Companies (Administration) Act 1982

Several recurring statutory concepts structure the Act’s mechanics and incentives.

Commissioner and Commission: “Commissioner” is the Commissioner for Corporate Affairs as defined in s 3, who is appointed under Part 3 of the Public Sector Management Act 1994 and who represents the Crown in right of the State when performing functions or exercising powers under an Act or law in force in the State (s 4(1)). “Commission” means the National Companies and Securities Commission as defined in s 3. The Act repeatedly cross‑references functions and delegations relative to the Commission and other Commonwealth or interstate regimes (s 3; s 4(3); s 8(5); notes).

Functions, powers and delegation: The Act distinguishes between functions and powers and explicitly treats delegation as central to practical operation. The Commissioner may exercise functions and powers conferred by this or any other Act or law and may delegate functions or powers by instrument under the Commissioner’s seal, subject to specified limits (s 8(1); s 10(1)-(3)). Delegations can be general or limited, to specified persons or to holders of specified offices in the public service (s 10(3)(a)-(b)). Delegates may sub‑authorise others to act (s 10(4)). Acts done by delegates, or by persons authorised by delegates, have the same force and effect as if done by the Commissioner (s 10(6)). The Act presumes authority where a person purports to act as a delegate, unless the contrary is proved (s 10(10)-(12)). The Commissioner retains power to revoke delegations (s 10(2)) and to give directions to delegates and sub‑authorised persons (s 11).

Evidentiary presumptions and administrative formality: The legislature creates administrative efficiencies by ensuring courts will judicially note the Commissioner’s signature and seal and by making documents signed or sealed by the Commissioner admissible without proof (s 5). The seal may be affixed by specified officers and must be attested by signature and date (s 6). Documents executed by authorised deputies or by persons authorised under sub‑delegations are presumed to have been properly executed unless the contrary is shown (s 7(3); s 10(10)-(12)).

Secrecy and restrictions on trading: A confidentiality regime binds the Commissioner and persons appointed for the purposes of the Act, prohibiting record‑making, disclosure or use of information obtained in the exercise of office except where necessary for official duties, required by law, or in certain public interest circumstances (s 17(1)-(2)). A separate restriction prevents dealing in securities or certain futures contracts by those who hold non‑public information by virtue of their office, backed by a criminal penalty of fines and imprisonment and an express civil compensation remedy for persons who suffer loss due to prohibited dealings (s 18(1)-(3), (6)).

Notification of interests: Officers must disclose in writing to the Commissioner, or to the Minister if the Commissioner is the person concerned, where they are required to consider matters relating to entities or securities in which they have a relevant interest, or persons with whom they are associated, or employers in the preceding three years (s 19(1)). This is backed by a penalty (s 19(1)) but includes a defence based on lack of awareness of the fact creating the obligation (s 19(2)).

Financial controls and audit: Money payable to the Commissioner is to be paid into the Consolidated Account (s 12(2)), and accounts including those maintained under the Companies Code must be audited by the Auditor General who has statutory audit powers (s 12(3)). The Consolidated Account is appropriated to meet amounts necessary under certain intergovernmental agreements (s 12(1)).

Indemnity and protection: The Act provides a statutory indemnity from civil actions for persons acting in good faith in the exercise or purported exercise of functions or powers under the Act (s 15).

Interplay with Commonwealth and other State instruments: The Act explicitly preserves limits set by the Agreement referred to in s 3 and recognises the Commission and federal or interstate laws. Specific provisions exclude operation where corresponding federal provisions apply or where the National Companies and Securities Commission (State Provisions) Act provisions operate (s 17(3); s 18(9); s 19(3); s 8(5)).

Regulation‑making power: The Governor has power to make regulations for matters required or permitted by the Act, or necessary or convenient for giving effect to the purposes of the Act (s 20).

These concepts create the institutional and compliance architecture in which the Commissioner operates and in which persons exercising Commissioner functions must conduct themselves.

Primary persons and entities affected by the Act are defined in the text and fall into three broad groups: State officers who are appointed, authorised or employed under the Act; persons and entities subject to the Commissioner’s functions or powers under other Acts; and third parties who transact in securities or futures contracts that may be affected by conduct by officers.

Officers and employees: The Commissioner is the central person affected. The Act prescribes that the Commissioner is appointed and holds office under Part 3 of the Public Sector Management Act 1994 and represents the Crown in right of the State when performing functions under a State law (s 4(1)). Deputy and Assistant Commissioners, and other officers and employees necessary to assist the Commissioner, are to be appointed subject to that Part (s 4(2)). Persons who held corresponding offices immediately prior to the commencement of s 4 are deemed to hold office under this Act without further appointment (s 4(4)), which affects transitional incumbents.

Delegates and authorised persons: The Act affects any person to whom the Commissioner delegates functions or powers (s 10(1)-(6)), including the ability of delegates to sub‑authorise others (s 10(4)). Those delegates and sub‑authorised persons are subject to directions from the Commissioner (s 11) and to the same evidentiary presumptions and responsibilities as the Commissioner when acting under delegation (s 10(6), (10)-(12)).

