Co-operative Scheme Legislation Amendment Act 1989

PART 2—AMENDMENTS OF COMPANIES ACT 1981: COMPUTERISED REGISTERS

4. Registers

5. Insertion of new section:

31a. Obtaining information from certain registers

PART 3—AMENDMENTS OF COMPANIES ACT 1981: SHARE BUY-BACKS

6. Interpretation

7. Relevant interests in shares

8. Insertion of new section:

9a. Inclusion in official list

9. Substitution of headings

10. Issue of shares at premium

11. Insertion of Subdivision heading

12. Insertion of Subdivision heading

13. Company financing dealings in its shares etc.

14. Consequences of company financing dealings in its shares etc.

15. Insertion of new Subdivision and heading:

Subdivision D—Unacceptable Self-acquisition Schemes

130a. Interpretation

130b. Self-acquisition scheme

130c. Relevant matters affecting self-acquisition scheme

130d. Declaration by Commission

130e. Commission may make interim orders

130f. Court may reverse Commission’s declaration

130g. Court may act on Commission’s declaration

130h. Effect of Subdivision

16. Insertion of new Division:

Division 3a—Permitted Buy-backs of Shares

Subdivision A—How this Division Works

133aa. Outline of structure

Subdivision B—Interpretation

133ba. Effect of Subdivision

133bb. Interpretation

133bc. What constitutes buying back shares

133be. The 10% in 12 months limit

133bf. Takeover aspects of proposed resolution

133bg. When directors presumed to be aware of proposed or actual takeover bid

133bh. Solvency declaration

133bj. Auditor’s report on solvency declaration

133bk. When buy-back agreement is completed

133bl. When shares are transferred

133bm. Classes of shares

Subdivision C—Power to Buy Back Shares

133ca. Power to buy back shares

133cb. Completion of buy-back

133cc. Effect of Division

133cd. Other obligations and liabilities not affected

Subdivision D—Buy-back Authorisation in Articles

133da. Articles to contain buy-back authorisation

133db. Inclusion, effect and renewal of buy-back authorisation

Subdivision E—Buy-backs by Public Companies

133ea. Only certain buy-backs permitted

Subdivision F—Buy-back Schemes

133fa. Shares and classes of shares

133fb. Buy-back scheme

133fc. Withdrawal or variation of buy-back offers

133fd. Avoiding odd lots

133fe. Odd lots to be disregarded for purposes of 10% in 12 months limit

Subdivision G—Approval of Buy-back Schemes by Ordinary Resolution

133ga. When approval required

133gb. Buy-back offers made under a resolution

133gc. Resolution to approve proposed buy-back scheme

133gd. Notice of resolution to approve proposed buy-back scheme

Subdivision H—Employee-shares Purchases

133ha. Approval by ordinary resolution

133hb. Resolution to approve proposed employee-shares purchase

133hc. Notice of resolution to approve proposed employee-shares purchase

Subdivision J—Selective Buy-backs

133ja. Approval, by special resolution passed by special majority, of selective buy-back by public company

133jb. Approval by special resolution where selective buy-back by proprietary company exceeds 10% in 12 months limit

Subdivision K—Notice of Resolution to Approve Proposed Selective Buy-back

133ka. Notice must comply with Subdivision

133kb. Contents of resolution and proposed agreement

133kc. Availability of agreement for inspection

133kd. Valuation of non-cash consideration

133ke. Expert’s opinion about whether consideration fair and reasonable

133kf. Matters affecting expert’s objectivity

133kg. Expert’s consent

133kh. Reasons for buy-back

133kj. Solvency aspects

133kk. Directors’ interests

133kl. Effect on control of company

133km. Other relevant information

133kn. Notices to be the same

Subdivision L—Creditors may Object to Proposed Buy-backs

133la. Advertising proposed buy-backs

133lb. Content of advertisement

133lc. Newspapers in which advertisement to be published

133ld. Creditor may apply to Court

133le. How application to be dealt with

133lf. Buy-backs not to proceed while application pending

133lg. Company to comply with order of Court

Subdivision M—Solvency Requirements

133ma. Solvency requirements for buy-back scheme

133mb. Solvency requirements for other buy-backs

133mc. Copy of solvency declaration and auditor’s report to be lodged with Commission

133md. Revocation of solvency declaration

133me. Solvency requirements for completion of buy-back under buy-back scheme

133mf. Company not to register certain transfers during solvency period

Subdivision N—Share Buy-backs and other Securities Issues

133na. Buy-back consideration not to consist of other securities of the company

133nb. No buy-backs during rights issue or placement

133nc. No rights issue or placement during offer period or within 3 months after buy-back

