Commonwealth Numbered Acts

CORPORATIONS LEGISLATION AMENDMENT ACT 1990 No. 110 of 1990 - SCHEDULE 3

                      SCHEDULE 3                       Subsection 9 (1)

SUBSTANTIVE AMENDMENTS OF THE CORPORATIONS LAW Section 9 (definition of
"machine-copy"):
Omit "from surface contact with the document or by the use of photo-sensitive
material other than transparent photographic film". Section 9 (definition of
"retirement village scheme"):
Omit "in Australia", substitute "whether in Australia or elsewhere". Section
79:
Omit "A person", substitute "Subject to section 1006, a person". After
subsection 87 (1):
Insert:

"(1A) A reference, in relation to a person (in this subsection called the
`representative'), to a proper authority from a futures licensee (in this
subsection called the `principal') includes a reference to a document that,
immediately before the commencement of Division 3 of Part 8.3, was a proper
authority from that principal in relation to that representative under a
previous law that corresponds to subsection (1).". After subsection 88 (1):
Insert:

"(1A) A reference, in relation to a person (in this subsection called the
`representative'), to a proper authority from a securities licensee (in this
subsection called the `principal') includes a reference to a document that,
immediately before the commencement of Division 3 of Part 7.3, was a proper
authority from that principal in relation to that representative under a
previous law that corresponds to subsection (1).". Subsection 91 (2):
Insert "in force or" before "made" (last occurring). Subsection 91 (3):
Insert "in force or" before "made" (last occurring). Subsection 91 (4):
Insert "in force or" before "served" (last occurring). Paragraph 237 (4) (a):
Omit "required by subsection (1) to be disclosed", substitute "to be disclosed
for the purposes of subsection (2)". Paragraph 244 (1) (a):

   (a)  Omit "from the public".

   (b)  Omit "to the public". Subsections 289 (11) and (12):
Omit the subsections. Subsection 335 (3):

   (a)  Omit "may", substitute "must".

   (b)  Omit "if" (second occurring), substitute "when". Section 335:
Add at the end:

"(4) A company that is required to comply with subsection (3) in relation to a
partly completed annual return is to be taken not to comply with subsection
(1) in relation to the financial year concerned unless and until it complies
with subsection (3) in relation to that return.

"(5) A company need not comply with subsection (3) in relation to a partly
completed annual return if it instead completes and lodges, in accordance with
this Part (other than that subsection) an annual return in a form in relation
to which approval is in force under subsection (6) in relation to the case.

"(6) The Commission may, for the purposes of subsection (5), approve in
writing, for use in specified cases, forms of annual return that are not
inconsistent with the form or forms prescribed for the purposes of subsection
(1).". Paragraph 348 (b):
Omit "unless the local agent satisfies the court or tribunal hearing the
matter that the local agent should not be so liable", substitute "if the court
or tribunal hearing the matter is satisfied that the local agent should be so
liable". Section 349:
Add at the end:

"(9) A registered foreign company in relation to which a notice is in force
under subsection (7) must, at least once in every calendar year, lodge with
the Commission a return in the prescribed form made up to the date of its
annual general meeting.

"(10) The return must be lodged within 1 month after the date to which it is
made up, or within such further period as the Commission, in special
circumstances, allows.". Section 411:
After subsection (1), insert:

"(1A) Where:

   (a)  a compromise or arrangement is proposed:

   (i)  between 30 or more Part 5.1 bodies that are wholly-owned subsidiaries
        of a holding company and the creditors or a class of the creditors of
        each of those subsidiaries; and

   (ii) between the holding company and the creditors or a class of the
        creditors of the holding company; and

   (b)  the proposed compromise or arrangement in relation to each subsidiary
        includes a term that orders will be sought under section 413
        transferring the whole of the undertaking and of the property and
        liabilities of the subsidiary to the holding company; and

   (c)  the Court is satisfied, on the application in a summary way:

   (i)  of the holding company or of a creditor of the holding company; or

   (ii) if the holding company is being wound up - of the liquidator; that the
        number of meetings that would be required between creditors in order
        to consider the proposed compromises or arrangements would be so great
        as to result in a significant impediment to the timely and effective
        consideration by those creditors of the terms of the compromises or
        arrangements; the Court may order a meeting or meetings, on a
        consolidated basis, of the creditors of the holding company and of
        each of the subsidiaries or of such class or classes of those
        creditors as the Court determines and, where the Court makes such an
        order, the Court may approve the explanatory statement required by
        paragraph 412 (1) (a) to accompany notices of the meeting or meetings.

"(1B) Where:

   (a)  there are fewer than 30 wholly-owned subsidiaries of the holding
        company but the matters referred to in paragraphs (1A) (b) and (c) are
        satisfied; and

   (b)  the Court considers that circumstances exist that would justify its
        doing so; the Court may make an order under subsection (1A) in
        relation to the proposed compromise or arrangement.