Private parties and market participants: Persons who deal in securities or in futures contracts may be affected by s 18 if they transact with an officer who has non‑public price sensitive information by reason of their office. Section 18 prohibits dealing in such securities or futures contracts by the officer, and creates criminal penalties and civil compensation for losses to counterparties caused by such dealing (s 18(1)-(3), (6)). The Act therefore affects counterparties who might suffer loss and be entitled to compensation. It also affects persons who are employed by or associated with the Commissioner or officers, because of disclosure obligations under s 19 where matters relating to those persons or bodies are considered by officers.

Government financial administration and auditors: The Commissioner’s financial flows are to be paid into the Consolidated Account and the Auditor General audits the Commissioner’s accounts (s 12(2)-(3)). This implicates Treasury, consolidated fund management and the Auditor General’s office. Section 12(1) also contemplates payments under agreements between Commonwealth and States in respect of fees or refunds under the Agreement.

Courts and tribunals: Courts are required to take judicial notice of the Commissioner’s signature and seal and to admit certificates and documents purporting to be signed or sealed by the Commissioner without further proof, unless the contrary is established (s 5). That affects evidentiary burdens in litigation and regulatory proceedings.

Ministers: The Minister has roles in directions to the Commissioner and in giving consent for prosecutions by persons other than the Commissioner (s 8(2)-(3); s 9(1)). The Act affects the Minister by providing a statutory basis to require reports from the Commissioner on policy (s 8(2)) and by making the Minister the recipient of notifications where the Commissioner is the person obliged to disclose interests under s 19(1).

Persons with access to non‑public information: The secrecy provision (s 17(1)) affects any person who is, or has been, the Commissioner or appointed for the purposes of the Act or who is authorised to perform Commissioner functions. That category includes current and former officers and any persons authorised to perform functions under s 4(6). The prohibition on record‑making, disclosure or use of information is penalised (s 17(1)).

Regulated industries: Although the Act itself does not set substantive company or securities rules, it integrates with broader company and securities law through references to the National Companies and Securities Commission and other codes, and by noting limitations where Commonwealth legislation applies (s 3; notes). The Act therefore affects regulated industry participants insofar as the Commissioner exercises functions under other Act provisions that govern companies and securities.

In sum, the Act primarily affects State regulatory personnel and their authorised delegates, the Minister, auditors and public finance authorities, and market counterparties and entities that might be the subject of regulatory consideration by the Commissioner or delegates. The Act also implicates the interface between State, Commonwealth and inter‑jurisdictional regulators through its references to the Commission and the Agreement (s 3; notes).

This Act creates statutory duties, disclosure obligations and rights of action that flow from office, delegation and access to information.

Duties of officeholders

• Appointment and representation: The Commissioner must be appointed and hold office under Part 3 of the Public Sector Management Act 1994 and in performing functions under a State Act represent the Crown in right of the State (s 4(1)). This imposes public service appointment and conduct frameworks on the officeholder.
• Direction and reporting: The Commissioner must report to the Minister as and when directed about policy pursued or proposed to be pursued in performing or exercising functions or powers, in respect of those functions specified by the Minister in the direction (s 8(2)). Subject to the contents of reports or recommendations, the Commissioner is otherwise subject to the control and direction of the Minister when performing or exercising functions and powers under this Act or other State laws, except where the function is exercised as an inspector under company or securities laws (s 8(3)).
• Delegation and obedience to directions: Where functions are delegated, the delegate has duties to perform them and to comply with directions given by the Commissioner, and to give corresponding directions to sub‑authorised persons (s 11).
• Secrecy and non‑use of information: Persons who are or have been the Commissioner or are persons appointed for the purposes of this Act, or authorised to perform Commissioner functions, must not, except to the extent necessary for official duties, make records of or disclose or use information acquired by reason of their office for any purpose other than official duties (s 17(1)). The prohibition extends to former as well as current persons.
• Notification of interests: Officers who are required to consider matters relating to bodies, securities, futures contracts or persons with which they have a “relevant interest” must immediately inform the Commissioner or, where the officer is the Commissioner, the Minister (s 19(1)). This requires officers to identify conflicts in writing.

Rights and powers of the Commissioner and delegates

• Exercise of functions and powers: The Commissioner may exercise functions and powers conferred by this or other Acts or under Commonwealth, Territory or other State laws subject to any overriding agreement or delegation limitations (s 8(1); s 8(5)).
• Delegation: The Commissioner may delegate functions and powers by written instrument under the Commissioner’s seal to specified persons or to holders of specified public service offices (s 10(1), (3)). Delegates may authorise others to act (s 10(4)). Delegations create the right for delegates and sub‑authorised persons to act with the force and effect of Commissioner action (s 10(6)).
• Prosecution authority: The Commissioner may take proceedings for offences in relation to Acts and laws that confer functions or powers on the Commissioner, and may permit, with the Minister’s written consent, another person to take proceedings (s 9(1)). This grants the Commissioner control over certain enforcement actions.
• Evidentiary presumptions: The Commissioner has the statutory right to have the Commissioner’s signature and seal judicially noted and documents signed or sealed by the Commissioner admitted as evidence without further proof (s 5; s 6(1)-(2)). Delegates and authorised signatories benefit from evidentiary presumptions as to their authority (s 7(3); s 10(10)-(12)).

Financial duties and audit rights

• Payment into Consolidated Account: Money payable to the Commissioner is to be collected on account of and paid into the Consolidated Account (s 12(2)). The Consolidated Account is appropriated for specified intergovernmental payments under s 12(1).
• Audit by Auditor General: The Commissioner’s accounts must be audited by the Auditor General who has statutory audit powers and the Commissioner and officers are to be treated as officers for the purposes of the Auditor General Act (s 12(3)).

