Commonwealth: 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 other benefit;". PART III—AMENDMENTS OF COMPANIES ACT 1981 Principal Act 20. The Companies Act 19812 is in this Part referred to as the Principal Act. Interpretation 21. Section 5 of the Principal Act is amended— (a) by omitting from the definition of "borrowing corporation" in sub-section (1) "but does not include a banking corporation"; (b) by inserting after paragraph (a) of the definition of "debenture" in sub-section (1) the following paragraph: "(aa) a document issued or executed by a banking corporation in the ordinary course of its banking business, being a document that evidences or acknowledges indebtedness of the corporation arising in the ordinary course of that business;"; (c) by omitting the definition of "mining company" from sub-section (1) and substituting the following definition: " 'mining company' means a company— (a) the memorandum of which contains a provision stating the objects of the company; and (b) the sole objects of which are mining purposes;"; (d) by omitting from paragraph (b) of the definition of "officer" in sub-section (1) "the property or any part of the"; (e) by omitting from sub-section (2) "other person" and substituting "directors or the body corporate"; (f) by omitting sub-section (7) and substituting the following sub-section: "(7) For the purposes of this Act, a receiver of property of a corporation shall be deemed to be also a manager if the receiver manages affairs of the corporation or has power under the terms of his appointment to manage affairs of the corporation."; and (g) by inserting after sub-section (8) the following sub-sections: "(8a) For the purposes of this Act, a person shall be taken to be or become subject to a section 227 prohibition if, and only if, the person is or becomes, as the case may be, by virtue of section 227, prohibited, without the leave of the Court, from being a director or promoter of, or from being in any way (whether directly or indirectly) concerned in or taking part in the management of, a corporation. "(8b) For the purposes of this Act, a person shall be taken to be or become subject to a section 227a order if, and only if, the person is or becomes, as the case may be, prohibited, by virtue of an order made under section 227a or under a provision of a law of a State or of another Territory that corresponds with section 227a, from being a director or promoter of, or from being in any way (whether directly or indirectly) concerned in or taking part in the management of, a corporation, and a reference in this Act to a section 227a order is a reference to an order so made. "(8c) For the purposes of this Act, a person shall be taken to be or become subject to a section 562 order if, and only if, the person is or becomes, as the case may be, by virtue of an order made under section 562, under a corresponding provision of a previous law of the Territory or under a provision of a law, or a previous law, of a State or of another Territory that corresponds with section 562— (a) prohibited from acting as a director of, or from being concerned in or taking part in the management of, a company or other corporation; or (b) prohibited from being a director or promoter of, or from being in any way (whether directly or indirectly) concerned in or taking part in the management of, a company or other corporation, and a reference in this Act to a section 562 order is a reference to an order so made.". Relevant interests in shares 22. Section 8 of the Principal Act is amended— (a) by omitting from paragraph (8) (a) ", 232 or 261" and substituting "and 232"; and (b) by omitting from paragraph (8) (b) "or of section 261". Insertion of Subdivision heading 23. Before section 17 of the Principal Act the following heading is inserted in Division 2 of Part II: "Subdivision A—Registration" Registration of auditors 24. Section 18 of the Principal Act is amended by omitting sub-section (3) and substituting the following sub-section: "(3) The Commission shall not register as an auditor a person who is subject to a section 227 prohibition, a section 227a order or a section 562 order.". Registration of liquidators 25. Section 20 of the Principal Act is amended by omitting sub-section (4) and substituting the following sub-section: "(4) The Commission shall not register as a liquidator, or as a liquidator of a specified corporation, a person who is subject to a section 227 prohibition, a section 227a order or a section 562 order.". Register of Auditors 26. Section 23 of the Principal Act is amended by inserting in paragraph (1) (e) "or 30d (7) (a), (b) or (c)" after "(c)". Registers of Liquidators and Official Liquidators 27. Section 24 of the Principal Act is amended— (a) by inserting in sub-paragraph (1) (a) (v) "or 30d (7) (a), (b) or (c)" after "(c)"; and (b) by inserting in sub-paragraph (1) (b) (vi) "or 30d (7) (a), (b) or (c)" after "(c)". Notification of certain matters 28. Section 25 of the Principal Act is amended by omitting sub-section (4) and substituting the following sub-section: "(4) A person who is registered as an auditor, as a liquidator