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Seanad Éireann debate -
Wednesday, 2 Mar 1988

Vol. 118 No. 16

Companies (No. 2) Bill, 1987: Committee Stage (Resumed).

Debate resumed on amendment No. 95:
In page 75, subsection (5) (b), lines 19 and 20, to delete subparagraph (ii).
—(Senator B. Ryan.)

An Leas-Chathaoirleach

I would remind the House that I have circulated a note for the convenience of Members. Committee Stage resumes on amendment No. 95. Of the remaining amendments there is only one group for the purpose of discussion. Amendment No. 96 will be taken with amendments Nos. 97, 98, 99 and 100. All other amendments will be taken separately.

This amendment was moved and we were in the middle of a debate on it the last time we discussed this Bill. The proposal is that the words "the application is not made in contemplation or in furtherance of a trade dispute" be deleted. The Government's view is that an application for a disclosure order cannot be made in the interests or contemplation of furtherance of a trade dispute. I object to the Government's position on this. The reason I am opposed to that remaining in the Bill is the basic one which I have discussed a number of times in this House. It has its genesis in this general view that the workers and the union representing the workers have no interest except in wrecking the company. Nothing could be further from the truth.

Over the last period of years, we have seen more and more interest shown by workers, and workers' representatives, in access to information and disclosure of information for the very best and most practical purposes. Very often this kind of information may be sought in the middle of a dispute. Somebody has to make a judgment on contemplation of furtherance of a trade dispute. Very often disputes take place because of lack of information. I am opposed to taking a decision here which seems to indicate or imply that the worker, or those representing the worker in a trade dispute will, in some sense, have less than the best interests of the company at heart.

This paragraph was inserted in subsection (5) as a safeguard clause. The thinking was, first, that these provisions are part of company law and that the use of them should be confined to real company law situations. We felt that company law should not be concerned with trade disputes, which should really be governed by labour legislation. There is legislation on trade disputes and we felt that any action taken by employees in the context of such a dispute should be governed by such laws. Secondly, we felt that the right of employees to seek an order is clearly provided for in section 83 (6) under which, being actual or contingent creditors they would qualify as applicants for an order. Thus the section would not restrict the right of employees to find out, in the normal course of events, who controls the company which employs them. What the Bill is saying, in effect, is that beyond this normal right to know, the mechanism in this part should not be capable of being used to further the aims of employees in the context of an industrial dispute, for example, by embarrassing or harassing the company or tying up the resources of the company in litigation, and so on.

I listened to the case made by the Minister and he mentioned the other sections. I have looked at the other sections as well. Subsection (2) states:

Any person who has a financial interest in a company may apply to the court for a disclosure order in respect of all or any of the shares of or debentures in the company.

Can the Minister clarify, for instance, if a worker in the company is a person with a financial interest in the company. That needs to be stated clearly because, if the worker in the company has a financial interest in the company, which is beyond doubt, does that mean that the workers, and, therefore, the workers' representatives can seek a disclosure order? I just want to get that clear before discussing trade disputes again. I want to clarify that point first.

In answer to Senator O'Toole, a worker is a creditor in the sense that he has an actual or a contingent financial interest in the company.

As a worker he is entitled to get this information by way of court order. The Minister said that if it is in the furtherance of a trade dispute, labour legislation already governs that but that, as an employee of a company, he is considered to have a financial interest and can have a court order asking for information to be made available provided it does not further a dispute. In the overall interest of these matters and their knowledge of what is happening in the company, there is nothing in this section to preclude them from getting that information. That is what the Minister is saying.

What I am saying is that it should actually be so.

