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Report Details


Committee Name:

Legislation Committee (2001 - 2005)

House:

Legislative Council
Report Type:Report

Title:

Corporations (Consequential Amendments) Bill (No 3) 2001
Report No:13
No of Pages:10
Physical Location:Legislative Council Committee Office

Presentation Date:

03/20/2002
Inquiry Name(s):Corporations (Consequential Amendments) Bill (No.3) 2001


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Executive Summary


1The Corporations (Consequential Amendments) Bill (No. 3) 2001 (Bill) was referred to the Standing Committee on Legislation (Committee) on December 13 2001, under SO230A of the Legislative Council. The Committee is to report back to the House by March 21 2002.


2The Bill is in response to the Financial Services Reform Act 2001 (Cwlth) and the Financial Services Reform (Consequential Provisions) Act 2001 (Cwlth) which amend aspects of the Corporations Law. These Acts commenced on March 11 2002. It was necessary for all state Parliaments to enact their own legislation before the Commonwealth Acts could commence.


3The Bill makes amendments that are consequential to the amendments made by the Commonwealth Parliament to the Corporations Law. Specifically, the Bill amends state laws which make reference to the present Chapters 7 and 8 of the Corporations Act 2001 (Cwlth) or to concepts which are dealt with in those Chapters. The amendments will ensure that those state laws maintain their meaning in the context of the Commonwealth amendment.


4The Committee notes a number of aspects of the Bill which it considers to be unusual:


a)it is retrospective in nature;


b)it provides for the validation of events in certain circumstances;


c)it provides for regulations and statutory rules to be made with retrospective operation and the power to do so is unlimited by any time constraints; and


d)it raises issues relating to ‘Henry VIII clauses’.


5The main objection to ‘Henry VIII clauses’ is that by delegating to the Executive the power to amend Acts of Parliament, the clauses have insufficient regard to the principle of separation of powers and ultimately the institution of Parliament in its role as a supreme legislature. There are limited circumstances where such clauses are not considered objectionable. In view of these concerns, the Committee has recommended some amendments to the Bill to limit the ability to make regulations and statutory rules that have retrospective operation.


Recommendations


Page 8
Recommendation 1: The Committee recommends that the Corporations (Consequential Amendments) Bill (No 3) 2001 be passed subject to Recommendations 2 and 3.


Page 8
Recommendation 2: The Committee recommends that clause 7(3)(b) of the Corporations (Consequential Amendments) Bill (No 3) 2001 be amended in the following manner:


Page 5, line 3 - To insert after “which the” –


“ … regulation or … ”.


Page 8
Recommendation 3: The Committee recommends that clause 7 of the Corporations (Consequential Amendments) Bill (No 3) 2001 be amended in the following manner:


Page 5, after line 4 – To insert the following new clause –


“ 7(4) This section expires at the beginning of the day that is one year after the commencement of this Act. ”