) shall not propose terms for the acquisition by the offeror or on-market offeror of the shares, renounceable option or convertible note to which the notice relates unless the notice is accompanied by a copy of a report made by an expert (not being a person who is associated with the offeror, the on-market offeror or the company that issued the shares or granted or issued the renounceable option or the convertible note) setting out the particulars referred to in sub-section (5b), stating whether, in his opinion, the terms proposed in the notice are fair and reasonable and setting out his reasons for forming that opinion. "(5a) Where an offeror or on-market offeror obtains 2 or more reports, each of which could be used for the purposes of compliance with sub-section (5), the notice given under sub-section (4) by the offeror or on-market offeror, as the case may be, shall not propose terms for the acquisition by the offeror or on-market offeror of the shares, renounceable option or convertible note to which the notice relates unless the notice is accompanied by a copy of each report. "(5b) The particulars that are required by sub-section (5) to be set out in a report made by an expert in relation to terms proposed by an offeror or on-market offeror (in this sub-section referred to as the 'relevant offeror') for the acquisition of shares in, or renounceable options or convertible notes granted or issued by, a company are— (a) particulars of any relationship of the expert with the relevant offeror, the company or any person (in this paragraph referred to as a 'relevant associate') who is associated with the relevant offeror or the company, including, without limiting the generality of the foregoing, particulars of any circumstances in which the expert furnishes advice to or acts on behalf of the relevant offeror, the company or a relevant associate in the proper performance of the functions attaching to the expert's professional capacity or to the expert's business relationship with the relevant offeror, the company or the relevant associate; (b) particulars of any pecuniary or other interest of the expert that could reasonably be regarded as being capable of affecting the expert's ability to give an unbiased opinion in relation to the proposed terms; and (c) particulars of— (i) any fee; and (ii) any pecuniary or other benefit, whether direct or indirect, that the expert has received or will or may receive for or in connection with the making of the report.". Liability for mis-statements 10. Section 44 of the Principal Act is amended— (a) by omitting from paragraph (7) (b) "section" and substituting "sub-section"; and (b) by inserting in sub-paragraph (7) (b) (ii) "with or" after "dispatched,". Orders where prohibited acquisitions take place 11. Section 45 of the Principal Act is amended— (a) by inserting in sub-section (1) "such order or orders as it thinks fit, including, but without limiting the generality of the foregoing," after "make" (first occurring); (b) by inserting after paragraph (1) (d) the following paragraph: "(da) an order vesting in the Commission— (i) the shares, or such of the shares as are specified in the order; or (ii) any interest in the shares, or in such of the shares as are specified in the order;"; and (c) by omitting from sub-section (3) "restraining the exercise of voting rights" and substituting "referred to in paragraph (1) (b) or (f)". Orders where offers not dispatched pursuant to Part A statement 12. Section 46 of the Principal Act is amended— (a) by omitting from sub-section (1) "do either or both of the following:" and substituting "make such order or orders as it thinks fit, including, but without limiting the generality of the foregoing—"; (b) by omitting from paragraph (1) (e) "make"; (c) by adding at the end of paragraph (1) (e) "and"; and (d) by omitting from paragraph (1) (f) "order" (first occurring) and substituting "an order directing". Orders to protect rights under take-over schemes or announcements 13. Section 47 of the Principal Act is amended by inserting after paragraph (1) (e) the following paragraph: "(ea) an order vesting in the Commission shares, or any interest in shares, in the target company;". Miscellaneous provisions relating to orders 14. Section 49 of the Principal Act is amended— (a) by omitting sub-section (1) and substituting the following sub-section: "(1) The Court shall not make an order under section 45, 46, 47, 48, 57 or 60 if it is satisfied that the order would unfairly prejudice any person."; and (b) by omitting sub-sections (6) and (6a) and substituting the following sub-section: "(6) Where a share or an interest in a share vests in the Commission by virtue of an order under section 45, 46, 47 or 60 or of a direction under sub-section (5) of this section— (a) the Commission may, subject to any directions of the Court, get in, sell or otherwise dispose of, or deal with, the share or interest as it sees fit; (b) the provisions of section 462 of the Companies Act 1981 (other than sub-section 462 (1) of that Act) apply in relation to the share or interest as if— (i) a reference in those provisions to the power of the Commission under sub-section 462 (1) of that Act, or to the power conferred upon the Commission by sub-section 462 (1) of that Act, were a reference to the power conferred on the Commission by paragraph (a) of this sub-section; (ii) a reference in those provisions to property, or to an estate or interest in property, were a reference to the share or interest; and (iii) the reference in sub-section 462 (4) of that Act to any power conferred on the Commission by Subdivision F of Division 4 of Part XII of that Act included a reference to the power conferred on the Commission by paragraph (a) of this sub-section; and (c) sections 463 and 464 of that Act apply in relation to the share or interest in like manner as they apply in relation to property vested in the Commission by Subdivision F of Division 4 of Part XII of that Act.". Power to exempt from compliance with Act 15. Section 57 of the Principal Act is amended by omitting sub-section (2) and substituting the following sub-section: "(2) The Commission shall cause a copy of an instrument executed under sub-section (1) to be published in the Gazette, but failure of the Commission to do so does not affect the validity of the instrument.". Power to declare that Act applies as if modified 16. Section 58 of the Principal Act is amended by omitting sub-section (2) and substituting the following sub-section: "(2) The Commission shall cause a copy of an instrument executed under sub-section (1) to be published in the Gazette, but failure of the Commission to do so does not affect the validity of the instrument.". 17. Section 60 of the Principal Act is repealed and the following section is substituted: Power of Commission to declare acquisition of shares or other conduct to be unacceptable "60. (1) Where the Commission is satisfied that an acquisition of shares occurred in circumstances where— (a) the shareholders and directors of a company did not know the identity of a person who proposed to acquire a substantial interest in the company; (b) the shareholders and directors of a company did not have a reasonable time in which to consider a proposal under which a person would acquire a substantial interest in the company; (c) the shareholders and directors of a company were not supplied with sufficient information to enable them to assess the merits of a proposal under which a person would acquire a substantial interest in the company; or (d) the shareholders of a company did not all have reasonable and equal opportunities to participate in any benefits, or to become entitled to participate in any benefits, accruing, whether directly or indirectly and whether immediately or in the future, to any shareholder or to any person associated with a shareholder, in connection with the acquisition, or proposed acquisition, by any person of a substantial interest in the company, the Commission may, within 90 days after that acquisition of shares occurred, by instrument in writing, declare that acquisition of shares to have been an unacceptable acquisition and, where such a declaration is made, the person who acquired those shares shall be deemed, for the purposes only of section 45, to have acquired those shares in contravention of section 11. "(2) Where an application is made to the Court under section 45 in relation to an acquisition of shares that has been declared by the Commission pursuant to sub-section (1) to have been an unacceptable acquisition, the Court may, instead of making any of the orders referred to in section 45, declare that the acquisition was not an unacceptable acquisition and, where the Court so declares, the declaration of the Commission has no further effect. "(3) Where the Commission is satisfied that, as a result of conduct engaged in by a person in relation to shares in, or the affairs of, a company— (a) the shareholders and directors of a company did not know the identity of a person who proposed to acquire a substantial interest in the company; (b) the shareholders and directors of a company did not have a reasonable time in which to consider a proposal under which a person would acquire a substantial interest in the company; (c) the shareholders and directors of a company were not supplied with sufficient information to enable them to assess the merits of a proposal under which a person would acquire a substantial interest in the company; or (d) the shareholders of a company did not all have reasonable and equal opportunities to participate in any benefits, or to become entitled to participate in any benefits, accruing, whether directly or indirectly and whether immediately or in the future, to any shareholder or to any person associated with a shareholder, in connection with the acquisition, or proposed acquisition, by any person of a substantial interest in the company, the Commission may, within 90 days after that conduct was engaged in, by instrument in writing, declare that conduct to have been unacceptable conduct. "(4) Where, pursuant to sub-section (3), the Commission declares conduct that has been engaged in by a person in relation to shares in, or the affairs of, a company to have been unacceptable conduct, the Court may, on the application of the Commission, the company or a member of the company, make— (a) any order that it thinks necessary or expedient to protect the rights of any person affected by the conduct or to ensure, as far as possible, that a take-over scheme or take-over announcement or a proposed take-over scheme or take-over announcement in relation to shares in the company proceeds in the manner in which it would have proceeded if that conduct had not been engaged in; (b) without limiting the generality of paragraph (a), any one or more of the following orders: (i) an order directing a person to supply to the holders of shares in the company such information as is specified in the order; (ii) an order restraining