Companies (Fees) Regulations (Amendment)

EXPLANATORY STATEMENT

STATUTORY RULES 1987 NO. 82

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL

COMPANIES (FEES) REGULATIONS (AMENDMENT)

Sub-section 5(1) of the Companies (Fees) Act 1981 (“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 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 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 sub-clause 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 sub-clause 45(2) of the agreement, to submit the draft regulations to the Federal Executive Council for making by the Governor-General.

4. The accompanying regulations are identical in form and substance to draft regulations approved 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 1986.

6. Details of the accompanying regulations are as follows.

Regulation 1: Commencement

7. This regulation prescribes 1 July 1987 as the date on which 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 sub-section 4(1) of the Act. That sub-section provides:

“4(1) There shall be paid to the Commonwealth for or in respect of -

(a) the lodgment of documents with the Commission under the Companies Act 1981;

(b) the registration of documents under that Act or the inspection or search of registers kept by, or documents in the custody of, the Commission under that Act;

(c) the production by the Commission, pursuant to a subpoena, of any register kept by, or documents in the custody of, the Commission under that Act;

(d) the issuing of documents or copies of documents, the granting of licences, consents or approvals or the doing of other acts or things by the Ministerial Council or the Commission under that Act;

(e) the making of inquiries of, or applications to, the Ministerial Council or the Commission in relation to matters arising under that Act; and

(f) the submission to the Commission of documents for examination by the Commission,

such fees (if any) as are prescribed.”

9. Subject to the exceptions set out in the final paragraph, the new Schedule provides for the following levels of fees:

10. To obtain the new levels of fees, the old fees were increased by 9.8% (being the increase in the Consumer Price Index between the December quarter of 1985 - on which the old fees are based - and the December quarter of 1986) and rounded as follows:

• below $50 - to the nearest dollar;

• between $50 and $200 - to the nearest $5; and

• over $200 - to the nearest $10.

11. The following fees were not determined in accordance with the formula set out above:

• the fee payable on the submission of a proposed prospectus has been increased from $660 to $1,000 in order to recoup a larger proportion of the costs associated with the examination of such documents;

• the fee payable on the submission of a proposed statement under section 170 of the Companies Act (i.e. offering prescribed interests - such as units in a fixed trust - to the public) has been increased from $660 for each statement to $1,000 for each class of prescribed interest offered in a statement in

order to recoup a larger proportion of the costs associated with the examination of such documents; and the fees of $20 and $13 for the lodgment of an annual return of a company holding a licence under section 66 of the Companies Act (i.e. charitable and social organisations) and some other companies which, although not having a section 66 licence, are otherwise similar to such companies, have not been increased.