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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Corporations (Ancillary Provisions) Bill 2001 CONTENTS Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 3. Definitions 2 4. Corresponding provision 7 5. Operation of Act 8 Part 2 -- Transitional provisions 6. National scheme laws 9 7. Effect of section 6 9 8. Certain provisions of State law taken to operate despite national scheme law 11 9. Court proceedings and orders 13 10 . Existing rules of court continue to have effect 14 11 . References to old/new corporations legislation or old/new ASIC legislation 14 12 . References to companies incorporated in a State or Territory 18 Part 3 -- Application of Commonwealth Corporations legislation to State matters 13 . Definitions 21 14 . State provisions to which this Part applies 21 15 . Effect of declaratory provisions 22 16 . Modifications to applied law 22 17 . Conferral of functions on ASIC 24 18 . Conferral of functions or duties on State courts 24 page i 15--2 Corporations (Ancillary Provisions) Bill 2001 Contents 19 . Implied application of regulations and other provisions of Corporations legislation 24 20 . Proceedings for offences 25 21 . Application of Corporations legislation by other means 26 Part 4 -- General 22 . Power to amend certain statutory rules 27 23 . Rules of the Supreme Court 27 24 . ASIC has certain functions and powers 28 25 . Regulations 29 Part 5 -- Amendment of certain Acts 26 . Companies (Application of Laws) Act 1981 amended 32 27 . Securities Industry (Application of Laws) Act 1981 amended 32 28 . Futures Industry (Application of Laws) Act 1986 amended 33 29 . Jurisdiction of Courts (Cross-vesting) Act 1987 amended 33 30 . Corporations (Western Australia) Act 1990 amended 33 Schedule 1 38 page ii Western Australia LEGISLATIVE COUNCIL Corporations (Ancillary Provisions) Bill 2001 A Bill for An Act to enact ancillary provisions, including transitional provisions, relating to the enactment by the Parliament of the Commonwealth of new corporations legislation and new ASIC legislation under its legislative powers, including powers with respect to matters referred to that Parliament for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth, and to amend certain Acts, and for other purposes. The Parliament of Western Australia enacts as follows: page 1 Corporations (Ancillary Provisions) Bill 2001 Part 1 Preliminary s. 1 Part 1 -- Preliminary 1. Short title This Act may be cited as the Corporations (Ancillary Provisions) Act 2001. 5 2. Commencement This Act comes into operation immediately before the Corporations Act 2001 of the Commonwealth, as originally enacted, comes into operation. Note: The Corporations (Commonwealth Powers) Act 2001 refers certain 10 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. 3. Definitions (1) In this Act -- 15 "ASIC" means the Australian Securities and Investments Commission; "carried over provision" -- (a) of the old corporations legislation means a provision of that legislation that -- 20 (i) was in force immediately before the relevant time; and (ii) corresponds to a provision of the new corporations legislation; and 25 (b) of the old ASIC legislation means a provision of that legislation that -- (i) was in force immediately before the relevant time; and (ii) corresponds to a provision of the new ASIC 30 legislation; page 2 Corporations (Ancillary Provisions) Bill 2001 Preliminary Part 1 s. 3 "co-operative scheme law" has the meaning given by section 84 of the Corporations (Western Australia) Act 1990; "corresponds" has a meaning affected by section 4; 5 "law of the State" includes a statutory rule and any other instrument of a legislative character made under an Act; "liability" includes a duty or obligation; "made" includes issued, given or published; "national scheme law of this jurisdiction" has the same 10 meaning as in the Corporations (Western Australia) Act 1990; "new ASIC Act" means the Australian Securities and Investments Commission Act 2001 of the Commonwealth; "new ASIC legislation" means -- 15 (a) the new ASIC Act; and (b) the new ASIC Regulations (as amended and in force from time to time) and any other regulations made under the new ASIC Act; and (c) the laws of the Commonwealth referred to in 20 paragraph (a)(ii) and (in relation to the State) paragraph (b)(iii) of the definition of "old ASIC legislation" in section 254(1) of the new ASIC Act, being those laws as they apply after the relevant time; and 25 (d) the preserved instruments; "new ASIC Regulations" means the old ASIC Regulations that, because of section 264 of the new ASIC Act, have effect as if they were made under section 251 of that Act; "new Corporations Act" means the Corporations Act 2001 of 30 the Commonwealth; "new corporations legislation" means -- (a) the new Corporations Act; and page 3 Corporations (Ancillary Provisions) Bill 2001 Part 1 Preliminary s. 3 (b) the new Corporations Regulations (as amended and in force from time to time) and any other regulations made under the new Corporations Act; and (c) the laws of the Commonwealth referred to (in relation 5 to the State) in paragraph (c) of the definition of "old corporations legislation" in section 1371(1) of the new Corporations Act, being those laws as they apply after the relevant time; and (d) the preserved instruments; 10 "new Corporations Regulations" means the old Corporations Regulations that, because of section 1380 of the new Corporations Act, have effect as if they were made under section 1364 of that Act; "old application Act" means the Corporations (Western 15 Australia) Act 1990 as in force from time to time before the relevant time; "old ASIC Act" means the Australian Securities and Investments Commission Act 1989 of the Commonwealth as in force from time to time before the relevant time; 20 "old ASIC Law" means the ASIC Law of Western Australia (within the meaning of the old application Act) as in force from time to time before the relevant time; "old ASIC legislation" means -- (a) the old ASIC Law and the old ASIC Regulations, and 25 any instruments made under that Law or those Regulations; and (b) the old application Act, and any instruments made under that Act, as applying in relation to the old ASIC Law and the old ASIC Regulations from time 30 to time before the relevant time; and (c) the laws of the Commonwealth as applying in relation to the old ASIC Law and the old ASIC Regulations from time to time before the relevant time as laws of, or for the government of, the State page 4 Corporations (Ancillary Provisions) Bill 2001 Preliminary Part 1 s. 3 because of Part 8 of the old application Act, and any instruments made under those laws as so applying; "old ASIC Regulations" means the ASIC Regulations of Western Australia (within the meaning of the old 5 application Act) as in force from time to time before the relevant time; "old Corporations Law" means the Corporations Law of Western Australia, within the meaning of the old application Act, as in force from time to time before the 10 relevant time; "old corporations legislation" means -- (a) the old Corporations Law and the old Corporations Regulations, and any instruments made under that Law or those Regulations; and 15 (b) the old application Act, and any instruments made under that Act, as applying in relation to the old Corporations Law and the old Corporations Regulations from time to time before the relevant time; and 