Protections and liabilities

• Indemnity: Persons acting in good faith in performance or purported performance of functions or exercise or purported exercise of powers under the Act are not liable to actions for damages in relation to those acts or omissions (s 15).
• Criminal and civil liabilities: For secrecy breaches, there is a criminal penalty of fine or imprisonment or both for unauthorised disclosure or use of information (s 17(1)). For dealing in securities or futures contracts using non‑public price‑sensitive information obtained by reason of office, there is a criminal penalty of a fine and imprisonment and an express civil compensation remedy for losses caused by such dealing (s 18(1)-(3)). For failure to notify relevant interests under s 19(1), there is a penalty of fine or imprisonment or both (s 19(1)), subject to a defence based on lack of knowledge (s 19(2)).

Limitations and exclusions

• Non‑application where Commonwealth or other laws apply: The Act contains specific exclusions where corresponding Commonwealth provisions or the National Companies and Securities Commission (State Provisions) Act apply. For example, s 17(3) and s 18(9) exclude the operation of those sections in circumstances where section 15 or 16 of the National Companies and Securities Commission (State Provisions) Act applies. The Commissioner’s functions and delegations are also subject to any delegation conferred upon the Commissioner by the Commission and to the Agreement (s 8(5); s 10(14)).

In practical terms, the Act imposes duties of confidentiality, conflict disclosure, obedience to administrative directions and financial accountability on the Commissioner and authorised officers, while conferring powers to exercise and delegate functions, to prosecute offences and to rely on evidentiary presumptions in court. It balances protections for persons acting in good faith with criminal and civil sanctions for misuse of non‑public information and failures to disclose relevant interests.

The Act prescribes a mix of criminal penalties, civil liabilities and administrative enforcement mechanisms targeted at protecting confidential information, preventing misuse of non‑public information in securities and futures markets, and enforcing disclosure obligations.

Criminal penalties

• Secrecy breach: Section 17(1) creates a criminal offence for a person who is or has been the Commissioner, a person appointed for the purposes of this Act, or a person authorised to perform any Commissioner function, if they make a record of, divulge, communicate or use information acquired by reason of their appointment other than to the extent necessary to perform official duties. The penalty is a fine of $5 000 or imprisonment for 1 year, or both (s 17(1)).
• Insider‑style dealing: Section 18(1) criminalises dealing in securities or in futures contracts by persons who, by reason of being the Commissioner, a person appointed for the purposes of this Act, or authorised to perform or exercise any function or power of the Commission or Commissioner, have information that is not generally available but would be likely, if generally available, to materially affect the price of securities or the price for dealing in a futures contract. The penalty is a fine of $20 000 or imprisonment for 5 years (s 18(1)).
• Failure to notify interests: Section 19(1) prescribes a penalty of $5 000 or imprisonment for 1 year, or both, for officers who do not forthwith inform the Commissioner, or where the Commissioner is the person, the Minister, in writing when the officer is required to consider a matter relating to a body or securities or futures contracts in which the officer has a relevant interest, or related bodies or associated persons (s 19(1)).

Civil enforcement and remedies

• Compensation for dealing: Section 18(2) makes the person who contravenes s 18(1) liable to compensate any other party to the transaction for loss sustained as a result of the dealing. The assessment of loss is specified in s 18(2)(c)-(d) by reference to the difference between the price at which the transaction took place and the price likely to have applied had the information been generally available. The amount recoverable is the loss sustained by the claimant, subject to aggregation limits where other liabilities have already been imposed by courts under the same act or transaction (s 18(3)). The Act sets a two year cause of action limitation period for recovery of compensation from the date of completion of the transaction in which the loss occurred (s 18(5)).
• Commissioner can sue on behalf of others: Section 18(6) permits the Commissioner, where the Commissioner considers it in the public interest, to bring an action in the name of and for the benefit of a person for recovery of compensation under s 18(2). This provides an administrative enforcement option for recovery on behalf of affected private parties.

Administrative presumptions and evidentiary facilitation

• Judicial notice and admissibility: Section 5 requires courts and judicial officers to take judicial notice of the Commissioner’s signature and seal and to presume documents signed or sealed by the Commissioner were duly made or affixed unless the contrary is established. This provision streamlines evidentiary processes in prosecutions and civil proceedings involving Commissioner documents.
• Presumptions of authority: Sections 7(3) and 10(10)-(12) create presumptions that documents purporting to be signed by authorised deputies or delegates are properly signed and that persons purporting to act under delegation are duly authorised unless the contrary is shown. These presumptions lower the threshold for enforcement actions to proceed based on routine administrative documents.

Enforcement initiation and control

• Prosecutions by Commissioner: Section 9(1) expressly allows the Commissioner to take proceedings for offences in relation to any Act or law that confers functions or powers on the Commissioner, unless otherwise expressly provided by an Act. The Commissioner may, with written consent of the Minister, permit another person to take proceedings (s 9(1)). This gives the Commissioner primary prosecutorial control in many instances.
• Limits where other laws apply: The Act preserves specific non‑application where the National Companies and Securities Commission (State Provisions) Act applies and in other circumstances where a Commonwealth law displaces State arrangements (s 17(3); s 18(9); note references). These limits affect enforcement jurisdiction.