I am glad that point has been clarified. It is unfortunate that a worker was not put in there in his own right. Had I known that the Minister was so clear on it I would certainly have put that down as an amendment. I do not know whether that can be considered at a later date but I will certainly give some consideration to that point. Regarding the fact that a worker may have this information we are now saying that the worker or the workers' representative may not seek this application "in contemplation or in furtherance of a trade dispute." Let us look at the two phrases "in contemplation of" and "in furtherance of". I have difficulty with both. I have difficulty with "in contemplation of" because I am not sure that would be interpreted. I have no clear view on how a court or anybody else could decide. What are the guidelines in deciding whether or not it is in contemplation of a trade dispute?

For instance, in my own position in a representative capacity in a teachers' union I seek all information, statistical and otherwise, about the running of the particular section of education with which I am closely involved. I always want to have that information because I would not consider being in dispute with anybody until I knew everything about whatever was going on.

This is counterproductive in many senses. Very often when information becomes available the reason for a dispute actually evaporates. Information has always been power. Very often the non-disclosure of information causes more problems than the actual information which it is sought to keep secret. I cannot understand how a judgment would be made that a disclosure was sought only in contemplation of a trade dispute. I would like to have some indication of what that means. I do not think it makes any sense at all.

The other phrase is "or in furtherance of a trade dispute". Can the Minister explain what that means? Does that mean the resolution of a trade dispute? Does it mean the heightening of tension in a trade dispute? Is that what "furtherance" means? For instance, if people said: "We are facing into industrial action next week but perhaps if we had this information that action could be deferred!", would that information be seen as "in furtherance of a trade dispute"? What I am attempting to make clear is that this legislation shows a very old-fashioned and, indeed, archaic approach to industrial relations and disputes because it goes back to the old days of seeing the workers and the bosses of the factory as being totally and completely and always at loggerheads with each other.

The time has now come when trade disputes are being resolved more and more without recourse to industrial action. This has been achieved not only through people meeting and negotiating around the table but by people actually sitting down and discussing the affairs of the company or the workplace and making the case, on both sides of the table, about the financial arrangements or the financial implications of a particular matter. Therefore, it is actually in the interests of the State and very often in the interests of good industrial relations in the company that they should have access to information.

Finally — and I put this question deliberately — can the Minister give me some indication of the kind of information which would be seen as being dangerous in the event of a trade dispute? Let us say there is a possibility of a trade dispute in a company and the workers make application for a disclosure order for certain kinds of information; can the Minister explain to me how that would cause a problem either for the factory, the workplace, the owners or the proprietors? Explain to me in simple lay person's terms what is the protection here. I do not see any protection here for the proprietor or the owner of the company, or for the worker. I am not sure in whose interest it is. Perhaps I misunderstand the kind of information that needs to be hidden. We mentioned on the Order of Business today the Freedom of Information Bill. Access to information resolves disputes and problems. I cannot think what kind of information we would be trying to keep secret here. Perhaps I am very naïve but I cannot think of a set of figures or facts which it would be in anybody's interest to keep secret.

It appears that this section is out of place in company law as against being dealt with adequately in labour legislation. There could be legitimate reasons why employees would seek a disclosure order during a trade dispute. For example, the company may decide to change its ownership overnight and set up another company. This is information which an employee would want to have at the time of a dispute. This could happen. I agree with Senator O'Toole that 99 times out of 100 the dispute is legitimate, but there is always the once in 100 when the dispute could be devious.

I can understand on the other hand, why private companies in particular, may not want to be dragged through the courts during disputes. The other thing I would be a little bit afraid of is: would it be a kind of standard practice that as soon as a dispute is called people would say: "Let us request the disclosure order". As the owner of a private company, I would be a little afraid that during a trade dispute, this would become a standard weapon, that a disclosure order would be the first thing on the agenda and in the case of a family company: "Let us see who the shareholders are. Let us get it all out in the open." As I say, there are two sides to it. I can see both sides and I am not sure which side I should come out in favour of. Personally, as the owner of a private company, I would like it to be left to the discretion of the court to implement the disclosure order.