20 (c) the laws of the Commonwealth as applying in relation to the old Corporations Law and the old Corporations Regulations from time to time before the relevant time as laws of, or for the government of, the State because of Part 8 of the old application Act, 25 and any instruments made under those laws as so applying; "old Corporations Regulations" means the Corporations Regulations of Western Australia, within the meaning of the old application Act, as in force from time to time before 30 the relevant time; "order", in relation to a court, includes any judgment, conviction or sentence of the court; page 5 Corporations (Ancillary Provisions) Bill 2001 Part 1 Preliminary s. 3 "preserved instrument" means -- (a) in relation to the new corporations legislation, an instrument that, because of section 1399 of the new Corporations Act, has effect after the relevant time as 5 if it were made under a provision of the new corporations legislation; and (b) in relation to the new ASIC legislation, an instrument that, because of section 275 of the new ASIC Act, has effect after the relevant time as if it were made under 10 a provision of the new ASIC legislation; "previous State corporations law" means -- (a) the Companies Act 1961; or (b) the Marketable Securities Transfer Act 1970; or (c) the Securities Industry Act 1975; or 15 (d) a co-operative scheme law; or (e) any other Act, or provision of an Act, specified by the regulations under subsection (2); "provision" of a law includes any portion of the law; "referring State" has the meaning given by section 4 of the 20 new Corporations Act; "relevant time" means the time when the new Corporations Act, as originally enacted, comes into operation; "right" includes an interest or status; "State" includes the Northern Territory; 25 "statutory rule" means a regulation, rule or by-law; "Territory" means the Australian Capital Territory or the Jervis Bay Territory. (2) The regulations may provide that a specified Act, or a specified provision of an Act, is a previous State corporations law for the 30 purposes of this Act. page 6 Corporations (Ancillary Provisions) Bill 2001 Preliminary Part 1 s. 4 4. Corresponding provision (1) For the purposes of this Act, a provision (the "old provision") of the old corporations legislation or the old ASIC legislation corresponds to a provision (the "new provision") of the new 5 corporations legislation or the new ASIC legislation (and vice versa) if -- (a) the old provision and the new provision are substantially the same, unless the regulations specify that the 2 provisions do not correspond; or 10 (b) the regulations specify that the 2 provisions correspond. (2) For the purposes of this Act, a provision (the "old provision") of a previous State corporations law corresponds to a provision (the "new provision") of a national scheme law of this jurisdiction (and vice versa) if -- 15 (a) the old provision and the new provision are substantially the same, unless the regulations specify that the 2 provisions do not correspond; or (b) the regulations specify that the 2 provisions correspond. (3) For the purposes of subsection (1)(a) or (2)(a), differences of all 20 or any of the following kinds are not sufficient to mean that 2 provisions are not substantially the same -- (a) differences in the numbering of the provisions; (b) differences of a minor technical nature (for example, differences in punctuation, or differences that are 25 attributable to the correction of incorrect cross references); (c) the fact that one of the provisions refers to a corresponding previous law and the other does not; (d) for the purposes of subsection (1)(a), the fact that -- 30 (i) the old provision allowed a court to exercise powers on its own motion but the new provision does not; or page 7 Corporations (Ancillary Provisions) Bill 2001 Part 1 Preliminary s. 5 (ii) the old provision required a court to apply a criterion of public interest but the new provision requires a court to apply a criterion of justice and equity; or 5 (iii) the new provision requires ASIC to take account of public interest but the old provision did not; (e) for the purposes of subsection (1)(a), other differences that are attributable to the fact that the new corporations legislation and the new ASIC legislation apply as 10 Commonwealth laws in this and other States and in the Territories; (f) other differences of a kind prescribed by the regulations for the purposes of this paragraph. (4) Subsection (3) is not intended to otherwise limit the 15 circumstances in which 2 provisions are, for the purposes of subsection (1)(a) or (2)(a), substantially the same. (5) The regulations may provide that -- (a) a specified provision of the old corporations legislation does, or does not, correspond to a specified provision of 20 the new corporations legislation; (b) a specified provision of the old ASIC legislation does, or does not, correspond to a specified provision of the new ASIC legislation; (c) a specified provision of a previous State corporations 25 law does, or does not, correspond to a specified provision of a national scheme law of this jurisdiction. 5. Operation of Act This Act has effect despite any provision of the old application Act or of the applicable provisions (as defined in that Act) of 30 the State. page 8 Corporations (Ancillary Provisions) Bill 2001 Transitional provisions Part 2 s. 6 Part 2 -- Transitional provisions 6. National scheme laws (1) The national scheme laws of this jurisdiction operate of their own force only in relation to -- 5 (a) matters arising before the relevant time; and (b) matters arising, directly or indirectly, out of such matters, in so far as those matters are not dealt with by the new corporations legislation, the new ASIC legislation or the 10 co-operative scheme laws. (2) Except as provided by subsection (1) and section 9, the national scheme laws of this jurisdiction have no operation of their own force at and after the relevant time. 7. Effect of section 6 15 (1) To the extent that a national scheme law of this jurisdiction ceases to operate of its own force because of section 6, the effect is that which would have resulted had this Act and that law been Commonwealth Acts in relation to which the Acts Interpretation Act 1901 of the Commonwealth as in force on 20 1 November 2000 applied. Note: Part III of the Acts Interpretation Act 1901 of the Commonwealth contains provisions dealing with the effect of repeal of an Act. These provisions protect accrued rights and liabilities and allow legal proceedings in respect of them to be commenced or continued. However, this section and 25 section 9 have the effect of cancelling certain rights and liabilities and terminating certain legal proceedings. (2) Despite subsection (1), if by force of Chapter 10 of the new Corporations Act or Part 16 of the new ASIC Act a person acquires, accrues or incurs a right or liability in substitution for 30 a pre-commencement right or liability, the pre-commencement right or liability is cancelled at the relevant time and ceases at that time to be a right or liability under a law of the State. page 9 Corporations (Ancillary Provisions) Bill 2001 Part 2 Transitional provisions s. 7 (3) Despite subsection (1), a proceeding in a court that -- (a) was started before the relevant time; and (b) was -- (i) under a provision of the old corporations 5 legislation or the old ASIC legislation; or (ii) brought as, or connected with, a prosecution for an offence against a provision of the old corporations legislation or the old ASIC legislation; and 10 (c) was a proceeding to which section 1383 of the new Corporations Act or section 267 of the new ASIC Act applies at the relevant time; and (d) had not been concluded or terminated before the relevant time, 15 is terminated at the relevant time by force of this subsection. (4) Despite subsection (1), if by force of a Commonwealth Act (other than the new Corporations Act) referred to in sections 1393 to 1396 of the new Corporations Act a person becomes liable to pay an amount that is the same, and is in respect of the same matter, as 20 an amount (the "pre-commencement amount") that was payable by the person before the relevant time under a provision of the old corporations legislation, the person's liability to pay the pre-commencement amount is cancelled at the relevant time and ceases at that time to be a liability under a law of the State. 