the exercise of any voting or other rights attached to any shares; (iii) an order restraining the disposal of, or of any interest in, shares in the company; (iv) an order directing the disposal of, or of any interest in, shares in the company; (v) an order vesting in the Commission shares, or any interest in shares, in the company; (vi) an order directing the company not to register the transfer or transmission of shares; (vii) an order cancelling a contract, arrangement or offer relating to a take-over scheme or take-over announcement or a proposed take-over scheme or take-over announcement in relation to shares in the company; (viii) an order declaring a contract, arrangement or offer relating to a take-over scheme or take-over announcement or a proposed take-over scheme or take-over announcement in relation to shares in the company to be voidable; and (c) for the purpose of securing compliance with any order made pursuant to paragraph (a) or (b), an order directing a person to do or refrain from doing a specified act, or, instead of making any order, the Court may declare that the conduct was not unacceptable conduct and, where the Court so declares, the declaration of the Commission has no further effect. "(5) Where the Commission makes a declaration under sub-section (1) or (3) in relation to an acquisition of shares by, or in relation to conduct engaged in by, a person, the Court may, upon an application made by that person, declare that the acquisition of shares or the conduct was not an unacceptable acquisition or was not unacceptable conduct, as the case may be, and, where the Court so declares, the declaration of the Commission has no further effect. "(6) Where the Commission makes a declaration under this section, the Commission shall, as soon as practicable— (a) cause a copy of the instrument by which the declaration was made to be given to, or served on, any person to whom the declaration relates; and (b) cause a copy of that instrument to be published in the Gazette. "(7) The validity of a declaration under this section is not affected by failure of the Commission to comply with sub-section (6) in relation to the declaration.". Power of Commission to make certain orders 18. Section 60a of the Principal Act is amended— (a) by omitting from sub-section (1) ", (3) or (4)" and substituting "or (3)"; (b) by omitting from paragraph (9) (b) "or (4)"; and (c) by omitting from paragraph (9) (b) "(5)" and substituting "(4)". Schedule 19. The Schedule to the Principal Act is amended— (a) by omitting paragraph 2 (e) of Part B and substituting the following paragraph: "(e) where there will or may be made or given to a person who, in relation to the target company, is or, if the target company were a company as defined in sub-section 5 (1) of the Companies Act 1981, would be a prescribed person for the purposes of section 233 of that Act— (i) a payment (including a payment by way of damages for breach of contract) or other valuable consideration or any other benefit (not being a payment to which paragraph (e) or (g) of the definition of 'exempt benefit' in sub-section (7) of that section applies) by way of compensation for the loss by that person or any other person of, or for or in connection with retirement of that person or any other person from, an office that, in relation to the target company, is or, if the target company were a company as so defined, would be a prescribed office for the purposes of that section; or (ii) a payment (including a payment by way of damages for breach of contract) or other valuable consideration or any other benefit in connection with the transfer of the whole or any part of the undertaking or property of the target company, including such a payment or other valuable consideration or other benefit that a person is, or will or may become, obliged under a contract to make or give—particulars with respect to the payment or consideration (including the amount of the payment or the money value of the consideration) or the other benefit;"; and (b) by omitting paragraph 2 (e) of Part D and substituting the following paragraph: "(e) where there will or may be made or given to a person who, in relation to the target company, is or, if the target company were a company as defined in sub-section 5 (1) of the Companies Act 1981, would be a prescribed person for the purposes of section 233 of that Act— (i) a payment (including a payment by way of damages for breach of contract) or other valuable consideration or any other benefit (not being a payment to which paragraph (e) or (g) of the definition of 'exempt benefit' in sub-section (7) of that section applies) by way of compensation for the loss by that person or any other person of, or for or in connection with retirement of that person or any other person from, an office that, in relation to the target company, is or, if the target company were a company as so defined, would be a prescribed office for the purposes of that section; or (ii) a payment (including a payment by way of damages for breach of contract) or other valuable consideration or any other benefit in connection with the transfer of the whole or any part of the undertaking or property of the target company, including such a payment or other valuable consideration or other benefit that a person is, or will or may become, obliged under a contract to make or give—particulars with respect to the payment or consideration (including the amount of the payment or the money value of the consideration) or the othe