Defences and procedural features

• Defence for notification breach: Section 19(2) provides a defence to prosecution for failing to notify relevant interests if the person establishes that, at the time they were required to consider the matter, they were not aware of the fact or matter whose existence obliged them to notify. This creates a subjective awareness defence for s 19 breaches.
• Onus allocation in compensation aggregation: Section 18(4) places the onus on a person seeking to reduce a new compensation claim by reference to prior findings of liability under the same act or transaction to prove that the liabilities arise from the same act or transaction. This affects calculation and enforcement of civil remedies under s 18(3).

Enforcement risks and administrative costs

• Criminal fines and imprisonment for individuals are set at specific amounts. For insider‑style dealing s 18(1) the maximum penalties are $20 000 and 5 years imprisonment. For secrecy and failure to disclose under s 17 and s 19, the maximum penalties are $5 000 and 1 year imprisonment. These penalties apply directly to officers and persons authorised under the Act, not to the Commissioner as institution, creating personal legal risk for senior officers and delegates.
• Civil compensation under s 18(2) is designed to make the contravening officer liable for quantifiable market losses. The Commissioner can act on behalf of affected private parties under s 18(6), which may reduce transaction costs for private claimants.

Procedural enforcement levers therefore include criminal prosecution by the Commissioner, civil actions by private parties with possible administrative initiation by the Commissioner, and statutory evidentiary presumptions that streamline proof of authority and authenticity of Commissioner documents. The Act also contains express exclusions where federal or other State provisions govern, which will affect the practical enforcement locus in particular matters (s 17(3); s 18(9); s 19(3); notes).

The Act is designed to be an administrative companion to substantive company, securities and futures regulation and it explicitly cross‑references Commonwealth, other State and Territory laws, and earlier State company codes. The Act both defers to and integrates with other legislative instruments in several ways.

References to Commonwealth bodies and the Agreement

• Commission and the Agreement: Section 3 defines “Commission” as the National Companies and Securities Commission established by the National Companies and Securities Commission Act 1979 and defines “the Agreement” as the 22 December 1978 agreement between Commonwealth and States regarding a cooperative scheme for companies and securities regulation. Section 8(5)(a) and s 10(14) preserve the Agreement and delegations conferred by the Commission as limits on the Commissioner’s functions and delegations. The compilation notes disclose that the National Companies and Securities Commission has been replaced by ASIC under later Commonwealth law, but those notes are advisory and reflect historical legislative change recorded in the source (notes; s 3 definition).

Preservation and non‑application clauses

• Non‑application where federal law applies: Sections 17(3) and 18(9) each provide that the secrecy and restriction on dealings provisions do not apply in circumstances where certain corresponding provisions of the National Companies and Securities Commission (State Provisions) Act 1980 apply. Section 19(3) directs that questions about relevant interests and associated persons are to be determined as prescribed under and for the purposes of section 49(4) of the National Companies and Securities Commission Act 1979, as amended and in force. The Act therefore defers to federal or intergovernmental frameworks where they govern the same matters.
• Companies Code and corporations law transition: The Act’s notes set out a history of successive State and Commonwealth company and securities regimes, including the Companies Act 1961, the Companies (Western Australia) Code, the Corporations (Western Australia) Act 1990 and the Corporations Act 2001 of the Commonwealth (notes). The Act contains transitional references such as in s 4(7), which directs that duties, liabilities and references to earlier offices be read as references to the Commissioner as successor in law, subject to the Companies (Application of Laws) Act 1981 and the Companies (Western Australia) Code. These provisions require careful statutory reading where a particular power or duty originally arose under a repealed or superseded law but survives by transitional provision.

Delegations from and to federal agencies

• Delegations conferred by the Commission: The Commissioner’s powers are subject to any delegation conferred upon the Commissioner by the Commission. Section 10(14) explicitly says that nothing in s 10 applies to a function or power that the Commissioner has by virtue of a delegation from the National Companies and Securities Commission. That implies that where the Commission (federal) has delegated functions to the State Commissioner, different delegation rules may apply and s 10 should not be read to override or modify them.

Regulations and other Acts

• Regulation‑making: Section 20 empowers the Governor to make regulations prescribing matters required or permitted by the Act or necessary or convenient for the purposes of the Act, enabling subordinate legislation to fill operational detail and to interact with other Acts. The notes indicate that numerous amendments and supra‑laws have historically affected the operation of provisions, such as the Public Sector Management Act and the Auditor General Act, which are explicitly invoked (s 4(1); s 12(3); notes).
• Public Sector Management Act and Public Service Act references: The Commissioner is appointed under the Public Sector Management Act 1994 (s 4(1)). Section 4(6) also contemplates that certain Public Service Act provisions may be applied to specific officers appointed to assist the Commissioner, with or without modifications, by agreement and ministerial approval. The notes further clarify how references to the old Public Service Act may be read as references to the Public Sector Management Act (note 9). These interactions place Commissioner appointments and personnel matters within the broader public sector employment regime.

Audit and public finance law

• Consolidated Account and Auditor General: Section 12(2) requires money payable to the Commissioner to be paid into the Consolidated Account. Section 12(3) makes the Commissioner’s accounts subject to audit by the Auditor General and treats the Commissioner and officers as officers for the purposes of the Auditor General Act. These provisions bind the Commissioner into State public finance and audit frameworks.

