Companies Amendment Act 1985

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Companies Amendment Act 1985

No. 140 of 1985

TABLE OF PROVISIONS

 

Section

1. Short title, &c.

2. Commencement

3. Persons having dealings with companies, &c.

4. Register of directors, principal executive officers and secretaries

5. Annual return

6. Repeal of section 264

7. Exemption of certain companies

8. Insertion of new section—

265a. Information in annual return deemed to satisfy certain other lodgment requirements

9. Profit and loss account, balance-sheet and group accounts

10. Insertion of new section—

275a. Commission may require company to lodge accounts, &c.

11. Failure to comply with Division

12. Exempt proprietary company need not appoint auditor in certain circumstances


Companies Amendment Act 1985

No. 140 of 1985

 

An Act to amend the Companies Act 1981

[Assented to 4 December 1985]

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

Short title, &c.

1. (1) This Act may be cited as the Companies Amendment Act 1985.

(2) The Companies Act 19811 is in this Act referred to as the Principal Act.

Commencement

2. (1) Sections 1 and 2 shall come into operation on the day on which this Act receives the Royal Assent.

(2) Sections 3 to 12 (inclusive) shall come into operation on a day to be fixed by Proclamation.

Persons having dealings with companies, &c.

3. Section 68a of the Principal Act is amended by omitting from paragraph (3) (b) “or with the Registrar of Companies under the” and substituting “or 263 or with the Registrar of Companies under a”.

Register of directors, principal executive officers and secretaries

4. Section 238 of the Principal Act is amended—

(a) by inserting in sub-section (9) “or section 263” after “under this section”; and

(b) by omitting from sub-section (10) “or lodged with the Registrar of Companies pursuant to a corresponding provision of a previous law of the Territory” and substituting “or section 263, or lodged with the Registrar of Companies pursuant to a provision of a previous law of the Territory with which this section corresponds”.

Annual return

5. Section 263 of the Principal Act is amended—

(a) by omitting sub-section (1) and substituting the following sub-sections:

“(1) A company shall, after the end of a financial year of the company and before the end of the period of one month commencing immediately after—

(a) unless paragraph (b) applies—the day of the annual general meeting of the company that is held in relation to that financial year; or

(b) if no annual general meeting of the company is held in relation to that financial year within the period within which section 240 requires it to be so held—the end of the last-mentioned period,

lodge with the Commission an annual return of the company in the prescribed form, containing a list of members and such other particulars as are prescribed and accompanied by the prescribed documents.

“(1a) The Commission may serve on a company a partly completed annual return of the company that is in the prescribed form and in which the Commission has set out particulars on the basis of information previously received by the Commission.

“(1b) Where the Commission, under sub-section (1a), serves on a company a partly completed annual return of the company in which the Commission has set out particulars (in this sub-section referred to as the ‘relevant particulars’), the company may—

(a) delete such (if any) of the relevant particulars as are incorrect and insert in the return as required the correct particulars of the matters to which the deleted particulars related; and

(b) complete and lodge the return in accordance with this Division,

and, if the company lodges the return with the Commission, the company shall be deemed, except for the purposes of sub-section (1a) and this sub-section, to have set out in the return such (if any) of the relevant particulars as the company has not deleted.”; and


(b) by adding at the end the following sub-sections:

“(4) Sub-sections (1), (1a) and (1b) of this section, as in force after the commencement of section 5 of the Companies Amendment Act 1985, apply in relation to a company in relation to a financial year of the company that ends at or after that commencement.

“(5) Notwithstanding the amendments made by sections 5 and 7 of the Companies Amendment Act 1985 and the repeal effected by section 6 of that Act, this Division, as in force immediately before the commencement of sections 5,6 and 7 of that Act, continues to apply in relation to a company in relation to a financial year of the company that ended before that commencement, and the forms that were, immediately before that commencement, the forms prescribed for the purposes of sub-section (1) of this section shall be deemed, for the purposes of this Act, to be the forms prescribed for the purposes of that sub-section as it applies by virtue of this sub-section.”.

