Commonwealth Bank (Conversion into Public Company) Regulations 1991 No. 56
EXPLANATORY STATEMENT
STATUTORY RULES 1991 No. 56
ISSUED BY THE AUTHORITY OF THE TREASURER
COMMONWEALTH BANKS ACT 1959
COMMONWEALTH BANK (CONVERSION INTO PUBLIC COMPANY) REGULATIONS
Section 129 of the Commonwealth Banks Act 1959 (the Act) provides that regulations may be made for the purposes of the Act.
The provisions of the Commonwealth Banks Restructuring Act 1990 (the Restructuring Act), once proclaimed, have the effect of converting the Commonwealth Bank under the name Commonwealth Bank of Australia into a public company on 17 April 1991.
Subsection 27C(2) of the Commonwealth Banks Act 1959 (the Act), which comes into effect on 2 April 1991, provides that, subject to the regulations, the CBA's application to the Australian Securities Commission (ASC) 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 equivalent subsections in the Corporations Law, which has succeeded the Companies Act 1981, are subsections 133(1) and 136(1) respectively.
The CBA is not in a position to comply with the requirements under subsections 133(1) and 136(1) of the Corporations Law for two reasons. First, many of the requirements are not applicable to the CBA because it is currently a statutory corporation rather than a company. Second, the remaining requirements are not relevant to the CBA because they apply to the case where a corporation is registered in a foreign jurisdiction.
The Regulations are based on the precedent set by similar regulations that were necessary to convert the Overseas Telecommunications Commission into a company.
Subsection 136(1) of the Corporations Law requires that the application to the ASC in order to be registered as a company be made under subsection 133(1) in the prescribed form. The prescribed form is Form 202 of the Corporations Regulations. As the CBA is presently 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 4 of the Regulations specifies a registration form applicable to the CBA. It enables the CBA 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 to be accompanied by a current certificate of incorporation (or like document) in the applicant's place of origin. Because the CBA cannot comply with this requirement, paragraph 5(a) of the Regulations provides for the CBA to lodge a certificate signed by its Managing Director relating to its status under the Act and the provision for it to be converted into a public company.
Paragraph 136(1)(a) of the Corporations Law requires the CBA to produce certain evidence to the ASC to the effect that it complies with the prerequisite conditions of eligibility for registration prescribed in sections 134 and 135 of the Corporations Law. Because these conditions are not applicable to the CBA, paragraph 5(b) of the Regulations provides for the CBA to lodge a certificate with the ASC to the effect that its registration is authorised under the Act and that the CBA has complied with the requirements of the Act for registration as a public company under the name "Commonwealth Bank of Australia".
Paragraph 136(1)(c) of the Corporations Law would require the CBA to lodge with the ASC a certified printed copy of its constitution. Paragraph 5(c) in the Regulations provides for the CBA's Memorandum and Articles of Association, which the CBA is required to lodge with the ASC under paragraph 27C(1)(c) of the Act, to be taken to be compliance with paragraph 136(1)(c) of the Corporations Law.
Paragraph 136(1)(d) of the Corporations Law requires the CBA 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 the CBA in its current form cannot 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 5(d) of the Regulations provides for the CBA to lodge a certificate with the ASC to the effect that there has been compliance with the requirements of the Act.
The Regulations commenced on 2 April 1991. This date was chosen because the section 27C of the Act also commenced on 2 April 1991.
Overview
The Commonwealth Bank (Conversion into Public Company) Regulations 1991 were enacted to address the specific needs of converting the Commonwealth Bank (CBA) from a statutory corporation into a public company, as mandated by the Commonwealth Banks Restructuring Act 1990. These regulations were introduced by the authority of the Treasurer, under the provisions of the Commonwealth Banks Act 1959, and came into effect on 2 April 1991. The primary objective of these regulations is to facilitate the CBA’s transition into a public company by accommodating the unique circumstances of its current statutory status, which differs from the requirements typically applicable to companies registered under the Corporations Law. This transition required the CBA to provide specific documentation to the Australian Securities Commission (ASC), tailored to its status as a statutory corporation, which differs from the standard requirements for companies. The regulations ensure that the CBA can comply with the necessary legal requirements for registration as a public company, despite its unique circumstances.
Scope and Application
The Commonwealth Bank (Conversion into Public Company) Regulations 1991 apply to the Commonwealth Bank of Australia (CBA), which is undergoing a conversion from a statutory corporation to a public company pursuant to the Commonwealth Banks Restructuring Act 1990. These Regulations, which commenced on 2 April 1991, provide specific exemptions and requirements for the CBA's registration under the Corporations Law, addressing the unique circumstances of the CBA's conversion. The Regulations amend the standard registration requirements of the Corporations Law to accommodate the CBA's status as a statutory corporation and its conversion process. For example, instead of providing a certificate of incorporation, the CBA must submit a certificate signed by its Managing Director, confirming its status and conversion. Similarly, the CBA must lodge a certificate with the Australian Securities Commission (ASC) affirming compliance with the Commonwealth Banks Act 1959. These regulations ensure that the CBA meets the necessary legal requirements for its registration as a public company while acknowledging its distinctive circumstances during the conversion process.
Key Provisions
The primary operative sections of the Commonwealth Bank (Conversion into Public Company) Regulations 1991 (the Regulations) include provisions that facilitate the transition of the Commonwealth Bank of Australia (CBA) from a statutory corporation to a public company under the Corporations Law (subsection 27C(2) of the Commonwealth Banks Act 1959). Specifically, section 5 of the Regulations details the documentation required for the CBA's application to the Australian Securities Commission (ASC) for registration as a company. This involves submitting a specific registration form, a certificate signed by the Managing Director concerning the CBA's status and conversion, a certificate attesting to compliance with the prerequisite conditions of eligibility for registration, and a certificate confirming compliance with the requirements of the Act. These provisions ensure that the CBA can fulfil its obligations under the Corporations Law despite its unique status and circumstances.
The Regulations impose several obligations and requirements on the CBA. Foremost, the CBA must submit a tailored registration form (as specified in the Schedule to the Regulations) that aligns as closely as possible with the requirements of Form 202 under the Corporations Regulations. Additionally, the CBA must provide a certificate signed by its Managing Director to attest to its status under the Act and its eligibility for conversion into a public company. Furthermore, the CBA must furnish a certificate confirming compliance with the Corporations Law's eligibility prerequisites and another certificate confirming adherence to the Act's requirements for registration as a public company. These obligations ensure that the CBA can successfully transition to a public company while complying with relevant legal frameworks.
Breach of the requirements set out in the Regulations can result in various legal consequences. While the Regulations do not explicitly outline specific offences or penalties, failure to comply with the Corporations Law's registration requirements could lead to the CBA's application being rejected by the ASC. This, in turn, might result in the CBA not being registered as a public company, which could have significant legal and operational repercussions. Given the critical nature of these requirements, non-compliance could potentially lead to legal actions or administrative penalties as prescribed under the Corporations Law. Additionally, any failure to adhere to the Act's provisions for conversion could result in the CBA facing legal challenges or being subject to corrective measures by the relevant authorities.