"(1C) Where an order is made under subsection (1A) in relation to a proposed
compromise or arrangement, the succeeding provisions of this Part apply to the
compromise or arrangement as if:

   (a)  references in this Part to a company included references to all of the
        Part 5.1 bodies to which the order relates; and

   (b)  references in this Part to creditors of a company included references
        to the creditors of all the Part 5.1 bodies to which the order
        relates; and

   (c)  references in this Part to a class of the creditors of a company were
        references to the relevant class of creditors of all of the Part 5.1
        bodies to which the order relates.". Subsections 411 (2) and (4):
Insert "or (1A)" after "subsection (1)". Subsection 411 (13):

   (a)  Insert "or (1A)" after "subsection (1)" (first occurring).

   (b)  Insert "or (1A), as the case may be" after "subsection (1)" (last
        occurring). Subparagraph 590 (1) (c) (i):
Insert "fraudulently" before "concealed". Subparagraph 590 (1) (c) (v):
Insert "fraudulently" before "pawned". Paragraph 590 (1) (d):
Insert "fraudulently" before "makes". Subsections 590 (2), (3) and (4):
Omit the subsections. Subsection 591 (1):
Omit "subsection", substitute "section". Section 591:
Add at the end:

"(3) A person who has been convicted of an offence under section 289
constituted by a particular act or omission is not liable to be prosecuted
for, or convicted of, an offence under this section constituted by the same
act or omission.

"(4) A person who has been convicted of an offence under section 289
constituted by a particular course of conduct (including a course of
omissions) during a period is not liable to be prosecuted for, or convicted
of, an offence under this section constituted by the same course of conduct
during the same period or any part of it.". Section 748:
Repeal the section. Subsection 996 (1):
Omit the subsection, substitute:

"(1) A person must not authorise or cause the issue of a prospectus in
relation to securities of a corporation:

   (a)  in which there is a material statement that is false or misleading; or

   (b)  from which there is a material omission.". Paragraph 996 (2) (a):
Omit the paragraph. Subsection 1006 (1):
Omit the subsection, substitute:

"(1) This section applies for the purposes of an action under section 1005 in
respect of conduct being the issue of a prospectus in relation to securities
of a corporation:

   (a)  in which there is a material statement that is false or misleading; or

   (b)  from which there is a material omission.". Subsection 1006 (2):
Omit "Subject to this section, the action may be brought against all or any of
the following persons:", substitute "The reference in subsection 1005 (1) to
any person involved in the contravention includes a reference to all or any of
the following persons:". Paragraph 1006 (2) (j):
Omit the paragraph. Subsection 1006 (3):
Omit "For the purposes of paragraph (2) (j), a", substitute "A". Section 1007:
Insert ", or a person who authorised or caused the issue of the prospectus,"
after "subsection 1006 (2)". Subsection 1009 (2):
Omit "(f),". Section 1009:
Add at the end:

"(4) A person referred to in paragraph 1006 (2) (g) or (h) is not liable in an
action under section 1005 in respect of a false or misleading statement if it
is proved:

   (a)  that, after the prospectus was lodged and before any allotment, issue
        or sale under the prospectus, the person, on becoming aware of the
        false or misleading statement, withdrew the person's consent in
        writing and gave reasonable public notice of the withdrawal and of the
        reasons for the withdrawal; or

   (b)  that the person was competent to make the statement and, after making
        such inquiries (if any) as were reasonable, had reasonable grounds to
        believe, and did until the time of the allotment, issue or sale of the
        securities believe, that the statement was true and not misleading.".
        Subsection 1010 (1):
Omit ", or a person referred to in paragraph 1006 (2) (h) who has authorised
or caused the issue of,". Section 1010:
Add at the end:

"(3) A person who has authorised or caused the issue of part only of a
prospectus is not liable in an action under section 1005 in respect of a false
or misleading statement in, or an omission from, the prospectus if it is
proved that:

   (a)  the statement was not included in, or the matter was not omitted from,
        that part of the prospectus; or

   (b)  in the case of a statement - the statement was not included in, or
        substantially in, the form and context that the person had agreed to.

