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This is a Bill, not an Act. For current law, see the Acts databases.


CORPORATIONS (COMMONWEALTH POWERS) BILL 2000





                                  New South Wales




Corporations (Commonwealth Powers)
Bill 2000

Contents
                                                                                 Page

                  1    Name and purpose of Act                                       2
                  2    Commencement                                                  2
                  3    Definitions                                                   2
                  4    Reference of matters                                          3
                  5    Exclusion from amendment reference of matters relating
                       to industrial relations matters                               5
                  6    Exclusion from amendment reference of matters relating
                       to formation of companies and other matters                   8
                   7   Termination of references                                     8
                   8   Extension of period of reference by proclamation              9
                   9   Earlier termination of reference by proclamation             10
                  10   Evidence                                                     10
                  11   Operation of Act                                             11




b00-116-p02.801
                              New South Wales




Corporations (Commonwealth Powers)
Bill 2000

No     , 2000



A Bill for

An Act to refer certain matters relating to corporations and financial products and
services to the Parliament of the Commonwealth for the purposes of section 51
(xxxvii) of the Constitution of the Commonwealth.
Clause 1           Corporations (Commonwealth Powers) Bill 2000




The Legislature of New South Wales enacts:                                              1

   1     Name and purpose of Act                                                        2
         (1) This Act is the Corporations (Commonwealth Powers) Act 2000.               3
         (2) The purpose of this Act is to refer certain matters relating to             4
             corporations and financial products and services to the Parliament of       5
             the Commonwealth for the purposes of section 51 (xxxvii) of the             6
             Constitution of the Commonwealth, so as to enable that Parliament to        7
             make laws that apply of their own force in the State, instead of those      8
             matters being dealt with by the Corporations Law and other applied          9
             laws.                                                                      10

   2     Commencement                                                                   11
              This Act commences on a day or days to be appointed by                    12
              proclamation.                                                             13

   3     Definitions                                                                    14
         (1) In this Act:                                                               15
             amendment reference means the reference under section 4 (1) (b).           16
             commencement day means the day on which section 4 (1)                      17
             commences.                                                                 18
             Corporations instrument means any instrument made or issued under          19
             the Corporations legislation.                                              20
             Corporations legislation means Commonwealth Acts enacted in the            21
             terms, or substantially in the terms, of the tabled text and as in force   22
             from time to time.                                                         23
             express amendment of the Corporations legislation means the direct         24
             amendment of the text of the Corporations legislation (whether by the      25
             insertion, omission, repeal, substitution or relocation of words or        26
             matter) by Commonwealth Acts, but does not include the enactment           27
             by a Commonwealth Act of a provision that has or will have                 28
             substantive effect otherwise than as part of the text of the               29
             Corporations legislation.                                                  30
             initial reference means the reference under section 4 (1) (a).             31
             prescribed termination day means the day on which both the                 32
             references are to terminate as set out in section 7 (1).                   33




Page 2
Corporations (Commonwealth Powers) Bill 2000                            Clause 3




             reference means:                                                             1
             (a)    the initial reference, or                                             2
             (b)    the amendment reference.                                              3
             referred provisions means the tabled text to the extent to which that        4
             text deals with matters that are included in the legislative powers of the   5
             Parliament of the State.                                                     6
             tabled text means the text of the following proposed Bills for                7
             Commonwealth Acts, comprised in two or more documents (each                   8
             bearing identification as "part of the tabled text") as tabled by or on       9
             behalf of the Attorney General in the Legislative Assembly at any time       10
             during the period between the giving of notice of motion for leave to        11
             introduce the Bill for this Act in the Legislative Assembly and the          12
             second reading of that Bill in the Legislative Assembly:                     13
             (a)    Corporations Bill 2000,                                               14
             (b)    Australian Securities and Investments Commission Bill 2000.           15
       (2) If a proclamation terminating the amendment reference alone has been           16
           published under section 9 and has not been revoked, the expression the         17
           references refers to the initial reference only.                               18

   4   Reference of matters                                                               19
       (1) The following matters are referred to the Parliament of the                    20
           Commonwealth:                                                                  21
           (a)  the matters to which the referred provisions relate, but only to          22
                the extent of the making of laws with respect to those matters            23
                by including the referred provisions in Acts enacted in the               24
                terms, or substantially in the terms, of the tabled text (including       25
                laws containing provisions that authorise the making of                   26
                Corporations instruments that affect the operation of the                 27
                Corporations legislation, otherwise than by express                       28
                amendment), and                                                           29
           (b)  the matters of the formation of corporations, corporate                   30
                regulation and the regulation of financial products and services,         31
                but only to the extent of the making of laws with respect to              32
                those matters by making express amendments of the                         33
                Corporations legislation (including laws inserting or amending            34
                provisions that authorise the making of Corporations                      35
                instruments that affect the operation of the Corporations                 36
                legislation, otherwise than by express amendment).                        37