25 (5) In subsection (2) "pre-commencement right or liability" means a right or liability, whether civil or criminal, other than a right or liability under an order made by a court before the relevant time or a liability referred to in section 1397(4) of the new Corporations Act, that -- 30 (a) was acquired, accrued or incurred under -- (i) a carried over provision of the old corporations legislation or the old ASIC legislation; or page 10 Corporations (Ancillary Provisions) Bill 2001 Transitional provisions Part 2 s. 8 (ii) a provision of the old corporations legislation or the old ASIC legislation that was no longer in force immediately before the relevant time; and 5 (b) was in existence immediately before the relevant time. (6) Nothing in this Act revives the co-operative scheme laws or otherwise affects the superseding of those laws by the national scheme laws of this jurisdiction as provided by Part 13 Division 2 of the old application Act and any regulations made 10 under section 80 of that Act for the purposes of that Division. 8. Certain provisions of State law taken to operate despite national scheme law (1) Any provision of a relevant law of the State that -- (a) makes (or, if not in force, would make on coming into 15 force) provision in relation to a matter in a manner that is inconsistent with a provision or provisions of a national scheme law of this jurisdiction; or (b) but for the operation of section 5 of the old application Act would have made (or, if not in force, would have made on 20 coming into force) provision in relation to a matter in a manner that is inconsistent with a provision or provisions of a national scheme law of this jurisdiction, is declared by this subsection to have effect despite the provision or provisions of the national scheme law of this 25 jurisdiction with which it is inconsistent and as if the relevant law, or (in the case of a relevant law that is not an Act) the Act under which the relevant law was made, had itself provided expressly for this outcome. Note: Section 5G of the Corporations Act 2001 of the Commonwealth applies 30 to a provision of a State law that is inconsistent with a provision of the Corporations legislation to which Part 1.1A of that Act applies if that provision operated, immediately before the commencement of that Act, despite the provision of the old Corporations Law or the old ASIC Law that corresponds to the Commonwealth provision. page 11 Corporations (Ancillary Provisions) Bill 2001 Part 2 Transitional provisions s. 8 (2) Any provision of a relevant law of the State that provides that the whole of a previous State corporations law or a specified provision of a previous State corporations law does not apply to a matter is declared by this subsection to also provide that the 5 whole of the old Corporations Law and the old ASIC Law or the corresponding provision (if any) of the old Corporations Law or the old ASIC Law (as the case requires) does not apply to that matter. Note: Under section 5F(4) of the Corporations Act 2001 of the 10 Commonwealth if the old Corporations Law or the old ASIC law, or a provision of that Law, did not apply to a matter immediately before the commencement of that Act, then the Corporations legislation to which Part 1.1A of that Act applies, or the corresponding provision of that legislation, does not apply to the matter. 15 (3) Subsection (1) or (2) does not apply to a provision of a relevant law of the State (or a class of provision of relevant laws of the State) specified by the regulations as a provision (or class of provision) to which the subsection does not apply. (4) For the purposes of subsection (1), a provision of a relevant law 20 of the State is inconsistent with a provision of a national scheme law of this jurisdiction if it would be inconsistent within the meaning of section 109 of the Constitution of the Commonwealth of Australia if the national scheme law were an Act of the Commonwealth. 25 (5) Nothing in this section affects the operation of section 6 of the old application Act in relation to an Act enacted before the commencement of that section or an instrument made under such an Act. (6) In this section -- 30 "matter" includes act, omission, body, person or thing; "relevant law of the State" means a law of the State enacted or made before the relevant time (whether or not it is in force before that time) other than a national scheme law of this jurisdiction or a previous State corporations law. page 12 Corporations (Ancillary Provisions) Bill 2001 Transitional provisions Part 2 s. 9 9. Court proceedings and orders (1) This section applies to a proceeding, whether criminal or civil, in relation to which the following paragraphs are satisfied -- (a) the proceeding was started in a court before the relevant 5 time; and (b) the proceeding was -- (i) under a provision of the old corporations legislation or the old ASIC legislation; or (ii) brought as, or connected with, a prosecution for 10 an offence against a provision of the old corporations legislation or the old ASIC legislation; and (c) the proceeding was not a proceeding to which 15 section 1383 or 1384 of the new Corporations Act or section 267 or 268 of the new ASIC Act applies; and (d) the proceeding had not been concluded or terminated before the relevant time. (2) Without limiting section 7(1) but subject to subsection (3), a 20 proceeding to which this section applies may be continued, and any order made by a court in such a proceeding may be appealed against, reviewed or enforced as if section 6 had not been enacted. (3) Nothing in this Part, or in the Acts Interpretation Act 1901 of 25 the Commonwealth as applying by force of section 7(1), operates to preserve the effect of an order to which section 1383(5) of the new Corporations Act or section 267(5) of the new ASIC Act applies and, at the relevant time, that order ceases to have effect as an order of the court by which it was 30 made and any proceeding in relation to such an order is terminated by force of this subsection. page 13 Corporations (Ancillary Provisions) Bill 2001 Part 2 Transitional provisions s. 10 (4) For the avoidance of doubt, Part 9 of the old application Act continues to have the same application to a proceeding to which this section applies as it did before the relevant time. (5) In this section -- 5 "proceeding" includes -- (a) a proceeding by way of appeal against, or otherwise seeking review of, an order made by a court; and (b) a proceeding to enforce an order made by a court; and (c) any other proceeding in respect of a breach of an 10 order made by a court. 