EXPLANATORY STATEMENT
STATUTORY RULES 1986 NO. 152
ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL
COMPANIES REGULATIONS (AMENDMENT)
1. Section 577 of the Companies Act 1981 (“the Act”) provides in sub-section (1) that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that are necessary or convenient to be prescribed for carrying out or giving effect to the Act. Sub-section 577(2) of the Act provides that the power of the Governor-General to make regulations shall be exercised only in accordance with the 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 (“the agreement”), executed on 22 December 1978, 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.
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. (a) The purpose of accompanying regulation 4 is to amend CR regulation 21 to declare Flinders University of South Australia or prescribed university for the purposes of the Act.
(b) The purpose of accompanying regulation 5(b) is to amend CR regulation 22 to declare South Australian College of Advanced Education a prescribed institution for the purposes of the Act.
(c) The purpose of the remaining accompanying regulations is to make amendments to the Companies Regulations (‘CR’) consequent upon the Northern Territory becoming a party to the Co-operative Companies and Securities Scheme. The Northern Territory Application of Laws legislation, which had been approved by the Ministerial Council, was approved by the Northern Territory Legislative Assembly on 18 June 1986 with a commencement date of 1 July 1986.
6. Details of the accompanying regulations are set out as follows:
Regulation 1: Commencement
7. The date for commencement of the accompanying Regulations is 1 July 1986 which is the date agreed upon by the Ministerial Council for the entry of the Northern Territory into the Co-operative Companies and Securities Scheme.
Regulation 2: Definition of “authorized trustee corporation”
8. The purpose of the regulation is to amend CR regulation 14 by adding a new paragraph (xb) declaring ‘Public Trustee for the Northern Territory’, a corporation established by the
Public Trustee Act 1979 of the Northern Territory, to be an “authorized trustee corporation”.
9. Sub-section 5(1) of the Act provides that, unless the contrary intention appears, “authorized trustee corporation” means a body corporate that is declared by the Regulations to be an “authorized trustee corporation”. Section 192 of the Act provides that in respect of a transfer of marketable securities by an “authorized trustee corporation” to the beneficial owner of the marketable securities, a simplified instrument of transfer may be used.
CR regulation 14 lists those bodies corporate declared to be an “authorized trustee corporation” for the purposes of the Act.
Regulation 3: Prescribed offices under sub-paragraph 8(8)(a)(ii) of the Act
10. The purpose of the regulation is to amend CR regulation 17 by adding new paragraphs to prescribe certain offices for the purposes of sub-paragraph 8(8)(a)(ii) of the Act.
New paragraph (zf) declares the office of the Public Trustee for the Northern Territory, established under the Public Trustee Act 1979 of the Northern Territory, a prescribed office for the purposes of sub-paragraph 8(8)(a)(ii) of the Act.
New paragraph (zg) declares the office of the Treasurer of the Northern Territory a prescribed office for the purposes of sub-paragraph 8(8)(a)(ii) of the Act.
New paragraph (zb) declares the office of the Commissioner for Corporate Affairs, established under section 4 of the Companies (Administration) Act 1986 of the Northern Territory, a prescribed office for the purposes of sub-paragraph 8(8)(a)(ii) of the Act.
New paragraph (zi) declares the office of the Master of the Supreme Court of the Northern Territory a prescribed office for the purposes of sub-paragraph 8(8)(a)(ii) of the Act.
11. Sub-paragraph 8(8)(a)(ii) of the Act provides that a relevant interest in a share shall be disregarded for the purposes of Division 4 of Part IV and sections 230,’231 and 232 if the relevant interest is that of a person who has it by reason of his holding a prescribed office. CR regulation 17 lists those offices declared to be a prescribed office for the purposes of sub-paragraph 8(8)(a)(ii) of the Act.
12. CR regulation 17 is also amended by omitting sub-regulation (2) which is no longer necessary in view of the application of section 40, in conjunction with sub-section 33(2), of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980.
Regulation 4; Prescribed universities
13. The purpose of the regulation is to amend CR regulation 21 by adding a new paragraph (ba) after paragraph (b) declaring Flinders University of South Australia a prescribed university for the purposes of sub-paragraph 18(2)(a)(ii) or 20(2)(a)(ii) of the Act.
14. Sub-paragraphs 18(2)(a)(ii) and 20(2)(a)(ii) provide that where an application for registration as an auditor or liquidator is made under section 17 of the Act, the Commission shall grant the application and register the applicant as an auditor or liquidator if the applicant holds a degree, diploma or certificate from a prescribed university or another prescribed institution in Australia and has passed examinations in such subjects, under whatever name, as the appropriate authority of the university or other institution certifies to the Commission to represent a course of study in accountancy (including auditing) of not less than 3 years’ duration and in commercial law (including company law) of not
less than 2 years’ duration. CR regulation 17 lists those universities declared to be prescribed universities for the purposes of sub-paragraph 18(2)(a)(ii) or 20(2)(a)(ii) of the Act.
CR regulation 21 lists those universities which are prescribed universities for the purposes of the Act.
Regulation 5: Prescribed institutions
15. The purpose of the regulation is to amend CR regulation 22 by adding a new paragraph (ja) offer paragraph (j) declaring Darwin Institute of Technology a prescribed institution for the purposes of sub-paragraph 18(2)(a)(ii) or 20(2)(a)(ii) of the Act.
16. CR regulation 22 is also amended by adding a new paragraph (xa) after paragraph (x) to declare Souch Australian College of Advanced Education a prescribed institution for the purposes of sub-paragraph 18(2)(a)(ii) or sub-paragraph 20(2)(a)(ii) of the Act.
17. Sub-paragraph 18(2)(a)(ii) and 20(2)(a)(ii) provide that where an application for registration as an auditor or liquidator is made under section 17 of the Act, the Commission shall grant the application and register the applicant as an auditor or liquidator if the applicant holds a degree, diploma or certificate from a prescribed university or another prescribed institution in Australia and has passed examinations in such subjects, under whatever name, as the appropriate authority of the university or other institution certifies to the Commission to represent a course of study in accountancy (including auditing) of not less than 3 years’ duration and in commercial law (including company law) of not less than 2 years’ duration. CR regulation 22 lists those institutions which are prescribed institutions for the purposes of the Act.
Registration 6; Prescribed authorities for the purposes of sub-section 227(3)
18. The purpose of the regulation is to amend CR regulation 54A by adding a new paragraph (ea) after paragraph (e) declaring the Secretary, Department of Correctional Services of the Northern Territory, a prescribed authority for the purposes of sub-section 227(3) of the Act.
19. Sub-section 227(3) provides that in any proceeding for an offence against sub-section 227(2), a certificate by a prescribed authority stating that a person was released from prison on a specified date is prima facie evidence that that person was released from prison on that date. CR regulation 54A lists those authorities which are prescribed authorities for the purposes of the Act.