                                                                                Page 3
Clause 4           Corporations (Commonwealth Powers) Bill 2000




         (2) The reference of a matter under subsection (1) has effect only:              1
             (a)    if and to the extent that the matter is not included in the           2
                    legislative powers of the Parliament of the Commonwealth              3
                    (otherwise than by a reference under section 51 (xxxvii) of the       4
                    Constitution of the Commonwealth), and                                5
             (b)    if and to the extent that the matter is included in the legislative   6
                    powers of the Parliament of the State.                                7
         (3) The operation of each paragraph of subsection (1) is not affected by         8
             the other paragraph.                                                         9
         (4) For the avoidance of doubt, it is the intention of the Parliament of the     10
             State that:                                                                  11
             (a)     the Corporations legislation may be expressly amended, or have       12
                     its operation otherwise affected, at any time on or after the        13
                     commencement day by provisions of Commonwealth Acts the              14
                     operation of which is based on legislative powers that the           15
                     Parliament of the Commonwealth has apart from the references,        16
                     and                                                                  17
             (b)     the Corporations legislation may have its operation affected,        18
                     otherwise than by express amendment, at any time on or after         19
                     the commencement day by provisions of Corporations                   20
                     instruments, and                                                     21
             (c)     the references are not made subject to any condition relating to:    22
                     (i)     the express amendment or affecting of the Corporations       23
                             legislation by provisions referred to in paragraph (a), or   24
                     (ii)    the affecting of the Corporations legislation by             25
                             provisions referred to in paragraph (b).                     26
         (5) Despite any other provision of this section, a reference has effect for      27
             a period:                                                                    28
             (a)    beginning at the beginning of the commencement day, and               29
             (b)    ending at the beginning of the day on which it terminates as set      30
                    out in section 7,                                                     31
              but not longer.                                                             32




Page 4
Corporations (Commonwealth Powers) Bill 2000                         Clause 5




   5   Exclusion from amendment reference of matters relating to industrial            1
       relations matters                                                               2
       (1) The amendment reference does not include any of the following               3
           matters:                                                                    4
           (a)    the matter of conciliation or arbitration for the prevention and     5
                  settlement of industrial disputes,                                   6
           (b)    the matter of the adjudication or mediation of matters arising       7
                  under industrial agreements,                                         8
           (c)    matters relating to the remuneration or other terms or conditions     9
                  of employment of employees,                                          10
           (d)    matters relating to the number, identity, appointment, probation,    11
                  promotion, transfer (from place to place or position to position),   12
                  physical or mental fitness, uniform, equipment or discipline of      13
                  employees,                                                           14
           (e)    the matter of the termination, or proposed termination, of the       15
                  employment of an employee, otherwise than in connection with         16
                  the winding up of a corporation,                                     17
           (f)    matters relating to the formation or dissolution of industrial       18
                  associations of employees, employers or independent                  19
                  contractors,                                                         20
           (g)    the matter of freedom of association, namely the rights of           21
                  employees, employers and independent contractors to join an          22
                  industrial association of their choice, or not to join such an       23
                  association,                                                         24
           (h)    matters affecting employees relating to the following subject        25
                  matters:                                                             26
                  (i)     workers' compensation,                                       27
                  (ii)    the quantum of superannuation,                               28
                  (iii) occupational health and safety,                                29
                  (iv) apprenticeship,                                                 30
                  (v)     long service leave, recreation leave, sick leave and other   31
                          leave entitlements,                                          32
                  (vi) days to be observed as public holidays,                         33
                  (vii) equal opportunity,                                             34
           (i)    the matters relating to the following subject matters:               35
                  (i)     industrial agreements,                                       36
                  (ii)    the making of an award, order or other industrial            37
                          instrument,                                                  38