"(4) For the purposes of subsection (3), a person is not taken to have
authorised or caused the issue of part only of a prospectus unless the
prospectus includes an express statement that the person authorised or caused
the issue of that part only.". Subsection 1011 (1):
Omit "or a person referred to in paragraph 1006 (2) (d), (f) or (j)",
substitute ", a person referred to in paragraph 1006 (2) (d) or (f) or a
person who authorised or caused the issue of the prospectus". Subsections 1018
(3) and (4):
Omit the subsections. Subsection 1018 (5):
Omit "an offer or invitation relating to securities in a class of securities
of a corporation that are listed for quotation on a stock market of a
securities exchange", substitute "an offer for purchase of, or an invitation
to buy, issued securities that are in a class of listed securities of a
corporation". Section 1018:
Add at the end:

"(7) In this section: `issued securities' means securities issued before, at
or after the commencement of this section; `listed securities' means
securities listed for quotation on a stock market of a stock exchange.

"(8) Subsections (2) and (5) do not apply in relation to:

   (a)  an offer to which section 1030 relates; or

   (b)  an invitation that, because of subsection 1030 (7), is taken to be
        such an offer.". Subsection 1022 (2):
Omit the subsection, substitute:

"(2) The information to be included by virtue of this section is such of the
information mentioned in subsection (1) as is known to:

   (a)  any person referred to in any of paragraphs 1006 (2) (b) to (h),
        inclusive; or

   (b)  any person who authorised or caused the issue of the prospectus; or
        such of the information so mentioned as it would be reasonable for
        such a person to obtain by making inquiries.". Subsection 1024 (3):
Add at the end "or a person who authorised or caused the issue of the
prospectus". Subsection 1024 (4):
Omit the subsection, substitute:

"(4) A person (other than the person who lodged the prospectus) who:

   (a)  is referred to in subsection 1006 (2); or

   (b)  authorised or caused the issue of the prospectus; and is aware of the
        change or new matter, must give notice of the change or new matter to
        the person who lodged the prospectus.". Section 1034:
Repeal the section, substitute: Transitional

"1034. (1) Where a copy of a prospectus in relation to securities of a
corporation was registered by the NCSC within 6 months before the commencement
of this Part for the purposes of a corresponding previous law of this
jurisdiction, the copy is taken to be a prospectus in relation to those
securities:

   (a)  lodged with the Commission on the commencement of this Part for the
        purposes of this Part; and

   (b)  in the case of a registrable prospectus - registered by the Commission
        on the commencement of this Part.

"(2) Where the NCSC has exercised its power under a previous law of this
jurisdiction that corresponds to section 1084 to extend the period during
which securities may be allotted or issued pursuant to a prospectus,
subsection (1) applies in relation to the prospectus as if the reference to 6
months were a reference to the period so extended.

"(3) Nothing in this section operates to alter the date of issue of the
prospectus for the purposes of this Law.

"(4) The regulations may make provision about the application, to a prospectus
to which subsection (1) applies, of:

   (a)  the provisions of this Law (other than the applied provisions); and

   (b)  the provisions of previous corresponding laws of this jurisdiction.

"(5) The regulations that may be made under subsection (4) include, but are
not limited to, regulations providing that a specified provision of this Law
or a corresponding previous law of this jurisdiction applies, in relation to
prospectuses, subject to modifications specified in those regulations.

"(6) In this section: `applied provisions' means the provisions of this Law
that are expressed to apply to prospectuses issued before the commencement of
this Part.". Section 1044:
Repeal the section, substitute: Application of Division

"1044. Sections 1045 and 1052 to 1060 (inclusive) do not apply in relation to:

   (a)  an excluded issue of securities; or

   (b)  an excluded offer of securities for subscription or purchase; or

   (c)  an excluded invitation to subscribe for or buy securities.".
        Subsection 1063 (1):
Omit the subsection, substitute:

"(1) This Division does not apply in relation to:

   (a)  an excluded issue of prescribed interests; or

   (b)  an excluded offer of prescribed interests for subscription or
        purchase; or

   (c)  an excluded invitation to subscribe for or buy prescribed interests.".
        Section 1064:
Add at the end:

"(8) This section does not apply in relation to a prescribed interest that:

   (a)  is an interest in a partnership agreement; and

   (b)  was subscribed for or first purchased in this jurisdiction before the
        relevant day.

"(9) In subsection (8): `relevant day', in relation to a jurisdiction, means:

   (a)  in the case of New South Wales, Victoria or Queensland - 1 January
        1972; or

   (b)  in the case of Western Australia - 15 October 1972; or

   (c)  in the case of South Australia - 5 October 1972; or

   (d)  in the case of Tasmania - 1 January 1963; or

   (e)  in the case of the Northern Territory - 1 July 1986; or

   (f)  in the case of the Capital Territory - 1 July 1982.". Section 1068:
Add at the end:

"(3) A reference in this section to an instrument amending a deed includes a
reference to such an instrument made before the commencement of this section,
unless a copy of the deed as amended by that instrument has already been
lodged under a previous law corresponding to this section.". Section 1078:
Add at the end:

