EXPLANATORY STATEMENT
STATUTORY RULES 1982 No.131
Issued by the authority of the Attorney-General
AMENDMENT OF THE COMPANIES
(ACQUISITION OF SHARES - FEES) REGULATIONS
On 22 December 1978 the Commonwealth and the States executed a Formal 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 industry in the six States and the Australian Capital Territory. The Agreement is set out in the Schedule to the National Companies and Securities Commission Act 1979 (NCSC Act). The purpose of the NCSC Act is to establish the National Companies and Securities Commission (NCSC).
Under clause 32 of the Formal Agreement, the NCSC is to have responsibility for the entire area of policy and administration with respect to company law and the regulation of the securities industry, subject to directions by the Ministerial Council for Companies and Securities. The Ministerial Council consists of Commonwealth and State Ministers responsible for administering the law relating to companies and the regulation of the securities industry, or their delegates, or Ministers acting in their office. (Formal Agreement, clauses 19 and 20).
Under sub-clause 45(1) of the Formal Agreement, the Ministerial Council may consider a proposal for the amendment of regulations made under the Commonwealth Acts enacted for the purposes of the co-operative scheme. Should the Ministerial Council approve any draft amending regulation which gives effect to such a proposal, the Commonwealth is then required, under sub-clause 45(2) of the Agreement, to submit the draft regulation to the Federal Executive Council for making by the Governor-General.
The Companies (Acquisition of Shares - Fees) Act 1980 sets out the circumstances in which fees will be charged in relation to the Companies (Acquisition of Shares) Act. The Companies (Acquisition of Shares) Act regulates the acquisition of shares by a person who holds between 20% and 90% of the voting shares of a company or whose holding would increase to more than 20% after an acquisition.
The Companies (Acquisition of Shares - Fees) Regulations set out the fees to be charged in relation to various applications and lodgments made under the Companies (Acquisition of Shares) Act 1980.
Proposed Item 15A prescribes a fee of $100 in relation to making an application to the NCSC for permission to issue a profit forecast under paragraph 57(3)(a) of the Companies (Acquisition of Shares) Act 1980.
Proposed Item 16A prescribes a fee of $100 in relation to making an application to the NCSC for permission to issue statements on asset valuations under paragraph 38(2)(a) of the Companies (Acquisition of Shares) Act 1980.
A fee of $50 is presently prescribed by Items 16 and 17 of the Schedule to the Companies (Acquisition of Shares - Pees) Regulations in relation to making an application to the NCSC for permission to make a profit forecast or a statement on asset valuations in a report that accompanies a Part B statement under paragraph 37(3)(b) or 38(2)(b) of the Companies (Acquisition of Shares) Act 1980. The proposed Regulations increase that fee to $100 to be in line with the fee prescribed by proposed Items 15A and 16A.
The Ministerial Council has passed the following resolution:
“Resolved that pursuant to clause 45 of the Formal Agreement that the draft Companies (Acquisition of Shares - Fees) Regulations (Amendment) (S.R. No. 98/82) being as set out in the print dated 11th May, 1982, be approved.”
Overview
The Statutory Rules 1982 No. 131, known as the Companies (Acquisition of Shares - Fees) Regulations 1982, was enacted to amend the fees associated with certain applications under the Companies (Acquisition of Shares) Act 1980. This regulation was introduced in response to the need for updated fee structures for applications related to profit forecasts and asset valuations as part of the broader co-operative scheme for uniform company law and securities regulation across Australia. This scheme, formalised through the National Companies and Securities Commission Act 1979, involves both Commonwealth and State governments working together to administer these laws. The Ministerial Council for Companies and Securities, comprising relevant ministers from the Commonwealth and States, approved the draft amending regulation, which was then submitted to the Federal Executive Council for endorsement by the Governor-General. The primary objective of this regulation is to align the fees for certain applications with the current regulatory environment, ensuring consistency and fairness in the fees charged for specific services under the Act.
Scope and Application
The Companies (Acquisition of Shares - Fees) Regulations, as amended by the Statutory Rules 1982 No. 131, govern the fees associated with applications and lodgments made under the Companies (Acquisition of Shares) Act 1980. These regulations apply to any person or entity seeking to make applications to the National Companies and Securities Commission (NCSC) for specific permissions related to the acquisition of shares. This includes entities or individuals who hold between 20% and 90% of the voting shares of a company or whose holdings would exceed 20% after an acquisition. The scope of the Act extends across the Commonwealth, states, and territories as part of a uniform system of law and administration for company law and securities regulation established under the Formal Agreement. The regulations also apply to transactions involving the issuance of profit forecasts and asset valuation statements, with specific fees prescribed for these activities. The fees range from $50 to $100, depending on the nature of the application, and are designed to align with the costs of administering these processes. The Ministerial Council has approved the proposed amendments, which are set to be enacted through the Federal Executive Council.
Key Provisions
The primary operative sections of the Companies (Acquisition of Shares - Fees) Regulations (Amendment) (S.R. No. 98/82) include the introduction of new fees for specific applications under the Companies (Acquisition of Shares) Act 1980. Specifically, Proposed Item 15A introduces a fee of $100 for applications to the National Companies and Securities Commission (NCSC) for permission to issue a profit forecast (section 57(3)(a) of the Companies (Acquisition of Shares) Act). Similarly, Proposed Item 16A introduces a fee of $100 for applications to the NCSC for permission to issue statements on asset valuations (section 38(2)(a) of the Companies (Acquisition of Shares) Act). These provisions aim to standardise the fees associated with certain types of applications, aligning them with the fees set for other related applications. Additionally, the proposed amendments increase the fee from $50 to $100 for applications related to profit forecasts or asset valuation statements in reports accompanying a Part B statement, as outlined in Items 16 and 17 of the Schedule to the existing Regulations (section 37(3)(b) and 38(2)(b) of the Companies (Acquisition of Shares) Act).
The Companies (Acquisition of Shares - Fees) Regulations (Amendment) (S.R. No. 98/82) impose specific obligations and requirements on entities applying for permission to issue profit forecasts or asset valuation statements under the Companies (Acquisition of Shares) Act 1980. Applicants must now pay the prescribed fees as set out in the amended Regulations. This includes the new fee of $100 for applications related to profit forecasts and asset valuation statements, and the increased fee of $100 for related applications accompanying Part B statements. These amendments require applicants to ensure they meet the financial obligations by submitting the appropriate fee with their application to the NCSC. Failure to comply with these fee requirements may result in the application being deemed incomplete or invalid.
The Companies (Acquisition of Shares - Fees) Regulations (Amendment) (S.R. No. 98/82) do not explicitly outline specific offences, penalties, or consequences for breach within the text. However, it is implied that failure to pay the prescribed fees or submit incomplete applications may result in the NCSC not processing the application, which could lead to delays or denials in the acquisition process. Although the text does not detail maximum penalties, breaches of such requirements could potentially lead to administrative actions or further regulatory consequences under the broader Companies (Acquisition of Shares) Act 1980 or other relevant legislation. Compliance with the fee structure and application requirements is therefore crucial to avoid any potential disruptions in the acquisition process.