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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Trustee Companies (Commonwealth Regulation) Amendment Bill 2010 CONTENTS Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 Part 2 -- Trustee Companies Act 1987 amended 3. Act amended 3 4. Section 3 amended 3 5. Section 4 deleted 3 6. Parts III and IV deleted 3 7. Heading to Part V deleted 4 8. Sections 24 to 26 deleted 4 9. Sections 28 to 34 deleted 4 10. Part VI deleted 4 11. Part III inserted 4 Part III -- Transfer of estate assets and liabilities Division 1 -- Preliminary 28. Terms used in Corporations Act have the same meaning in this Part 4 Division 2 -- Compulsory transfers 29. Compulsory transfers 4 30. Certificates evidencing operation of Division 6 31. Registration or record of transfer 6 32. Exemption from State tax 7 Division 3 -- Voluntary transfers 33. Voluntary transfers 7 161--2 page i Trustee Companies (Commonwealth Regulation) Amendment Bill 2010 Contents Division 4 -- Relationship of Part with other laws 34. Relationship of Part with other laws 8 12. Sections 39 and 40 deleted 9 13. Section 42 deleted 9 14. Sections 46 to 48 deleted 9 15. Part VIII inserted 10 Part VIII -- Transitional provisions for the Trustee Companies (Commonwealth Regulation) Amendment Act 2010 46. Term used: amending Act 10 47. Transitional provisions 10 48. Regulations for transitional matters 12 16. Schedules 1 to 3 deleted 13 Part 3 -- Consequential amendment to the Trustees Act 1962 17. Act amended 14 18. Section 6 amended 14 page ii Western Australia LEGISLATIVE ASSEMBLY (As amended in Committee) Trustee Companies (Commonwealth Regulation) Amendment Bill 2010 A Bill for An Act -- to amend the Trustee Companies Act 1987 to facilitate the regulation of trustee companies by the Commonwealth; and as a consequence, to make certain transitional arrangements and to amend the Trustees Act 1962, and for related purposes. The Parliament of Western Australia enacts as follows: page 1 Trustee Companies (Commonwealth Regulation) Amendment Bill 2010 0BPart 1 Preliminary s. 1 1 Part 1 -- Preliminary 2 1. Short title 3 This is the Trustee Companies (Commonwealth Regulation) 4 Amendment Act 2010. 5 2. Commencement 6 This Act comes into operation as follows -- 7 (a) sections 1 and 2 -- on the day on which this Act 8 receives the Royal Assent; 9 (b) the rest of the Act -- on a day fixed by proclamation, 10 and different days may be fixed for different provisions. page 2 Trustee Companies (Commonwealth Regulation) Amendment Bill 2010 Trustee Companies Act 1987 amended 1BPart 2 s. 3 1 Part 2 -- Trustee Companies Act 1987 amended 2 3. Act amended 3 This Part amends the Trustee Companies Act 1987. 4 4. Section 3 amended 5 (1) In section 3(1) delete the definitions of: 6 accounting records 7 books 8 Estate Common Trust Fund 9 Investment Common Trust Fund 10 publish 11 published 12 registered company auditor 13 related body corporate 14 trustee company 15 voting share 16 (2) In section 3(1) insert in alphabetical order: 17 18 trustee company means a licensed trustee company as 19 defined in the Corporations Act section 601RAA; 20 21 (3) Delete section 3(2) to (8). 22 5. Section 4 deleted 23 Delete section 4. 24 6. Parts III and IV deleted 25 Delete Parts III and IV. page 3 Trustee Companies (Commonwealth Regulation) Amendment Bill 2010 1BPart 2 Trustee Companies Act 1987 amended s. 7 1 7. Heading to Part V deleted 2 Delete the heading to Part V. 3 8. Sections 24 to 26 deleted 4 Delete sections 24 to 26. 5 9. Sections 28 to 34 deleted 6 Delete sections 28 to 34. 7 10. Part VI deleted 8 Delete Part VI. 9 11. Part III inserted 10 Before Part VII insert: 11 12 Part III -- Transfer of estate assets 13 and liabilities 14 Division 1 -- Preliminary 15 28. Terms used in Corporations Act have the same 16 meaning in this Part 17 If a term is given a meaning in the Corporations Act, it 18 has the same meaning in this Part unless the contrary 19 intention appears in this Part. 20 Division 2 -- Compulsory transfers 21 29. Compulsory transfers 22 (1) The purpose of this section is to facilitate compulsory 23 transfers of estate assets and liabilities under the 24 Corporations Act Part 5D.6. page 4 Trustee Companies (Commonwealth