"(4) Subsection (1) does not apply in relation to a prescribed invitation or a
prescribed offer.". Subsection 1079 (1):
Omit "not being an invitation or offer to a person whose ordinary business is
the buying or selling of securities, whether as principal or agent,". After
subsection 1079 (3):
Insert:

"(3A) Subsection (1) does not apply in respect of an invitation or offer that
is an excluded invitation or an excluded offer.". After subparagraph 1274 (2)
(a) (i):
Insert:

"(ia) a document lodged under a provision of Chapter 7 (other than Part 7.12
or 7.13) or Chapter 8;". After subsection 1274 (4):
Insert:

"(4A) A person is not entitled under paragraph (2) (a) to require the
production of the original of a document or certificate if the Commission
keeps by means of a mechanical, electronic or other device a record of
information set out in the document or certificate and:

   (a)  the Commission produces to the person for inspection a writing that
        sets out what purports to be the contents of the document or
        certificate; or

   (b)  the Commission causes to be displayed for the person what purports to
        be the contents of the document or certificate and, as at the time of
        the displaying, the person has not asked for the production of a
        writing of the kind referred to in paragraph (a).

"(4B) Where:

   (a)  a person makes under paragraph (2) (c) a requirement that relates to a
        document or certificate; and

   (b)  the Commission keeps by means of a mechanical, electronic or other
        device a record of information set out in the document or certificate;
        and

   (c)  pursuant to that requirement, the Commission gives a writing or
        document that sets out what purports to be the contents of:

   (i)  the whole of the document or certificate; or

   (ii) a part of the document or certificate; then, for the purposes of that
        paragraph, the Commission shall be taken to have given, pursuant to
        that requirement:

   (d)  if subparagraph (c) (i) applies - a copy of the document or
        certificate; or

   (e)  if subparagraph (c) (ii) applies - an extract from the document or
        certificate setting out that part of it.

"(4C) Where:

   (a)  the requirement referred to in paragraph (4B) (a) includes a
        requirement that the copy or extract be certified; and

   (b)  pursuant to that requirement, the Commission gives a writing or
        document as mentioned in paragraph (4B) (c); then:

   (c)  the Commission may certify that the writing or document sets out the
        contents of the whole or part of the document or certificate, as the
        case requires; and

   (d)  the writing or document is, in a proceeding in a court, admissible as
        prima facie evidence of the information contained in it.". Section
        1274:
Add at the end:

"(15) Where information about a person is included on a register kept by the
Commission, the Commission may at any time, in writing, require that person to
give the Commission specified information about the person, being information
of the kind included on that register.

"(16) The person must provide the information within such reasonable period,
and in such form, as are specified by the Commission.

"(17) Without limiting the generality of subsection (1), the Commission may
use a register, or information obtained from a register, kept by the NCSC or
by an authority of this jurisdiction, as the basis of a register to be kept by
the Commission.

"(18) References in this Law to documents lodged, made or otherwise dealt with
under a provision of this Law include references to documents lodged, made or
otherwise dealt with under a corresponding provision of a previous law, to the
extent that such documents have been incorporated in a register kept by the
Commission.". After section 1274:
Insert: Obtaining information from certain registers

"1274A. (1) In this section: `data processor' means a mechanical, electronic
or other device for the processing of data; `register' means a register kept
by the Commission under this Law; `search' includes inspect.

"(2) The Commission may permit a person to search, otherwise than by using a
data processor, a prescribed register.

"(3) The Commission may permit a person to search a prescribed register by
using a data processor in order to obtain prescribed information from the
register.

"(4) The Commission may make available to a person prescribed information (in
the form of a document or otherwise) that the Commission has obtained from a
prescribed register by using a data processor.

"(5) Nothing in this section limits:

   (a)  a power or function that the Commission has apart from this section;
        or

   (b)  a right that a person has apart from this section.". After subsection
        1323 (1):
Insert:

"(2A) A reference in paragraph (1) (g) or (h) to property of a person includes
a reference to property that the person holds otherwise than as sole
beneficial owner, for example:

   (a)  as trustee for, as nominee for, or otherwise on behalf of or on
        account of, another person; or

   (b)  in a fiduciary capacity.

"(2B) Subsection (2A) is to avoid doubt, is not to limit the generality of
anything in subsection (1) and is not to affect by implication the
interpretation of any other provision of this Law.". After section 1336:
Insert in Part 9.6: Proceedings by or against NCSC to be proceedings by or
against Commission

"1336A. (1) Where, before the commencement of this Law, a proceeding under a
law of this jurisdiction had been commenced by or against the NCSC, the
proceeding may be continued by or against the Commission.

"(2) Where, but for this Law, a proceeding under a law of this jurisdiction
could have been commenced by or against the NCSC, the proceeding may be
commenced by or against the Commission.".