First of all, I would like to thank the Minister for, in his earlier reply, at least confirming that an employee is considered to have a financial interest in the company and may, in fact, go to court and have a disclosure order made. Then we went on to qualify that right which a worker has. He cannot do that in the furtherance of or contemplation of a trade dispute because existing labour law, the Minister said, protects us in that area. If we follow that to its natural conclusion, it brings us to the dilemma Senator Mulroy and Senator O'Toole have and Senator Ryan now has about the area of information workers or a single employee, even if he is the shop steward, would have in any company. Companies in the public sector are privileged because there is a system whereby members can have their worker's representatives on boards and can have certain information available to them.

We were talking about private registered companies in which employees have no rights whatsoever except what is meted out to them or is discussed or negotiated by their trade unions. One of the bits of information a shop steward might require from a private company is their ability or otherwise to meet a demand made by their members. If, in contemplation of a strike, the information was not available to them for that reason, that could possibly lead to a strike.

I think the point Senator O'Toole is making is, that there would have been no need for a strike if the full information was available and on the table. Our experience is that workers and their representatives are responsible people and it does not pay the unions or, indeed, their members to call strikes for no reason. We have been hoping that legislation dealing with companies and their responsibilities to their workers would include this, that they would be responsible enough to ensure that the fullest possible information was available to trade unions, trade union representatives and individual workers. That is why I am sorry they are excluded from the groups who could, in fact, make an application to the court.

I would not be unduly worried because there is a second section which makes it obligatory that the court must be satisfied as to who will pay for this process. This will eliminate frivolous applications to the court and should be sufficiently strong. But to put it in makes it in some way a sin almost for workers even in contemplation of or even trying to avoid a dispute to seek the necessary information. Somehow or other they are precluded from getting the information. Perhaps the Minister would clarify the position? We want to be sure what we are doing in this area because it is a big Bill. It is a complicated Bill and we want to make sure it is right in every respect. It is our view that workers have as many rights as anybody else in respect of legislation which affects their conditions of employment.

This amendment needs to be seen, as Senator Ferris saw it, in the context of the section. The section has to do with disclosure orders and a disclosure order involves any person whom the court believes to have or to be able to obtain any information as to persons interested at present or at any time during a period specified in the order in the shares or debentures, the names and addresses of any of those persons, the name and address of any person who acts or has acted on behalf of any of those persons in relation to the shares or debentures, to give such information to the court not later than the date specified in the order or a section.

It is very specific kind of information. Any person who has a financial interest in a company may apply to the court for a disclosure order in respect of all or any of the shares. So, it is a person who has an interest who may seek a disclosure order. The section than goes on to define "financial interest" and uses a phrase which is so rich that I have never seen it before in legislation. The word that caught my fancy was "co-adventurer". I presume there must be a legal precedent for this but I have never seen it before.

Having defined it like that, the section goes on to say "an application shall be supported by such evidence as the court may require". That is an enormously sweeping range of judgments to be offered to the court — such evidence as they may require. I do not think anybody need anticipate that the Irish courts will be springing to the defence of the trade unions by allowing them to make frivolous applications for information for no particular reason.

Then the court may require the applicant to give security for payment of the costs of hearing. The costs of a hearing like this are not going to be numbered in hundreds of pounds. No significant member of the Bar I know of would be involved in an action like this for anything less than what could be counted in thousands of pounds. Anybody who goes looking for this information will literally have to put his or her money where his or her mouth is and secure the costs of the action. Having put all of those obstacles in the way — and they are probably reasonable so as to prevent a series of frivolous applications for disclosure orders — the procedure then goes on to exclude — and this is where Senator O'Toole's amendment comes in — an application which is not made in contemplation or in furtherance of a trade dispute.