Subdivision P—Effect of Buy-back on Shares

133pa. Rights attaching to bought back shares

133pb. Company not to dispose of bought back shares

133pc. Cancellation of shares after transfer to company

133pd. Accounting for money spent on buy-back where amount exceeds nominal value of shares

Subdivision Q—Effect of Insolvency

133qa. Buy-back offer by externally-administered company void

133qb. Effect of supervening insolvency on buy-back scheme

133qc. Directors to indemnify insolvent company where consideration provided, or partly-paid shares acquired, under buy-back agreements

133qd. Relief from liability under section 133qc

Subdivision R—Rights of Unpaid Sellers

133ra. Specific performance of buy-back agreements

133rb. Buy-back agreement unenforceable while company insolvent

133rc. Unpaid seller may prove in winding up of company

133rd. Ranking of seller’s claim in winding up

Subdivision S—Certificates and Declarations of Compliance

133sa. Certificate of compliance

133sb. Presumptions about certain matters

133sc. Who must sign compliance certificate

133sd. Offences relating to compliance certificates: buy-back schemes

133se. Offences relating to compliance certificates: other buy-backs

133sf. Declaration by Court of substantial compliance

Subdivision T—Notifying Commission and Securities Exchanges about Buy-backs

133ta. Company to notify Commission of buy-backs

133tb. Listed company to notify securities exchanges of buy-backs

Subdivision U—Listed Company to Notify Members about Share Cancellations

133ua Notifying member whose shares were cancelled

133ub. Notifying members generally

Subdivision V—Register of Buy-backs

133va. Company to keep register

133vb. Particulars of buy-back schemes

133vc. Particulars of other buy-backs

133vd. Alteration of register where buy-back does not proceed

133ve. Entries in register after cancellation of shares

133vf. Inspection and copies of register

17. Proofs of debts

PART 4—AMENDMENTS OF COMPANIES ACT 1981: ON-MARKET SHARE BUY-BACKS

18. Interpretation

19. Insertion of new section:

133bd. On-market purchase

20. Approval, by special resolution passed by special majority, of off-market selective buy-back by public company

21. Advertising proposed buy-backs

PART 5—AMENDMENTS OF COMPANIES ACT 1981: BUY-BACKS OF PRESCRIBED INTERESTS

22. Interpretation

23. Covenants to be included in deeds

24. Insertion of new section:

174a. Buy-back covenant and buy-back arrangements

PART 6—AMENDMENTS OF COMPANIES ACT 1981: ANNUAL RETURNS

25. Annual return

PART 7—PILOT SCHEME FOR THE FLEXIBLE ACCELERATED SECURITY TRANSFER SYSTEM

Division 1—Amendments of Companies Act 1981

26. Interpretation

27. What is a sufficient instrument of transfer

28. Repeal of section 194 and substitution of new sections:

29. Effect where instrument purports to bear transferor’s broker’s stamp

194a. Warranties by securities exchange where instrument purports to bear its stamp

194b. Indemnities by securities exchange and broker where instruments purport to bear their stamps