Regulation) Amendment Bill 2010 Trustee Companies Act 1987 amended 1BPart 2 s. 11 1 (2) This section applies if -- 2 (a) ASIC cancels the licence of a trustee company 3 (the transferring company) and makes a 4 determination under the Corporations Act 5 section 601WBA that there is to be a transfer of 6 estate assets and liabilities from the transferring 7 company to another licensed trustee company 8 (the receiving company); and 9 (b) ASIC issues a certificate of transfer under the 10 Corporations Act section 601WBG for the 11 transfer; and 12 (c) either or both of the transferring company or 13 the receiving company are registered in 14 Western Australia. 15 (3) When the certificate of transfer comes into force, the 16 receiving company is taken to be the successor in law 17 of the transferring company, to the extent of the 18 transfer. 19 (4) In particular -- 20 (a) if the transfer is a total transfer -- all the assets 21 and liabilities of the transferring company 22 become respectively the assets and liabilities of 23 the receiving company without any transfer, 24 conveyance or assignment; and 25 (b) if the transfer is a partial transfer -- all the 26 assets and liabilities of the transferring 27 company that are included in the list (referred 28 to in the Corporations Act 29 section 601WBG(2)(c)) included in, or attached 30 to, the certificate of transfer become 31 respectively assets and liabilities of the 32 receiving company without any transfer, 33 conveyance or assignment; and page 5 Trustee Companies (Commonwealth Regulation) Amendment Bill 2010 1BPart 2 Trustee Companies Act 1987 amended s. 11 1 (c) to the extent of the transfer -- the duties, 2 obligations, immunities, rights and privileges 3 applying to the transferring company apply to 4 the receiving company. 5 (5) If the certificate of transfer includes provisions of a 6 kind referred to in the Corporations Act 7 section 601WBG(3) -- 8 (a) specifying that particular things are to happen 9 or are taken to be the case, those things are 10 taken to happen, or to be the case, in 11 accordance with those provisions; or 12 (b) specifying a mechanism for determining things 13 that are to happen or are taken to be the case, 14 things determined in accordance with that 15 mechanism are taken to happen, or to be the 16 case, as determined in accordance with that 17 mechanism. 18 30. Certificates evidencing operation of Division 19 (1) An authorised ASIC officer may, by a certificate in 20 writing signed by the officer, certify that a specific 21 asset or liability has become an asset or liability of the 22 receiving company under this Division. 23 (2) For all purposes and in all proceedings, a certificate 24 purporting to be issued under subsection (1) is 25 evidence of the matters certified. 26 (3) ASIC is empowered to authorise, in writing, a person 27 who is a member of ASIC, or of its staff, to issue 28 certificates under this section. 29 31. Registration or record of transfer 30 The Registrar of Titles, the Registrar of Deeds and 31 Transfers and any other person or authority required or 32 authorised under a law of the State to register or record page 6 Trustee Companies (Commonwealth Regulation) Amendment Bill 2010 Trustee Companies Act 1987 amended 1BPart 2 s. 11 1 transactions affecting assets or liabilities, or documents 2 relating to such transactions, must, on application 3 under this section accompanied by a certificate issued 4 under section 30, register or record in an appropriate 5 manner the transfer or transfers to which the certificate 6 relates. 7 32. Exemption from State tax 8 (1) In this section -- 9 State tax includes duty chargeable under the Duties 10 Act 2008 and any other tax, duty, fee, levy or charge 11 under a law of the State. 12 (2) State tax is not payable in respect of a compulsory 13 transfer of estate assets or liabilities facilitated under 14 this Division. 15 Division 3 -- Voluntary transfers 16 33. Voluntary transfers 17 (1) The Governor may make regulations to facilitate the 18 voluntary transfer of estate assets and liabilities from 19 one trustee company (the transferring company) to 20 another trustee company (the receiving company) if 21 ASIC has made a determination under the 22 Corporations Act allowing the transfer. 