or as a liquidator of a specified corporation shall, not later than 3 days after he becomes subject to a section 227 prohibition, a section 227a order or a section 562 order, lodge with the Commission, in the prescribed form, particulars of the circumstances by reason of which he became subject to the section 227 prohibition or particulars in writing of the section 227a order or section 562 order, as the case may be.". Repeal of section 27 29. Section 27 of the Principal Act is repealed. Certain persons not to apply for registration as auditor or liquidator 30. Section 28 of the Principal Act is amended by omitting sub-section (3) and substituting the following sub-section: "(3) A person whose registration as an auditor or liquidator has been cancelled or suspended— (a) under, a provision of a law of a participating State or participating Territory that corresponded with a provision of section 27 (other than sub-section 27 (1)); or (b) under a provision of a law of a participating State or participating Territory that corresponds with section 30d, is not entitled, without the leave of the Supreme Court of that State or Territory, to apply to the Commission for registration as an auditor or liquidator, as the case may be, under this Act.". 31. After section 30 of the Principal Act the following Subdivision is inserted in Division 2 of Part II: "Subdivision B—Cancellation or Suspension of Registration Interpretation "30a. In this Subdivision, unless the contrary intention appears— 'Board' means the Companies Auditors and Liquidators Disciplinary Board; 'Chairman' means the Chairman of the Board and includes a person acting or purporting to act as Chairman of the Board pursuant to section 7 of the Companies Auditors and Liquidators Disciplinary Board Ordinance 1982; 'decision', in relation to the Board, means a decision of the Board under this Subdivision and includes a refusal to exercise a power under section 30d; 'hearing' means a hearing held by the Board for the purposes of this Subdivision; 'member' means member of the Board and, while the deputy of a member is present at a hearing at which the member is not present, includes that deputy; 'registered' means registered under this Division. Cancellation at request of registered person "30b. (1) Where a person who is registered as an auditor, as a liquidator, as a liquidator of a specified corporation or as an official liquidator requests the Commission to cancel his registration, the Commission may, in its discretion, cancel the registration of that person as an auditor, as a liquidator, as a liquidator of that corporation or as an official liquidator, as the case may be. "(2) A decision of the Commission under sub-section (1) to cancel the registration of a person as an auditor, as a liquidator, as a liquidator of a specified corporation or as an official liquidator comes into effect forthwith upon the making of the decision. Official liquidators "30c. (1) The Commission may, at any time, in its discretion, cancel or suspend the registration as an official liquidator of a person who is so registered and the decision of the Commission cancelling or suspending the registration of a person as an official liquidator is final. "(2) Where the Commission decides to exercise its power under sub-section (1) to cancel or suspend the registration of a person as an official liquidator, the Commission shall, not later than 14 days after the decision, give to the person a notice in writing setting out the decision and setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision but the validity of the decision is not affected by failure of the Commission to do so. "(3) A decision of the Commission under sub-section (1) to cancel or suspend the registration of a person as an official liquidator comes into effect at the expiration of the day on which there is given to the person a notice of the decision, being a notice of the kind referred to in sub-section (2). Powers of Board in relation to auditors and liquidators "30d. (1) The Board may, if it is satisfied on an application by the Commission for a person who is registered as an auditor to be dealt with under this section— (a) that the person— (i) is subject to a section 227 prohibition, a section 227a order or a section 562 order; (ii) is incapable, by reason of mental infirmity, of managing his affairs; (iii) has failed to comply with the provisions of section 26; or (iv) has ceased to be resident in Australia; or (b) that the person has failed, whether within or outside the Territory, to carry out or perform adequately and properly— (i) the duties of an auditor; or (ii) any duties or functions required by any law to be carried out or performed by a registered company auditor, or is otherwise not a fit and proper person to remain registered as an auditor, by order, cancel, or suspend for a specified period, the registration of the person as an auditor. "(2) The Board may, if it is satisfied on an application by the Commission for a person who is registered as a liquidator to be dealt with under this section— (a) that the person— (i) is subject to a section 227 prohibition, a