EXPLANATORY STATEMENT
STATUTORY RULES NO.: 317
Issued by the authority of the Attorney-General
Companies (Fees) Regulations (Amendment)
1. 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.
2. Under clause 32 of the Formal Agreement, the National Companies and Securities Commission (‘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 (Formal Agreement, clauses 19 and 20).
3. The Companies (Fees) Act 1981, (‘the Act’), is an Act relating to fees payable for the purposes of the Companies Act 1981, which provides a law in relation to the formation and regulation of companies and other bodies in the Australian Capital Territory.
4. Under sub-section 4(1) of the Act there shall be fees payable to the Commonwealth for, inter alia, the lodgment and registration of documents with the NCSC, the production by the NCSC of any register kept by it, the issuing of copies of documents, the granting of licences, consents or approvals by the Ministerial Council or the NCSC under the Companies Act 1981, the making of inquiries of, or applications to, the Ministerial Council or the NCSC in relation to matters arising under the Companies Act 1981 and the submission to the NCSC of documents for examination.
5. The fees payable for the purposes of sub-section 4(1) of the Act are prescribed in the Schedule to the Companies (Fees) Regulations (‘the Regulations’).
6. 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.
7. Sub-section 5(1) of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing fees, not exceeding $1,000, for the purposes of sub-section 4(1) of the Act. Sub-section 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.
8. The purpose of the accompanying regulations is to amend Items 25 and 29 of the Schedule to the Regulations. These amendments are consequential on amendments to the Companies Act 1981 by the Companies and Securities Legislation (Miscellaneous Amendments) Act 1983 (‘the 1983 Act’).
Regulation 1 - Commencement
9. The Companies (Fees) Regulations (Amendment) shall come into operation on 1 January 1984. The provisions of the 1983 Act (other than Part I of the 1983 Act) are expected to be proclaimed to come into operation on the same date. Sub-section 2(1) of the 1983 Act provides that Part I of the 1983 Act (Preliminary) shall come into operation on the day on which the 1983 Act receives the Royal Assent.
10. The accompanying regulations are expressed to be made in pursuance of section 4 of the Acts Interpretation Act 1901. That section provides that where an Act that does not come into operation immediately upon is enactment amends another Act in such a manner that the other Act, as amended, will confer power to make regulations then, unless the contrary intention appears, that power may be exercised before the amending Act comes into operation. Any regulations made in pursuance of that power take effect on the day on which the amending Act comes into operation or on the day on which the regulations would have taken effect if the amending Act had been in operation when the regulations were made, whichever is the later.
Regulation 2 - Schedule
11. The Schedule to the Regulations is amended:
(a) by omitting the word “company” (first occurring) in Item 25 of the Schedule to the Regulations and by substituting the word “person” to reflect an
amendment to sub-section 167(1) of the Companies Act 1981 by section 62 of the 1983 Act whereby the NCSC may grant approval to a person (not just a company) acting as trustee or representative for the purposes of a deed; and
(b) by omitting Item 29 of the Schedule to the Regulations and by substituting a new Item 29 to reflect the omission of sub-section 176(1) of the Companies Act 1981 by section 66 of the 1983 Act and the insertion of a new section 215C of the Companies Act 1981 by section 68 of the 1983 Act. New section 215C of the Companies Act 1981 enables the NCSC to exercise powers of exemption in relation to the requirements of specified provisions of the Companies Act 1981 and regulations made for the purposes of specified provisions of the Companies Act 1981. In addition, new section 215C of the Companies Act 1981 empowers the NCSC to declare that these specified provisions and regulations shall have effect as if they were omitted, modified, or varied. The fee prescribed in respect of new Item 29 of the Regulations has been calculated to reflect the likely costs of administration of new section 215C of the Companies Act 1981.
12. The accompanying regulations are in accordance with the draft Companies (Fees) Regulations (Amendment) approved by the Ministerial Council for Companies and Securities.