EXPLANATORY STATEMENT
Statutory Rules 1990 No. 159
Issued by the Authority of the Attorney-General
Companies (Acquisition of Shares - Fees) Regulations (Amendment)
Subsection 5(1) of the Companies (Acquisition of Shares - Fees) Act 1980 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing fees, not in any case exceeding $1,000, for the purposes of subsection 4(1) of the Act. Subsection 5(2) of the Act provides that the power of the Governor-General to make regulations shall be exercised only in accordance with advice that is consistent with resolutions of the Ministerial Council for Companies and Securities (the Council).
2. The Council was established under an Agreement between the Commonwealth and the States, executed on 22 December 1978 (the Agreement), that provides the framework for a co-operative Commonwealth-State scheme for a uniform system of law and administration in relation to company law and the regulation of the securities and futures industries in the six States, the Australian Capital Territory and the Northern Territory of Australia.
3. Under subclause 45(1) of the Agreement, the Council may consider a proposal for the amendment of regulations made under the Commonwealth Acts enacted for the purpose of the co-operative companies and securities scheme. Should the Council approve any draft amending regulation which gives effect to such a proposal, the Commonwealth is then required, under subclause 45(2) of the Agreement, to submit the draft regulation to the Federal Executive Council for making by the Governor-General.
4. The accompanying Regulations are in accordance with a resolution made by the Council.
5. The purpose of the Regulations is to amend the Companies (Fees) Regulations (the Regulations) by substituting a new Schedule of fees for the Schedule of fees that came into operation on 1 July 1989. The fees in the new Schedule have generally been increased in line with the movement in the Consumer Price Index between the December quarters of 1988 and 1989 (i.e. 7.8%).
6. Details of the accompanying Regulations are as follows.
Regulation 1: Commencement
7. This regulation prescribes 1 July 1990 as the date on which the proposed amendments to the Regulations will come into operation.
Regulation 2; Schedule
8. This regulation inserts in the Regulations a new Schedule of fees that are payable for the purposes of subsection 4(1) of the Act. Subsection 4(1) of the Act provides that there shall be paid to the Commonwealth such fees (if any) as are prescribed in respect of the following matters arising from the National Companies and Securities Commission’s administration of the Companies (Acquisition of Shares) Act 1980 -
(a) the lodgment, registration or submission (for examination) of documents;
(b) the inspection or search of registers kept by, or documents in the custody of, the Commission, the production of such registers or documents pursuant to a subpoena, and the issuing of documents or copies of documents; and
(c) the making of inquiries or applications (of or to the Council or the Commission) and the granting of licences, consents or approvals (by the Council or the Commission).
9. The new Schedule provides for the following levels of fees:
| Old Fees | | New Fees | |
| $ | | $ | |
| 80 | | 85 | |
| 170 | | 185 | |
| 420 | | 450 | |
| 1,000 | | 1,000 | |
10. To obtain the new level of fees, the old fees were increased by 7.8% (being the increase in the Consumer Price Index between the December quarter of 1988 - on which the old fees were based - and the December quarter of 1989) and rounded as follows:
• between $50 and $200 - to the nearest $5; and
• over $200 - to the nearest $10.
11. The fee of $1,000 payable on lodging a copy of a Part A statement and proposed offer under subsection 18(1) of the Companies (Acquisition of Shares) Act 1980 was not determined in accordance with the formula set out above. This fee could not be increased because the Act imposes an upper limit of $1,000 on the level of fees that can be prescribed.
Overview
The Companies (Acquisition of Shares - Fees) Regulations (Amendment) Statutory Rules 1990 No. 159 were enacted to align the fees associated with certain administrative activities under the Companies (Acquisition of Shares - Fees) Act 1980 with the movement in the Consumer Price Index. This amendment was introduced to ensure that the fees remained reflective of the economic conditions and inflationary trends at the time, thereby maintaining the fairness and practicality of the fee structure. The regulations were issued under the authority of the Attorney-General and in accordance with a resolution made by the Ministerial Council for Companies and Securities, which was established to facilitate a uniform system of company law and regulation across Australia. The policy objective behind these amendments was to adjust the fees in a manner consistent with economic changes, ensuring that the regulatory costs did not disproportionately burden companies while also providing adequate resources for the administration of company law.
Scope and Application
The Companies (Acquisition of Shares - Fees) Regulations (Amendment) Statutory Rules 1990 No. 159, issued under the authority of the Attorney-General, amend the Companies (Fees) Regulations to adjust the fees payable for certain administrative activities related to the acquisition of shares by companies. The fees are prescribed under the Companies (Acquisition of Shares - Fees) Act 1980 and apply to various matters including the lodgment, registration, or submission of documents, the inspection or search of registers and documents, and the making of inquiries, applications, and the granting of licences, consents, or approvals by the Council or the Commission. These fees are generally increased in line with the movement in the Consumer Price Index between the December quarters of 1988 and 1989, which was 7.8%. The new fees are determined by increasing the old fees by 7.8% and rounding them to the nearest $5 for amounts between $50 and $200, and to the nearest $10 for amounts over $200. The Act applies to the Commonwealth, states, territories, and the national jurisdiction, in accordance with the Ministerial Council for Companies and Securities. The Regulations came into effect on 1 July 1990.
Key Provisions
The Companies (Acquisition of Shares - Fees) Regulations (Amendment) 1990 amend the existing Companies (Fees) Regulations by introducing a new Schedule of fees (Regulation 2). This amendment adjusts the fees payable for certain activities under the Companies (Acquisition of Shares) Act 1980. The activities include the lodgment, registration or submission of documents (subsection 4(1)(a) of the Act), the inspection or search of registers and documents (subsection 4(1)(b) of the Act), and the making of inquiries or applications and the granting of licences, consents or approvals (subsection 4(1)(c) of the Act). The fees have been increased to align with the movement in the Consumer Price Index between the December quarters of 1988 and 1989, which was 7.8%.
The Act requires that any changes to the fees must be made through regulations, and these regulations must be made in accordance with advice consistent with resolutions of the Ministerial Council for Companies and Securities (subsection 5(1) and (2) of the Act). The proposed amendments to the Regulations were made in line with a resolution of the Council, and the new fees are set out in the amended Schedule (Regulation 2). The fees have been rounded to the nearest $5 for amounts between $50 and $200, and to the nearest $10 for amounts over $200. The maximum fee remains at $1,000, as prescribed by the Act.
Entities and individuals who engage in activities covered by the amended Regulations must pay the new fees as specified in the Schedule. This includes those lodging a copy of a Part A statement and proposed offer under subsection 18(1) of the Companies (Acquisition of Shares) Act 1980, which remains at $1,000 due to the statutory upper limit. Failure to pay the prescribed fees for the specified activities may result in non-compliance with the Act, which could lead to legal consequences depending on the specific circumstances.
There are no specific offences, penalties, or consequences outlined in the Explanatory Statement for failure to comply with the amended Regulations. However, non-compliance with the Act or failure to pay the prescribed fees could potentially lead to legal action or other enforcement measures by the relevant authorities. The maximum penalty for contravening the Act or its regulations would depend on the specific provision breached and the nature of the contravention.