Corporations (New South Wales) Act 1990 (NSW)

Corporations (New South Wales) Act 1990 No 83 An Act to apply certain provisions of laws of the Commonwealth relating to corporations, the securities industry and the futures industry as laws of New South Wales and for other purposes. Part 1 Preliminary 1 Name of Act and purposes (1) This Act may be cited as the Corporations (New South Wales) Act 1990. (2) The purposes of this Act are: (a) to apply certain provisions of the Corporations Act 1989 of the Commonwealth and the Australian Securities and Investments Commission Act 1989 of the Commonwealth and of regulations under those Acts as laws of New South Wales, and (b) to apply certain other laws of the Commonwealth as laws of New South Wales for the purpose of the administration and enforcement of the law relating to corporations, the securities industry, the futures industry and some other matters. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act: applicable provision, in relation to a jurisdiction, means a provision of: (a) the Corporations Law, or Corporations Regulations, of that jurisdiction, or (b) the ASIC Law, or ASIC Regulations, of that jurisdiction, or (c) in the case of the Capital Territory—a Commonwealth law as applying, of its own force or because of another Commonwealth law, in relation to: (i) an offence against, or (ii) an act, matter or thing arising under or in respect of, a provision that, because of any other application or applications of this definition, is an applicable provision of the Capital Territory or any other jurisdiction, or (d) in the case of a jurisdiction other than the Capital Territory—a Commonwealth law as applying, because of a law of that jurisdiction, in relation to: (i) an offence against, or (ii) an act, matter or thing arising under or in respect of, a provision that, because of any other application or applications of this definition, is an applicable provision of that or any other jurisdiction. ASIC Act means the Australian Securities and Investments Commission Act 1989 of the Commonwealth. ASIC Law has the meaning given by Part 11. ASIC Law of New South Wales means the provisions applying by reason of section 58. ASIC Regulations has the meaning given by Part 11. ASIC Regulations of New South Wales means the provisions applying by reason of section 59. authority, in relation to the Commonwealth, has the same meaning as in Part 8 of the Corporations Act. Capital Territory means the Australian Capital Territory and the Jervis Bay Territory. Commission means the Australian Securities and Investments Commission established by the ASIC Act. Commonwealth administrative laws means the following: (a) the Administrative Appeals Tribunal Act 1975 of the Commonwealth (excluding Part IVA), (b) (Repealed) (c) the Freedom of Information Act 1982 of the Commonwealth, (d) the Ombudsman Act 1976 of the Commonwealth, (e) the Privacy Act 1988 of the Commonwealth, and the provisions of the regulations in force for the time being under those Acts. Commonwealth law means any of the written or unwritten laws of the Commonwealth, including laws about the exercise of prerogative powers, rights and privileges, other than the Corporations Law of the Capital Territory, the ASIC Law of the Capital Territory or provisions prescribed, for the purposes of the definition of Commonwealth law in section 4 of the Corporations Act, by regulations under section 73 of the Corporations Act. Commonwealth Minister has the meaning given to the Minister by section 80A (2) of the Corporations Law. co-operative scheme law has the meaning given by section 84. Corporations Act means the Corporations Act 1989 of the Commonwealth. Corporations Law has the meaning given by Part 3. Corporations Law of New South Wales means the provisions applying by reason of section 7. Corporations Regulations has the meaning given by Part 3. Corporations Regulations of New South Wales means the provisions applying by reason of section 8. corresponding law means: (a) an Act of a jurisdiction (other than New South Wales) that corresponds to this Act, or (b) regulations made under such an Act, or (c) the Corporations Law, Corporations Regulations, ASIC Law, or ASIC Regulations, or any other applicable provision, of such a jurisdiction, or (d) rules of court made because of such an Act. Federal Court means the Federal Court of Australia. Full Court, in relation to a Supreme Court of a State or Territory, includes any court of the State or Territory to which appeals lie from a single judge of that Supreme Court. jurisdiction means a State or the Capital Territory. law in relation to the Capital Territory, means a law of or in force in the Capital Territory. Minister for this jurisdiction means the Minister. modifications includes additions, omissions and substitutions. national scheme law has the meaning given by section 60. national scheme law of this jurisdiction means: (a) this Act, or (b) the Corporations Law of New South Wales, or (c) the ASIC Law of New South Wales. NCSC means the National Companies and Securities Commission. officer, in