As I said the last day, "in furtherance of a trade dispute" could be re-written for instance to refer to giving one side of a trade dispute an unfair advantage which might well be a matter which the court may want to adjust but the words are "in contemplation of a trade dispute". Trade unions, if they are to be effective, must always have the reserve weapon of a trade dispute. Perhaps, as many people say, it is the threat of industrial action that is the real weapon of a trade union rather than actual industrial action. Industrial action can often be seen as a failure by one side or the other and possibly by both sides. Since a trade union must always reserve its right to use industrial action to achieve anything it wishes where there is a dispute with an employer virtually any information sought by a trade union can be interpreted or could be interpreted as being in contemplation of a trade dispute. Consequently it seems to me that that small section could either be deleted entirely or could be re-written.

In the submission some of us received from the Irish Congress of Trade Unions, the sardonic comment was that section 83 seemed to have more to do with preventing disclosures than with facilitating disclosures. There are so many obstacles along the way which a person has to get over in terms of proof and securities that the sticking at the tailend of what looks like a gratuitous reference to a trade dispute seems to me to be simply justifying somebody's ideological perspective of the role of trade unions.

It is interesting that in the Explanatory Memorandum on section 83 no reference is made to the prohibition of information being disclosed in contemplation or in furtherance of a trade dispute. It is as if the little subsection did not really exist. The people who, in my view, have probably the greatest interest in the security and future of a company are its employees. It is very doubtful that anybody other than the direct openly identified owner of a company, has as much interest in the success of the company as the person whose daily or weekly income depends on the success of the company.

Anybody who has invested money in the company arguably has interests in other areas and, therefore, his or her future may not necessarily be on the line, but the future of virtually every employee in a company is on the line if a company is not successful. Therefore, the financial interest, if not paramount, is equivalent to that of the owners of the company. To exclude them by a vaguely worded clause like that from seeking what is legitimately information which they are legitimately concerned about seems to be something that was not intended. If it was intended it was wrong. If it was not intended, perhaps between now and Report Stage the Government and the Minister could attempt to re-write the section to do what I hope is their intention, to prevent disclosure orders being used to give people an unfair advantage in the course of an industrial dispute.

There is a legitimate concern that people should not be able to use procedures like this to gain information which would give them an unfair advantage during a dispute. I do not think anybody imagines that the Irish courts are going to lean over backwards to facilitate the trade unions. Therefore, if the sort of wording I suggested were there, it would work. Unless we can get a commitment from the Minister I will happily support Senator O'Toole's amendment. There are many obstacles there already. Given that most Irish trade unions are far from affluent, far from well off and have a considerable number of industrial disputes going or contemplated at any stage, the frequency with which they will resort to the courts to seek information will not be particularly great because of the commitment of cash that would be involved in obtaining legal expertise and assembling information. Therefore, I think that paragraph is unnecessary and has no business in company legislation.

I am puzzled about this. Without being sarcastic, the wording of it seems to be as clear as mud. Take, for example, "contemplation". If you are contemplating a strike there are agreed procedures laid down. One wonders what those procedures have got to do with company law. The contemplation of a strike is in the labour law area. Regarding "furtherance of a strike," obviously a trade union cannot go to the courts once a strike notice has been served and say: "We need more information to help us in our bid to win this strike." It does not add up. The provision should not be in company law at all. It is more appropriate to labour law and procedures in industrial democracy. It upsets the whole concept of a disclosure order by having it placed there. The words "contemplation" and "furtherance" make the paragraph illogical.

I have listened with interest to the concern expressed very ably by Senators O'Toole, Mulroy, Ferris, Brendan Ryan and Harte. I can appreciate that they have a problem. The more I listen to them the more I could see they had a valid point of real concern. Having looked at the section again in the light of the points they have made, I can see clearly that there might be situations where employees could have a bona fide reason for seeking an order even when there was an on-going trade dispute.

I am also happy that the court would be able to reject vexatious applications on the just and equitable ground which is inserted in paragraph (a) of the subsection. Senator Ferris used the word "stringently". Having considered the points made I am prepared to accept Senator O'Toole's amendment.

I thank the Minister very much. This Bill has been an education to me in the way that it has worked through the House and I really appreciate that move from the Minister.