Evidentiary rules and court practice

• Judicial notice: Section 5 requires courts to take judicial notice of the Commissioner’s signature and seal, streamlining the interaction between administrative instruments and judicial proceedings. However, the presumption is rebuttable and subject to ordinary rules of evidence.

Limits where other specified State Acts apply

• Section 9(2) expressly excludes the operation of s 9(1) where proceedings are governed by the Companies (Western Australia) Code, the Securities Industry (Western Australia) Code and associated State codes. This preserves the procedural arrangements in those codes.

Practical implications

• Where federal legislation or intergovernmental delegations govern a matter, the Act either defers or limits its application, and the Commissioner’s powers may be constrained by higher‑level delegations or federal jurisdictional rules (s 8(5); s 10(14); s 17(3); s 18(9); s 19(3)). Practitioners must trace the current applicable statutory regime for any given enforcement or administrative action and not assume the State Commissioner’s powers are free‑standing.
• Transitional and historical notes in the source indicate there are multiple layers of past legislative change. For contemporary application, reference to the Corporations Act 2001 and to Commonwealth administrative arrangements is necessary because the Act was enacted into a changing landscape of company and securities law. The Act’s own text and compilation notes both point to that layered interaction (notes).

In sum, the Act is designed to operate within a patchwork of State and Commonwealth company and securities legislation and administrative arrangements, preserving federal delegations and non‑application where federal laws supersede State provisions, while providing State‑level administrative machinery where State authority remains applicable.

The source contains a compilation table and embedded amendment notes which identify the statutory amendments and commencement dates that have modified the Act since its original enactment. The table and notes are part of the source material and must be used to track the Act’s evolution.

Original enactment and commencement

• Enactment: The Companies (Administration) Act 1982 (No. 9 of 1982) received assent on 14 May 1982 and commenced on 1 July 1982 (compilation table). The long title states the Act was enacted to continue the office of Commissioner for Corporate Affairs and to amend the Companies Act 1961 and for related purposes.

Subsequent amendments recorded in compilation table

• Acts Amendment (Financial Administration and Audit) Act 1985, s 3 (No. 98 of 1985). Assent 4 December 1985. Commencement 1 July 1986. The Act is included in the compilation table as having amended the 1982 Act. The table indicates s 12 includes amendments relating to financial and audit provisions and the Auditor General. Specific textual amendments are reflected in s 12(3) where the Auditor General’s powers and the classification of Commissioner and officers as officers for the purposes of the Auditor General Act are set out. The compilation table records the machinery for appropriation and audit (s 12(1)-(3)).
• Companies and Securities Legislation (Miscellaneous Amendments) Act 1988, Pt III (No. 48 of 1988). Assent 1 December 1988. Commencement 9 December 1988. Several provisions were inserted by way of amendment in 1988, notably s 3 amendments (definition changes), s 17, s 18 and s 19 were inserted by No. 48 of 1988 (as indicated by the marginal notes in the Act: "Section 3 amended: No. 48 of 1988 s. 8", "Section 17 inserted: No. 48 of 1988 s. 9", "Section 18 inserted: No. 48 of 1988 s. 10", "Section 19 inserted: No. 48 of 1988 s. 11", "Section 20 inserted: No. 48 of 1988 s. 12").
• Acts Amendment (Public Sector Management) Act 1994, s 19 (No. 32 of 1994). Assent 29 June 1994. Commencement 1 October 1994. Section 4 was amended to align Commissioner appointment with Part 3 of the Public Sector Management Act 1994, as indicated in the margin note "Section 4 amended: No. 32 of 1994 s. 19". This amendment created the present appointment regime for the Commissioner and cross‑references to public sector appointment procedures (s 4(1), s 4(2)).
• Financial Legislation Amendment and Repeal Act 2006, s 17 (No. 77 of 2006). Assent 21 December 2006. Commencement 1 February 2007. The compilation table records this amendment, and s 12 was amended to reflect changes to public finance terminology and audit provisions. The notes explain that references to the Consolidated Fund may be read as Consolidated Account where the context requires (note 11).
• Statutes (Repeals and Miscellaneous Amendments) Act 2009, s 6 (No. 8 of 2009). Assent 22 May 2009. Commencement 22 May 2009. The long title includes an amendment note to reflect this Act. The source shows that sections 13 and 14 were deleted by No. 8 of 2009 s 6(3) as indicated by the text "[13, 14. Deleted: No. 8 of 2009 s. 6(3).]".
• Public Sector Reform Act 2010, s 90 (No. 39 of 2010). Assent 1 October 2010. Commencement 1 December 2010. This amendment is noted in s 4 margin notes: "Section 4 amended: No. 39 of 2010 s. 90". It updates public sector references and transitional application of prior appointments to the Commissioner’s office (s 4(4) onwards).

Transitional and historical notes

• The compilation notes and footnotes provide cross‑references to former company and securities Acts that were superseded by the Companies (Application of Laws) Act 1981 and the Companies (Western Australia) Code, later by the Corporations (Western Australia) Act 1990 and ultimately by the Corporations Act 2001 of the Commonwealth (notes 3 and 4). These notes explain that many substantive company and securities provisions relevant to the Commissioner were moved into Commonwealth law and other State Acts over time. The Act itself is therefore situated within a sequence of statutory changes that altered the scope of State versus Commonwealth regulation.
• The notes also indicate repeal or replacement of the National Companies and Securities Commission by ASIC under Commonwealth law (note 5) and repeal of the National Companies and Securities Commission (State Provisions) Act 1980 by the Corporations (Western Australia) Amendment Act 1991 (note 6). These changes affect the intergovernmental context in which the Act operates.