23 (2) Without limiting the generality of subsection (1), the 24 regulations may -- 25 (a) give effect to the transfer of estate assets and 26 liabilities from the transferring company to the 27 receiving company; and 28 (b) provide that the receiving company is to be 29 taken to be the successor in law in relation to 30 estate assets and liabilities of the transferring 31 company, to the extent of the transfer; and page 7 Trustee Companies (Commonwealth Regulation) Amendment Bill 2010 1BPart 2 Trustee Companies Act 1987 amended s. 11 1 (c) provide for the liquidation or dissolution of the 2 transferring company; and 3 (d) provide for the identification of estate assets or 4 liabilities of the transferring company; and 5 (e) provide for the transfer of estate assets and 6 liabilities of the transferring company; and 7 (f) provide for the registration or recording of the 8 transfer (with or without formal application) by 9 the Registrar of Titles or any other person or 10 authority; and 11 (g) provide for evidence of matters relating to the 12 transfer; and 13 (h) provide for relief from the consequences of 14 anything done or allowed under regulations 15 made under this section; and 16 (i) provide for payment, or exemption from 17 payment, of a State tax, as defined in 18 section 32(1), in respect of the transfer; and 19 (j) provide for any other matter of a savings or 20 transitional nature consequent on the transfer; 21 and 22 (k) provide for and give effect to the transfer of 23 duties, obligations, immunities, rights and 24 privileges of the transferring company from the 25 transferring company to the receiving company. 26 (3) Regulations made under this section have effect despite 27 anything in a contract, deed, undertaking, agreement or 28 other instrument. 29 Division 4 -- Relationship of Part with other laws 30 34. Relationship of Part with other laws 31 (1) This Part has effect despite anything in a contract, 32 deed, undertaking, agreement or other instrument. page 8 Trustee Companies (Commonwealth Regulation) Amendment Bill 2010 Trustee Companies Act 1987 amended 1BPart 2 s. 12 1 (2) Nothing done by or under this Part -- 2 (a) places a receiving company, a transferring 3 company or another person in breach of 4 contract or confidence or otherwise makes any 5 of them guilty of a civil wrong; or 6 (b) places a receiving company, a transferring 7 company or another person in breach of -- 8 (i) a law of the State; or 9 (ii) a contractual provision prohibiting, 10 restricting or regulating the assignment 11 or transfer of an asset or liability or the 12 disclosure of information; 13 or 14 (c) releases a surety, wholly or partly, from all or 15 any of the surety's obligations. 16 (3) Without limiting subsection (1), if, apart from this 17 section, the advice or consent of a person would be 18 necessary in a particular respect, the advice is taken to 19 have been obtained or the consent is taken to have been 20 given. 21 22 12. Sections 39 and 40 deleted 23 Delete sections 39 and 40. 24 13. Section 42 deleted 25 Delete section 42. 26 14. Sections 46 to 48 deleted 27 Delete sections 46 to 48. page 9 Trustee Companies (Commonwealth Regulation) Amendment Bill 2010 1BPart 2 Trustee Companies Act 1987 amended s. 15 1 15. Part VIII inserted 2 After Part VII insert: 3 4 Part VIII -- Transitional provisions for the 5 Trustee Companies (Commonwealth Regulation) 6 Amendment Act 2010 7 46. Term used: amending Act 8 In this Part -- 9 amending Act means the Trustee Companies 10 (Commonwealth Regulation) Amendment Act 2010. 11 47. Transitional provisions 12 (1) Immediately before the commencement of section 4 of 13 the amending Act a trustee company was a body 14 corporate listed in Schedule 1 (a Schedule 1 trustee 15 company). 