Commonwealth Numbered Regulations - Explanatory Statements Commonwealth Numbered Regulations - Explanatory Statements[Index] [Search] [Download] [Related Items] [Help]
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION AMENDMENT REGULATIONS 2000 (NO. 1) 2000 NO. 10
EXPLANATORY STATEMENTStatutory Rules 2000 No. 10
Issued by the authority of the Minister for Financial Services and Regulation
Australian Securities and Investments Commission Act 1989
Australian Securities and Investments Commission Amendment Regulations 2000 (No. 1)
Section 251 of the Australian Securities and Investments Commission Act 1989 (the Act) empowers the Governor-General to make regulations, not inconsistent with the Act, prescribing matters which are required or permitted by the Act to be prescribed by regulations, or are necessary or convenient to be prescribed by regulations for carrying out or giving effect to the Act.
The purpose of the regulations is to amend the Australian Securities and Investments Commission Regulations 1990 to take account of amendments to the Corporations Law (the Law) by the Corporate Law Economic Reform Program Act 1999 (the amending Act). In particular, the amending Act reformed the Corporations and Securities Panel so that it becomes the sole forum for the resolution of takeover disputes during a takeover bid. The Australian Securities and Investments Commission Regulations contained a number of rules about the procedure of the Panel. In light of the reforms made by the amending Act, the amended regulations make consequential reforms to those procedural rules.
The responsible Ministers of the States and the Northern Territory on the Ministerial Council for Corporations have been consulted about the regulations as required by the Corporations Agreement, reached in 1990 between the State, Northern Territory and Commonwealth Ministers responsible for corporate regulation.
Details of the regulations are set out in the Attachment.
The regulations commence on 13 March 2000.
ATTACHMENT
Australian Securities and Investments Commission Amendment Regulations 2000 (No. 1)
Regulation 1 Name of Regulations
Regulation 1 provides for the name of the regulations.
Regulation 2 Commencement
Regulation 2 provides that the regulations commence on 13 March 2000.
Regulation 3 Amendment of Australian Securities and Investments Commission
Regulations 1990
Regulation 3 provides that the Australian Securities and Investments Commission Regulations 1990 are amended as set out in Schedule 1.
Schedule 1 Amendments
Item 1 Regulations 13 and 14
The amendment substituted regulation 13, effectively omitting the previous paragraph 13(b). Paragraph 13(b) provided that an object of Part 3 of the Regulations was to ensure that a decision about the occurrence of unacceptable circumstances could be made in a timely manner. As a result of the reforms made by the amending Act, the Panel will have a broader dispute resolution function and it would be unduly limiting to retain the previous paragraph 13(b) as an object of Part 3 of the Regulations.
The amendment also substituted a new regulation 14. The new regulation reflects amendments to terminology in the Australian Securities and Investments Commission Act 1989 (the ASIC Act). The ASIC Act now refers to 'Panel proceedings' rather than an 'inquiry' of the Panel.
Item 2 Regulation 15, definition of application
The amendment to the definition of application reflects the changed sections under which an application may be made as a result of the amending Act.
Item 3 Regulation 15, definition of brief
The amendment to the definition of brief reflects amendments made to terminology in the ASIC Act. The ASIC Act refers to 'Panel proceedings' rather than an 'inquiry' of the Panel.
Item 4 Regulation 15, definition of decision
The amendment repealed the definition of 'decision'. The definition is no longer necessary in light of the repeal of regulation 17, which relies on this definition.
Item 5 Regulation 15, definition of inquiry and intervener
The amendment omits the definition of 'inquiry'. This reflects changes made by the amending Act, which refers to 'Panel proceedings' rather than an 'inquiry' of the Panel. A definition of 'Panel proceedings' was inserted into subsection 5(1) of the ASIC Act (see Schedule 4 item 15 of the amending Act).
The amendment also repealed the definition of 'intervener'. The definition is no longer necessary in light of the broader definition of 'party'. The Panel will still be able to call for expressions of interest and accept submissions from other persons under regulations 23 and 24. In addition, the amending Act broadens the range of persons who may make applications to the Panel (for example, see section 657C of the amending Act).
Item 6 Regulation 15, definition of party
The amendment broadened the definition of 'party' to reflect the reforms by the amending Act which allow a broader range of persons to make applications to the Panel.