Specific inserted sections and dates

• Section 3 was amended by No. 48 of 1988 s 8, updating definitions including “Commission” and “futures contract” (s 3).
• Sections 17, 18, 19 and 20 were inserted by No. 48 of 1988 s 9-12 respectively, and these insertions added secrecy obligations, restriction on dealings in securities and disclosure of interests, and a regulation power (s 17; s 18; s 19; s 20).
• Section 12 saw amendments to financial and audit provisions brought by No. 98 of 1985 and later alterations in 2006 (s 12 and compilation notes).

Deleted provisions

• Sections 13 and 14 were deleted by the Statutes (Repeals and Miscellaneous Amendments) Act 2009 (No. 8 of 2009 s 6(3)), as shown by the notation in the Act.

Reprints

• The compilation table records Reprint 1 as the Companies (Administration) Act 1982 as at 12 Oct 2007, which incorporated amendments listed up to that date.

Practical note for readers

• The Act’s notes emphasise that many references to older company and securities statutes may now be read in the context of the Corporations Act 2001 and federal law, because of successive Commonwealth takeovers of company and securities law. For any given question about the Commissioner’s current powers relative to company or securities matters, practitioners must check the contemporary Commonwealth statutes, any intergovernmental agreements, and the current status of delegations from federal agencies. The compilation table and marginal notes in the Act provide the statutory breadcrumb trail necessary to map amendments up to the dates shown.

The source text supplied contains no citations to reported cases or any litigation in which the Companies (Administration) Act 1982 has featured. The only legal instruments and authorities referred to within the Act are statutes and instruments: the National Companies and Securities Commission Act 1979, the Public Sector Management Act 1994, the Companies Act 1961 and various State Codes and Commonwealth Acts, as reflected in the definitions and notes (s 3; s 4; notes). The compilation notes mention repeal and replacement of federal bodies and Acts, but do not supply any case law or judicial interpretation.

Consequently, the Act as provided does not include a litigation history section. Practitioners seeking case law on statutory interpretation, enforcement actions under s 18 or s 17, delegation limits under s 10, or disputes about the Commissioner’s authority and evidentiary presumptions under s 5 and s 10(10)-(12) will need to search external legal databases for judicial decisions referencing those provisions or the Commissioner’s actions. The Act itself directs courts to take judicial notice of the Commissioner’s signature and seal (s 5), but the source does not show how courts have applied that presumption in contested litigation.

Matters likely to produce litigation themes, and therefore candidate search terms for practitioners, include:

• enforcement actions under the restricted dealings provision in s 18, including interpretation of what constitutes “information that is not generally available” and “would be likely materially to affect the price of securities” within the statutory text (s 18(1)(b)(i));
• scope and application of the secrecy offences in s 17, including what disclosure is “necessary to perform official duties” and the scope of permitted public interest disclosures under s 17(2)(c);
• disputes about the Commissioner’s delegation and sub‑delegation regime, including the limits on delegations, revocation procedures and the evidentiary presumptions for documents signed by delegates (s 10(1)-(6), (10)-(13));
• conflicts of interest and obligations to notify under s 19, including what constitutes a “relevant interest” and the territorial or temporal reach of associated persons and related bodies (s 19(1), (3));
• interplay between State powers under this Act and Commonwealth or intergovernmental authorities, for example where s 10(14), s 8(5) or the non‑application provisions in s 17(3), s 18(9), s 19(3) are invoked.

Because the source provides no reported rulings, the Act’s practical application in contested contexts must be informed by external jurisprudence searches. The Act itself establishes presumptions and evidentiary facilitation but does not supply adjudicative precedent.

This section sets out practical pitfalls and frequently overlooked legal mechanics that arise directly from the Act’s text and structure. Each entry cites the source provision that produces the risk or trap.

1. Personal criminal liability for disclosure and trading risks: Officers and persons authorised to perform Commissioner functions face personal criminal liability under s 17 and s 18. The secrecy offence under s 17(1) attracts a fine of $5 000 or 1 year imprisonment, and the dealing offence under s 18(1) attracts a fine of $20 000 or 5 years imprisonment. The Act targets current and former officers; secrecy obligations continue post‑employment because s 17(1) applies to persons who "is, or has at any time been" the Commissioner or appointed persons. Practitioners advising officers should flag that post‑employment conduct involving previous non‑public information can attract criminal exposure (s 17(1); s 18(1)).

2. Broad scope of secrecy but narrow public interest exception: Section 17(1) prohibits record‑making, divulging or communicating of information acquired by reason of appointment except to the extent necessary to perform official duties. The public interest exception in s 17(2)(c) permits disclosure where, in the Commissioner’s opinion, it is in the public interest. That exception depends on the Commissioner’s opinion rather than judicial determination and could be operationally narrow in practice. There is also a permitted disclosure to courts under s 17(2)(a)-(b) and disclosures required by other Acts under s 17(2)(d). Officers should obtain express Commissioner or Ministerial approvals where they contemplate disclosure beyond routine official duties.