16 (2) After the commencement of section 4 of the amending 17 Act, a trustee company means a licensed trustee 18 company as defined in the Corporations Act 19 section 601RAA. 20 (3) Each of the Schedule 1 trustee companies is, and was 21 before the repeal of Schedule 1 by section 16 of the 22 amending Act, a licensed trustee company as defined in 23 the Corporations Act section 601RAA. 24 (4) Accordingly -- 25 (a) the repeal of Schedule 1 does not affect the 26 appointment of a Schedule 1 trustee company 27 made before the repeal as -- 28 (i) the executor of a will, or the 29 administrator of an estate of a deceased 30 person; or page 10 Trustee Companies (Commonwealth Regulation) Amendment Bill 2010 Trustee Companies Act 1987 amended 1BPart 2 s. 15 1 (ii) a trustee, agent, attorney, manager or 2 receiver; or 3 (iii) the guardian of the estate of a minor; or 4 (iv) a surety or guarantor; or 5 (v) the administrator, committee, guardian 6 or manager of the estate of a person who 7 is unable to manage his or her own 8 affairs; 9 and 10 (b) this Act, as amended by the amending Act, 11 continues to apply to a Schedule 1 trustee 12 company; and 13 (c) except to the extent of any inconsistency with 14 the Corporations Act -- 15 (i) any duties, obligations, immunities, 16 rights and privileges of a Schedule 1 17 trustee company arising before the 18 repeal of that Schedule are not affected 19 by the repeal; and 20 (ii) the assets and liabilities of a Schedule 1 21 trustee company are not affected by the 22 repeal; and 23 (iii) any action taken or notice given by a 24 Schedule 1 trustee company before the 25 repeal of that Schedule or the 26 amendment of this Act by the amending 27 Act is not affected by the repeal or 28 amendment; 29 and 30 (d) proceedings relating to a Schedule 1 trustee 31 company that have been commenced but not 32 determined before the repeal of that Schedule 33 are not affected by the repeal. page 11 Trustee Companies (Commonwealth Regulation) Amendment Bill 2010 1BPart 2 Trustee Companies Act 1987 amended s. 15 1 48. Regulations for transitional matters 2 (1) In this section -- 3 commencement day means -- 4 (a) in the case of transitional regulations made 5 under subsection (2)(a) -- the day on which the 6 amending provision commences; or 7 (b) in the case of transitional regulations made 8 under subsection (2)(b) -- the day on which the 9 Commonwealth provision commences; 10 gazettal day means the day on which transitional 11 regulations are published in the Gazette; 12 transitional matter means a matter of a transitional, 13 savings or application nature; 14 transitional regulations means regulations made under 15 subsection (2). 16 (2) Regulations made under this Act may prescribe 17 anything else required, necessary or convenient to be 18 prescribed in relation to a transitional matter in 19 connection with -- 20 (a) the amendment of this Act by a provision of the 21 amending Act (the amending provision); or 22 (b) the interaction between this Act and a provision 23 of an Act of the Commonwealth (the 24 Commonwealth provision). 25 (3) If transitional regulations provide that a state of affairs 26 is to be taken to have existed, or not to have existed, on 27 and from a day (the operative day) that is earlier than 28 Gazettal day, the regulations have effect according to 29 their terms as long as the operative day is not earlier 30 than the commencement day. page 12 Trustee Companies (Commonwealth Regulation) Amendment Bill 2010 Trustee Companies Act 1987 amended 1BPart 2 s. 16 1 (4) If regulations contain a provision referred to in 2 subsection (4), the provision does not operate so as 3 to -- 4 (a) affect in a manner prejudicial to any person 5 (other than the State or an authority of the 6 State), the rights of that person existing before 7 Gazettal day; or 8 (b) impose liabilities on any person (other than the 9 State or an authority of the State), in respect of 10 anything done or omitted to be done before 11 Gazettal day. 12 13 16. Schedules 1 to 3 deleted 14 Delete Schedules 1 to 3. page 13 Trustee Companies (Commonwealth Regulation) Amendment Bill 2010 2BPart 3 Consequential amendment to the Trustees Act 1962 s. 17 1 Part 3 -- Consequential amendment to the Trustees 2 Act 1962 3 17. Act amended 4 This Part amends the Trustees Act 1962. 5 18. Section 6 amended 6 In section 6(1) in the definition of trustee corporation delete 7 "corporation authorised by any Act of the Parliament of a State 8 to administer the estates of deceased persons and other trust 9 estates;" and insert: 10 11 trustee company under the Trustee Companies Act 1987; 12
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