Companies (Fees) Regulations (Amendment)

EXPLANATORY STATEMENT

Statutory Rules 1990 No. 158

Issued by the Authority of the Attorney-General

Companies (Fees) Regulations (Amendment)

Subsection 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 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 Act 1981 -

(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:

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:

• below $50 - to the nearest dollar;

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

• over $200 - to the nearest $10.

11. The fee of $1,000 payable on the submission of a proposed prospectus or a proposed statement under section 170 of the Companies Act 1981 (i.e. offering prescribed interest - such as units in a fixed trust - to the public) 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.