                                                                             Page 5
Clause 5           Corporations (Commonwealth Powers) Bill 2000




                    (iii)  the making of an award, order or other industrial             1
                           instrument as, or declaring any term of an award, order       2
                           or other industrial instrument to be, a common rule for       3
                           an industry,                                                  4
             (j)    any other matter (whether of a similar or different kind) relating   5
                    to:                                                                  6
                    (i)    workplace, labour or industrial regulation, or                7
                    (ii)   workplace, labour or industrial relations.                    8
         (2) Subsection (1) does not apply in relation to the following:                 9
             (a)   the legal capacity of corporations to enter into workplace,           10
                   labour or industrial relations,                                       11
             (b)   the disclosure of or reporting of information of any kind and in      12
                   any form,                                                             13
             (c)   the regulation of employee share schemes,                             14
             (d)   the rights and duties of employees as a class of shareholders,        15
             (e)   superannuation (except with respect to the quantum of                 16
                   superannuation as referred to in subsection (1)), and, without        17
                   limitation, market conduct in relation to employment related          18
                   superannuation,                                                       19
             (f)   conditions of employment relating to:                                 20
                   (i)     the use of an employee's position to gain an advantage        21
                           or cause detriment to his or her employer, or                 22
                   (ii)    the use of information obtained as an employee, or            23
                   (iii) other obligations of an employee so far as they relate          24
                           principally to corporate regulation or the regulation of      25
                           financial products and services (and accordingly not          26
                           principally to matters relating to workplace, labour or       27
                           industrial relations),                                        28
             (g)   the following:                                                        29
                   (i)     the creation (by Commonwealth law) of rights of               30
                           employees to the accrual of remuneration entitlements,        31
                           superannuation entitlements, leave entitlements and           32
                           other entitlements and the adjustment of rights so            33
                           created, or                                                   34
                   (ii)    the protection of accrued or accruing entitlements of         35
                           employees, whether arising under rights referred to in        36
                           subparagraph (i) or otherwise,                                37




Page 6
Corporations (Commonwealth Powers) Bill 2000                          Clause 5




             (h)    the fitness, qualifications, supervision and discipline of         1
                    employees of:                                                      2
                    (i)     holders of licences for the provision of financial         3
                            products or services, or                                   4
                    (ii)    representatives of holders of any such licences,           5
             (i)    in the case of a person who is an employee of a corporation and    6
                    is or was also an officer of the corporation--the person in his    7
                    or her capacity as an officer of the corporation,                  8
             (j)    in the case of a person who is or was the spouse or relative of     9
                    an employee--the person in his or capacity as spouse or            10
                    relative.                                                          11
       (3) In this section:                                                            12
             corporation includes:                                                     13
             (a)     a body corporate of any kind, and                                 14
             (b)     an unincorporated body that by law may sue or be sued, or may     15
                     hold property, in the name of the secretary or other officer of   16
                     the body.                                                         17
             employee means a person who is employed or otherwise engaged in           18
             any trade, manufacture, business, project, occupation or any other        19
             industry.                                                                 20
             industrial agreement means an agreement about matters relating to the     21
             relationship between an employer or employers and an employee or          22
             employees.                                                                23
             officer of a corporation means:                                           24
             (a)     a director or secretary of the corporation, or                    25
             (b)     an employee of the corporation, or other person connected with    26
                     the corporation, who is responsible for the management of the     27
                     corporation or who participates in the management of the          28
                     corporation at a senior level.                                    29
       (4) A person is not prevented from being an employee for the purposes of        30
           this section only because:                                                  31
           (a)     the person works part-time or on a casual basis, or                 32
           (b)     the person is paid wholly or partly by commission, or               33




                                                                             Page 7
Clause 5            Corporations (Commonwealth Powers) Bill 2000




              (c)    the person is working under a contract for labour only, or          1
                     substantially for labour only, or                                   2
              (d)    the person is a lessee of any tools or other implements of          3
                     production.                                                         4

   6     Exclusion from amendment reference of matters relating to formation             5
         of companies and other matters                                                  6
         (1) The amendment reference does not include the matter of making               7
             express amendments of the Corporations legislation that:                    8
             (a)   require or have the effect of requiring the adoption of a              9
                   corporate structure by a natural person or unincorporated body,       10
                   whether by the formation of a corporation or otherwise, or            11
             (b)   require or have the effect of requiring any activities of a natural   12
                   person or unincorporated body to be conducted by persons who          13
                   are employees of a corporation,                                       14
              whether conditionally or unconditionally, and whether in particular        15
              circumstances or in all circumstances.                                     16
         (2) Nothing in subsection (1) excludes from the amendment reference the         17
             matter of making express amendments of the Corporations legislation         18
             that:                                                                       19
             (a)    prohibit or have the effect of prohibiting the formation of          20
                    partnerships or associations that consist of more than 20            21
                    members, or                                                          22
             (b)    prohibit or have the effect of prohibiting a person other than a     23
                    corporation being engaged in the management of any scheme            24
                    or market under, through or in which financial products or           25
                    services are offered to the public.                                  26
         (3) In this section:                                                            27
             corporation includes a body corporate of any kind.                          28