relation to the Commonwealth, has the same meaning as in Part 8 of the Corporations Act. State includes the Northern Territory. State Family Court, in relation to a State, means a court of that State to which section 41 of the Family Law Act 1975 of the Commonwealth applies because of a Proclamation made under section 41 (2) of that Act. Territory does not include the Northern Territory. this jurisdiction means New South Wales. (2) In this Act, a reference to a Commonwealth Act includes a reference to: (a) that Commonwealth Act as amended and in force for the time being, and (b) an Act passed in substitution for that Act. 4 Australian Capital Territory For the purposes of the national scheme laws of this jurisdiction, the Jervis Bay Territory is taken to be part of the Australian Capital Territory. 5 This Act and applicable provisions of New South Wales not to be affected by later State laws (1) An Act enacted, or an instrument made under an Act, after the commencement of this section is not to be interpreted as amending or repealing, or otherwise altering the effect or operation of, this Act or the applicable provisions of New South Wales. (2) Subsection (1) does not affect the interpretation of an Act, or of an instrument made under an Act, so far as that Act provides expressly for that Act or instrument, as the case may be, to have effect despite a specified provision, or despite any provision, of this Act or the applicable provisions of New South Wales. 6 Operation of other New South Wales laws Except as otherwise provided in this Act, nothing in this Act or the applicable provisions of New South Wales affects the operation after the commencement of this section of an Act enacted before that commencement or of an instrument made under such an Act. Part 2 The Corporations Law, and the Corporations Regulations, of New South Wales 7 Application in New South Wales of the Corporations Law The Corporations Law set out in section 82 of the Corporations Act as in force immediately before the repeal of that section: (a) applies as a law of New South Wales, and (b) as so applying, may be referred to as the Corporations Law of New South Wales. 8 Application of regulations (1) The regulations in force, immediately before the repeal of the Corporations Act, under section 22 of that Act: (a) apply as regulations in force for the purposes of the Corporations Law of New South Wales, and (b) as so applying, may be referred to as the Corporations Regulations of New South Wales. (2) Subject to subsection (3) of this section, where regulations under section 22 of the Corporations Act take effect from a specified day that is earlier than the day when they are notified in the Commonwealth of Australia Gazette under section 48 (1) of the Acts Interpretation Act 1901 of the Commonwealth, subsection (1) of this section has effect, and is taken always to have had effect, as if those regulations had taken effect under the Corporations Act from the specified day. (3) To the extent that a provision of the Corporations Regulations of New South Wales is taken because of a particular application of subsection (2) to have effect, or to have had effect, before the day of notification of the regulations referred to in that subsection, the provision does not operate so as to: (a) affect a private person's rights as at that day so as to disadvantage that person, or (b) impose a liability on a private person in respect of anything done or omitted to be done before that day. (4) In subsection (3): private person means a person other than: (a) the Commonwealth, a State or the Capital Territory, or (b) an authority of the Commonwealth, of a State or of the Capital Territory. (5) Subsection (3) does not affect any other operation that the provision has because of subsection (2) or otherwise. 9 Interpretation of some expressions in the Corporations Law, and the Corporations Regulations, of New South Wales In the Corporations Law, and the Corporations Regulations, of New South Wales: the Minister for this jurisdiction means the Minister. this jurisdiction means New South Wales. 10 Interpretation law (1) Subject to Part 1.2 of the Corporations Law of New South Wales, the Acts Interpretation Act 1901 of the Commonwealth as in force at the commencement of section 8 of the Corporations Act, applies as a law of New South Wales in relation to the Corporations Law, and the Corporations Regulations, of New South Wales and any instrument made, granted or issued under that Law or those Regulations (other than application orders under section 111A of that Law) and so applies as if that Law were an Act of the Commonwealth and those Regulations or instruments were regulations or instruments made under such an Act. (2) The Interpretation Act 1987 does not apply in relation to the Corporations Law, or the Corporations Regulations, of New South Wales or an application order or any other instrument made, granted or issued under that Law or those Regulations. Part 3 Citing the Corporations Law and the Corporations Regulations 11 Simpler citation of Corporations Law, and Corporations Regulations, of New South Wales (1) The Corporations Law of New South Wales may be referred to simply as the Corporations Law. (2) The Corporations Regulations of New South Wales may be referred to simply as the Corporations Regulations. (3) This section has effect subject to section 13. 