10. Existing rules of court continue to have effect The rules of court made under section 51 of the old application Act and all other enabling powers, as in force immediately before the relevant time, continue to have effect (and may be 15 dealt with) at and after the relevant time as if -- (a) they were rules of court in force under section 23; and (b) they were made for the purposes of the provisions of the corporations legislation (within the meaning of section 23) that correspond to the provisions of the old 20 Corporations Law for which they were made. 11. References to old/new corporations legislation or old/new ASIC legislation (1) Subject to subsections (2) and (3), a reference in, or taken immediately before the relevant time to be in, an Act, an 25 instrument made under an Act or a law applying as a law of the State by force of an Act to -- (a) a Law, Regulations or an instrument of a kind specified in column 1 of the Table in Schedule 1 is taken, at and after the relevant time, to include a reference to the Act, 30 Regulations or instrument of the kind specified opposite it in column 2 of that Table; or page 14 Corporations (Ancillary Provisions) Bill 2001 Transitional provisions Part 2 s. 11 (b) a provision or group of provisions of a Law, Regulations or an instrument of a kind specified in column 1 of the Table in Schedule 1 is taken, at and after the relevant time, to include a reference to the corresponding 5 provision or provisions (if any) of the Act, Regulations or instrument of the kind specified opposite it in column 2 of that Table. (2) The regulations may do either or both of the following -- (a) provide that subsection (1) does not apply in relation to 10 prescribed references, or references of a prescribed kind -- (i) in prescribed Acts or instruments made under Acts; or (ii) in prescribed laws applying as laws of the State 15 by force of an Act; or (iii) in Acts, instruments made under Acts, or laws applying as laws of the State by force of an Act, of a prescribed kind; (b) provide that subsection (1) applies in relation to 20 prescribed references, or references of a prescribed kind -- (i) in prescribed Acts or instruments made under Acts; or (ii) in prescribed laws applying as laws of the State 25 by force of an Act; or (iii) in Acts, instruments made under Acts, or laws applying as laws of the State by force of an Act, of a prescribed kind, as if, in that subsection, the words "to be a reference" 30 were substituted for the words "to include a reference". page 15 Corporations (Ancillary Provisions) Bill 2001 Part 2 Transitional provisions s. 11 (3) Subsection (1) does not apply in relation to references in, or taken immediately before the relevant time to be in -- (a) the old application Act or the applicable provisions (as defined in that Act) of the State; or 5 (b) a previous State corporations law or an instrument made under such a law; or (c) this Act or any regulations made under this Act; or (d) the Corporations (Consequential Amendments) Act 2001; or 10 (e) the Interpretation Act 1984; or (f) any other Act, or any provision of an Act, or any kind of Act or provision of an Act, specified by the regulations; or (g) an instrument made under an Act, or any provision of an 15 instrument made under an Act, or any kind of instrument made under an Act or provision of such an instrument, specified by the regulations; or (h) a law applying as a law of the State by force of an Act, or any provision of a law applying as a law of the State 20 by force of an Act, or any kind of law applying as a law of the State by force of an Act or provision of such a law, specified by the regulations. (4) For the purposes of this Act, the regulations may provide that a reference of a specified kind in, or taken immediately before the 25 relevant time to be in, a specified Act or instrument made under an Act or a specified law applying as a law of the State by force of an Act is to be taken to be a reference of the kind specified in relation to the reference in the regulations. (5) An express reference in an Act, an instrument made under an Act 30 or a law applying as a law of the State by force of an Act to -- (a) an Act, regulations or other instrument forming part of the new corporations legislation or the new ASIC legislation; or page 16 Corporations (Ancillary Provisions) Bill 2001 Transitional provisions Part 2 s. 11 (b) a provision or group of provisions of such an Act, regulations or other instrument, is taken, in relation to events, circumstances or things that happened or arose at a time before the relevant time, to include 5 (unless the contrary intention appears or the context of the reference otherwise requires) a reference to the corresponding provision or provisions of the old corporations legislation, or the old ASIC legislation, as the case requires, of this jurisdiction and of each other jurisdiction referred to in sections 12(2) and 10 (3) and 64(2) and (3) of the old application Act. (6) The regulations may do either or both of the following -- (a) provide that subsection (5) does not apply in relation to prescribed references, or references of a prescribed kind -- 15 (i) in prescribed Acts or instruments made under Acts; or (ii) in prescribed laws applying as laws of the State by force of an Act; or (iii) in Acts, instruments made under Acts, or laws 20 applying as laws of the State by force of an Act, of a prescribed kind; (b) provide that subsection (5) applies in relation to prescribed references, or references of a prescribed kind -- 25 (i) in prescribed Acts or instruments made under Acts; or (ii) in prescribed laws applying as laws of the State by force of an Act; or (iii) in Acts, instruments made under Acts, or laws 30 applying as laws of the State by force of an Act, of a prescribed kind, as if, in that subsection, the words "of a jurisdiction specified by the regulations" were substituted for the page 17 Corporations (Ancillary Provisions) Bill 2001 Part 2 Transitional provisions s. 12 words "of this jurisdiction and of each other jurisdiction referred to in sections 12(2) and (3) and 64(2) and (3) of the old application Act". 12. References to companies incorporated in a State or 5 Territory (1) Unless the contrary intention appears and subject to subsections (2) and (4), a reference (however expressed) in, or taken immediately before the relevant time to be in, an Act, an instrument made under an Act or a law applying as a law of the 10 State by force of an Act to -- (a) a company (within the meaning of the Corporations Law of Western Australia or of another State or a Territory) incorporated in Western Australia or that other State or that Territory; or 15 (b) a company that is incorporated under the Corporations Law of Western Australia or of another State or a Territory; or (c) a company that is registered or taken to be registered under the Corporations Law of Western Australia or of 20 another State or a Territory; or (d) a body that is taken to be registered as a company under the Corporations Law of Western Australia or of another State or a Territory, is taken, after the relevant time, to be a reference to a company 25 that, under section 119A or 1378(4) of the new Corporations Act, is taken to be registered in Western Australia or that other State or that Territory, as the