Amendment agreed to.

Amendments Nos. 96, 97, 98, 99 and 100 are related and may be discussed together.

Government amendment No. 96:
In page 75, line 29, after "company", to insert "or in debentures of the company".

These five amendments are straightforward drafting amendments. This Chapter applies equally to shares and debentures of a company. The phrase "shares or debentures" appears throughout the Chapter. The five amendments will rectify the five inadvertent omissions in this respect. I am proposing two similar amendments to section 85, subsection (1) (b), amendments Nos. 99 and 100.

Amendment agreed to.
Government amendment No. 97:
In page 75, line 32, after "shares", to insert "or debentures".
Amendment agreed to.
Government amendment No. 98:
In page 75, line 35, after "capital" to insert "or those debentures".
Amendment agreed to.
Section 83, as amended, agreed to.
Section 84 agreed to.
Government amendment No. 99:
"In page 76, line 4, after "shares" to insert "or debentures".
Amendment agreed to.
Government amendment No. 100:
In page 76, line 5, after "shares" to insert "or debentures".
Amendment agreed to.
Government Amendment No. 101:
In page 76, line 8, to delete "notice" and substitute "order".

This is also a straightforward amendment. "Notice" is simply the wrong word here. The particulars being required under this paragraph will be those required by the order of the court and not by any notice. The correct word is "order" and not "notice". I hope the House will accept the amendment.

Amendment agreed to.
Government amendment No. 102:
In page 76, to delete lines 13 to 15.

This amendment proposes to delete subsection (2) from this section. On reflection, it seems to be unnecessary since it merely duplicates what is in subsection (5) of section 86. By way of background, section 85 (2) amplifies subsection (1) of that section. Subsection (1) gives the court discretion as to the kind of particulars it might require from a person interested in shares who is the subject of a disclosure order. As currently drafted, subsection (2) requires the person concerned to disclose his identity and current address in all such cases. However, this requirement already appears in subsection (5) of section 86. The amendment would remove this unnecessary duplication.

I am not 100 per cent clear. I am not opposing the amendment but I would like to have it made clear. If it is only drafting, I would like it explained further. I thought the Minister was talking about taking into consideration the time we live in, including kidnapping threats and so on. I thought it was a security matter he had in mind. I am not 100 per cent clear on the need for it. If you have to give the names of the shareholders, the name must mean the identity. Is it that part of it refers to, or is it just the person who is giving the information?

I am sorry if I confused Senator O'Toole by mentioning "times". I am talking about the bugs which are afflicting various people, including myself, at the moment. Basically, this should be deleted. It is just a matter of duplication and is unnecessary in our opinion.

Amendment agreed to.
Government amendment No. 103:
In page 76, line 21, to delete "section 84 and this section", and substitute "this Chapter".

This is essentially a drafting amendment. The intention of subsection (4) is to provide that sections 60 to 71 are to be used to interpret "interest in shares" for the purposes of this particular Chapter. The term "interest in shares" appears in a number of places throughout sections 82 to 89. However, the first problem is that the reference to it in the subsection to section 84 is incorrect. That section says nothing about interest in shares. The reference in the subsection should really have been to section 83. Looking at the matter more generally, however, sections 83 and 85 are not the only ones in Chapter 4 to refer to interest in shares. Other sections mention that as well. The solution in the amendment which we have come up with is to have subsection (4) mention references in this Chapter to persons interested in shares etc., rather than references to "section 83 and this section". It is really a drafting amendment which we think is necessary.

Amendment agreed to.
Section 85, as amended, agreed to.
Government amendment No. 104:
In page 77, to delete lines 5 to 9.