12 References to Corporations Law, and Corporations Regulations, of other jurisdictions (1) This section has effect for the purposes of an Act, a law of New South Wales or an instrument made under an Act or under such a law. (2) Where a law of a jurisdiction other than New South Wales that corresponds to section 7 of this Act provides that the Corporations Law set out in section 82 of the Corporations Act applies as law of that jurisdiction, the Corporations Law of that jurisdiction is the Corporations Law so set out, applying as law of that jurisdiction. (3) Where a law of a jurisdiction other than New South Wales that corresponds to section 8 of this Act provides that the regulations under section 22 of the Corporations Act apply for the purposes of the Corporations Law of that jurisdiction, the Corporations Regulations of that jurisdiction are those regulations as so applying. 13 References to Corporations Law and Corporations Regulations (1) The object of this section is to help ensure that the Corporations Law of New South Wales operates, so far as possible, as if that Law, together with the Corporations Law of each jurisdiction other than New South Wales, constituted a single national Corporations Law applying of its own force throughout Australia. (2) Subject to this section, a reference in an instrument to the Corporations Law, or to the Corporations Regulations, is to be taken, for the purposes of the laws of New South Wales: (a) to be a reference to the Corporations Law, or to the Corporations Regulations, of New South Wales, and (b) to include a separate reference to the Corporations Law, or to the Corporations Regulations, of each jurisdiction other than New South Wales. (3) Subsection (2) has effect except so far as the contrary intention appears in the instrument, or the context of the reference otherwise requires. (4) Without limiting subsection (3), subsection (2) does not apply in relation to a reference expressed as a reference to the Corporations Law, or to the Corporations Regulations, of a jurisdiction. (5) In this section: instrument means: (a) an Act or an instrument made under an Act, or (b) a law of New South Wales or an instrument made under such a law, or (c) an award or other industrial determination or order, or an industrial agreement, or (d) any other order (whether executive, judicial or otherwise), or (e) a notice, certificate or licence, or (f) an agreement, or (g) an application made, information laid, affidavit sworn, or warrant issued, for any purpose, or (h) an indictment, presentment, summons or writ, or (i) any other pleading in, or process issued in connection with, a legal or other proceeding, or (j) any other document whatever. Part 4 Application of the Corporations Law to the Crown 14 Interpretation To avoid doubt, a reference in this Part to the Crown in a particular right includes a reference to an instrumentality or agency (whether a body corporate or not) of the Crown in that right. 15 Corporations Law of New South Wales (1) Chapter 5 (except Part 5.8) of the Corporations Law of New South Wales binds the Crown not only in right of the State of New South Wales but also, so far as the legislative power of the Parliament permits, the Crown in right of the Commonwealth, of each of the other States, of the Capital Territory, of the Northern Territory and of Norfolk Island. (1A) Chapters 6, 6A, 6B, 6C and 6D of the Corporations Law of New South Wales: (a) bind the Crown in right of the Commonwealth so far as the legislative power of the Parliament permits, but (b) do not bind the Crown in right of the State of New South Wales, of any other State, of the Capital Territory, of the Northern Territory or of Norfolk Island. (2) To avoid doubt, Chapter 7 of the Corporations Law of New South Wales does not bind the Crown in right of the State of New South Wales, of the Commonwealth, of any other State, of the Capital Territory, of the Northern Territory or of Norfolk Island. 16 Corporations Law of other jurisdictions Chapter 5 (except Part 5.8) of the Corporations Law of each jurisdiction other than New South Wales binds the Crown in right of the State of New South Wales. 17 Crown not liable to prosecution Nothing in this Part, or in the Corporations Law, renders the Crown in any right liable to be prosecuted for an offence. 18 This Part overrides the prerogative Where, because of this Part, a provision of a law of another jurisdiction binds the Crown in right of the State of New South Wales, the Crown in that right is subject to that provision despite any prerogative right or privilege. Part 5 Application orders 19 Commonwealth Minister to obtain consent of State Minister Despite Part 1.3 of the Corporations Law of New South Wales and section 20 of this Act, the Commonwealth Minister may only make an order under section 111A of that Law, or that section as applying because of section 20 of this Act, with the consent of the Minister for this jurisdiction. 