case requires. (2) Unless the contrary intention appears and subject to subsection (4), a reference (however expressed) in, or taken 30 immediately before the relevant time to be in, an Act, an instrument made under an Act or a law applying as a law of the State by force of an Act to a foreign company (within the meaning of the Corporations Law of Western Australia or of page 18 Corporations (Ancillary Provisions) Bill 2001 Transitional provisions Part 2 s. 12 another State or a Territory) is taken, after the relevant time, to be a reference to a foreign company within the meaning of the new Corporations Act. (3) Unless the contrary intention appears and subject to 5 subsection (4), a reference (however expressed) in, or taken immediately before the relevant time to be in, an Act, an instrument made under an Act or a law applying as a law of the State by force of an Act to the jurisdiction of incorporation of a corporation, being a company registered or taken to be 10 registered under the Corporations Law of Western Australia or of another State or a Territory, is taken, after the relevant time, to be a reference to the State or Territory in which the corporation is taken to be registered under section 119A or 1378(4) of the new Corporations Act. 15 (4) The regulations may do either or both of the following -- (a) provide that subsection (1), (2) or (3) does not apply in relation to prescribed references, or references of a prescribed kind -- (i) in prescribed Acts or instruments made under 20 Acts; or (ii) in prescribed laws applying as laws of the State by force of an Act; or (iii) in Acts, instruments made under Acts, or laws applying as laws of the State by force of an Act, 25 of a prescribed kind; (b) provide that subsection (1), (2) or (3) applies in relation to prescribed references, or references of a prescribed kind -- (i) in prescribed Acts or instruments made under 30 Acts; or (ii) in prescribed laws applying as laws of the State by force of an Act; or page 19 Corporations (Ancillary Provisions) Bill 2001 Part 2 Transitional provisions s. 12 (iii) in Acts, instruments made under Acts, or laws applying as laws of the State by force of an Act, of a prescribed kind, as if, in that subsection, the words "to include a 5 reference" were substituted for the words "to be a reference". page 20 Corporations (Ancillary Provisions) Bill 2001 Application of Commonwealth Corporations legislation to State Part 3 matters s. 13 Part 3 -- Application of Commonwealth Corporations legislation to State matters 13. Definitions In this Part -- 5 "applied law" means a provision or provisions of the Corporations legislation, or of an Act, regulations or other instrument forming part of the Corporations legislation, that this Part applies to a matter as if the provision or provisions were a law or laws of the State; 10 "confer" includes impose; "Corporations legislation" means the Corporations legislation to which Part 1.1A of the new Corporations Act applies; "declaratory provision" means a provision of a law of the State to which this Part applies by operation of section 14; 15 "function" includes a power; "matter" includes act, omission, body, person or thing; "modification" includes addition, exception, omission or substitution; "perform" includes exercise. 20 14. State provisions to which this Part applies (1) This Part applies to a provision of a law of the State if the provision declares a matter to be an applied Corporations legislation matter for the purposes of this Part in relation to any of the following (whether with or without modifications) -- 25 (a) the whole of the Corporations legislation; (b) a specified Act, regulations or other instrument forming part of the Corporations legislation; (c) a specified provision or provisions of the Corporations legislation or of an Act, regulations or other instrument 30 forming part of the Corporations legislation. page 21 Corporations (Ancillary Provisions) Bill 2001 Part 3 Application of Commonwealth Corporations legislation to State matters s. 15 (2) Subsection (1) does not apply to a provision of a law of the State to the extent that it declares a matter to be an applied Corporations legislation matter for the purposes of this Part in relation to a provision or provisions of the Corporations 5 legislation, or of an Act, regulations or other instrument forming part of the Corporations legislation, that already applies to the matter as a law of the Commonwealth. 15. Effect of declaratory provisions (1) Subject to this Part, a declaratory provision has effect in relation 10 to a matter as follows -- (a) if the declaratory provision is one to which section 14(1)(a) applies, the whole of the Corporations legislation applies to the matter as if it were a law of the State; and 15 (b) if the declaratory provision is one to which section 14(1)(b) applies, the Act, regulations or other instrument specified by the declaratory provision applies or apply to the matter as if it or they were a law or laws of the State; and 20 (c) if the declaratory provision is one to which section 14(1)(c) applies, the provision or provisions specified by the declaratory provision applies or apply in relation to the matter as if it or they were a law or laws of the State. 25 (2) A provision applied to a matter by a declaratory provision, or taken by force of section 19(1) to apply to the matter, is applied as in force for the time being unless the declaratory provision applies it as in force at a particular time specified by the declaratory provision. 30 16. Modifications to applied law (1) This Part operates to apply a provision of the Corporations legislation, or of an Act, regulations or other instrument forming page 22 Corporations (Ancillary Provisions) Bill 2001 Application of Commonwealth Corporations legislation to State Part 3 matters s. 16 part of the Corporations legislation, as a law of the State subject to the following modifications -- (a) such modifications as may be specified by or under the law containing the declaratory provision; 5 (b) a reference to ASIC is (unless a function under an applied law is conferred on ASIC as referred to in section 17) taken to be a reference to -- (i) the Minister administering the declaratory provision or such other person (or person 10 belonging to a class of person) as may be specified by the regulations (whether generally or in relation to a particular applied law); or (ii) such other person as may be specified by or under the declaratory provision; 15 (c) a reference to the Gazette is a reference to the Government Gazette; (d) a reference to the Minister is a reference to the Minister administering the declaratory provision; (e) a reference to this jurisdiction is a reference to Western 20 Australia; (f) such other modifications as are necessary or that are prescribed by regulations made under this Act, whether generally or in relation to a particular applied law. (2) Any power to make regulations under an Act containing a 25 declaratory provision extends to the making of regulations specifying modifications for the purposes of this Part. (3) Except as provided by subsection (1), definitions and other interpretation provisions of the Corporations legislation, or of the Act, regulations or other instrument forming part of the 30 Corporations legislation, relevant to the applied law are taken also to apply to the matter that is the subject of the declaratory provision. (4) This section