section 227a order or a section 562 order; (ii) is incapable, by reason of mental infirmity, of managing his affairs; (iii) has failed to comply with the provisions of section 26; or (iv) has ceased to be resident in Australia; or (b) that the person has failed, whether within or outside the Territory, to carry out or perform adequately and properly— (i) the duties of a liquidator; or (ii) any duties or functions required by any law to be carried out or performed by a registered liquidator, or is otherwise not a fit and proper person to remain registered as a liquidator, by order, cancel, or suspend for a specified period, the registration of the person as a liquidator. "(3) The Board may, if it is satisfied on an application by the Commission for a person who is registered as a liquidator of a specified corporation to be dealt with under this section— (a) that the person— (i) is subject to a section 227 prohibition, a section 227a order or a section 562 order; (ii) is incapable, by reason of mental infirmity, of managing his affairs; (iii) has failed to comply with a requirement made of him under sub-section 26 (5); or (iv) has ceased to be resident in Australia; or (b) that the person has failed, whether within or outside the Territory, to carry out adequately and properly the duties of a liquidator in respect of the winding up of that corporation or is otherwise not a fit and proper person to remain registered as a liquidator of that corporation, by order, cancel, or suspend for a specified period, the registration of the person as a liquidator of that corporation. "(4) Where— (a) the Commission applies to the Board for a person who is registered as an auditor to be dealt with under this section; and (b) the person is also registered as a liquidator or as a liquidator of a specified corporation, the Board may, in addition to making an order under sub-section (1), if it is satisfied as to any of the matters specified in paragraph (2) (a) or (b) or (3) (a) or (b), make an order cancelling, or suspending for a specified period, the registration of the person as a liquidator or as a liquidator of that corporation, as the case may be, and, where the Board makes such an order, the order shall, for the purposes of this Subdivision, be deemed to have been made under sub-section (2) or (3), as the case may be. "(5) Where— (a) the Commission applies to the Board for a person who is registered as a liquidator to be dealt with under this section; and (b) the person is also registered as an auditor or as a liquidator of a specified corporation, the Board may, in addition to making an order under sub-section (2), if it is satisfied as to any of the matters specified in paragraph (1) (a) or (b) or (3) (a) or (b), make an order cancelling, or suspending for a specified period, the registration of the person as an auditor or as a liquidator of that corporation, as the case may be, and, where the Board makes such an order, the order shall, for the purposes of this Subdivision, be deemed to have been made under sub-section (1) or (3), as the case may be. "(6) Where— (a) the Commission applies to the Board for a person who is registered as a liquidator of a specified corporation to be dealt with under this section; and (b) the person is also registered as an auditor or as a liquidator, the Board may, in addition to making an order under sub-section (3), if it is satisfied as to any of the matters specified in paragraph (1) (a) or (b) or (2) (a) or (b), make an order cancelling, or suspending for a specified period, the registration of the person as an auditor or as a liquidator, as the case may be, and, where the Board makes such an order, the order shall, for the purposes of this Subdivision, be deemed to have been made under sub-section (1) or (2), as the case may be. "(7) Where, on an application by the Commission for a person who is registered as an auditor, as a liquidator or as a liquidator of a specified corporation to be dealt with under this section, the Board is satisfied that the person has failed to carry out or perform adequately and properly any of the duties or functions mentioned in paragraph (1) (b), (2) (b) or (3) (b), as the case may be, or is otherwise not a fit and proper person to remain registered as an auditor, liquidator or liquidator of that corporation, as the case may be, the Board may, in addition to or instead of cancelling or suspending the registration of the person as an auditor, liquidator or liquidator of that corporation, as the case may be, deal with the person in one or more of the following ways: (a) by imposing on the person a penalty not exceeding $5,000; (b) by admonishing or reprimanding the person; (c) by requiring the person to give an undertaking to engage in, or to refrain from engaging in, specified conduct, and, if a person fails to give an undertaking when required to do so under paragraph (c), or contravenes or fails to comply with an undertaking given pursuant to a requirement under that paragraph, the Board may, by order, cancel, or suspend for a specified period, the registration of the person as an auditor, as a liquidator or