Repeal of section 264

6. Section 264 of the Principal Act is repealed.

Exemption of certain companies

7. Section 265 of the Principal Act is amended by omitting from sub-section (1) “if there is included in the annual return a certificate by the secretary that the company is of a kind to which this sub-section applies”.

8. After section 265 of the Principal Act the following section is inserted in Division 5 of Part V:

Information in annual return deemed to satisfy certain other lodgment requirements

“265a. Where—

(a) a company is or was required by or under a provision of this Act to lodge a document with the Commission; and

(b) without having so lodged the document, the company lodges with the Commission in accordance with this Division an annual return of the company that sets out all the particulars that are or were required by or under that provision to be set out in the document,

then, for the purposes of this Act—

(c) the company shall be deemed to lodge the document with the Commission at the time when the company so lodges the annual return; and

(d) the document shall be deemed to consist of so much of the annual return as sets out the particulars referred to in paragraph (b).”.


Profit and loss account, balance-sheet and group accounts

9. Section 269 of the Principal Act is amended—

(a) by omitting from sub-section (9) “, before the auditor reports on the accounts under this Part,”;

(b) by omitting from sub-paragraph (9) (c) (ii) “and”;

(c) by inserting after paragraph (9) (c) the following paragraph:

“(ca) where the company, pursuant to section 279, did not appoint an auditor to audit the accounts—stating whether the company has, in respect of the financial year—

(i) kept such accounting records as correctly record and explain the transactions and financial position of the company;

(ii) kept its accounting records in such a manner as would enable true and fair accounts of the company to be prepared from time to time; and

(iii) kept its accounting records in such a manner as would enable the accounts of the company to be conveniently and properly audited in accordance with this Act,

and whether the accounts have been properly prepared by a competent person; and”;

(d) by inserting after sub-section (9) the following sub-section:

“(9a) The directors of a company shall comply with sub-section (9) in relation to accounts of the company—

(a) unless paragraph (b) applies—before the auditor reports on the accounts under this Part; or

(b) if the company, pursuant to section 278 or 279, did not appoint an auditor to audit the accounts—not less than 14 days before the annual general meeting of the company that is held in relation to the financial year of the company to which the accounts relate or, if no annual general meeting of the company is held in relation to that financial year within the period within which it is required by section 240 to be so held, not less than 14 days before the end of that period.”;

(e) by omitting from sub-section (10) “, before the auditor reports on the group accounts under this Part,”;

(f) by omitting from sub-paragraph (10) (c) (ii) “and”;

(g) by inserting after paragraph (10) (c) the following paragraph:

“(ca) where the company, pursuant to section 279, did not appoint an auditor to audit the group accounts—stating whether the group accounts have been properly prepared by a competent person; and”;

(h) by inserting after sub-section (10) the following sub-section:

“(10a) The directors of a holding company shall comply with sub-section (10) in relation to group accounts of the holding company—

(a) unless paragraph (b) applies—before the auditor reports on the group accounts under this Part; or

(b) if the holding company, pursuant to section 278 or 279, did not appoint an auditor to audit the group accounts—not less than 14 days before the annual general meeting of the holding company that is held in relation to the financial year of the holding company to which the group accounts relate or, if no annual general meeting of the holding company is held in relation to that financial year within the period within which it is required by section 240 to be so held, not less than 14 days before the end of that period.”;

(j) by omitting from sub-section (13) “This section, as amended and in force at any time” and substituting “Subject to sub-section (14), this section, as in force”; and

(k) by adding at the end the following sub-section:

“(14) Sub-sections (9) and (9a) of this section, as in force after the commencement of section 9 of the Companies Amendment Act 1985, apply in relation to a company in relation to accounts of the company that relate to a financial year of the company that ends at or after that commencement, and sub-sections (10) and (10a) of this section, as so in force, apply in relation to a holding company in relation to group accounts of the holding company that relate to a financial year of the holding company that ends at or after that commencement.”.

10. After section 275 of the Principal Act the following section is inserted:

Commission may require company to lodge accounts, &c.