3. Presumptions of authority are rebuttable: Sections 5, 7(3) and 10(10)-(12) create presumptions that Commissioner signed documents or delegate signatures are correct and that delegates are duly authorised. However these are rebuttable. If someone relies on an instrument and the other party can show lack of authority or forgery, the presumption falls away. Commercial counterparties should confirm authorisations where there is any uncertainty about a signature or delegation limit (s 5; s 7(3); s 10(10)-(12)).

4. Delegation caveats and external delegations: Section 10(14) states that section 10 does not apply to functions or powers the Commissioner has by virtue of a delegation from the Commission. In practice, delegated federal functions may carry their own conditions and cannot be assumed to be delegable by the State Commissioner under s 10. Practitioners must examine the text of any federal delegation to the Commissioner and not rely solely on state delegation rules (s 10(14); s 8(5)).

5. Disclosure obligations may be triggered by past employment: Section 19(1)(j)(i) requires disclosure where the officer is required to consider matters relating to a person or body by whom the officer has been employed at any time during the immediately preceding 3 years, or bodies related to such an employer (s 19(1)(j)(i), (k)). That means recent private sector hires may be constrained by disclosure obligations when their official duties require consideration of matters connected to their former employer. The three year lookback creates a measurable risk for former private employees entering public office.

6. Civil compensation calculation depends on counterfactual price: Section 18(2)(c)-(d) bases compensation on the difference between the actual transaction price and the price likely to have applied had the information been generally available. That requires a counterfactual market price assessment and can produce litigation over valuation methodology, timing and causation. The Act limits recovery by reference to prior findings of liability for the same act or transaction (s 18(3)-(4)), and places the onus on the defendant to prove overlap (s 18(4)). Claimants and defendants should plan for expert valuation evidence and be aware of these evidentiary allocation rules.

7. Commissioner may sue on behalf of private parties: Section 18(6) allows the Commissioner to bring compensation actions in the name of and for the benefit of private persons. Affected private parties may be reliant on the Commissioner’s decision to pursue remedies on their behalf, which creates concentration risk for claimants if the Commissioner does not act. Private parties have standing to sue themselves, but the Act’s provision means that private claimants could in practice find enforcement pathways mediated by the Commissioner (s 18(6)).

8. Money payable to Commissioner goes to Consolidated Account: Section 12(2) prescribes that money payable to the Commissioner must be paid into the Consolidated Account. Fees or monies collected are public monies. Practitioners dealing with fee refunds or special payments should anticipate public finance handling and audit, and not assume funds remain in a Commissioner‑controlled trust.

9. Ministerial control over policy and prosecutions: Section 8(2) permits the Minister to direct the Commissioner to report on policy the Commissioner is pursuing, and s 9(1) requires the Minister’s written consent for prosecution by another person. The Commissioner is otherwise subject to the control and direction of the Minister except as to the contents of a report, and except where acting as an inspector under companies or securities regulation (s 8(3)). Practitioners should note where politicised decision‑making may affect enforcement timing and transparency.

10. Interaction with federal law can remove State provisions from play: The Act contains explicit non‑application clauses where corresponding federal provisions apply (s 17(3); s 18(9); s 19(3)). Practitioners must check whether federal laws, delegations or intergovernmental arrangements now govern the particular subject matter before relying on the Act’s secrecy, trading restriction or notification provisions.

11. Defence for notification is narrow and subjective: The defence in s 19(2) for failing to notify is that the officer was not aware of the fact or matter that obliged notification at the time the person was required to consider the matter. This is a subjective standard of knowledge rather than an objective negligence test. That defence may be difficult to sustain where officers should have been aware of relevant interests by reasonable inquiry.

12. Repealed sections and historical cross‑references: The source contains notes about repealed Commonwealth and State Acts and about transitional reprints. Practitioners must avoid assuming an earlier authority remains in force. The compilation notes show multiple replacements (notes 3-7). Always verify current applicability of cross‑referenced Acts.

These “gotchas” flow directly from the statutory text and structure and should be part of standard due diligence for governance and regulatory compliance advice involving the Commissioner’s office and personnel.

This section provides practical, source‑grounded steps for officers, delegates, private parties transacting with the Commissioner’s office, and organisations that may be the subject of Commissioner consideration. The measures follow directly from the statutory requirements and evidentiary mechanics in the Act.

1. Appointment and employment processes

• Ensure appointment under correct public sector instrument: The Commissioner must be appointed and hold office under Part 3 of the Public Sector Management Act 1994 (s 4(1)). Appointments of Deputies, Assistants and other staff should follow that Part. Human resources procedures for recruitment, appointment letters and contracts should explicitly reference the Public Sector Management Act appointment stream where applicable so that appointments are valid under s 4(1)-(2).
• Transitional incumbents: Where persons held office under prior company Acts but continue in office, document the deemed appointment under s 4(4) and retain records showing continuous service to ensure smooth legal continuity for duties and liabilities.

2. Delegation and authorities

• Record delegations under seal: Delegations under s 10 must be by writing under the seal of the Commissioner. Keep a register of all delegations, specifying scope, conditions, time limits and revocation mechanisms as required by s 10(1), (2) and (13).
• Manage sub‑authorisations and limits: Where delegates sub‑authorise others under s 10(4), require written instruments of sub‑authorisation. Ensure each instrument specifies whether authority extends to statutory discretions that require the opinion, belief or state of mind of the delegate (s 10(7)). Maintain centralised records for auditing and evidentiary support in litigation.
• Revoke and publicise revocations: Where delegations are revoked under s 10(2), implement prompt notice protocols to affected staff and to external stakeholders to avoid misplaced reliance on repealed authorities. Retain revocation instruments to rebut presumptions under s 10(10)-(12).

