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Commonwealth Funds Management Limited Act 1990

Authoritative Version
Act No. 13 of 1991 as amended, taking into account amendments up to Statute Law Revision Act 2012
An Act relating to the constitution of the Superannuation Fund Investment Trust as a public company providing investment services on a commercial basis to the public and private sector, and for related purposes
Administered by: Finance
Registered 31 Oct 2012
Start Date 22 Sep 2012
Table of contents.

Commonwealth Funds Management Limited Act 1990

Act No. 13 of 1991 as amended

This compilation was prepared on 31 October 2012
taking into account amendments up to Act No. 136 of 2012

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Parliamentary Counsel, Canberra

  

  

  


Contents

Part 1—Preliminary                                                                                                             1

1............ Short title [see Note 1]........................................................................ 1

2............ Commencement [see Note 1].............................................................. 1

3............ Interpretation....................................................................................... 1

5............ Operation of Act................................................................................. 3

6............ Modification of Act—references to Companies Act 1981................... 3

Part 2—Creation of capital structure and other steps prior to conversion of Company into public company                                                                                                                   4

7............ Share capital of Company................................................................... 4

8............ Issue of shares in Company................................................................ 4

9............ New name of Company...................................................................... 5

10.......... Company to apply to be registered as company etc............................. 5

Part 3—Conversion of Company into a public company                             7

11.......... Effect of Part—summary.................................................................... 7

12.......... Company taken to be registered under Companies Act....................... 7

13.......... Memorandum and Articles of Company............................................. 8

14.......... Membership of Company................................................................... 8

16.......... Accounting records............................................................................. 8

17.......... Accounts............................................................................................. 9

18.......... Operation of section 25B of the Acts Interpretation Act..................... 9

Part 6—Staff matters                                                                                                         10

29.......... Employment of staff members continues after transition................... 10

30.......... Act not to affect certain matters relating to staff members................. 10

31.......... Effect of sections 29 and 30.............................................................. 11

32.......... Variation of terms and conditions of employment............................. 11

Part 8—Miscellaneous                                                                                                       12

40.......... Judicial notice of Company’s seal..................................................... 12

48.......... Regulations....................................................................................... 12

Notes                                                                                                                                             13


An Act relating to the constitution of the Superannuation Fund Investment Trust as a public company providing investment services on a commercial basis to the public and private sector, and for related purposes

Part 1Preliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Commonwealth Funds Management Limited Act 1990.

2  Commencement [see Note 1]

             (1)  Part 1 and section 48 commence on the day on which this Act receives the Royal Assent.

             (2)  Subject to subsection (3), Parts 2, 4 and 5 commence on a day to be fixed by Proclamation.

             (3)  If the provisions referred to in subsection (2) do not commence under that subsection before 1 March 1991, they commence on that day.

             (4)  Subject to subsection (5), Parts 3, 6, 7, 8 (other than section 48), 9 (other than subsection 50(2) and section 55) and 10 commence on a day to be fixed by Proclamation.

             (5)  If the provisions referred to in subsection (4) do not commence under that subsection before 1 July 1991, they commence on that day.

             (6)  Subsection 50(2) and section 55 commence immediately after the commencement of Part 3.

3  Interpretation

             (1)  In this Act, unless the contrary intention appears:

articles means articles of association.

Australian Capital Territory includes the Jervis Bay Territory.

authorised person means:

                     (a)  the Minister; or

                     (b)  the holder of an authorising office.

authorising office means an office, in the Department, which is declared in writing by the Minister to be an authorising office for the purposes of this definition.

Company means the body corporate established, and known as the Superannuation Fund Investment Trust, under Part III of the Superannuation Act 1976 as in force immediately before the commencement of this section.

employment, in relation to a staff member, means employment by, or service with, the Company.

liability includes a debt or obligation.

memorandum means memorandum of association.

share, in relation to a body corporate, means a share in the share capital of the body corporate.

staff member means a person who, immediately before the transition, is:

                     (a)  the Chief Executive Officer of the Company; or

                     (b)  an officer or employee of the Company.

subsidiary has the meaning given by subsection (2).

transition means the commencement of Part 3.

wholly‑owned subsidiary, in relation to the Company, means a body corporate:

                     (a)  that is a subsidiary of the Company; and

                     (b)  none of whose members is a person other than:

                              (i)  the Company; or

                             (ii)  a body corporate that is, under any other application or applications of this definition, a wholly‑owned subsidiary of the Company; or

                            (iii)  a nominee of the Company or of a body of a kind referred to in subparagraph (ii); and

                     (c)  no share in which is beneficially owned by a person other than:

                              (i)  the Company; or

                             (ii)  a body of a kind referred to in subparagraph (b)(ii).

