Australian Securities Markets and Their Regulation 1974 Vol 3
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THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA AUSTRALIAN SECURITIES MARKETS AND THEIR REGULATION PART I Report from the Senate Select Committee on Securities and Exchange Volume 3 Queensland Mines Committee Documents Legal Opinions AUSTRALIAN GOVERNMENT PUBLISHING SERVICE CANBERRA 1975 ASC LIBRARY 016874 © Commonwealth of Australia 1975 Printed by F.D. Atkinson, Government Printer of Australia MEMBERS OF THE COMMITTEE Senator P.E. RAE, B.A., LL.B.(Hons), (Tasmania), Chairman Senator P.D. DURACK, LL.B.(Hons), B.C.L., (Western Australia), (Appointed 17 August 1971) Senator G. GEORGES, (Queensland) Senator A.G.E. LAWRIE, (Queensland) Senator J.P. SIM, (Western Australia) Senator the Hon. J.M. WHEELDON, B.A.(Hons), (Western Australia) Senator the Hon. K.S. WRIEDT, (Tasmania) FORMER MEMBERS Senator the Hon. Sir Magnus CORMACK, K.B.E., (Victoria) (Chairman from 21 April 1970 to his election as President of the Senate on 17 August 1971) Senator J.A. LITTLE, (Victoria) (Until 14 May 1974) iii PREFACE The Committee has continued to meet since it reported to the Senate on 18 July 1974. For reasons outlined in the preface to that Report a chapter on matters relating to certain announcements and geological assessments by Queensland Mines was not included. This chapter is included in this volume. We believe it provides important insights into Stock Exchange and Company practices as well as providing lessons related to the supervision of the securities industry. The Committee received valuable assistance in the preparation of this chapter from Mr M.G. Lincoln, of the Graduate School of Business Administration in the University of Melbourne, and wishes to record its appreciation to him. The Committee sought and obtained opinions from four leading constitutional lawyers in relation to the constitutional implications involved in the Committee's terms of reference. After these valuable opinions were received, the High Court gave its decision in the case commonly called 'The Concrete Pipes Case'.1 This decision was relevant to the nature and extent of corporations power, and the Committee sought suppelemtary opinions in the light of that judgment. The Committee found each of these opinions most valuable and accordingly publishes them so that others may also have the advantage of the spectrum of opinions on constitutional law which they provide. 1. (1971) 45 A.L.J.R. 485 v We take this opportunity to express our gratitude to the authors for their valuable contributions to the consideration of the Committee's terms of reference. The Committee has also been grateful for the opportunity to examine the following opinions, which are relevant to various aspects of its terms of reference. 1. Ex parte St. George County Council; re Trade Practices Tribunal (1974) 48 A.L.J.R. 26; 2. A. I. Tonking, 'Federal Competence to Legislate for the Control of the Securities Market' (1973) 47 A.L.J. 231; 3. J.L. Taylor, 'The Corporations Power: Theory and Practice' (1972) 46 A.L.J. 5; 4. P.H. Lane, 'Can there be a Commonwealth Companies Act?' (1972) 46 A.L.J. 407; 5. O.I. Frankeland J. L. Taylor, 'A 1973 National Companies Act? - The Challenge to Parochialism' (1973) 47 A.L.J. 119; 6. P.H. Lane, 'Federal Control of Trading Corporations' (1974) 48 A.L.J. 233. vi CONTENTS PAGE Members of the Committee iii Preface v CHAPTER 13 MISLEADING REPORTS FROM QUEENSLAND MINES Introduction 1 Summary of Significant Events 5 A Year of Misleading Reporting 17 The September Announcements 17 The Lack of Assay Results to Substantiate the Report 23 A 'Geological Doodle' 26 Misuse of the Term 'Indicated Reserves' 31 The First Assay Reports - 22 September 1970 33 The Public Announcement of 5 February 1971 40 Evasive Answers to Shareholders' Questions at the Annual 43 General Meeting on 2 June 1971 A Rebellious Director Forces Public Disclosure -2 June 52 to 13 August 1971 Some Share Trading Activities - April 1970 to August 62 1971 Early Transactions 62 Transactions During and After a Visit to Nabarlek 65 Disguised Trading: Two Methods 71 Mr Hudson's Sales, and the Castlereagh - Minsec 80 Purchases, in a Misinformed Market vii PAGE Mr Dowling's Conflicts of Interest 84 Conflicting Evidence of an Attempt to Gain Control of 89 Nabarlek Three Examples Illustrating Conflicts of Interest 93 Share Buying by Castlereagh Securities 93 The Intra-Board Dispute 94 The Nabarlek Visit 97 Summary 99 Failure of the Directors to Submit Quarterly Reports 100 A.A.S.E. List Requirement, Section 3.F.(2) 100 Stock Exchange Confusion as to Meaning 100 Deficiency of Reports in Intervening Periods 101 The Regulation of Geological Reporting 102 Insider Trading 113 The Problems Involved in Detecting and Investigating 115 Insider Trading and the National Ramifications of the Problems The Effects on the Securities Market 119 DOCUMENTS 123 13-1 Letter from Mr E.R. Hudson to The Sydney Stock 125 Exchange Ltd, 5 February 1971 13-2 Extract from proceedings of the adjourned 10th 128 Annual General Meeting of Queensland Mines Limited, 2 June 1971 13-3 Letter from Mr R.D. Hutchinson and Mr P.R. Stork to 144 the Chairman and Board of Directors of Queensland Mines Limited, 13 August 1971, with attached Memo, 16 August 1971 viii PAGE 13-4 Letter from Mr F.J.O. Ryan, Commissioner for 147 Corporate Affairs, to the Committee, 16 December 1974 13-5 Managing Director's Report, Queensland Mines 149 Limited, 23 July 1970 13-6 Letter from Downing & Downing to the Committee, 22 151 December 1971, with attached Statutory Declaration by Mr J.H. Hohnen 13-7 Report by The Mount Isa Syndicate on their visit to 157 Queensland and the Northern Territory, 11-19 May 1971 13-8 Managing Director's Report, Queensland Mines 161 Limited, 19 November 1970 13-9 Chairman's Report for a prospectus of Castlereagh 168 Securities Limited, 5 May 1970 13-10 A proposal for a prospectus for Power and 172 Resources of Australia Limited 13-11 Notice to shareholders of Kathleen Investments 178 (Australia) Limited from Mr M.R.L. Dowling and Mr J.E. Roberts, 20 May 1971 13-12 Letter from Mr R.W. Parry, President, Australian 180 Shareholders' Association to shareholders of Kathleen Investments (Australia) Limited, 17 May 1971 13-13 Letter from Mr J.H. Valder, Chairman, The Sydney 183 Stock Exchange Ltd, to the Committee, 26 March 1975 ix PAGE LEGAL OPINIONS 187 A-1 Professor Colin Howard 191 A-2 Professor P.H. Lane 207 A-3 Professor Geoffrey Sawer 227 A-4 Professor Leslie Zines 253 B-1 Professor Colin Howard 276 B-2 Professor P.H. Lane 291 B-3 Professor Geoffrey Sawer 298 B-4 Professor Leslie Zines 312 CHAPTER 13 MISLEADING REPORTS FROM QUEENSLAND MINES Introduction The Nabarlek uranium deposits in the Northern Territory sprang into international prominence early in September 1970, when official reports from Queensland Mines Limited, the company working the mineral leases in the area, indicated that they were by far the richest uranium deposits in the world. It appeared that the deposits were of such quality and size that they could transform calculations of Australia's uranium resources and, if they were independently developed, alter international market conditions based on previously known sources of supply. The Commonwealth Government accordingly brought down an ordinance protecting the Nabarlek deposits from the possibility of overseas control, and modified its previous policy restricting exports of Australian uranium. The prices of shares associated with the Nabarlek deposits rose fourfold in the month following the September 1970 announcements, and the question of control over the deposits became a lively issue among domestic financial groups who engaged in heavy buying of the shares. This ferment was, however, based on grossly inaccurate information. In August 1971, nearly a year after issuing its initial quantitative reports, Queensland Mines made an announcement drastically downgrading its ore and assay estimates. In effect, estimates of the average richness and the overall 1 uranium content of the deposits were reduced to about one- sixth of previously published figures. Rumour had long preceded this official announcement with the result that there had been share trading between persons possessing vastly varying knowledge and expectations of the market. Concern over the above circumstances has led the Committee: (i) to inquire into the circumstances surrounding the continuing misleading reports from Queensland Mines and into the attendant question of the effectiveness of stock exchange and other statutory supervision of the company's reports; (ii) to examine the share trading activities of persons who were in a position to possess information regrading the Nabarlek deposits which was either withheld from or not yet available to the general public; (iii) to analyse the heavy share buying by which other parties attempted to gain control of the Nabarlek deposits, and the conflicts of interest which manifested themselves; and (iv) to commission an independent, internationally experienced firm of geologists to assess and report on the geological basis of the public statements issued by Queensland Mines. Queensland Mines Limited was listed on the Australian stock exchanges in October 1967. From its inception eight years previously it had been closely associated with the listed 2 company, Kathleen Investments (Australia) Limited, and it became a wholly owned subsidiary of Kathleen Investments in 1964. Kathleen Investments floated off this subsidiary in 1967 by offering its shareholders a new issue of 2,451,400 fifty cents shares in Queensland Mines at par. This gave Queensland Mines approximately $1.2 million to undertake exploration for and development of uranium deposits, roles it had always sought to pursue, notwithstanding a long period of suspended operations dating from 1961. In effect, Kathleen Investments retained control of Queensland Mines after the latter was listed, holding about half the shares.