has effect subject to sections 17 to 20. page 23 Corporations (Ancillary Provisions) Bill 2001 Part 3 Application of Commonwealth Corporations legislation to State matters s. 17 17. Conferral of functions on ASIC (1) Neither a declaratory provision nor an applied law operates to confer a function on ASIC in relation to the applied law unless -- 5 (a) the declaratory provision provides for ASIC to perform that function pursuant to an agreement or arrangement of the kind referred to in section 11(8) or (9A)(b) of the new ASIC Act; and (b) ASIC is authorised to perform that function under 10 section 11 of the new ASIC Act. (2) If a declaratory provision operates to confer a function on ASIC in relation to an applied law, the conferral of that function is taken not to impose a duty to perform that function despite anything to the contrary in the applied law. 15 18. Conferral of functions or duties on State courts An applied law that confers a function or duty on a court or on the Court is taken to confer that function or duty (along with the jurisdiction to perform that function or duty) on the Supreme Court or such other court of the State as may be specified by or 20 under the declaratory provision. 19. Implied application of regulations and other provisions of Corporations legislation (1) Unless a declaratory provision provides otherwise, the following provisions of the Corporations legislation, or of an 25 Act, regulations or other instrument forming part of the Corporations legislation, are also taken to apply to a matter that is the subject of a declaratory provision as if they were laws of the State -- (a) the provisions of any regulations made under the applied 30 law; page 24 Corporations (Ancillary Provisions) Bill 2001 Application of Commonwealth Corporations legislation to State Part 3 matters s. 20 (b) any provision of the Corporations legislation, or of an Act, regulations or other instrument forming part of the Corporations legislation, that creates an offence in relation to a contravention of the applied law or 5 specifies the penalty for an offence created by a provision of the applied law; (c) the provisions of Part 9.4B (Civil consequences of contravening civil penalty provisions) of the new Corporations Act for the purposes of any provision of 10 the applied law that is a civil penalty provision within the meaning of that Part. (2) The regulations may prescribe modifications (whether generally or in relation to a particular applied law) of any of the provisions that are also taken to apply to a matter by force of 15 subsection (1) for the purposes of that application. 20. Proceedings for offences (1) Proceedings for an offence against an applied law may be dealt with as an offence against a law of the State. (2) For the purposes of an offence against an applied law -- 20 (a) the amount of a penalty unit specified in relation to that offence by the applied law, or a provision taken by force of section 19(1) to apply to the matter that is the subject of the declaratory provision, is $100; and (b) the laws of the State apply in relation to that offence as 25 if the applied law, or a provision taken by force of section 19(1) to apply to the matter that is the subject of the declaratory provision, were a law or laws of the State. (3) Without limiting subsection (2)(b), the laws of the State referred 30 to in that subsection as applying in relation to an offence include laws with respect to -- (a) the investigation and prosecution of offences; and page 25 Corporations (Ancillary Provisions) Bill 2001 Part 3 Application of Commonwealth Corporations legislation to State matters s. 21 (b) the arrest, custody, bail, trial, finding of guilt and conviction of persons charged with offences; and (c) proceedings relating to a matter referred to in paragraph (a) or (b); and 5 (d) the classification of offences as indictable or simple or indictable triable summarily; and (e) appeals and reviews relating to criminal proceedings and to proceedings of the kind referred to in paragraph (c); and 10 (f) the sentencing, punishment and release of persons found guilty or convicted of offences; and (g) fines, penalties and forfeitures; and (h) confiscation of property. 21. Application of Corporations legislation by other means 15 Nothing in this Part prevents a law of the State from applying any provision of the Corporations legislation, or of an Act, regulations or other instrument forming part of the Corporations legislation, as a law of the State otherwise than by means of a declaratory provision. page 26 Corporations (Ancillary Provisions) Bill 2001 General Part 4 s. 22 Part 4 -- General 22. Power to amend certain statutory rules (1) The Governor, on the recommendation of the Minister, may make regulations amending a statutory rule made by the 5 Governor in the exercise of a power conferred by any Act. (2) The Minister may make a recommendation under subsection (1) only if he or she considers that each amendment proposed to be made by the regulations is consequential on the enactment, or the proposed enactment, of -- 10 (a) the Corporations (Western Australia) Act 1990; (b) the Australian Securities and Investments Commission Act 1989; (c) the Corporations Act 1989; (d) an Act amending an Act referred to in paragraph (b) or 15 (c); (e) the new ASIC Act; or (f) the new Corporations Act. (3) Nothing in this section prevents a statutory rule from being amended otherwise than by regulations made under this section, 20 including an amendment of a kind referred to in subsection (2). 23. Rules of the Supreme Court (1) The Supreme Court may make rules of court -- (a) with respect to proceedings, and the practice and procedure, of that Court under the Corporations 25 legislation; and (b) with respect to any matter or thing that is -- (i) required or permitted by the Corporations legislation to be prescribed by rules within the meaning of the Corporations legislation; or page 27 Corporations (Ancillary Provisions) Bill 2001 Part 4 General s. 24 (ii) necessary or convenient to be prescribed by such rules for carrying out or giving effect to the Corporations legislation; and 5 (c) without limitation, with respect to costs, and with respect to rules as to meetings ordered by that Court. (2) When another court of the State is exercising jurisdiction with respect to matters arising under the Corporations legislation, the court must apply the rules of court made under subsection (1), 10 with such alterations as are necessary. (3) In this section -- "Corporations legislation" means -- (a) the new Corporations Act; and (b) the new ASIC Act; and 15 (c) the regulations made under the new Corporations Act and the new ASIC Act. 24. ASIC has certain functions and powers (1) The Minister, or a person authorised in writing by the Minister, may enter into an agreement or arrangement with ASIC for the 20 performance of functions or the exercise of powers by ASIC as an agent of the State, even if those functions or powers are or may be conferred on another person or body by or under a law of the State. (2) An agreement or arrangement of a kind referred to in 25 subsection (1) has effect by force of this section despite any provision of a law of the State with respect to any function or power that is the subject of the agreement or arrangement. Note: Section 11(9) of the Australian Securities and Investments Commission Act 2001 of the Commonwealth provides that ASIC has, but is not under a 30 duty to perform, the functions and powers that are the subject of the agreement or arrangement with the State. page 28 Corporations (Ancillary Provisions) Bill 2001 General Part 4 s. 25 25. Regulations (1) The Governor may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this 5 Act. (2) Without limiting subsection (1), the regulations may provide that certain provisions of Part 2 are taken to be modified as set out in the regulations. Those provisions then have effect as if they were so modified. 