             (2)  For the purposes of this Act, the question whether a body corporate is a subsidiary of another body corporate shall be determined in the same way as the question whether a corporation is a subsidiary of another corporation is determined under the Corporations Act 2001.

5  Operation of Act

             (1)  This Act applies both within and outside Australia.

             (2)  Without limiting the generality of subsection (1), this Act extends to all external Territories.

6  Modification of Act—references to Companies Act 1981

                   If the Companies Act 1981 ceases to operate because of the coming into force of another law that contains provisions corresponding to the provisions of that Act, the regulations may:

                     (a)  subject to paragraph (b), modify a provision of this Act that includes a reference to the Companies Act 1981 by omitting that reference and substituting a reference to the other law or a provision of the other law; and

                     (b)  modify a provision of this Act that includes a reference to a provision of the Companies Act 1981 by omitting that reference and substituting a reference to a corresponding provision of the other law.


 

Part 2Creation of capital structure and other steps prior to conversion of Company into public company

  

7  Share capital of Company

             (1)  As from the commencement of this Part, the Company is to have an authorised and issued share capital divided into shares of $1 each.

             (3)  As from the transition, this section has effect subject to the Corporations Act 2001.

8  Issue of shares in Company

             (1)  In this section:

minimum share capital means the minimum amount that, under the Corporations Act 2001, may be the share capital (made up of shares of $1 each) of a company registered as a public company limited by shares.

             (3)  As soon as it is practicable for the Company to do so, the Company must apply that amount in paying up, in full, shares in the Company.

             (4)  As soon as practicable after complying with subsection (3), the Company must issue the shares paid up under that subsection:

                     (a)  to the Commonwealth; or

                     (b)  to nominees of the Commonwealth;

as the Minister directs in writing.

             (5)  A person is not a member of the Company at any time before the transition merely because the person holds shares in the Company.

9  New name of Company

             (1)  On the day immediately before the transition, the Company’s name is, by force of this subsection, changed to “Commonwealth Funds Management Limited”.

             (2)  Subsection 65(5) of the Companies Act 1981 applies in relation to the change of name made by subsection (1) as if:

                     (a)  the Company were a company, within the meaning of that Act, when the change was made; and

                     (b)  the change were made under that Act.

             (3)  This section has effect in spite of anything in the Companies Act 1981, but nothing in this section prevents:

                     (a)  the Company from later changing its name under section 65 of that Act; or

                     (b)  the cancellation, under Division 2 of Part III of that Act, of the registration of a name.

10  Company to apply to be registered as company etc.

             (1)  The Company must, on the day immediately before the transition:

                     (a)  apply to the National Companies and Securities Commission under subsection 85(1) of the Companies Act 1981 to be registered as a company limited by shares within the meaning of that Act; and

                     (b)  apply to the National Companies and Securities Commission under subsection 55(1) of the Companies Act 1981 for the reservation of the name “Commonwealth Funds Management Limited”; and

                     (c)  lodge with the National Companies and Securities Commission a proposed memorandum, and proposed articles, for the Company.

             (2)  Subject to the regulations, the application mentioned in paragraph (1)(a) must be accompanied by the documents required by subsection 85(4) of the Companies Act 1981 to accompany such an application.

             (3)  The applications mentioned in paragraphs (1)(a) and (b) must be made to the National Companies and Securities Commission by delivering them to the office of the Corporate Affairs Commission for the Australian Capital Territory, and the documents mentioned in paragraph (1)(c) and subsection (2) must be lodged with the National Companies and Securities Commission by lodging them at that office.

             (4)  The Company is taken to be entitled:

                     (a)  to make the applications referred to in paragraphs (1)(a) and (b); and

                     (b)  to lodge the documents mentioned in paragraph (1)(c) and subsection (2).

             (5)  The National Companies and Securities Commission is taken:

                     (a)  to have been required to reserve the name “Commonwealth Funds Management Limited” under subsection 55(2) of the Companies Act 1981; and

                     (b)  to have so reserved that name immediately after the making of the application mentioned in paragraph (1)(b).