Items 7 to 16 Regulation 16
The proposed amendments will amend the opening words of regulation 16, which sets out the powers of the Panel. The amendment ensures that the ability of the Panel to operate as an effective and timely dispute resolution mechanism is not inadvertently limited.
In addition, the amendments replaced references to 'inquiry' with 'Panel proceedings' (to reflect the changed terminology used in the ASIC Act) and omits references to 'interveners' (see item 5 above).
Item 17 Regulation 17
The amendment repealed regulation 17. Regulation 17 was not necessary as a result of the reforms made by the amending Act. In particular, the amending Act inserted new subsection 195(1) into the ASIC Act which enables the Panel to determine the procedural rules to be followed in Panel proceedings. (Schedule 4 item 44 of the amending Act). The amending Act moved the requirement to give a statement of the reasons for making a decision into the relevant provisions of the Corporations Law (for example, see subsection 657A(6) of the amending Act).
Item 18 Regulation 19
The amendment replaced the previous detailed rules about the form of an application to the Panel with a simple requirement that the application must be in a form approved by the Panel. Previously, only the Australian Securities and Investments Commission could make an application to the Panel, and only for a declaration of unacceptable circumstances. Under the reforms of the amending Act, a broader range of persons is able to apply to the Panel in relation to a broader range of matters. In light of the broader range of applications that may be made, the amendment better allows the Panel to tailor the requirements for the making of applications.
Items 19 to 23 Regulation 20
The amendments made minor changes to reflect reforms made by the amending Act. References to 'the Commission' have been omitted as persons other than the Australian Securities and Investments Commission can make applications to the Panel. References to 'inquiry' have been replaced with 'Panel proceedings' (to reflect the changed terminology used in the ASIC Act) and the reference to the making of a declaration or order are omitted, as it is possible to make other applications to the Panel.
Item 24 Division heading
The amendment changed the Division heading in light of reforms by the amending Act which allow persons other than the Australian Securities and Investments Commission to make applications to the Panel.
Items 25 to 28 Regulation 21
The amendments made minor changes to reflect reforms made by the amending Act. References to 'the Commission' have been omitted as persons other than the Australian Securities and Investments Commission will be able to make applications to the Panel. References to 'inquiry' have been replaced with 'Panel proceedings' (to reflect the changed terminology used in the ASIC Act).
Items 29 to 32 Regulation 22
The amendments remove the time limit of 5 business days within which the Panel must give a brief to the parties. In light of the expanded role envisaged for the Panel by the amending Act, the arbitrary time limit of 5 days may not always be appropriate in relation to the matter before the Panel. In addition, the amendments replaced references to 'inquiry' with 'Panel proceedings' (to reflect the amended terminology used in the ASIC Act).
Items 33 to 35 Regulation 23
The amendments reflect the amended terminology used in the ASIC Act. The ASIC Act refers to 'Panel proceedings' rather than an 'inquiry' of the Panel. In addition, the amendments remove the time limit of 3 business days within which a person must make a written expression of interest to the Panel. Instead, the Panel will set the time limit within which the expression of interest must be made.
Items 36 and 37 Regulation 24
The amendments reflect the amended terminology used in the ASIC Act. The ASIC Act refers to 'Panel proceedings' rather than an 'inquiry' of the Panel.
Item 38 Regulation 25
The amendment replaced most of the-previous detailed rules about the form of a submission to the Panel with a requirement that the application must be in a form approved by the Panel. The amending Act envisages that a broader range of matters may be brought before the Panel. As a result, the amendment allows the Panel to tailor the requirements for the making of submissions. In light of this proposed change, consequential amendments to regulations 26 and 30 (which refer to regulation 25) have been made.
Items 39 and 40 Regulation 26
The amendments reflect the amended terminology used in the ASIC Act. The ASIC Act refers to 'Panel proceedings' rather than an 'inquiry' of the Panel. In addition, the reference to regulation 25 have been amended (see item 38 above).
Items 41 to 44 Regulation 28
The amendments removed the previous time limits on when a submission must be lodged with the Panel. Instead, the Panel will be able to set time limits for the lodging of submissions. This is designed to give the Panel greater flexibility when obtaining submissions from the parties, particularly in light of the wider range of persons who may apply to the Panel, and the broader range of matters that may be brought before the Panel.
In addition, the amendments made minor changes to reflect reforms made by the amending Act. References to 'inquiry' have been replaced with 'Panel proceedings' (to reflect the changed terminology used in the AS IC Act) and the references to 'interveners' have been omitted (see item 5 above).