20 Application orders for ASIC Law Part 1.3 of the Corporations Law of New South Wales applies for the purposes of the ASIC Law of New South Wales as if the provisions of the ASIC Law of New South Wales were provisions of the Corporations Law of New South Wales. Part 6 21 (Repealed) Part 7 Imposition of fees and taxes 22 Fees (including taxes) for chargeable matters This section imposes the fees (including fees that are taxes) that the Corporations Regulations of New South Wales prescribe. 23 Contributions and levies for fidelity funds of securities exchanges (1) This section imposes: (a) the contribution payable under section 902 (1) of the Corporations Law of New South Wales by a person who wishes to be admitted to membership of a securities exchange, or to a partnership in a member firm recognised by a securities exchange, and (b) the annual contribution payable under section 902 (2) of that Law by a member of a securities exchange, and (c) any levy payable under section 904 of that Law by a member of a securities exchange. (2) An expression has in subsection (1) the meaning it would have if this section were in Part 7.9 of the Corporations Law of New South Wales. 24 Levies for National Guarantee Fund This section imposes any levy that is payable under section 938, 940 or 941 of the Corporations Law of New South Wales. 25 Contributions and levies for fidelity funds of futures organisations (1) This section imposes: (a) the contribution payable under section 1234 (1) of the Corporations Law of New South Wales by a person who wishes to be admitted to membership of a futures organisation, and (b) the annual contribution payable under section 1234 (2) of that Law by a contributing member of a futures organisation, and (c) any levy payable under section 1235 of that Law by a contributing member of a futures organisation. (2) An expression has in subsection (1) the meaning it would have if this section were in Part 8.6 of the Corporations Law of New South Wales. Part 8 National administration and enforcement of the Corporations Law Division 1 Preliminary 26 Object The object of this Part is to help ensure that: (a) the Corporations Law of New South Wales, and the Corporations Law of each jurisdiction other than New South Wales, are administered and enforced on a national basis, in the same way as if those Laws constituted a single law of the Commonwealth, and (b) the ASIC Law of New South Wales, and the ASIC Law of each jurisdiction other than New South Wales, are administered and enforced on a national basis, in the same way as if those Laws constituted a single law of the Commonwealth. 27 Effect of Part (1) This Part has effect subject to this Act (in particular Part 9), the Corporations Law of New South Wales and the ASIC Law of New South Wales. (2) Nothing in this Part limits the generality of anything else in it. Division 2 Offences against applicable provisions 28 Object (1) The object of this Division is to further the object of this Part by providing: (a) for an offence against an applicable provision of New South Wales to be treated as if it were an offence against a law of the Commonwealth, and (b) for an offence against an applicable provision of another jurisdiction to be treated in New South Wales as if it were an offence against a law of the Commonwealth. (2) The purposes for which an offence is to be treated as mentioned in subsection (1) include, for example (but without limitation): (a) the investigation and prosecution of offences, and (b) the arrest, custody, bail, trial and conviction of offenders or persons charged with offences, and (c) proceedings relating to a matter referred to in paragraph (a) or (b), and (d) appeals and review relating to criminal proceedings and to proceedings of the kind referred to in paragraph (c), and (e) the sentencing, punishment and release of persons convicted of offences, and (f) fines, penalties and forfeitures, and (g) liability to make reparation in connection with offences, and (h) proceeds of crime, and (i) spent convictions. 29 Application of Commonwealth laws in relation to offences against applicable provisions (1) The Commonwealth laws apply as laws of New South Wales in relation to an offence against the applicable provisions of New South Wales as if those provisions were laws of the Commonwealth and were not laws of New South Wales. (2) For the purposes of a law of New South Wales, an offence against the applicable provisions of New South Wales: (a) is taken to be an offence against the laws of the Commonwealth, in the same way as if those provisions were laws of the Commonwealth, and (b) is taken not to be an offence against the laws of New South Wales. (3) Subsection (2) has effect for the purposes of a law of New South Wales except as prescribed by regulations under section 80. 