194c. Joint and several warranties and liabilities

194d. Additional operation of sections 194 to 194c

29. Offences

30. Powers of Commission: Divisions 1, 2, 5 and 6 and section 552

31. Insertion of new sections:

215da. Powers of Commission: Divisions 7 and 8 and Schedule 4

215db. Exemptions and declarations under sections 215c and 215da

32. Schedule 4

Division 2—Amendments of Securities Industry Act 1980

33. Interpretation

34. Payments out of Fund

35. Insertion of new Division:

Division 6a—Unauthorised transfer

122pa. Interpretation

122pb. Execution of transfer on a person’s behalf as transferor

122pc. Unauthorised execution of transfer

122pd. Claim by transferor

122pe. Claim by transferee or sub-transferee

122pf. How and when claim may be made

122pg. How claim is to be satisfied

122ph. Discretionary further compensation to transferor

122pj. Nexus between dealer and Territory

122pk. Preventing double recovery

36. No claim in certain other cases

37. Substitution of heading

38. Repeal of section 122yd and substitution of new section:

122yd. Application of Fund in respect of certain claims

39. Arbitration of amount of cash settlement of certain claims

40. Subrogation of Corporation to claimant’s rights etc.

41. Instalment payments

PART 8-PARTICIPANTS IN THE SECURITIES AND FUTURES INDUSTRIES

Division 1—Amendments of Securities Industry Act 1980

42. Insertion of heading and new section:

PART Ia—INTERPRETATION

3a. Effect of this Part

43. Interpretation

44. Insertion of new sections:

6a. Businesses of a particular kind

6b. Carrying on a business: alone or together with others

6c. Exempt dealers and exempt investment advisers

6d. Inclusion in official list

6e. Investment advice business

6f. Proper authority; invalid authority

6g. Recognised licensee must be connected with State or Territory concerned

6h. Representatives 6j. Securities business

45. Heading to Part IV

46. Repeal of sections 43 to 50, inclusive, and substitution of heading and new sections:

Division 1—Dealers and investment advisers

43. Dealers

44. Investment advisers

45. Application for a licence

46. Grant of licence to natural person

48a. Grant of licence to body corporate

48b. Effect of certain provisions

47. Conditions of licence

48. Licensee to notify breach of licence condition

49. Register of Licence Holders

50. Repeal of sections 55 and 56 and substitution of new sections:

51. Notifying change in particulars

52. Annual statement of licensee

53. When annual statement to be lodged

54. Repeal of sections 59, 60, 61 and 62 and substitution of new Divisions:

Division 2—Agreements with unlicensed persons

59a. Certain persons not clients

59b. Agreements with unlicensed persons

59c. Client may give notice of rescission

59d. Effect of notice under section 59c

59e. Client may apply to Court for partial rescission

59f. Court may make consequential orders

59g. Agreement unenforceable against client

59h. Non-licensee not entitled to recover commission

59j. Onus of establishing non-application of section 59g or 59h

59k. Client may recover commission paid to non-licensee

59l. Remedies under this Division additional to other remedies

Division 3—Representatives

60a. Representatives of dealers

60b. Representatives of investment advisers

60c. Defence

60d. Body corporate not to act as representative

60e. Licensee to keep register of holders of proper authorities

60f. Licensee to notify Commission of location and contents of register

60g. Inspection and copying of register

60h. Disclosure to client by representative

60j. Commission may require production of authority

60k. Commission may give licensee information about representative

60l. Holder of authority may be required to return it

Division 4—Liability of principals for representatives’ conduct

61a. Conduct engaged in as a representative

61b. Liability where identity of principal unknown

61c. Liability of principals where act done in reliance on representative’s conduct

61d. Presumptions about certain matters

61e. No contracting out of liability for representative’s conduct

61f. Effect of Division

Division 5—Excluding persons from the securities industry

62a. Power to revoke, without a hearing, licence held by natural person

62b. Power to revoke, without a hearing, licence held by body corporate

62c. Power to revoke licence after a hearing

62d. Power to suspend licence instead of revoking it

62e. Power to make banning order where licence revoked or suspended

62f. Power to make banning order against unlicensed person

62g. Nature of banning order

62h. Exceptions to banning order

62j. Variation or revocation of banning order on application

62k. Revocation of banning order in certain cases

62l. Effect and publication of orders under this Division

62m. Contravention of banning order

62n. Banned person ineligible for licence

62p. Opportunity for hearing

62q. Disqualification by the Court

62r. Effect of order under section 62Q or corresponding law 62s. Effect of order under previous Territory law corresponding with section 62q

53 Insertion of Division heading

54. Issue of contract notes

55. Repeal of sections 65 and 65a

56. Insertion of Division heading

57. Insertion of new Division:

Division 3—Recommendations about securities

68b. Recommendation made by partner or officer

68c. Client to be told if adviser’s interests may influence recommendation

68d Defences to alleged breach of subsection 68c (2)

68e Adviser must have reasonable basis for recommendation

68f Adviser who breaches this Division liable to compensate client

68g. Qualified privilege for adviser when complying with this Division

58. Interpretation

59. Repeal of section 88 and substitution of new section:

60. Application of Part

61. Repeal of sections 90 and 91 and substitution of new sections:

62. Commission to be notified of certain matters on establishment of Register

90a. Commission to be notified of changes in certain matters

91. Defences

92. Repeal of section 93 and substitution of new section:

93. Power of Commission to require certain information

94. Interpretation

Division 2—Amendments of Futures Industry Act 1986

63. Insertion of heading and new section:

PART Ia—INTERPRETATION

3a. Effect of this Part

64. Interpretation

65. Insertion of new sections:

6a. Businesses of a particular kind

6b. Carrying on a business: alone or together with others

66. Dealing in futures contracts

67. Repeal of section 10 and substitution of new sections:

68. Exempt brokers and exempt futures advisers ,

10a. Futures advice business

10b. Proper authority; invalid authority

68. Repeal of section 11 and substitution of new section:

69. Recognised licensee must be connected with State or Territory concerned

70. Insertion of new section:

11a. Representatives

70. Heading to Part IV

71. Repeal of sections 60 to 71, inclusive, and substitution of heading and new sections:

Division 1—Futures brokers and futures advisers

61. Futures brokers

62. Futures advisers

63. Application for a licence

64. Grant of licence to natural person

66a. Grant of licence to body corporate

66b. Effect of certain provisions

69. Conditions of licence: general

69a. Conditions of futures broker’s licence: membership of relevant organisation

69b. Conditions of futures broker’s licence: assets and liabilities

69c. Conditions of licence: supervision of representatives

69d. Revocation and variation of licence conditions

69e. Relevant organisations to be informed about conditions of futures broker’s licence

