Commonwealth Numbered Regulations - Explanatory Statements

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COMMONWEALTH FUNDS MANAGEMENT LIMITED (CONVERSION FROM SFIT) REGULATIONS 1991 NO. 136

STATUTORY RULES 1991 No. 136

ISSUED BY THE AUTHORITY OF THE MINISTER FOR FINANCE

COMMONWEALTH FUNDS MANAGEMENT LIMITED ACT 1990

COMMONWEALTH FUNDS MANAGEMENT LIMITED (CONVERSION FROM SFIT) REGULATIONS

Section 48 of the Commonwealth Funds Management Limited Act 1990 (the Act) provides that regulations may be made for the purposes of the Act.

Subsection 2(5) of the Act, so far as it is relevant, provides that Part 3 of the Act comes into effect on 1 July 1991. The commencement of Part 3 will have the effect of converting the Superannuation Fund Investment Trust (SFIT) into a public company called Commonwealth Funds Management Limited (CFM) on 1 July 1991. Pursuant to subsection 9(1) of the Act, SFIT's name will be changed to CFM Ltd on 30 June 1991.

Subsection 10(2) of the Act provides that, subject to the regulations, CFM's application, on 30 June 1991, to the National Companies and Security Commission under subsection 85(1) of the Companies Act 1981 to be registered as a company, must be accompanied by the documents required by subsection 85(4) of the Companies Act 1981. The corresponding subsections in the Corporations Law, which has succeeded the Companies Act 1981, are subsections 133(1) and 136(1) respectively. In addition, the Australian Securities Commission (ASC) has replaced the National Companies and securities commission.

CFM is not in a position to comply with the requirements under subsections 133(1) and 136(1) of the Corporations Law for two reasons. Firstly, many of the requirements are not applicable to CFM because of SFIT being a statutory corporation rather than a company. Secondly, the remaining requirements are not relevant to CFM because they normally apply where a corporation is registered in a foreign jurisdiction. The Regulations modify the Corporations Law requirements by modifying the application form and accompanying documentation. The Regulations are based on the precedent set by similar regulations that were necessary to convert the Commonwealth Bank of Australia into a company.

Regulation 1 of the Regulations is a formal provision. Regulation 2 contains definitions.

Subsection 136(1) of the Corporations Law requires that the application to the ASC for registration as a company be made under subsection 133(1) in the prescribed form.

The prescribed form is Form 202 of the Corporations Regulations. As CFM in its current form is a statutory corporation and not a company with a board of directors, the contents of Form 202 needed to be amended. The Schedule inserted by regulation 3 of the Regulations specifies a registration form applicable to CFM. It enables CFM to provide the relevant information in a manner which follows as far as practicable the requirements of Form 202.

Subsection 136(1) of the Corporations Law requires an application to the ASC for registration as a company to be accompanied by supporting documentation as specified under paragraphs 136(1)(a), (b), (e) and (f) of that Law. Because CFM would not be able to comply with these requirements, paragraph 4(a) of the Regulations provides that CFM is not required to meet these requirements.

Paragraph 136(1)(c) of the Corporations Law would require CFM to lodge with the ASC a certified printed copy of its constitution. Paragraph 4(b) of the Regulations provides that lodgement of CFM's proposed memorandum and proposed articles, which CFM is required to lodge with the ASC under paragraph 10(1)(c) of the Act, constitutes compliance with 136(1)(c) of the Corporations Law.

Paragraph 136(1)(d) of the Corporations Law would require CFM to lodge with the ASC a statement with particulars of its share capital, shares issued and the surname, initials and address of its shareholders. As CFM in its current form would not be able to comply with this last requirement, and as the issue of shares to the sole shareholder, the Commonwealth of Australia, is determined by the Act, paragraph 4(c) of the Regulations provides that lodgement of a certificate with the ASC setting out the share capital of CFM and the number of shares of CFM issued under subsection 8(4) of the Act to the Commonwealth as sole shareholder constitutes compliance with paragraph 136(1)(d) of the Corporations Law.

The Regulations commence on the date of notification in the Commonwealth Gazette.