30 Application of Commonwealth laws in relation to offences against applicable provisions of other jurisdictions (1) The Commonwealth laws apply as laws of New South Wales in relation to an offence against the applicable provisions of another jurisdiction as if those provisions were laws of the Commonwealth and were not laws of that other jurisdiction. (2) For the purposes of a law of New South Wales, an offence against the applicable provisions of another jurisdiction: (a) is taken to be an offence against the laws of the Commonwealth, in the same way as if those provisions were laws of the Commonwealth, and (b) is taken not to be an offence against the laws of that jurisdiction. (3) Subsection (2) has effect for the purposes of a law of New South Wales except as prescribed by regulations under section 80. (4) This section does not require, prohibit, empower, authorise or otherwise provide for, the doing of an act outside New South Wales. 31 Functions and powers conferred on Commonwealth authorities (1) A Commonwealth law applying because of section 29 that confers on an officer or authority of the Commonwealth a function or power in relation to an offence against the applicable provisions of the Capital Territory also confers on the officer or authority the same function or power in relation to an offence against the corresponding applicable provision of New South Wales. (2) A Commonwealth law applying because of section 30 that confers on an officer or authority of the Commonwealth a function or power in relation to an offence against an applicable provision of the Capital Territory also confers on the officer or authority the same function or power in relation to an offence against the corresponding applicable provision of another jurisdiction. (3) The function or power referred to in subsection (2) may only be performed or exercised in New South Wales. (4) In performing a function or exercising a power conferred by subsection (1) or (2), an officer or authority of the Commonwealth must act as nearly as practicable as the officer or authority would act in performing or exercising the same function or power in relation to an offence against the corresponding applicable provision of the Capital Territory. (5) A Commonwealth law applying because of section 29 or 30 applies as if it did not contain any provision empowering a Minister of State for the Commonwealth to give any directions in relation to the performance of a function or the exercise of a power conferred by subsection (1) or (2). 32 Reference in Commonwealth law to a provision of another law A reference in a Commonwealth law to a provision of that or another Commonwealth law is taken, for the purposes of section 29 or 30, to be a reference to that provision as applying because of that section. 33 (Repealed) Division 3 Administrative law 34 Object The object of this Division is to further the object of this Part by providing that the Commonwealth administrative laws: (a) apply to the applicable provisions of New South Wales, and (b) apply, in New South Wales, to the applicable provisions of another jurisdiction, as if the applicable provisions were those of the Capital Territory. 35 Application of Commonwealth administrative laws in relation to applicable provisions (1) The Commonwealth administrative laws apply as laws of New South Wales in relation to any act, matter or thing arising under or in respect of the applicable provisions of New South Wales as if those provisions were laws of the Commonwealth and were not laws of New South Wales. (2) For the purposes of a law of New South Wales, an act, matter or thing arising under or in respect of the applicable provisions of New South Wales: (a) is taken to be an act, matter or thing arising under or in respect of the laws of the Commonwealth, in the same way as if those provisions were laws of the Commonwealth, and (b) is taken not to be an act, matter or thing arising under or in respect of the laws of New South Wales. (3) Subsection (2) has effect for the purposes of a law of New South Wales except as prescribed by regulations under section 80. 36 Application of Commonwealth administrative laws in relation to applicable provisions of other jurisdictions (1) The Commonwealth administrative laws apply as laws of New South Wales in relation to any act, matter or thing arising under or in respect of the applicable provisions of another jurisdiction as if those provisions were laws of the Commonwealth and were not laws of that jurisdiction. (2) For the purposes of a law of New South Wales, an act, matter or thing arising under or in respect of the applicable provisions of another jurisdiction: (a) is taken to be an act, matter or thing arising under or in respect of the laws of the Commonwealth, in the same way as if those provisions were laws of the Commonwealth, and (b) is taken not to be an act, matter or thing arising under or in respect of the laws of that jurisdiction. (3) Subsection (2) has effect for the purposes of a law of New South Wales except as prescribed by regulations under section 80. (4) This section does not require, prohibit, empower, authorise or otherwise provide for the doing of an act outside New South Wales. 