Commonwealth Numbered Regulations - Explanatory Statements

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CORPORATIONS (FEES) AMENDMENT REGULATIONS 2003 (NO. 3) 2003 NO. 241

EXPLANATORY STATEMENT

Statutory Rules 2003 No. 241

Issued by the Authority of the Parliamentary Secretary to the Treasurer

Corporations Act 2001

Corporations (Fees) Act 2001

Corporations (Fees) Amendment Regulations 2003 (No. 3)

Subsection 1364(1) of the Corporations Act 2001 (the Corporations Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed by regulations, or that are necessary or convenient to be prescribed by such regulations for carrying out or giving effect to the Act.

Section 8 of the Corporations (Fees) Act 2001 (the Corporations (Fees) Act) provides that the Governor-General may make regulations for the purposes of sections 5, 5A and 6 of that Act, which deal with the imposition of fees for things done under the Corporations Act.

The Corporations (Fees) Regulations 2001 (the Principal Regulations) support the package of national corporations legislation enacted in 2001. In particular, they specify fees for the late lodgment of a document with the Australian Securities and Investments Commission (ASIC).

Further details of the legislative framework are at Attachment A.

The Corporations Legislation Amendment Act 2003, which commenced on 1 July 2003, amended the Corporations Act to impose new information lodgment requirements. These assist ASIC to maintain accurate records in relation to the companies and registered managed investment schemes it regulates, and replace the previous requirement to lodge annual returns.

New subsection 346C(3) of the Corporations Act obliges companies and registered managed investment schemes to advise ASIC of any changes to company or scheme particulars within 28 days of the issue each year by ASIC of a statement of particulars relating to the company or scheme. Certain other changes to company particulars must be notified to ASIC on an ongoing basis and within a prescribed timeframe, generally 28 days.

The purpose of the Regulations is to:

       clarify that the references to "the Act" in the Principal Regulations refer to the Corporations (Fees) Act, and to insert a separate definition of the Corporations Act; and

       provide for the waiver of certain late lodgment fees, which would otherwise be payable to the Commonwealth with respect to information lodged by certain classes of companies outside the timeframes imposed by the Corporations Act. This will facilitate a smoother transition to the new company information lodgment regime.

The Regulations have a retrospective commencement date and are taken to have commenced on 1 July 2003. However, the Regulations do not affect the rights of a person (other than the Commonwealth) so as to disadvantage the person. Accordingly, the Regulations do not infringe subsection 48(2) of the Acts Interpretation Act 1901.

The Corporations Agreement between the States, the Northern Territory and the Commonwealth, which reflects the constitutional basis of the national corporations legislation, requires the Commonwealth to consult members of the Ministerial Council for Corporations before making amendments to regulations made under the Corporations Act and the Corporations (Fees) Act. Members of the Ministerial Council for Corporations has been consulted about the Regulations. The approval of members of the Ministerial Council is not required for amendments to regulations relating to fees.

Details of the Regulations are at Attachment B.

The Regulations are taken to have commenced on 1 July 2003.

Authority: Subsection 1364(1) of the Corporations Act 2001 and section 8 of the Corporations (Fees) Act 2001

ATTACHMENT A

Further details of the legislative framework

Section 5 of the Corporations (Fees) Act 2001 (the Corporations (Fees) Act) provides that the regulations may prescribe fees (which are imposed as taxes) for chargeable matters and may prescribe more than one fee for the same chargeable matter. "Chargeable matters" are defined in section 4 of the Corporations (Fees) Act as including the lodgment of a document under the Corporations Act.

Regulation 3 of the Corporations (Fees) Regulations 2001 (the Principal Regulations) provides that prescribed fees for chargeable matters are set out in Schedule 1 to the Regulations. Item 28 of Schedule 1 specifies fees for the late lodgment of a document with ASIC.

Paragraph 1359(a) of the Corporations Act provides that nothing in Part 9.10 of the Corporations Act, which deals with fees imposed by the Corporations (Fees) Act and the Corporations (Review Fees) Act 2001 (the Corporations (Review Fees) Act), prevents the Commonwealth from waiving or reducing, in a particular case or in a particular class of cases, fees that would otherwise be payable under the Corporations Act.

