Corporations Amendment Regulations 2010 (No. 10)

Administered by Department of the Treasury

Legislation au F2010L03186 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 332

Issued by the authority of the Parliamentary Secretary to the Treasurer

 

Subject - Corporations Act 2001
 Corporations Amendment Regulations 2010 (No. 10)

 

 

Subsection 1364(1) of the Corporations Act 2001 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

Part 2C.1 of the Corporations Regulations 2001 (the Principal Regulations) contains provisions related to registers required to be maintained under Part 2C of Act.  A register of members is required to contain members’ names, postal addresses and shareholding details.

 

The Regulations amend the Principal Regulations to prescribe additional provisions relating to the registers of members.

 

The Regulations prescribe:

•                 the formats in which a copy of the register of a company or registered scheme should be provided;

•                 the proposed uses of a copy of the register which are considered improper and which enable a company or registered scheme to refuse to provide a copy;

•                 the information required in an application for a copy of a register of members; and

•                 a new tiered fee structure for the fee payable for a copy of a register.

 

The Regulations also correct a cross-referencing error and correct numbering errors in the Principal Regulations.

 

Details of the Regulations are set out in the Attachment.

 

Under the Corporations Agreement 2002, the Commonwealth must consult with and obtain the approval of the Ministerial Council for Corporations (the Council) before making amendments to certain provisions of the Principal Regulations.  The Council has approved the amendments and agreed to a reduction of the period of public consultation to three weeks.

 

The Act specifies no other conditions that need to be satisfied before the power to make the Regulations may be exercised.

 

The Regulations would be a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 


Details of the Corporations Amendment Regulations 2010 (No. 10)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the name of the Regulations is the Corporations Amendment Regulations 2010 (No. 10).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on the commencement of the Corporations Amendment (No 1) Act 2010.

 

Regulation 3 – Amendment of the Corporations Regulations 2001

 

This regulation provides that Schedule 1 amends the Corporations Regulations 2001 (the Principal Regulations).

 

Schedule 1– Amendments

 

Item [1]

 

Item 1 would amend the Principal Regulations to include the definition of prescribed financial market in regulation 2C.1.01, for the purposes of section 9.

 

Item [2]

 

Item 2 replaces existing Parts 2C.1 and 2C(2) with a new Part 2C.1, including new regulations 2C.1.01 to 2C.1.04.

 

Regulation 2C.1.01 provides that a notice of the address at which the register of a company or managed investments scheme is kept which is lodged with the Australian Securities and Investments Commission (ASIC) under subsection 172(2) of the Act, must be in a form approved by ASIC, where ASIC has approved a form.  This would enable ASIC to efficiently process this information at a low cost.

 

Regulation 2C.1.02 prescribes the format in which a copy of the register supplied under subsection 173(3) of the Act may be provided.  Regulation 2C.1.02 provides that a copy of the register must be provided as a delimited text file produced by a commercially available spreadsheet or database application and copied onto a CD-ROM or USB portable memory device.  This is to ensure that where a copy of the register is provided that it is able to be used easily, in a format such as a Microsoft Excel spreadsheet.

 

Regulation 2C.1.03 specifies the improper purposes for getting a copy of a register of members for the purposes of paragraph 173(3A)(b) of the Act.  The Corporations Amendment (No. 1) Act 2010 provides that a copy of a register of members cannot be provided where it is sought for a prescribed improper purpose.  Regulation 2C.1.03 prescribes as improper purposes: the solicitation of a donation from a member of a company; solicitation of a member of a company by a person who is authorised to use the word stockbroker or sharebroker in accordance with section 923B of the Act; gathering information regarding the personal wealth of a member of a company; and an offer or invitation to which Division 5A of Part 7.9 of the Act applies, which is concerned with unsolicited offers to purchase financial products off-market.

 

Regulation 2C.1.04 prescribes the information required to be included in an application for a copy of a register of members under paragraph 173(3A)(c) of the Act.  The prescribed information would be the name and address of the applicant.  Subsection 173(3A) of the Act also requires that an application state the purpose for which the copy of the register will be used.

 

Item [3]

 

Item 3 replaces the heading for Part 2C.3 with a new heading, Division 2C.1.3 Use of information on registers by bodies corporate to ensure that the provisions related to accessing and using information contained in a company register are clearly identifiable.

 

Item [4]

 

Item 4 to Schedule 1 renumbers regulation 2C.1.01 as 2C.3.01 for greater consistency between the Act and the Principal Regulations.