36A Construction of references to Part IVA of Commonwealth AAT Act For the purposes of sections 35 and 36, a reference in a provision of the Administrative Appeals Tribunal Act 1975 of the Commonwealth (as that provision applies as a law of this jurisdiction) to the whole or any part of Part IVA of that Act is taken to be a reference to the whole or any part of that Part as it has effect as a law of the Commonwealth. 37 Functions and powers conferred on Commonwealth authorities (1) A Commonwealth administrative law applying because of section 35 that confers on an officer or authority of the Commonwealth a function or power in relation to an act, matter or thing arising under or in respect of an applicable provision of the Capital Territory also confers on the officer or authority the same function or power in relation to an act, matter or thing arising under or in respect of the corresponding applicable provision of New South Wales. (2) A Commonwealth administrative law applying because of section 36 that confers on an officer or authority of the Commonwealth a function or power in relation to an act, matter or thing arising under or in respect of an applicable provision of the Capital Territory also confers on the officer or authority the same function or power in relation to an act, matter or thing arising under or in respect of the corresponding applicable provision of another jurisdiction. (3) The function or power referred to in subsection (2) may only be performed or exercised in New South Wales. (4) In performing a function or exercising a power conferred by subsection (1) or (2), an officer or authority of the Commonwealth must act as nearly as practicable as the officer or authority would act in performing or exercising the same function or power in relation to an act, matter or thing arising under or in respect of the corresponding applicable provision of the Capital Territory. (5) A Commonwealth law applying because of section 35 or 36 applies as if it did not contain any provision empowering a Minister of State for the Commonwealth to give any directions in relation to the performance of a function or the exercise of a power conferred by subsection (1) or (2). 38 Reference in Commonwealth administrative law to a provision of another law A reference in a Commonwealth administrative law to a provision of that or another Commonwealth administrative law is taken for the purposes of section 35 or 36, to be a reference to that provision as applying because of that section. 39 (Repealed) Part 9 Jurisdiction and procedure of courts Division 1 Vesting and cross-vesting of civil jurisdiction 40 Operation of Division (1) This Division provides in relation to: (a) the jurisdiction of courts in respect of civil matters arising under the Corporations Law of New South Wales, and (b) the jurisdiction of the courts of New South Wales in respect of civil matters arising under the Corporations Law of another State or the Capital Territory, and (c) the jurisdiction of courts in respect of matters arising under the Administrative Decisions (Judicial Review) Act 1977 of the Commonwealth involving or related to decisions made under the Corporations Law of a State or the Capital Territory by Commonwealth authorities and officers of the Commonwealth, and (d) the jurisdiction of courts in civil matters in respect of decisions made by officers of the Commonwealth to prosecute persons for offences against the Corporations Law of a State or the Capital Territory and related criminal justice process decisions, and so provides to the exclusion of the Jurisdiction of Courts (Cross-vesting) Act 1987. (2) Nothing in this Division affects any other jurisdiction of any court. 41 Interpretation (1) In this Division: civil matter means a matter other than a criminal matter. Commonwealth authority means an authority or body (whether incorporated or not) that is established or continued in existence by or under an Act of the Commonwealth. Corporations Law has the extended meaning given by subsection (2). judgment means a judgment, decree or order, whether final or interlocutory. lower court means a court of a State or Territory that is not a superior court. officer of the Commonwealth has the same meaning as in section 75 (v) of the Commonwealth Constitution. superior court means the Supreme Court of a State or Territory or a State Family Court. superior court matter means a civil matter that the Corporations Law clearly intends (for example, by use of the expression "the Court") to be dealt with only by a superior court. (2) In this Division: (a) a reference to the Corporations Law of New South Wales includes a reference to: (i) the Corporations Regulations of New South Wales, and (ii) the ASIC Law of New South Wales, and (iii) the ASIC Regulations of New South Wales, and (iv) any other applicable provisions (as defined in section 3) of New South Wales, and (v) this Act, and (vi) regulations made under this Act, and (vii) rules of court made by the Supreme Court of New South Wales because of a provision of thi