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:
| Old Fees | | New Fees | |
| $ | | $ | |
| 1 | | 1 | |
| 5 | | 5 | |
| 6 | | 6 | |
| 9 | | 10 | |
| 10 | | 11 | |
| 11 | | 12 | |
| 12 | | 13 | |
| 13 | | 14 | |
| 16 | | 17 | |
| 26 | | 28 | |
| 34 | | 37 | |
| 42 | | 45 | |
| 50 | | 55 | |
| 60 | | 65 | |
| 70 | | 75 | |
| 80 | | 85 | |
| 100 | | 110 | |
| 130 | | 140 | |
| 135 | | 145 | |
| 170 | | 185 | |
| 195 | | 210 | |
| 240 | | 260 | |
| 340 | | 370 | |
| 420 | | 450 | |
| 500 | | 540 | |
| 830 | | 890 | |
| 1,000 | | 1,000 | |
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.
Overview
The Companies (Fees) Regulations (Amendment) Statutory Rules 1990 No. 158 were enacted to update the fees prescribed under the Companies (Fees) Act 1981. This amendment was introduced to address the need for updating fees to reflect changes in the Consumer Price Index. The Regulations were made under the authority of the Governor-General, in accordance with a resolution by the Ministerial Council for Companies and Securities, which was established under an Agreement between the Commonwealth and the states to facilitate a uniform system of company law and securities regulation across Australia. The primary policy objective of these Regulations is to adjust fees to account for inflation, ensuring that the fee structure remains fair and reflective of current economic conditions.
The Regulations prescribe new fees for various services provided by the National Companies and Securities Commission under the Companies Act 1981, such as the lodgment and registration of documents, inspections, and the issuance of licenses. The new fees were determined by increasing the existing fees by 7.8%, which corresponds to the movement in the Consumer Price Index between December 1988 and December 1989, and rounding them according to specified criteria. Notably, the maximum fee of $1,000, which applies to the submission of a proposed prospectus or statement offering prescribed interests to the public, was not increased due to the statutory cap.
Scope and Application
The Companies (Fees) Regulations (Amendment) Statutory Rules 1990 No. 158, issued under the authority of the Attorney-General, pertain to the regulation of fees for various services provided by the National Companies and Securities Commission under the Companies (Fees) Act 1981. The Act applies to entities that require the registration of documents, the inspection or search of company registers and documents, and the processing of applications and the issuance of licenses, consents, or approvals by the Council or the Commission. The fees are applicable nationwide, reflecting the collaborative approach to company law and securities regulation among the Commonwealth, states, and territories as established by the Agreement. The new fees were determined in accordance with the Consumer Price Index, with the maximum fee not exceeding $1,000, as mandated by the Act. This amendment, which came into effect on 1 July 1990, was made pursuant to a resolution of the Ministerial Council for Companies and Securities and approved by the Federal Executive Council.
Key Provisions
The main operative sections of the Companies (Fees) Regulations (Amendment) Statutory Rules 1990 No. 158 (the Regulations) are Regulation 1, which specifies the commencement date of 1 July 1990, and Regulation 2, which introduces a new Schedule of fees to replace the existing fees that came into effect on 1 July 1989 (section 7 and 8). The new fees are generally increased by 7.8%, reflecting the Consumer Price Index movement between the December quarters of 1988 and 1989, and are rounded as per specified criteria (section 10). Notably, the fee of $1,000 for submitting a proposed prospectus or statement under section 170 of the Companies Act 1981 remains unchanged due to a statutory upper limit (section 11).
The Regulations impose specific obligations and requirements on parties subject to the fees. Companies and individuals must adhere to the new fee structure, ensuring that they pay the correct fee for the relevant services provided by the National Companies and Securities Commission. These services include the lodgment, registration, or submission of documents, the inspection or search of registers or documents, and the making of inquiries or applications for licenses, consents, or approvals (section 4(1)(a)-(c)). The Council's approval and the subsequent submission to the Federal Executive Council for the Governor-General's making of these Regulations ensure that the amendments are consistent with the co-operative scheme for uniform company law and administration (section 2 and 4).
Breach of the requirements to pay the correct fees as prescribed by the Regulations may result in civil or administrative consequences. Companies and individuals failing to pay the correct fee may face penalties or be subject to enforcement actions by the relevant authorities. The specific penalties for non-compliance are not detailed in the Regulations but typically would include fines or other administrative sanctions under the governing Acts and associated legislation.
The maximum penalties for offences under the Companies (Fees) Act 1981 are not explicitly stated in the Regulations but are generally aligned with the penalties for similar offences under company law and administrative regulations. These penalties can include fines up to a significant amount, reflecting the seriousness of non-compliance with regulatory requirements. Criminal sanctions may apply in cases of wilful or repeated breaches, depending on the severity and intent behind the non-compliance.