70. Licensee to notify breach of licence condition

71. Commission may require licensed futures broker to give information

72. Register of Licence Holders

73. Repeal of sections 73 and 74 and substitution of new sections:

74. Notifying change in particulars

75. Annual statement of licensee

76. When annual statement to be lodged

77. Repeal of sections 77, 78, 79 and 80 and substitution of new Divisions:

Division 2—Agreements with unlicensed persons

Subdivision A—Agreements affected

77a. Excluded clients

77b. Agreement about a dealing in breach of section 61

77c. Agreement with person acting in breach of section 63

Subdivision B—Effect on agreements

77d. Client may give notice of rescission

77e. Effect of notice under section 77d

77f. Client may apply to Court for partial rescission

77g. Court may make consequential orders

77h. Agreement unenforceable against client

77j. Non-licensee not entitled to recover commission

77k. Onus of establishing non-application of section 77h or 77j

77l. Client may recover commission paid to non-licensee

77m. Remedies under this Division additional to other remedies

Division 3—Representatives

78a. Representatives of futures brokers

78b. Representatives of futures advisers

78c. Defence

78d. Body corporate not to act as representative

78e. Licensee to keep register of holders of proper authorities

78f. Licensee to notify Commission of location and contents of register

78g. Inspection and copying of register

78h. Commission may require production of authority

78j. Commission may give licensee information about representative

78k. Holder of authority may be required to return it

Division 4—Liability of principals for representatives’ conduct

79a. Conduct engaged in as a representative

79b. Liability where identity of principal unknown

79c. Liability of principals where act done in reliance on representative’s conduct

79d. Presumptions about certain matters

79e. No contracting out of liability for representative’s conduct

79f. Effect of Division

Division 5—Excluding persons from the futures industry

80a. Power to revoke, without a hearing, licence held by natural person

80b. Power to revoke, without a hearing, licence held by body corporate

80c. Power to revoke licence after a hearing

80d. Power to suspend licence instead of revoking it

80e. Power to make banning order where licence revoked or suspended

80f. Power to make banning order against unlicensed person

80g. Nature of banning order

80h. Exceptions to banning order

80j. Variation or revocation of banning order on application

80k. Revocation of banning order in certain cases

80l. Effect and publication of orders under this Division

80m. Contravention of banning order

80n. Banned person ineligible for licence

80p. Opportunity for hearing

80q. Disqualification by the Court

80r. Effect of order under section 80q or corresponding law

80s. Effect of order under previous Territory law corresponding with section 80q

Division 3—Consequential amendments of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980

76. Definitions

77. Insertion of new section:

38c. Qualified privilege

PART 9—AMENDMENTS OF CO-OPERATIVE SCHEME FEES ACTS

Division 1—Amendment of Companies (Fees) Act 1981

78. Repeal of sections 3, 4 and 5 and substitution of new sections:

79. Fee where document taken to be lodged

80. Lodgment of document without payment of fee

81. Doing of act without payment of fee

82. Effect of sections 9 and 10

83. Commission may require payment of deposit on account of fee

84. Fee not ascertainable when it becomes payable

85. Waiver and refund of fees

86. Debts due to the Commonwealth

87. Act not to impose taxation

88. Payment of fee does not give right to inspect or search

Division 2—Amendment of Companies (Acquisition of Shares—Fees) Act 1980

79. Repeal of sections 3, 4 and 5 and substitution of new sections:

Division 3—Amendment of Securities Industry (Fees) Act 1980

80. Repeal of sections 3, 4 and 5 and substitution of new sections:

Division 4—Amendment of Futures Industry (Fees) Act 1986

81. Repeal of sections 3, 4 and 5 and substitution of new sections:

Division 5—Saving of existing Fees Regulations

82. Effect of regulations after commencement of this section

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Co-operative Scheme Legislation Amendment Act 1989

No. 92 of 1989

An Act to amend laws relating to companies, securities and the futures industry, and for related purposes

[Assented to 27 June 1989]

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows: