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CORPORATIONS (COMMONWEALTH AUTHORITIES AND OFFICERS) REGULATIONS (AMENDMENT) 1991 NO. 311EXPLANATORY STATEMENT
STATUTORY RULES 1991 No. 311
Issued by the Authority of the Attorney-General
Corporations Act 1989
Corporations (Commonwealth Authorities and Officers) Regulations (Amendment)
Section 73 of the Corporations Act 1989 (the Act) empowers the Governor-General to make regulations, not inconsistent with the Act, prescribing matters which are required or permitted by the Act, or necessary or convenient to be prescribed for carrying out or giving effect to the Act (other than Part 5).
Section 47 of the Act permits the making of Regulations under section 73 to provide that prescribed authorities and officers of the Commonwealth have prescribed functions and powers that are expressed to be conferred on them by or under corresponding laws.
The purpose of the Regulations is to rectify a technical error in the drafting of the Regulations made under sections 47 and 73 of the Act by omitting the definition of 'corresponding law' in regulation 2.
Details of the Regulations are at Attachment A.
This regulation provides for regulation 3 to commence on 1 January 1991. The regulation rectifies a technical error in the Corporations (Commonwealth Authorities and Officers) Regulations, and it is desirable, in the interests of commercial certainty, that its operation commence from the date when those Regulations first came into force, being 1 January 1991.
Subsection 48(2) of the Acts Interpretation Act 1901 provides that a regulation expressed to operate retrospectively has no effect where, if the regulation so took effect:
(a) the rights of a person (other than the Commonwealth or an authority of the Commonwealth) existing at the date of notification, would be affected in a manner prejudicial to that person; or
(b) liabilities would be imposed on any person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitting to be done before the date of notification.
Advice has been obtained from the Chief General Counsel that the defect in regulation 2, which the amending Regulations correct, is an obvious error which would be recognised by the Courts as such. In consequence the Regulations would be operative notwithstanding the defect in regulation 2. The amendment to correct the technical error in the drafting of the Regulations does not, therefore, adversely affect the rights of persons or impose additional liabilities and does not contravene subsection 48(2) of the Acts Interpretation Act 1901.
This regulation states that the Corporations (Commonwealth Authorities and Officers) Regulations are amended as set out in these Regulations.
Read literally the Corporations (Commonwealth Authorities and Officers) Regulations might have been regarded as inoperative in consequence of the defining of 'corresponding law' in regulation 2 as a corresponding law within the meaning of section 58 of the Corporations Law, rather than section 38 of the Corporations Act 1989. As noted above, however, the Chief General Counsel has advised that this literal defect in the provisions would have been regarded by the Courts as an obvious error and the Regulations would have been operative despite the error.
Amending regulation 3 puts the matter beyond doubt by correcting the defect and omitting the definition of 'corresponding law'. In consequence, the definition of corresponding law in section 38 of the Corporations Act will apply.