The intention here is, first, to shift subsection (5) from section 86 to section 88 where we feel it properly belongs and, secondly, to delete what is at present the last clause of the subsection itself. The first problem with subsection (5) in our view is that the provision concerned is rather out of place in section 86 which, as Senators know, deals with the powers of the court where a disclosure order is made. The subsection here really has nothing to do with that, but rather has to do with the information which is subsequently disclosed under that particular order. As such, it is really appropriate to section 88 which deals with the information actually disclosed under the order. A later amendment, No. 106, will re-insert the provision into section 88.

Amendment agreed to.
Question proposed: "That section 86, as amended, stand part of the Bill."

This is something I intended to say that last day and if I am wrong, it is not the first time. Last week on this Stage the Minister — I am not trying to trip up the Minister; I am just inquiring — specifically stated that disclosure referred to voting shares in companies other than public limited companies, but all through section 86 and previous sections there are references to debentures. My limited understanding of the law is that debentures are not voting shares. Perhaps the Minister could explain the position to me. I had a hurried consultation with Senator Robinson last week but she did not clarify it for me. It appears that disclosure orders can be made for persons holding debentures in companies who would not have voting membership of the company.

It is a good point to clarify. Voting shares and debentures for this purpose are on a par. We regard debentures as being pretty significant power in a company, indeed often, the deciding factor. We put both of them together for that purpose. I would like to thank the Senator for giving me the opportunity to clarify that point.

Question put and agreed to.
Government amendment No. 105:
In page 77, line 20, to delete "the registered office of the company" and substitute "the company (at its registered office)".

It has been suggested to us that there is a slight drafting inaccuracy in this paragraph in that rather than requiring the applicant to notify the registered office of the company, it would make more sense to require the notice to be sent to the company at its registered office, but then I know Senators spotted this technicality long before I did.

I noticed that one. The Register of Friendly Societies is getting very obstreperous lately. I am sure I should not refer to the man in these terms. He is under-staffed and overworked. Do we have in the Bill a requirement that a notification of the change of address should be sent either to the Registrar of Friendly Societies or to the Companies (Registration) Office — the Companies (Registration) Office in this case — because that is important? There is no point in saying: "Send it to the Company" if we do not know where the company lives. I would like that point clarified.

Before the Senator withdraws — I hate correcting him — but would he withdraw that little word, for the record of the House? He did say somebody was obstreperous.

Sorry, let me immediately withdraw whichever word gave offence.

It is for the record of the House. We are so orderly here.

Far be it from me in any sense publicly to give out about any member of the public service who is overworked and under-staffed. I certainly withdraw it.

I have heard Ministers called worse. The Senator asked about the company, which is a good point, but the 1963 Act deals with the location of the company. It is not necessary to do so in this Act.

Amendment agreed to.
Question proposed: "That section 87, as amended, stand part of the Bill.".

On a point of clarification, in view of the change the Minister has just made in that amendment consequential changes will have to be made throughout the entire section. The registered office of the company is mentioned throughout the section and I am sure the Minister has noticed that as well. In lines 34, 36 and 43 the term "registered office of the company" is used. Similar changes will have to be made there on Report Stage.

That does not really apply outside line 20 as such —"the registered office of the company"— because in section 3 (a) and (b) it is provided: "for the purposes of subsection (1) (a) the address of the registered office" and so on. It does refer to the registered office. I am happy that we have covered the technicality the Senator is worried about.

Question put and agreed to.
Government amendment No. 106:
In page 78, before section 88, to insert a new section as follows:
88.—(1) An obligation to provide any information imposed on any person by a disclosure order shall be treated as not being fulfilled unless the notice by means of which it purports to be fulfilled identifies him and gives his current address.
(2) Where information is given to the court in compliance with the terms of a disclosure order, a prescribed officer of the court shall, unless the court otherwise directs, cause such information to be furnished (in whole or in part as the court may direct) to the applicant and to the company in respect of whose shares or debentures the order was made.
(3) In reaching its decision under subsection (2), the court shall have regard to whether the requirements of section 87 have been complied with.".
(Acceptance of this Amendment involves the deletion of section 88 of the Bill).