Item 45 Regulation 29
The amendments repealed regulation 29, which required the Panel to notify each party of its intention to make an order and to invite them to make submissions. The content of regulation 29, is now contained in section 657D of the amending Act. Section 657D requires the Panel, before it makes an order, to give each party, each person to whom the order is directed and the Australian Securities and Investments Commission an opportunity to make submissions in relation to the proposed order (see subsections 657D(1) and (3) of the amending Act).
Items 46 and 47 Regulation 30
The amendments to regulation 30 reflect reforms made by the amending Act. References to 'inquiry' have been replaced with 'Panel proceedings' (to reflect the changed terminology used in the ASIC Act) and the references to 'interveners' have been omitted (see item 5 above). The reference to 'section 733 or 734' has been omitted to reflect the broader range of matters which may be brought before the Panel. In addition, the reference to regulation 25 has been omitted, as regulation 25 will apply of its own force to submissions made under regulation 30.
Item 48 Regulations 31, 32 and 33
The amendment repealed regulation 3 1, which allowed the Panel to notify each party of its intention to make an interim order and invite them to make submissions. Unlike the similar regulation 29, which applied to orders, the former regulation 31 has not been incorporated into the Law by the amending Act (see section 657E of the amending Act). The ability to make interim orders, often at very short notice, is vital to the role envisaged for the Panel. Whilst the Panel may continue to seek submissions from parties before making an interim order, it is not appropriate to continue this requirement by regulation.
The amendment also repealed regulation 32, which contained rules designed to protect the confidentiality of information coming before the Panel. The content of the previous regulation 32 is appropriately covered by section 190 of the ASIC Act, which enables the Panel to give directions protecting the confidentiality of material coming before it. As a result, regulation 32 has been repealed and other references to regulation 32 (in regulations 22(3), 24(2), 28(2) and 30(4)) have been omitted.
The amendment also repealed regulation 33, which allowed a person who relied on material in a published document to lodge information on where the Panel can access the document, instead of lodging a copy of the published document. In light of the objective of offering a speedy dispute resolution mechanism, it is more appropriate that parties before the Panel provide the Panel with material on which they wish to rely, rather than requiring the Panel to access that material.
Item 49 Regulation 34
The amendment reflects the amended terminology used in the ASIC Act. The ASIC Act refers to 'Panel proceedings' rather than an 'inquiry' of the Panel.
Items 50 to 54 Regulation 35
The amendments reflect the amended terminology used in the ASIC Act. The ASIC Act refers to 'Panel proceedings' rather than an 'inquiry' of the Panel.
Item 55 Regulation 36
The amendment omits regulation 36. The amending Act repealed the provisions in the ASIC Act which dealt with who is entitled to attend an inquiry (sections 189(2), 191(2) and 194(4) of the ASIC Act).
Items 56 and 57 Regulation 37
The amendments remove the previous time limits on when the President can convene a conference. This recognises the additional flexibility needed by the Panel as a result of the wider range of persons who may apply to the Panel, and the broader range of matters that may come before the Panel.
The amendments also amended subregulation 37(2) to omit the reference to subsection 194(4) of the ASIC Act. This reflects the repeal of the former subsection 194(4) by the amending Act (see Schedule 4 item 43 of the amending Act).
Items 58 and 59 Regulation 38
The amendments made minor changes to reflect reforms made by the amending Act. References to subsection 194(4) of the ASIC Act have been removed (to reflect the repeal of subsection 194(4) by Schedule 4 item 43 of the amending Act) and references to 'inquiry' have been replaced with 'Panel proceedings' (to reflect the changed terminology used in the ASIC Act).
Items 60 and 61 Regulation 39
The amendments omit subregulation 39(3). The amending Act repealed subsection 194(4) of the ASIC Act (see Schedule 4 item 43 of the amending Act). As a result, subregulation 39(3) which applies to a person entitled to be at a conference under subsection 194(4), is not necessary.
Item 62 Regulation 41
The amendment omits the word 'seriously'. This gives the Panel greater flexibility in ensuring that conferences are conducted in a timely and effective manner.
Item 63 Regulation 43
The amendment reflects the amended terminology used in the ASIC Act. The ASIC Act refers to 'Panel proceedings' rather than an 'inquiry' of the Panel.