 

Part 3Conversion of Company into a public company

  

11  Effect of Part—summary

                   After the commencement of this Part:

                     (a)  the Company is a company registered under the Companies Act 1981; and

                     (b)  the Company’s name is “Commonwealth Funds Management Limited”; and

                     (c)  the Company is a public company, and a company limited by shares, within the meaning of that Act; and

                     (d)  that Act applies, subject to this Act, in relation to the Company.

12  Company taken to be registered under Companies Act

             (1)  The National Companies and Securities Commission is taken:

                     (a)  to have been required to grant the application mentioned in paragraph 10(1)(a) and to register the Company as a company under subsection 86(2) of the Companies Act 1981; and

                     (b)  to have granted the application at the commencement of this Part; and

                     (c)  to have so registered the Company, at the commencement of this Part:

                              (i)  by the name “Commonwealth Funds Management Limited”; and

                             (ii)  in accordance with subsections 86(3) and (4) of the Companies Act 1981, as a public company, and as a company limited by shares, within the meaning of that Act; and

                     (d)  to have registered the name “Commonwealth Funds Management Limited” in relation to the Company at the commencement of this Part, under subsection 55(4) of the Companies Act 1981.

             (2)  The date of commencement of the Company’s registration as a company under Division 4 of Part III of the Companies Act 1981 is taken to be the day of commencement of this Part.

             (3)  For the purposes of Division 4 of Part III of the Companies Act 1981, the Company is taken to have been on the day before the commencement of this Part, and to be at that commencement, a corporation within the meaning of that Act.

13  Memorandum and Articles of Company

             (1)  As from the commencement of this Part, the proposed memorandum, and the proposed articles, lodged under paragraph 10(1)(c):

                     (a)  are respectively the memorandum, and the articles, of the Company; and

                     (b)  bind the Company and its members accordingly.

             (2)  As from the commencement of this Part, the Companies Act 1981 applies in relation to the Company’s memorandum and articles as if they had been registered as such under that Act.

14  Membership of Company

             (1)  A person who immediately before the commencement of this Part was, or was acting as, a member of the Company, ceases at that commencement to be, or to act as, such a member.

             (2)  Each person who holds shares in the Company at the commencement of this Part becomes, by force of this subsection, a member of the Company at that commencement.

             (3)  A person referred to in subsection (2) is, as a member of the Company, entitled to the same rights, privileges and benefits, and subject to the same duties, liabilities and obligations, as if the person had become a member of the Company under its memorandum and articles.

16  Accounting records

                   For the purposes of the Companies Act 1981, accounts and records kept, before the commencement of this section, under section 44 of the Superannuation Act 1976 are taken to be accounting records kept by the Company under a provision of a previous law of the Australian Capital Territory, being a provision corresponding to section 267 of the Companies Act 1981.

17  Accounts

             (1)  This section has effect for the purposes of:

                     (a)  the Companies Act 1981; and

                     (b)  the Companies (Transitional Provisions) Act 1981 as it applies in relation to, and in relation to persons and matters associated with, the Company because of subsection 90(6) of the Companies Act 1981.

             (2)  A report and financial statements that before the commencement of this section:

                     (a)  were prepared under section 161 of the Superannuation Act 1976 in relation to a period; and

                     (b)  were furnished to the Minister under subsection 162(1) of that Act on a particular day;

are taken to be a profit and loss account of the Company that was:

                     (c)  made out in relation to that period; and

                     (d)  laid before the Company at an annual general meeting of the Company held on that day.

             (3)  A report and financial statements:

                     (a)  prepared under section 44 in relation to the concluding period (within the meaning of that section); and

                     (b)  given to the Minister under that section on a particular day;

are taken to be a profit and loss account of the Company that was:

                     (c)  made out in relation to that period; and

                     (d)  laid before the Company at an annual general meeting of the Company held on that day.

18  Operation of section 25B of the Acts Interpretation Act

                   Nothing in this Act or in the Corporations Act 2001 affects, or is affected by, section 25B of the Acts Interpretation Act 1901 as that section applies in relation to the Company.


 

Part 6Staff matters

  

29  Employment of staff members continues after transition

                   Subject to this Part, each staff member continues, at and after the transition, to be employed by the Company on the terms and conditions on which he or she was employed by the Company immediately before the transition.

30  Act not to affect certain matters relating to staff members

             (1)  This section has effect for the purposes of the application, at any time at or after the transition, of a law, award, determination or agreement in relation to the employment of a staff member.