as a liquidator of a specified corporation, as the case may be. "(8) The amount of a penalty imposed on a person under sub-section (7) may be recovered in a court of competent jurisdiction as a debt due to the Commonwealth. "(9) The Board may exercise any of its powers under this Subdivision in relation to a person as a result of conduct engaged in by the person whether or not that conduct constituted or might have constituted an offence, and whether or not any proceedings have been brought or are to be brought in relation to that conduct. "(10) This section has effect subject to section 30e. Hearings "30e. (1) The Board may, at a meeting of the Board, hold a hearing for the purpose of the performance of its functions, or the exercise of its powers, under section 30d. "(2) The Board shall not— (a) cancel or suspend the registration of a person as an auditor, as a liquidator or as a liquidator of a specified corporation; or (b) deal with a person in any of the ways mentioned in paragraphs 30d (7) (a), (b) and (c), unless the Board has afforded the person an opportunity to appear at a hearing and to make submissions to, and adduce evidence before, the Board in relation to the matter. "(3) Where the Board is required by sub-section (2) to afford a person an opportunity to appear at a hearing and to make submissions to, and adduce evidence before, the Board in relation to a matter, the Board shall afford the Commission an opportunity to appear at the hearing and to make submissions to, and adduce evidence before, the Board in relation to the matter. "(4) Subject to sub-section (5), hearings shall take place in private. "(5) If a person who is entitled under sub-section (2) to be afforded an opportunity to appear at a hearing requests that the hearing take place in public, the hearing shall, subject to any directions of the Board under sub-section (7), take place in public. "(6) The Board may give directions as to the persons who may be present at a hearing that is to take place in private. "(7) Where, at a hearing that is taking place in public at the request of a person, the Board is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or in order to protect the interests of any other person, the Board may— (a) direct that a part of the hearing take place in private and give directions as to the persons who may be present; or (b) give directions preventing or restricting the publication of evidence given before the Board or of matters contained in documents lodged with or produced to the Board. "(8) Nothing in a direction given by the Board under sub-section (6) or paragraph (7) (a) prevents the presence at a hearing of— (a) a person representing the Commission pursuant to sub-section 30g (3); (b) a person who is entitled under sub-section (2) to be afforded an opportunity to appear at the hearing; (c) a person representing, pursuant to sub-section 30g (3), a person referred to in paragraph (b); or (d) a person representing, pursuant to sub-section 30g (3), a person who, by reason of a direction given by the Board under sub-section (6) or paragraph (7) (a), is entitled to be present at the hearing. "(9) Where the Board directs that a hearing or part of a hearing take place in private, a person (other than the Chairman, a member, or a member of the staff of the Board approved by the Board) shall not be present at the hearing unless he is entitled to be present by virtue of the direction or by virtue of sub-section (8). Penalty: $1,000 or imprisonment for 3 months. "(10) Where the Board is required by sub-section (2) or (3) to afford a person an opportunity to appear at a hearing, the Board shall appoint a date, time and place for the hearing and cause notice in writing of the date, time and place to be given to the person. "(11) A person who is entitled under sub-section (2) or (3) to be afforded an opportunity to appear at a hearing and who does not wish to appear at the hearing may, before the date of the hearing, lodge with the Board in writing any submissions that he wishes the Board to take into account in relation to the matter. "(12) The Board shall take into account a submission made or lodged to, or evidence adduced before, the Board when making any decision on the matter to which the submission or evidence relates. Power to summon witnesses and take evidence "30f. (1) The Chairman or a member may summon a person to appear at a hearing to give evidence and to produce such documents (if any) as are referred to in the summons, being documents relating to the matters that are the subject of the hearing. "(2) The Board may, at a hearing, take evidence on oath or affirmation and for that purpose the Chairman may— (a) require a person appearing at the hearing to give evidence either to take an oath or make an affirmation; and (b) administer an oath or affirmation to a person so appearing at the hearing. "(3) The oath or affirmation to be taken or made by a person for the purposes of sub-section (2) is an oath or affirmation that the evidence he will give will be true. Proceedings at hearings "30g. (1) At a hearing— (a) the proceedings shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Subdivision