This is a new section. In page 78 we are deleting lines 19 to 32 in the Bill and we are substituting a new section. We are proposing to put in this section in place of what is contained in lines 19 to 32. It has three main objectives. The first one has to do with a related amendment, No. 104, which we have already made to section 86. The House will recall that we felt section 86 was not really the proper home for subsection (5) of that section and that its provisions would be more appropriate to this section.

Turning to the present amendment, therefore, subsection (1) of the new section 88 is what was formerly section 86 (5). The second aim of the amendment would be turning to subsection (2) of the amendment. The effect of section 88 as it stands is to bring the information which is supplied to the court under a disclosure order not just to the attention of the company and the original applicant for the order but to the public's attention also. Any information lodged with the Registrar of Companies is effectively open to public inspection.

Furthermore the effects of subsections (2) and (3) of the present section 88 would be to further emphasise the public exposure of such information since these subsections would require the company to enter the information, as we know, on a special register which could be inspected by the public generally. However, the mere fact that the court has agreed that a person with a financial interest in a private company should, in exceptional circumstances, have the right to know who the shareholders of the company are is not in itself a good enough reason for bringing the whole affair into the public domain. The procedure in this Chapter whereby a person can apply for a disclosure order in the case of a private company on an exceptional basis is generally, in my view, a private one and should, perhaps, remain so.

There is a third aim behind the new section. The final aim has to do with section 87. That section requires the applicant for the disclosure order to notify various parties that the court has made an order. It has, however, been correctly pointed out to me that section 87 contains no sanction for contravention of its provisions. The usual thing to do in such circumstances would be to create, perhaps, a criminal offence for failing to make the required notification under section 87. It struck me that a better way to deal with the matter would be for the courts to take the applicant's compliance with section 87 into account when the court is dealing with the matter. Thus, for example, if the applicant had not complied with section 87, the court could always withhold the information from that person. That is what we are trying to do in subsection (3) of the amendment.

I am sorry for the long introduction but this is a particularly complex aspect. I wanted to give the House a full explanation of it.

Is amendment No. 106 agreed to?

In the original section the disclosure order should be forwarded to the registrar of companies. Is there a reason why that is being deleted from the new section? Perhaps it is just a straight-forward——

Yes. By doing it that way — by notifying the registrar of companies — you are bringing it deliberately into the public domain in the first instance.

I accept that.

There is a gap in between which we felt was necessary to fill.

Amendment agreed to.
Section 88 agreed to.
Government amendment No. 107:
In page 78, lines 39 to 41, to delete from "those shares" to the end of the subsection and substitute "any shares in or debentures of the company concerned held by him shall be enforceable by him whether directly or indirectly, by action or legal proceedings.".

In this section there are three problems which emerged, but I want to tell Senators they are essentially drafting ones. First, the words "those shares" in line 39 do not appear to refer to anything previously said in subsection (1). Obviously, of course, we are talking here about shares held in the company concerned by the person who fails to comply with the disclosure order. The first aim of this amendment is to make that clear.

Secondly, as with earlier amendments to section 85 (1) (b) the reference should be not just to shares but to shares and to debentures. That is the second reason for the amendment. The third reason is that the final words of the subsection say that a person who fails to comply with the disclosure order will not be able to enforce any rights attaching to the shares "by legal proceedings or otherwise". However, the words used in an identical provision in Chapter 3 of this Part, section 71 (3) are "by action or legal proceedings". In the interests of consistency the wording should be the same in both cases. They are the three main reasons for what are essentially drafting difficulties.

Amendment agreed to.
Section 89, as amended, agreed to.

I understand there is some decision to take Part IV only. Is that correct? Agreed.

For the record I want to thank the Minister and the other Ministers who dealt with this Bill for the most progressive and mature handling of legislation I have seen in my short term in this House. I am sorry the Press are missing.

Progress reported; Committee to sit again.