             (2)  Neither his or her contract of employment, nor his or her period of employment, is taken to have been broken by the operation of this Act.

             (3)  Without limiting section 29 or subsection (2) of this section, this Act does not affect any accrued rights that the staff member had immediately before the transition in relation to any kind of leave.

             (4)  Where:

                     (a)  if the staff member had, immediately before the transition, ceased to be employed by the Company, it would have been necessary to take into account a period during which the staff member was employed by the Company or any other person to determine:

                              (i)  an amount payable to the staff member; or

                             (ii)  a benefit to which the staff member would have been entitled;

                            because of his or her so ceasing; and

                     (b)  but for this subsection, some or all of that period would not have to be taken into account as a period during which the staff member was employed by the Company;

the Company must treat the whole of the first‑mentioned period as a period during which the staff member was employed by it.

31  Effect of sections 29 and 30

                   Sections 29 and 30 are enacted only for the avoidance of doubt and, in particular, do not limit subsection 65(5) or 87(2) of the Companies Act 1981.

32  Variation of terms and conditions of employment

             (1)  Nothing in this Part prevents the terms and conditions of a staff member’s employment after the transition from being varied:

                     (a)  in accordance with those terms and conditions; or

                     (b)  by or under a law, award, determination or agreement.

             (2)  In this section:

vary, in relation to terms and conditions, includes vary by way of:

                     (a)  omitting any of those terms and conditions; or

                     (b)  adding to those terms and conditions; or

                     (c)  substituting new terms or conditions for any of those terms and conditions.


 

Part 8Miscellaneous

  

40  Judicial notice of Company’s seal

             (1)  All courts, judges and persons acting judicially must take judicial notice of the imprint of the seal of the Company appearing on a document and are to presume that it was duly affixed.

             (2)  Subsection (1) applies only in relation to an imprint that was affixed, or appears to have been affixed, before the transition.

48  Regulations

             (1)  The Governor‑General may make regulations not inconsistent with this Act, prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.


Notes to the Commonwealth Funds Management Limited Act 1990

Note 1

The Commonwealth Funds Management Limited Act 1990 as shown in this compilation comprises Act No. 13, 1991 amended as indicated in the Tables below.

For application, saving or transitional provisions made by the Corporations (Repeals, Consequentials and Transitionals) Act 2001, see Act No. 55, 2001.

Table of Acts

Act

Number
and year

Date
of Assent

Date of commencement

Application, saving or transitional provisions

Commonwealth Funds Management Limited Act 1990

13, 1991

21 Jan 1991

Part 1 (ss. 1–6) and s. 48: Royal Assent
Part 2 (ss. 7–10), Parts 4 and 5 (ss. 19–28): 1 Mar 1991
Ss. 50(2) and 55: (see s. 2(6))
Remainder: 1 July 1991

 

CFM Sale Act 1996

58, 1996

20 Nov 1996

Sections 13–19, 62 and Schedule 1 (item 10): Royal Assent (a)
Schedule 1 (items 1, 2, 5–9, 11): 23 Dec 1996 (see Gazette 1996, No. S515) (a)
Schedule 1 (items 3, 4): (a)

Ss. 13–19 and 62

Income Tax (Consequential Amendments) Act 1997

39, 1997

17 Apr 1997

1 July 1997

as amended by

 

 

 

 

Statute Law Revision Act 2002

63, 2002

3 July 2002

Schedule 2 (items 13, 14): (b)

Audit (Transitional and Miscellaneous) Amendment Act 1997

152, 1997

24 Oct 1997

Schedule 3 (item 10): (c)

Corporations (Repeals, Consequentials and Transitionals) Act 2001

55, 2001

28 June 2001

Ss. 4–14 and Schedule 3 (items 127–130): 15 July 2001 (see Gazette 2001, No. S285) (d)

Ss. 4–14 [see Note 1]

Financial Framework Legislation Amendment Act 2010

148, 2010

17 Dec 2010

Schedule 11 (item 11): 18 Dec 2010

Statute Law Revision Act 2012

136, 2012

22 Sept 2012

Schedule 6 (item 25): Royal Assent


(a)     The Commonwealth Funds Management Limited Act 1990 was amended by Schedule 1 (items 1–11) only of the CFM Sale Act 1996, subsections 2(1)–(3) of which provide as follows:

                 (1)   Subject to this section, this Act commences on the day on which it receives the Royal Assent.