 

Item [5]

 

Item 5 amends Schedule 4 to the Principal Regulations to insert a new item 2A which provides for a tiered fee structure for copies of a register for the purposes of subsection 173(3) of the Act.  The prescribed fee would be $250.00, with an additional $0.05 per member for each member’s information that is provided in excess of 5,000 members, up to 19,999 members.  An additional fee of $0.01 per member applies for each member about whom information is provided in excess of 20,000 members.

 

Item [6]

 

Item 6 to Schedule 1 amends item 3 of Schedule 4 to the Principal Regulations to remove copies of the register provided for subsection 173(3) of the Act from the fee schedule, as these copies would now be subject to the fee in new item 2A.  The existing fee arrangements for copies of the register of relevant interests in subsection 372DA(8) of the Act would be retained.

Overview

The Corporations Amendment Regulations 2010 (No. 10) were introduced to provide additional clarity and regulation concerning the maintenance and use of company registers under the Corporations Act 2001. Enacted by the authority of the Parliamentary Secretary to the Treasurer, these regulations were made to address the need for more precise guidelines on the formats and purposes for which company registers can be accessed and used. The primary objective is to ensure the efficient processing of company register information and to protect against misuse of this data by imposing restrictions on improper purposes for accessing the register, such as soliciting donations or off-market financial product offers. These regulations also establish a new tiered fee structure for obtaining copies of company registers, replacing the previous fee schedule to reflect updated cost structures and company sizes. The Corporations Amendment Regulations 2010 (No. 10) amend the Corporations Regulations 2001 to prescribe specific formats for providing copies of company registers and to clarify the information required in applications for such copies. Additionally, they introduce a set of improper purposes for accessing company registers, thereby enabling companies to refuse requests that fall under these categories. The amendments were approved by the Ministerial Council for Corporations under the Corporations Agreement 2002, with a consultation period reduced to three weeks. These regulations aim to enhance the accessibility and utility of company register information while safeguarding against its misuse.

Scope and Application

The Corporations Amendment Regulations 2010 (No. 10) amend the Corporations Regulations 2001, implementing changes required by the Corporations Amendment (No 1) Act 2010. These amendments primarily affect the maintenance and provision of company member registers under the Corporations Act 2001, with a focus on enhancing efficiency, ensuring compliance, and safeguarding the privacy and interests of company members. The regulations apply to all companies and registered schemes that are required to maintain a register of members under the Corporations Act. The regulations are designed to streamline the process of obtaining and providing member register information, including the format in which copies must be provided and the conditions under which a company can refuse to provide a copy of the register. They also establish a tiered fee structure for providing copies of the register, reflecting the volume of information requested. The amendments are applicable across the Commonwealth of Australia, where the Corporations Act 2001 has jurisdiction. Notably, the regulations correct certain errors in the principal regulations and incorporate changes approved by the Ministerial Council for Corporations under the Corporations Agreement 2002. The regulations do not introduce any exclusions or exemptions to the requirements of the Corporations Act; instead, they clarify and refine the application of existing provisions to better serve the interests of companies and their members.

Key Provisions

The main operative sections of the Corporations Amendment Regulations 2010 (No. 10) pertain to the formats for providing copies of the register of members, the improper uses of such copies, the information required in an application for a copy, and a new tiered fee structure for these copies (regulations 2C.1.02, 2C.1.03, 2C.1.04, and item 2A of Schedule 4, respectively). The Regulations also correct cross-referencing and numbering errors within the Corporations Regulations 2001 (Principal Regulations) (Item 4 and Item 6 of Schedule 1). The Regulations impose several obligations on companies and registered schemes. Companies and registered schemes must ensure that any notice of the address at which the register is kept is in a form approved by the Australian Securities and Investments Commission (ASIC) (Regulation 2C.1.01). When providing a copy of the register, it must be in a specific format, such as a delimited text file copied onto a CD-ROM or USB portable memory device (Regulation 2C.1.02). Companies and registered schemes are also required to refuse to provide a copy if it is sought for an improper purpose, such as soliciting donations, gathering personal wealth information, or making unsolicited offers to purchase financial products (Regulation 2C.1.03). Furthermore, an application for a copy of the register must include the name and address of the applicant and state the purpose for which the copy will be used (Regulation 2C.1.04). Failure to comply with these Regulations may result in civil or criminal consequences. Although specific offences, penalties, or consequences are not detailed in the Explanatory Statement, the Corporations Act 2001 provides a framework for penalties for breaches of the Act and the Regulations. Civil penalties can include fines of up to $210,000 for individuals and $1,050,000 for bodies corporate, depending on the severity and nature of the breach. Criminal penalties may also apply, with maximum penalties including fines and imprisonment terms that vary according to the specific offence committed. It is important to consult the Corporations Act 2001 for detailed information on the applicable penalties for breaches of the Act and the Regulations.

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