3. Document execution and evidentiary compliance

• Use seal and signature attestation: When affixing the Commissioner’s seal under s 6(1), the affixing person must sign and date the instrument attesting to the fact and date of seal affixation as required by s 6(2). Maintain physical and electronic logs of seal use.
• Confirm delegated signatories: For documents executed by deputies or authorised staff, maintain express written authorisations under s 7(1)-(2) to support admissibility and the statutory presumption of authority in s 7(3) and s 10(10)-(12).
• Retain originals and certified copies: Although courts take judicial notice of the Commissioner’s signature and seal (s 5), keep originals, certified copies and contemporaneous notes of execution to rebut potential challenges where the presumption might be impeached.

4. Secrecy and information controls

• Implement information protocols: Because s 17(1) prohibits unauthorised record‑making, disclosure or use of information acquired by reason of office, adopt a formal information classification and access control policy that limits storage, copying, and dissemination of non‑public information to those “necessary to perform official duties.” Include procedures for secure retention and secure deletion where appropriate.
• Approval for public interest disclosures: Where an officer considers disclosing information under the public interest exception in s 17(2)(c), obtain a documented Commissioner opinion that the disclosure is in the public interest. For disclosures to courts or where another Act requires disclosure, ensure legal counsel coordinates production to align with s 17(2)(a), (b) and (d).
• Post‑employment restrictions: Maintain exit protocols that remind departing officers of continuing secrecy obligations under s 17(1). Provide written reminders of the criminal penalties attached.

5. Conflict management and notification

• Identify relevant interests: Develop a register for officers to record relevant interests as contemplated by s 19(1). Collect information on securities holdings, relevant futures contracts, recent employment within the last 3 years, associations and related bodies as defined under s 19(3).
• Require immediate written notifications: Where an officer is required to consider a matter relating to a body or securities in which they have a relevant interest, require immediate written notification to the Commissioner, or in the Commissioner’s case to the Minister, as s 19(1) mandates. Make report templates and a central receipt register to evidence compliance and time of notification.
• Train for awareness defence threshold: The defence in s 19(2) is based on not being aware of the fact creating the obligation. Training should emphasise proactive inquiry into potential conflicts and an obligation to seek managerial or legal guidance contemporaneously to avoid being deemed aware later.

6. Market trading and information handling

• Proscribe trading for officeholders: Given the dealing prohibition in s 18(1), institute a strict trading restriction policy for officeholders and any person with access to non‑public price sensitive information by virtue of their role. Where necessary, impose blackout periods and preclearance requirements aligned with s 18’s scope.
• Record information flows: Implement logs showing who had access to non‑public information and when. These logs will be essential evidence to disprove allegations of misuse under s 18 or to support claims where an officer was prevented from dealing by compliance controls.

7. Financial and audit compliance

• Route funds to Consolidated Account: Ensure that any money payable to the Commissioner is collected and paid into the Consolidated Account as required by s 12(2). Coordinate with Treasury and finance teams to ensure accounting entries reflect this obligation.
• Prepare for Auditor General audits: Because the Auditor General audits the Commissioner’s accounts under s 12(3), maintain accounting systems, documentation and internal audit trails that comply with public sector audit standards. Treat officers as “officers” for Auditor General Act purposes and preserve records accordingly.

8. Indemnity and legal exposure

• Ensure good faith conduct and record‑keeping: Section 15 provides indemnity for acts done in good faith. To rely on that indemnity, record decision‑making processes, advice obtained, and evidence of good faith. Counsel should prepare contemporaneous notes showing that decisions were taken on reasonable grounds and with appropriate advice where necessary.
• Maintain insurance and legal support: Despite the indemnity, consider Directors and Officers insurance or equivalent protections for senior staff and make legal counsel available to advise on disclosures, prosecutions and civil suits arising under s 18.

9. Enforcement preparedness

• Plan for potential civil claims: Because s 18(2) creates a civil compensation remedy with a two year limitation period (s 18(5)), maintain evidence trails demonstrating compliance with trading restrictions and information handling. For private parties, be ready to gather valuation experts to quantify counterfactual prices where claims arise.
• Establish prosecutorial liaison procedures: The Commissioner controls many prosecutions under s 9(1). Build procedures for liaison with the Commissioner’s office and the Minister where third parties seek consent to prosecute under s 9(1).

10. Regulatory scanning and interjurisdictional checks

• Check federal applicability before acting: Given multiple non‑application clauses where federal law or delegations govern (s 17(3); s 18(9); s 19(3); s 10(14)), conduct a jurisdictional check for each matter to determine whether State provisions apply or whether actions fall under Commonwealth jurisdiction or involve federal delegations to the Commissioner.
• Maintain regulatory change logs: The Act’s compilation notes show past changes. Maintain a legal tracking system to update practices if further amendments occur.

Following these compliance steps will align organisational practice with the statutory obligations and evidentiary mechanics set out in the Act. Documentation, central registers, auditable approvals and legal sign‑offs are recurring themes across s 5, s 6, s 7, s 10, s 12, s 17, s 18 and s 19 and are central to operational compliance.