“275a. (1) The Commission may, by notice in writing served on a company (not being an exempt proprietary company that is an unlimited company), require the company to lodge with the Commission a copy of the relevant documents of the company in relation to a specified financial year, or specified financial years, of the company.

“(2) Subject to sub-sections (3) and (4), a company on which the Commission has served a notice under sub-section (1) shall, within 14 days after receiving the notice, lodge with the Commission a copy of the relevant documents of the company in relation to the financial year of the company that is, or each of the financial years of the company that are, specified in the notice.

“(3) A company is not required to lodge a copy of a particular document with the Commission pursuant to a notice under sub-section (1) if the company has previously lodged the document, or a copy of the document, with the Commission.

“(4) A company is not required to lodge a copy of a particular document with the Commission pursuant to a notice under sub-section (1) if, as at the time when the notice is served, the document has not been made out, but, if the document is made out after that time, the company shall lodge a copy of the document with the Commission within 14 days after the document is made out.

“(5) In this section—

(a) a reference to the relevant documents of a company in relation to a financial year of the company is a reference to the documents copies of which section 275 requires the directors of the company to cause to be laid before the annual general meeting of the company that is required to be held in relation to that financial year; and

(b) a reference to a financial year of a company is a reference to a financial year of the company the company’s accounts relating to which were not required to be audited under this Part and includes a reference to such a financial year of the company that commenced before the commencement of section 10 of the Companies Amendment Act 1985”.

Failure to comply with Division

11. Section 276 of the Principal Act is amended by inserting in sub-section (1) “or 275a” after “267”.

Exempt proprietary company need not appoint auditor in certain circumstances

12. Section 279 of the Principal Act is amended by omitting sub-sections (5) and (6) and substituting the following sub-sections:

“(6) Where—

(a) a directors’ statement relating to accounts of a company contains a statement to the effect that, in respect of a financial year of the company—

(i) the company did not keep such accounting records as correctly record and explain the transactions and financial position of the company;

(ii) the company did not keep its accounting records in such a manner as would enable true and fair accounts of the company to be prepared from time to time; or

(iii) the company did not keep its accounting records in such a manner as would enable the accounts of the company to be conveniently and properly audited in accordance with this Act;

(b) a directors’ statement relating to accounts of a company contains a statement to the effect that the accounts have not been properly prepared by a competent person;

(c) a directors’ statement relating to group accounts of a holding company contains a statement to the effect that the group accounts have not been properly prepared by a competent person; or

(d) a director of a company or holding company is convicted of an offence under sub-section 563 (2) or 564 (1) in relation to a matter that, pursuant to paragraph 269 (9) (ca) or (10) (ca), has been stated in a directors’ statement relating to accounts of the company, or group accounts of the holding company, as the case may be,

there shall be deemed to be a vacancy in the office of the auditor of the company or holding company, as the case may be, and sub-section 280 (5) applies in relation to that vacancy.

“(6a) In sub-section (6)—

(a) a reference to a directors’ statement relating to accounts of a company is a reference to a statement that the directors of the company have, pursuant to sub-section 269 (9), caused to be attached to the accounts; and

(b) a reference to a directors’ statement relating to group accounts of a holding company is a reference to a statement that the directors of the holding company have, pursuant to sub-section 269 (10), caused to be attached to the group accounts.

“(6b) Sub-sections (6) and (6a) of this section, as in force after the commencement of section 12 of the Companies Amendment Act 1985, apply in relation to—

(a) accounts of a company that relate to a financial year of the company that ends at or after that commencement; and

(b) group accounts of a holding company that relate to a financial year of the holding company that ends at or after that commencement,

and, notwithstanding the amendments made by that section—

(c) sub-section (5) of this section, as in force immediately before that commencement, continues to apply in relation to—

(i) accounts of a company that relate to a financial year of the company that ended before that commencement; and

(ii) group accounts of a holding company that relate to a financial year of the holding company that ended before that commencement; and

(d) sub-section (6) of this section, as in force immediately before that commencement, continues to apply in relation to a company in relation to a financial year of the company that ended before that commencement.”.