   7     Termination of references                                                       29
         (1) Subject to earlier termination under this section, the references           30
             terminate on the day that is the fifth anniversary of the day of            31
             commencement of the Corporations legislation or on a later day fixed        32
             by the Governor by proclamation under section 8.                            33




Page 8
Corporations (Commonwealth Powers) Bill 2000                         Clause 7




       (2) Both the references terminate on a day that is earlier than the            1
           prescribed termination day if the Governor fixes that earlier day by       2
           proclamation under section 9 as the day on which the references            3
           terminate.                                                                 4
       (3) The amendment reference alone terminates on a day that is earlier than     5
           the prescribed termination day if the Governor fixes that earlier day by   6
           proclamation under section 9 as the day on which the amendment             7
           reference terminates.                                                      8
       (4) If the amendment reference terminates before the initial reference, the     9
           termination of the amendment reference does not affect:                    10
           (a)     laws that were made under the amendment reference before that      11
                   termination but have not come into operation before that           12
                   termination, or                                                    13
           (b)     the continued operation in the State of the Corporations           14
                   legislation as in operation immediately before that termination    15
                   or as subsequently amended or affected by:                         16
                   (i)     laws referred to in paragraph (a), or                      17
                   (ii)    provisions referred to in section 4 (4) (a) or (b).        18
       (5) For the purposes of subsection (4):                                        19
           (a)    the laws referred to in subsection (4) (a) include Corporations     20
                  instruments, and                                                    21
           (b)    the reference in subsection (4) (b) to the Corporations             22
                  legislation as in operation immediately before the termination      23
                  of the amending reference includes that legislation as affected     24
                  by Corporations instruments that have come into operation           25
                  before that time.                                                   26

   8   Extension of period of reference by proclamation                               27
       (1) The Governor may, at any time before the prescribed termination day,       28
           by proclamation published in the Gazette, fix a day that is later than     29
           the prescribed termination day as the day on which both the references     30
           terminate.                                                                 31
       (2) More than one proclamation may be made under subsection (1).               32




                                                                            Page 9
Clause 9            Corporations (Commonwealth Powers) Bill 2000




   9   Earlier termination of reference by proclamation                                    1
          (1) The Governor may, at any time, by proclamation published in the              2
              Gazette, fix a day that is earlier than the prescribed termination day as    3
              the day on which:                                                            4
              (a)    the references terminate, or                                          5
              (b)    the amendment reference terminates.                                   6
          (2) The day fixed under subsection (1) must be no earlier than the first day     7
              after the end of the period of 6 months beginning with the day on            8
              which the proclamation is published under that subsection.                   9
          (3) The Governor may, by proclamation published in the Gazette, revoke           10
              a proclamation published under subsection (1), in which case the             11
              revoked proclamation is taken (for the purposes of section 7) never to       12
              have been published.                                                         13
          (4) A revoking proclamation has effect only if published before the day          14
              fixed under subsection (1).                                                  15
          (5) The revocation of a proclamation published under subsection (1) does         16
              not prevent publication of a further proclamation under that subsection.     17
          (6) A proclamation under subsection (1) has effect despite any earlier           18
              proclamation published under section 8 (1).                                  19

 10    Evidence                                                                            20
          (1) A certificate of the Clerk of the Legislative Assembly of New South          21
              Wales certifying that a document is an accurate copy of the tabled text,     22
              or is an accurate copy of a particular part or of particular provisions of   23
              the tabled text, is admissible in evidence in any proceedings and is         24
              evidence:                                                                    25
              (a)     of the matter certified, and                                         26
              (b)     that the text of proposed Commonwealth Bills was tabled in the       27
                      Legislative Assembly of New South Wales as referred to in the        28
                      definition of tabled text in section 3.                              29
          (2) Subsection (1) does not affect any other way in which the tabling or         30
              content of the tabled text, or the accuracy of a copy of the tabled text     31
              or of a part or provisions of the tabled text, may be established.           32




Page 10
Corporations (Commonwealth Powers) Bill 2000                       Clause 11




 11    Operation of Act                                                             1
             This Act has effect despite any provision of the Corporations (New     2
             South Wales) Act 1990 or of the applicable provisions (as defined in   3
             that Act) of the State.                                                4




                                                                         Page 11


 


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