EXPLANATORY STATEMENT
Subject - Corporations Amendment (Phoenixing and Other Measures) Act 2012
Corporations Amendment (Phoenixing and Other Measures) Proclamation 2012
The Corporations Amendment (Phoenixing and Other Measures) Act 2012 (the Act) amends the Corporations Act 2001 (the Corporations Act) to:
• introduce an administrative process for compulsory external administration to facilitate payment of employee entitlements where a company has been abandoned;
• include a regulation-making power for the Governor-General to prescribe methods of publication of notices relating to events before, during and after the external administration of a company; and
• to make other minor and technical amendments.
Sections 1 to 3 give effect to preliminary matters.
Part 1 of Schedule 1 amends the Corporations Act to provide the Australian Securities and Investments Commission (ASIC) with a discretionary power to place a company into liquidation where:
• ASIC otherwise has the power to deregister the company;
• the company has not paid its annual review fee within one year of the fee being due;
• ASIC has reinstated the registration of a deregistered company; or
• ASIC has reason to believe that the company is no longer carrying on business and there is no objection to the company being placed into liquidation.
Part 2 of Schedule 1 amends the Corporations Act to repeal print media advertising and gazettal requirements and instead create a regulation making power to facilitate the future provision of all external administration notices via a single website.
The amendments contained in Part 1 of Schedule 1 give effect to the Government’s election commitment, as announced as part of the Protecting Workers’ Entitlements package, to provide ASIC with an administrative power to order the winding up of companies that have been abandoned by the directors. One of the aims of this measure was to assist employees of companies abandoned by their directors to receive payments from the General Employee Entitlements and Redundancy Scheme (GEERS).
A transition from newspaper notices to electronic publication on a single website administered by ASIC was recommended by the Corporations and Markets Advisory Committee in its 2008 report, Issues in External Administration.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Authority: Subsection 2(1) of the
Corporations Amendment
(Phoenixing and Other Measures)
Act 2012
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Corporations Amendment (Phoenixing and Other Measures) Proclamation 2012
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The purpose of the proclamation is to set the commencement for the Corporations Amendment (Phoenixing and Other Measures) Act 2012 at 1 July 2012.
Human rights implications
This Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.