and a proper consideration of the matters before the Board permit; (b) the Board is not bound by the rules of evidence; and (c) the Board may, upon such conditions as it thinks fit, permit a person to intervene in the proceedings. "(2) The Board shall observe the rules of natural justice at and in connection with a hearing. "(3) At a hearing— (a) the Commission may be represented by an employee, or a member or acting member, of the Commission; (b) a natural person may appear in person or may be represented by an employee of the person approved by the Board; (c) a body corporate (other than the Commission) may be represented by an employee, or by a director or other officer, of the body corporate approved by the Board; (d) an unincorporated association of persons or a member of an unincorporated association of persons may be represented by a member or officer of the association approved by the Board; and (e) any person may be represented by a barrister or solicitor of the Supreme Court of a State or Territory or of the High Court. "(4) A person who attends at a hearing pursuant to a summons issued under sub-section 30f (1) is entitled to be paid— (a) in a case where the summons was issued at the request of a person—by that person; or (b) in any other case—by the Board, such allowances and expenses as are provided for by the regulations. "(5) The Board may permit a person appearing as a witness at a hearing to give evidence by tendering, and, if the Board thinks fit, verifying by oath or affirmation, a written statement. Failure of witnesses to attend and answer questions "30h. (1) A person served, as prescribed, with a summons to appear as a witness at a hearing shall not, without reasonable excuse— (a) fail to attend as required by the summons; or (b) fail to attend from day to day unless excused, or released from further attendance, by the Chairman. "(2) A person appearing as a witness at a hearing shall not, without reasonable excuse— (a) when required pursuant to sub-section 30f (2) either to take an oath or make an affirmation—refuse or fail to comply with the requirement; (b) refuse or fail to answer a question that he is required to answer by the Chairman; or (c) refuse or fail to produce a document that he was required to produce by a summons under sub-section 30f (1) served on him as prescribed. "(3) A person shall not, at a hearing, give evidence that is false or misleading. "(4) Where— (a) a duly qualified legal practitioner is required to answer a question or produce a document at a hearing; and (b) the answer to the question would disclose, or the document contains, a privileged communication made by or to the legal practitioner in his capacity as a legal practitioner, the legal practitioner is entitled to refuse to comply with the requirement unless the person to whom or by whom the communication was made agrees to the legal practitioner complying with the requirement but, where the legal practitioner refuses to comply with the requirement, he shall, if so required by the Chairman, and if he knows the name and address of the person to whom or by whom the communication was made, forthwith furnish that name and address in writing to the Board. "(5) It is not a reasonable excuse for the purposes of sub-section (2) for a person to refuse or fail to answer a question put to him that the answer might tend to incriminate him but, where the person claims, before answering the question, that the answer might tend to incriminate him, neither the question nor the answer is admissible in evidence against him in criminal proceedings other than proceedings for a contravention of sub-section (3) or proceedings in relation to a charge of perjury in respect of the answer. "(6) A person who contravenes sub-section (1), (2), (3) or (4) is guilty of an offence. Penalty: $1,000 or imprisonment for 3 months. "(7) Where the Board is satisfied that— (a) a person served, as prescribed, with a summons to appear as a witness at a hearing has, without reasonable excuse, failed to attend as required by paragraph (1) (a) or (b); or (b) a person appearing as a witness at a hearing has, without reasonable excuse— (i) when required pursuant to sub-section 30f (2) either to take an oath or make an affirmation; (ii) when required by the Chairman to answer a question; or (iii) when required to produce a document by a summons under sub-section 30f (1) served on him as prescribed, refused or failed to comply with the requirement, the Chairman may, by instrument in writing, certify the failure to attend or the refusal or failure to comply with the requirement, as the case may be, to the Court. "(8) Where a recognized Board of a participating State or participating Territory is satisfied that— (a) a person served, in the manner prescribed for the purposes of a provision of a law of that State or Territory that corresponds with this section, with a summons to appear as a witness at a prescribed hearing has, without reasonable excuse, failed to attend as required by a provision of a law of that State or Territory that corresponds with paragraph (1) (a) or (b); or (b) a person appearing as a witness at a prescribed hearing has, without reasonable excuse— (i) when required pursuant to a provision of a law of that State or Territory that corresponds with sub-section 30f (2) either to take an oath or make an affirmation; (ii) when required by the Chairman of the recognized Board to answer a question; or (iii) when required to produce a document by a summons under a provision of a law of that State or Territory that corresponds with sub-section 30f (1) served on him in the manner prescribed for the purposes of a provision of a law of that State or Territory that corresponds with this section, refused or failed to comply with the requirement, the Chairman of the recognized Board may, by instrument in writing, certify the failure to attend or the refusal or failure to comply with the requirement, as the case may be, to the Court. "(9) Where a certificate is given under sub-section (7) or (8), the Court may inquire into the case and, if it is satisfied that the person to whom the certificate relates has, without reasonable excuse, failed to attend or refused or failed to comply with a requirement as mentioned in the certificate— (a) may order the person to attend or to comply with the requirement— (i) in the case of a certificate given under sub-section (7)—at a hearing; or (ii) in the case of a certificate given under sub-section (8) by the Chairman of a recognized Board of a participating State or participating Territory—at a prescribed hearing, to be held at a time and place specified in the order; or (b) may punish the person in the same manner as if he had been guilty of contempt of the Court and, if it thinks fit, also make an order under paragraph (a). "(10) In this section— 'Chairman', in relation to a recognized Board of a participating State or participating Territory, has the same meaning as that expression has in the prescribed provisions of that State or Territory; 'prescribed hearing', in relation to a recognized Board of a participating State or participating Territory, means a hearing held by that Board for the purposes of the prescribed provisions of that State or Territory; 'prescribed provisions', in relation to a participating State or participating Territory, means the provisions of the law of that State or Territory that correspond with this Subdivision; 'recognized Board', in relation to a participating State or participating Territory, means the body that is the Companies Auditors and Liquidators Disciplinary Board within the meaning of the prescribed provisions of that State or Territory. Contempt of Board "30j. A person shall not— (a) insult the Chairman or a member in the performance of his functions, or the exercise of his powers, at a hearing; (b) interrupt a hearing; (c) create a disturbance, or take part in creating or continuing a disturbance, in or near a place where a hearing is being held; or (d) do any other act that would, if the Board were a court of record, constitute contempt of that court. Penalty: $1,000 or imprisonment for 3 months. Protection of members, &c. "30k. (1) The Chairman or a member has, in the performance of his functions or the exercise of his powers as the Chairman or a member in relation to a hearing, the same protection and immunity as a Justice of the High Court. "(2) A barrister, solicitor or other person appearing on behalf of a person at a hearing has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court. "(3) Subject to this Act, a person summoned to attend or appearing as a witness at a hearing has the same protection as a witness in proceedings in the High Court. "(4) The Chairman, a member of the Board or a member of the staff of the Board is not liable to an action or other proceeding for damages for or in relation to an act done or omitted to be done in good faith in performance or purported performance of any function, or in exercise or purported exercise of any power, conferred by this Subdivision. Hearings deemed to be judicial proceedings "30l. A hearing shall, for the purposes of Part III of the Crimes Act 1914, be deemed to be a judicial proceeding. Notice of Board's decision "30m. (1) Where the Board decides to exercise any of its powers under section 30d in relation to a person who is registered as an auditor, as a liquidator or as a liquidator of a specified corporation, the Board shall, not later than 14 days after the decision — (a) give to the person a notice in writing setting out the decision and setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; (b) lodge with the Commission a copy of the notice referred to in paragraph (a); and (c) cause to be published in the Gazette a notice in writing setting out the decision. "(2) Where the Board decides to refuse to exercise its powers under section 30d in relation to a person who is registered as an auditor, as a liquidator or as a liquidator of a specified corporation, the Board shall, not later than 14 days after the decision— (a) give to the person a notice in writing setting out the decision and setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and (b) lodge with the Commission a copy of th