10 (3) Without limiting subsection (1), the regulations may -- (a) declare a matter to be an excluded matter for the purposes of section 5F of the new Corporations Act in relation to -- (i) the whole of the Corporations legislation to 15 which Part 1.1A of that Act applies; or (ii) a specified provision of that legislation; or (iii) that legislation other than a specified provision; or (iv) that legislation otherwise than to a specified 20 extent; (b) declare a provision of a law of the State, or a provision of a law of the State as amended as specified in the regulations, to be a Corporations legislation displacement provision for the purposes of section 5G of 25 the new Corporations Act (either generally or specifically in relation to a provision of the Corporations legislation to which Part 1.1A of that Act applies). (4) Without limiting subsection (1), the regulations may make provision for or with respect to enabling jurisdiction conferred 30 by or under the old corporations legislation or the old ASIC legislation or a previous State corporations law to be exercised by a court of the State, or confirming that such jurisdiction is page 29 Corporations (Ancillary Provisions) Bill 2001 Part 4 General s. 25 exercisable by a court of the State, including (without limitation) provisions for or with respect to -- (a) conferring jurisdiction on courts of the State; and (b) the construction of references in the old corporations 5 legislation or the old ASIC legislation or a previous State corporations law to Commonwealth authorities and officers; and (c) the disapplication of provisions of the old corporations legislation or the old ASIC legislation or a previous 10 State corporations law, including provisions that contemplate the administration or enforcement of laws as if they were Commonwealth laws or that contemplate offences and other matters as being offences against and matters under Commonwealth laws; and 15 (d) the treatment of offences arising under the old corporations legislation or the old ASIC legislation or a previous State corporations law (including the specification of penalties); and (e) prescribing modifications of the old corporations 20 legislation or the old ASIC legislation or a previous State corporations law; and (f) associated, procedural and consequential matters. (5) Without limiting subsection (1), the regulations may deal with matters of a transitional nature relating to the transition from the 25 application of provisions of the old corporations legislation or a previous State corporations law to the application of provisions of the new corporations legislation or the new ASIC legislation. (6) Any provision of the regulations may be expressed to take effect from a time that is earlier than the beginning of the day on 30 which the regulations containing the provision are made, not being a time earlier than immediately before the relevant time. (7) To the extent to which a provision of a regulation takes effect from a time that is earlier than the beginning of the day on page 30 Corporations (Ancillary Provisions) Bill 2001 General Part 4 s. 25 which the regulations containing the provision are made, the provision does not operate so as -- (a) to affect in a manner prejudicial to any person (other than the State or an authority of the State), the rights of 5 that person existing before the date of making of those regulations; or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of making of those 10 regulations. (8) The regulations have effect despite anything to the contrary in Part 2. (9) In this section -- "matters of a transitional nature" includes matters of an 15 application or savings nature. page 31 Corporations (Ancillary Provisions) Bill 2001 Part 5 Amendment of certain Acts s. 26 Part 5 -- Amendment of certain Acts 26. Companies (Application of Laws) Act 1981 amended (1) Section 6 of the Companies (Application of Laws) Act 1981* is amended by inserting after "Commonwealth Act" -- 5 " as in force on 31 December 1990 ". (2) Section 7 of the Companies (Application of Laws) Act 1981* is amended by deleting "for the time being" and inserting instead -- " on 31 December 1990 ". 10 [* Act No. 119 of 1981. For subsequent amendments see 2000 Index to Legislation of Western Australia, Table 1, p. 70.] 27. Securities Industry (Application of Laws) Act 1981 amended (1) Section 6 of the Securities Industry (Application of Laws) 15 Act 1981* is amended by inserting after "Commonwealth Act" -- " as in force on 31 December 1990 ". (2) Section 7 of the Securities Industry (Application of Laws) Act 1981* is amended by deleting "for the time being" and 20 inserting instead -- " on 31 December 1990 ". [* Act No. 31 of 1981. For subsequent amendments see 2000 Index to Legislation of Western Australia, Table 1, p. 404.] page 32 Corporations (Ancillary Provisions) Bill 2001 Amendment of certain Acts Part 5 s. 28 28. Futures Industry (Application of Laws) Act 1986 amended (1) Section 5 of the Futures Industry (Application of Laws) Act 1986* is amended by inserting after "Commonwealth Act" -- 5 " as in force on 31 December 1990 ". (2) Section 6 of the Futures Industry (Application of Laws) Act 1986* is amended by deleting "for the time being" and inserting instead -- " on 31 December 1990 ". 10 [* Act No. 44 of 1986. For subsequent amendments see 2000 Index to Legislation of Western Australia, Table 1, p. 173.] 29. Jurisdiction of Courts (Cross-vesting) Act 1987 amended After section 3 of the Jurisdiction of Courts (Cross-vesting) 15 Act 1987* the following section is inserted -- " 3A. Corporations Act of the Commonwealth This Act does not apply to the jurisdiction of courts with which Part 9.6A Division 1 of the Corporations 20 Act 2001 of the Commonwealth deals. ". [* Act No. 68 of 1987. For subsequent amendments see 2000 Index to Legislation of Western Australia, Table 1, p. 225.] 25 30. Corporations (Western Australia) Act 1990 amended (1) The amendments in this section are to the Corporations (Western Australia) Act 1990*. page 33 Corporations (Ancillary Provisions) Bill 2001 Part 5 Amendment of certain Acts s. 30 (2) Section 7 is amended by deleting "for the time being" and inserting instead -- " immediately before the repeal of that section ". (3) Section 8(1) is amended as follows: 5 (a) by deleting "for the time being" and inserting instead -- " immediately before the repeal of the Corporations Act, "; (b) by deleting "the Corporations Act" and inserting 10 instead -- " that Act ". (4) Section 12(2) is amended by deleting "as in force for the time being". (5) Section 12(3) is amended by deleting "in force for the time 15 being". (6) After section 31(4) the following subsection is inserted -- " (5) A Commonwealth law applying because of section 29 or 30 applies as if it did not contain any provision 20 empowering a Minister of State for the Commonwealth to give any directions in relation to the performance of a function or the exercise of a power conferred by subsection (1) or (2). ". 