ATTACHMENT B

Regulation 1:       Name of Regulations

Regulation 1 provides that the Regulations are to be known as the Corporations (Fees) Amendment Regulations 2003 (No. 3).

Regulation 2:       Commencement

Regulation 2 provides that the Regulations will be taken to have commenced on 1 July 2003.

Regulation 3:       Amendment of Corporations (Fees) Regulations 2001

Regulation 3 provides that Schedule 1 amends the Corporations (Fees) Regulations 2001.

Schedule 1:       Amendments

Item 1 replaces Regulation 1B with a new Regulation 1B containing the same definitions as previously, except that the definition of "Act" means the Corporations (Fees) Act 2001 and a specific definition of "Corporations Act" in the Regulation is included to mean the Corporations Act 2001.

As a consequence, references to "section 5 of the Act" in subregulations 5(1), 5(2), 5(4) and 6(1) mean section 5 of the Corporations (Fees) Act 2001.

Item 2 replaces the reference to "the Act" with a reference to "the Corporations Act", so that in Schedule 1 to the Regulations, a reference to a provision in the Schedule is a reference to that provision of the Corporations Act (and not to "the Act", which is defined in replacement Regulation 1B as "the Corporations (Fees) Act 2001").

Item 3 replaces the reference to "the Corporations (Fees) Act 2001" in Regulation 3 (Prescribed fees) with a reference to "the Act", as a consequence of the new meaning of that definition inserted by replacement Regulation 1B.

Items 4, 5, 7, 8, 10 and 12 replace certain references to "the Act" with references to "the Corporations Act".

Items 6, 9, 11 and 13 replace certain notes with new notes in which references to the Corporations (Fees) Act 2001 are replaced with references to "the Act", which is defined as the Corporations (Fees) Act 2001 in replacement Regulation 1B (see above), and references to "the Act" are replaced with references to "the Corporations Act".

Item 14 inserts new Regulation 7 after Regulation 6 of the Corporations (Fees) Regulations 2001.

New Regulation 7: Waiver of fees for late lodgment of documents for certain classes of companies

New regulation 7 is made under section 1359 of the Corporations Act. Section 1359 of the Corporations Act provides that nothing in Part 9.10 of the Corporations Act, the Corporations (Fees) Act or the Corporations (Review Fees) Act prevents the Commonwealth from waiving or reducing, in a particular case or in a particular class of cases fees that would otherwise be payable under the Corporations Act.

Subregulation 7(1) provides that a late lodgment fee, which would otherwise be payable for lodging a notice under subsection 142(2) (change of address of registered office), subsection 146(1) (change of address of principal place of business), subsections 205B(1), (2), (4) or (5) (details of office holders), subsection 205D(3) (alternative address), subsection 254X(1) (share issue), subsection 254Y(1) (share cancellation), or subsection 349A(1) (changes to ultimate holding company) of the Corporations Act outside the prescribed timeframe, will be waived for each company in a class of companies, which lodges the notice using a Form 484 after 30 June 2003 and before 1 November 2003.

Subregulation 7(2) provides that a late lodgment fee, which would otherwise be payable for lodging a response to an extract of particulars under subsection 346C(1) of the Corporations Act outside the prescribed timeframe, will be waived for each company in a class of companies with a review date after 30 June 2003 and before 1 October 2003, which lodges the response on a Form 484 before 1 November 2003.

Subregulation 7(3) provides that a late lodgment fee, which would otherwise be payable for lodging a notice of a change to a member register under subsection 178A(1) of the Corporations Act outside the prescribed timeframe, will be waived for each company in a class of companies, which gives notice of the change using a Form 484, when responding to an extract of particulars in accordance with section 346C of the Corporations Act, where the extract of particulars was issued after 30 June 2003 and before 1 July 2004.

Schedule 1

Item 15 omits each mention in Schedule 1 to the Corporations (Fees) Regulations of references to "of the Act". Regulation 1B of the Corporations (Fees) Regulations, as amended by these Regulations, defines "the Act" to mean "the Corporations (Fees) Act 2001".

Regulation 2 of the Corporations (Fees) Regulations, as amended by these regulations, provides that in Schedule 1, a reference to a provision, without reference to an enactment, is a reference to that provision of the Corporations Act. This makes specific reference to "the Corporations Act" in Schedule 1 unnecessary.


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