                 (2)   Items 3 and 4 of Schedule 1 are taken to have commenced immediately after the commencement of Part 2 of the Commonwealth Funds Management Limited Act 1990.

         Part 2 commenced on 1 March 1991.

                 (3)   Subject to subsection (4), items 1, 2, 5, 6, 7, 8, 9 and 11 of Schedule 1 commence on a day or days to be fixed by Proclamation.

(b)     The Income Tax (Consequential Amendments) Act 1997 was amended by Schedule 2 (items 13 and 14) only of the Statute Law Revision Act 2002, subsection 2(1) (items 42 and 43) of which provide as follows:

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

42. Schedule 2, item 13

Immediately after the time specified in the Income Tax (Consequential Amendments) Act 1997 for the commencement of item 53 of Schedule 3 to that Act

1 July 1997

43.  Schedule 2, item 14

Immediately after the time specified in the Income Tax (Consequential Amendments) Act 1997 for the commencement of item 53 of Schedule 3 to that Act

1 July 1997

(c)     The Commonwealth Funds Management Limited Act 1990 was amended by Schedule 3 (item 10) only of the Audit (Transitional and Miscellaneous) Amendment Act 1997, subsection 2(3)(e) of which provides as follows:

                              (e)   the amendment of the Commonwealth Funds Management Limited Act 1990 commences, or is taken to have commenced, on the sale day as defined in subsection 3(1) of the CFM Sale Act 1996;

         The sale day occurred on 23 December 1996 (see Gazette 1997, No. S8).

(d)     The Commonwealth Funds Management Limited Act 1990 was amended by Schedule 3 (items 127–130) only of the Corporations (Repeals, Consequentials and Transitionals) Act 2001, subsection 2(3) of which provides as follows:

                 (3)   Subject to subsections (4) to (10), Schedule 3 commences, or is taken to have commenced, at the same time as the Corporations Act 2001.


Table of Amendments

ad. = added or inserted     am. = amended     rep. = repealed     rs. = repealed and substituted

Provision affected

How affected

Part 1

 

S. 3......................................

am. No. 58, 1996; No. 55, 2001

S. 4......................................

rep. No. 58, 1996

Part 2

 

S. 7......................................

am. No. 58, 1996; No. 55, 2001; No. 148, 2010

S. 8......................................

am. No. 55, 2001; No. 148, 2010

Part 3

 

S. 15....................................

rep. No. 58, 1996

S. 18....................................

am. No. 55, 2001

Part 4...................................

rep. No. 58, 1996

Ss. 19–24............................

rep. No. 58, 1996

Part 5...................................

rep. No. 58, 1996

Ss. 25–27............................

rep. No. 58, 1996

S. 28....................................

rep. No. 58, 1996

Part 6

 

Ss. 33, 34............................

rep. No. 58, 1996

Part 7...................................

rep. No. 58, 1996

Ss. 35–38............................

rep. No. 58, 1996

Part 8

 

S. 39....................................

rep. No. 58, 1996

Ss. 41–44............................

rep. No. 58, 1996

S. 45....................................

rep. No. 152, 1997

Ss. 46, 47............................

rep. No. 58, 1996

S. 48....................................

am. No. 58, 1996

Part 9...................................

rep. No. 136, 2012

S. 49....................................

rep. No. 136, 2012

S. 50....................................

rep. No. 136, 2012

S. 51....................................

rep. No. 136, 2012

S. 52....................................

rep. No. 136, 2012

S. 53....................................

rep. No. 136, 2012

S. 54....................................

rep. No. 136, 2012

S. 55....................................

rep. No. 136, 2012

S. 56....................................

rep. No. 136, 2012

S. 57....................................

rep. No. 136, 2012

S. 58....................................

rep. No. 136, 2012

S. 59....................................

rep. No. 136, 2012

S. 60....................................

rep. No. 136, 2012

S. 61....................................

rep. No. 136, 2012

S. 62....................................

rep. No. 136, 2012

S. 63....................................

rep. No. 136, 2012

S. 64....................................

rep. No. 136, 2012

Part 10.................................

rep. No. 136, 2012

S. 65....................................

rep. No. 136, 2012

S. 66....................................

rep. No. 136, 2012

S. 67....................................

rep. No. 136, 2012

S. 68....................................

rep. No. 136, 2012

S. 69....................................

rep. No. 136, 2012