 

NOTE

1. No. 89, 1981, as amended. For previous amendments, see No. 153, 1981; Nos. 26 and 80, 1982; No. 108, 1983; and No. 13, 1984.


[Minister’s second reading speech made in—

House of Representatives on 8 May 1985

Senate on 16 May 1985]

Overview

The Companies Amendment Act 1985 (No. 140 of 1985) was enacted to address various issues and gaps in the Companies Act 1981. This Act was introduced by the Queen, with the assent of the Senate and the House of Representatives of the Commonwealth of Australia, on 4 December 1985. The primary objective of this Act was to enhance and streamline the process of annual returns and financial reporting for companies, thereby improving compliance and transparency. The Act makes several amendments to the Companies Act 1981, including changes to the timing and process of lodging annual returns, the introduction of new sections to clarify the information required, and adjustments to the requirements for profit and loss accounts, balance sheets, and group accounts. Additionally, it empowers the Commission to require companies to lodge relevant financial documents and sets out penalties for failure to comply with these requirements. The aim is to ensure that companies maintain proper accounting records and provide accurate financial information, ultimately protecting the interests of stakeholders and enhancing corporate governance.

Scope and Application

The Companies Amendment Act 1985No. 140 of 1985 amends the Companies Act 1981, applying to all companies incorporated under the Principal Act and to any person or entity having dealings with these companies. It encompasses the entire Commonwealth of Australia, as it is a federal Act. The Act primarily modifies provisions concerning the annual return, the register of directors, principal executive officers, and secretaries, and the requirements for financial reporting, including profit and loss accounts, balance sheets, and group accounts. Certain companies are exempt from specific requirements under the Act, and the Act allows for the repeal of certain sections of the Principal Act, such as section 264. The scope of the Act is further extended through subordinate instruments which may provide additional regulations and requirements for compliance. Notably, the Act does not apply to exempt proprietary companies under specific circumstances, such as when they do not need to appoint an auditor.

Key Provisions

The Companies Amendment Act 1985No. 140 of 1985 amends the Companies Act 1981 by introducing several key provisions. Firstly, it modifies the provisions related to persons having dealings with companies, as outlined in section 3. It also amends the register of directors, principal executive officers, and secretaries, as stated in section 4. Moreover, the Act revises the requirements for annual returns, as detailed in section 5, and repeals section 264, as mentioned in section 6. Additionally, it exempts certain companies from specific requirements, as indicated in section 7. Furthermore, it introduces a new section, 265a, which addresses the information in annual returns deemed to satisfy certain other lodgment requirements. The Act also modifies the provisions related to profit and loss accounts, balance sheets, and group accounts, as specified in section 9. Furthermore, it inserts a new section, 275a, which grants the Commission the authority to require a company to lodge accounts and other relevant documents. The Companies Amendment Act 1985 imposes certain obligations and requirements on companies and their directors. Firstly, companies must lodge an annual return with the Commission within one month after the end of their financial year, as stipulated in section 5. This return must include a list of members and other particulars as prescribed, accompanied by the required documents. The Commission may provide a partly completed annual return to the company, which the company can then complete and lodge within the prescribed timeframe. Secondly, the Act requires companies to maintain proper accounting records and ensure that their accounts are prepared by a competent person, as outlined in section 9. Furthermore, directors must comply with the provisions related to profit and loss accounts, balance sheets, and group accounts, as stated in section 9a and section 10a. If a company fails to appoint an auditor, the directors must ensure that the accounts are properly prepared and audited within the specified timeframe. The Companies Amendment Act 1985 includes provisions for offences, penalties, and civil or criminal consequences for breaches. Firstly, failure to comply with the requirements for lodging annual returns or other relevant documents with the Commission may result in penalties, as mentioned in section 11. Additionally, if a company does not appoint an auditor and its directors fail to ensure that the accounts are properly prepared and audited, there may be consequences, as outlined in section 12. Furthermore, if a director of a company or holding company is convicted of an offence related to the preparation or audit of accounts, it may result in a vacancy in the office of the auditor, as stated in section 12. However, the specific penalties or consequences for breaches are not detailed in the Act itself and may be found in other relevant legislation.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.