25 (7) Section 33 is repealed. (8) After section 37(4) the following subsection is inserted -- " (5) A Commonwealth law applying because of section 35 or 36 applies as if it did not contain any provision 30 empowering a Minister of State for the Commonwealth page 34 Corporations (Ancillary Provisions) Bill 2001 Amendment of certain Acts Part 5 s. 30 to give any directions in relation to the performance of a function or the exercise of a power conferred by subsection (1) or (2). ". 5 (9) Section 39 is repealed. (10) Section 58(1) is amended by inserting after "Act" -- " as in force immediately before its repeal ". (11) Section 59 is amended as follows: (a) by deleting "for the time being" and inserting instead -- 10 " immediately before the repeal of the ASIC Act, "; (b) by deleting "the ASIC Act" and inserting instead -- " that Act ". (12) Section 64(3) is amended by deleting "in force for the time being". 15 (13) Sections 67 and 69 are repealed and section 68(b) is deleted. (14) Section 85(1) is amended by inserting after "in so far as the national scheme laws" -- " or the Corporations legislation ". (15) After section 85(3) the following subsection is inserted -- 20 " (4) In this section -- "Corporations legislation" means the Corporations legislation to which Part 1.1A of the Corporations Act 2001 of the Commonwealth applies. 25 ". page 35 Corporations (Ancillary Provisions) Bill 2001 Part 5 Amendment of certain Acts s. 30 (16) After section 87(2) the following subsections are inserted -- " (3) The amendment of the Companies (Application of Laws) Act 1981 by section 26 of the Corporations 5 (Ancillary Provisions) Act 2001 does not revive, or otherwise affect the exclusion of, the provisions referred to in section 18(1) of the Companies (Application of Laws) Act 1981. (4) The amendment of the Securities Industry (Application 10 of Laws) Act 1981 by section 27 of the Corporations (Ancillary Provisions) Act 2001 does not revive, or otherwise affect the exclusion of, the provisions referred to in section 16(1) of the Securities Industry (Application of Laws) Act 1981. 15 ". (17) After Part 13 Division 6 the following Division is inserted -- " Division 7 -- Functions of Commonwealth authorities and officers of the Commonwealth 20 95B. Definitions In this Division -- "function" includes a power; "old corporations legislation" has the same meaning as in the Corporations (Ancillary Provisions) 25 Act 2001; "perform" includes exercise. 95C. Functions of Commonwealth authorities and officers of the Commonwealth If a Commonwealth authority or an officer of the 30 Commonwealth has a function expressed to be conferred on the authority or officer by or under the old page 36 Corporations (Ancillary Provisions) Bill 2001 Amendment of certain Acts Part 5 s. 30 corporations legislation, the authority or officer is not under a duty to perform that function. ". [* Act No. 105 of 1990. 5 For subsequent amendments see 2000 Index to Legislation of Western Australia, Table 1, p. 93.] page 37 Corporations (Ancillary Provisions) Bill 2001 Schedule 1 Schedule 1 [s. 11] Table Column 1 Column 2 the Corporations Law of Western the new Corporations Act Australia the Corporations Regulations of the new Corporations Western Australia Regulations an instrument made under the a corresponding preserved Corporations Law of Western instrument under the new Australia or the Corporations corporations legislation Regulations of Western Australia the Corporations Law the new Corporations Act the Corporations Regulations the new Corporations Regulations the Corporations Law of a the new Corporations Act jurisdiction other than Western Australia that is a referring State the Corporations Regulations of a the new Corporations jurisdiction other than Western Regulations Australia that is a referring State an instrument made under the a corresponding preserved Corporations Law, or the instrument under the new Corporations Regulations, of a corporations legislation jurisdiction other than Western Australia that is a referring State the old ASIC Law Part 3 of the new ASIC Act except to the extent to which that Part operates in relation to a contravention of Part 2 of that Act page 38 Corporations (Ancillary Provisions) Bill 2001 Schedule 1 Column 1 Column 2 the ASC Law of Western Part 3 of the new ASIC Act Australia except to the extent to which that Part operates in relation to a contravention of Part 2 of that Act the old ASIC Regulations the new ASIC Regulations made for the purposes of Part 3 of the new ASIC Act except to the extent to which they operate in relation to a contravention of Part 2 of that Act the ASC Regulations of Western the new ASIC Regulations Australia made for the purposes of Part 3 of the new ASIC Act except to the extent to which they operate in relation to a contravention of Part 2 of that Act an instrument made under the old a corresponding preserved ASIC Law or the old ASIC instrument under the new ASIC Regulations legislation an instrument made under the a corresponding preserved ASC Law of Western Australia or instrument under the new ASIC the ASC Regulations of Western legislation Australia Part 3 of the new ASIC Act the ASIC Law except to the extent to which that Part operates in relation to a contravention of Part 2 of that Act the ASC Law Part 3 of the new ASIC Act except to the extent to which that Part operates in relation to a contravention of Part 2 of that Act page 39 Corporations (Ancillary Provisions) Bill 2001 Schedule 1 Column 1 Column 2 the ASIC Regulations the new ASIC Regulations made for the purposes of Part 3 of the new ASIC Act except to the extent to which they operate in relation to a contravention of Part 2 of that Act the ASC Regulations the new ASIC Regulations made for the purposes of Part 3 of the new ASIC Act except to the extent to which they operate in relation to a contravention of Part 2 of that Act the ASIC Law of a jurisdiction Part 3 of the new ASIC Act other than Western Australia that except to the extent to which is a referring State that Part operates in relation to a contravention of Part 2 of that Act the ASC Law of a jurisdiction Part 3 of the new ASIC Act other than Western Australia that except to the extent to which is a referring State that Part operates in relation to a contravention of Part 2 of that Act the ASIC Regulations of a the new ASIC Regulations jurisdiction other than Western made for the purposes of Part 3 Australia that is a referring State of the new ASIC Act except to the extent to which they operate in relation to a contravention of Part 2 of that Act the ASC Regulations of a the new ASIC Regulations jurisdiction other than Western made for the purposes of Part 3 Australia that is a referring State of the new ASIC Act except to the extent to which they operate in relation to a contravention of Part 2 of that Act page 40 Corporations (Ancillary Provisions) Bill 2001 Schedule 1 Column 1 Column 2 an instrument made under the a corresponding preserved ASIC Law, or the ASIC instrument under the new ASIC Regulations, of a jurisdiction other legislation than Western Australia that is a referring State an instrument made under the a corresponding preserved ASC Law, or the ASC instrument under the new ASIC Regulations, of a jurisdiction other legislation than Western Australia that is a referring State
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