EXPLANATORY STATEMENT
Select Legislative Instrument 2010 No. 272
Subject - Corporations Act 2010
Corporations Amendment Regulations 2010 (No. 8)
The Corporations Act 2001 (the Act) and the Corporations Regulations 2001 (the Principal Regulations) provide for the regulation of corporations and financial markets, products and services.
Subsection 1364(1) of 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.
The purpose of the Amending Regulations is to protect the name of Mary MacKillop from commercial exploitation by individuals or corporations who have no connection to her.
Paragraph 147(1)(c) of the Act provides that a name is unavailable to a body corporate if the name is a name which is declared by the Principal Regulations to be unacceptable for registration, unless Ministerial consent is granted under subsection 147(2).
Subregulation 2B.6.01(2) of the Principal Regulations provides that a name is unacceptable for registration if it is unacceptable under the rules set out in Part 2 of Schedule 6 to the Principal Regulations.
Paragraph 6203(e) of Schedule 6 to the Principal Regulations provides that a name is unacceptable for registration if, in the context in which it is proposed to be used, it suggests a connection with one of the listed groups of people or organisations and that connection does not exist.
The Amending Regulations add the name “Mary MacKillop” to the list of people or organisations under paragraph 6203(e) of Schedule 6.
Under the Corporations Agreement 2002, the Commonwealth must consult with and obtain the approval of the Ministerial Council for Corporations before making amendments to certain provisions of the Corporations Regulations. The Council was consulted and has approved the Amending Regulations and waived the period of public consultation.
The Act does not specify any other conditions that need to be satisfied before the power to make the Amending Regulations may be exercised.
The Amending Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003. The Amending Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
Overview
The Corporations Amendment Regulations 2010 (No. 8) were enacted to address the issue of the commercial exploitation of the name "Mary MacKillop" by individuals or corporations with no legitimate connection to her. The Act was introduced by the Australian Parliament to amend the Corporations Act 2001 and the Corporations Regulations 2001, aiming to regulate corporations and financial markets, products, and services. The policy objective of these regulations is to prevent the misuse of significant historical and religious figures' names by entities that lack a genuine affiliation with their legacy, thereby protecting the integrity and sanctity associated with such names. The Corporations Amendment Regulations 2010 (No. 8) specifically target the commercial misuse of "Mary MacKillop's" name by adding it to the list of unacceptable names for corporate registration under the Corporations Regulations, unless Ministerial consent is obtained.
Scope and Application
The Corporations Amendment Regulations 2010 (No. 8) are a legislative instrument designed to prevent the commercial exploitation of the name "Mary MacKillop" by entities unconnected to her legacy. This regulation applies to all corporations and bodies corporate that seek to register a company name under the Corporations Act 2001. It is imperative that any entity proposing to use the name "Mary MacKillop" in their corporate title must obtain Ministerial consent, unless they can demonstrate a genuine connection to Mary MacKillop. This regulation extends across the Commonwealth of Australia and is enforced under the purview of the Corporations Act 2001 and the Corporations Regulations 2001. The Amending Regulations were made in accordance with the legislative framework that allows the Governor-General to prescribe matters necessary for carrying out or giving effect to the Act. They became effective on the day after their registration on the Federal Register of Legislative Instruments.
Key Provisions
The Corporations Amendment Regulations 2010 (No. 8) introduce specific provisions under the Corporations Act 2001, particularly focusing on the protection of the name "Mary MacKillop" from commercial exploitation. Section 1364(1) of the Act allows the Governor-General to make regulations necessary for carrying out or giving effect to the Act. This legislative instrument adds the name "Mary MacKillop" to the list of unacceptable names for registration under subregulation 2B.6.01(2) of the Corporations Regulations 2001. This addition is made to ensure that any corporate entity using the name "Mary MacKillop" must have a genuine connection to her legacy, as outlined in paragraph 6203(e) of Schedule 6 to the Principal Regulations.
The Regulations impose obligations on entities seeking to register a corporate name. Under section 147(1)(c) of the Act, a name is deemed unacceptable if it suggests a connection with a listed group of people or organisations, unless such a connection exists. This means that any corporation must verify and demonstrate a legitimate association with Mary MacKillop if they intend to use her name. Failure to do so would result in the name being declared unacceptable for registration, and thus, the corporation would be unable to proceed with its registration unless it obtains Ministerial consent as per subsection 147(2) of the Act.
Breaching these provisions can lead to significant legal consequences. The misuse of the name "Mary MacKillop" by corporations without proper consent or connection could result in the refusal of registration or the requirement to change the corporate name. While the specific penalties for such breaches are not detailed in the Amending Regulations, the broader context of the Corporations Act implies that severe penalties, including fines and potential criminal charges, could be applicable. These penalties are designed to enforce compliance with the Act's intent to protect the integrity of notable figures such as Mary MacKillop from commercial exploitation by unconnected entities. The Regulations, having been approved by the Ministerial Council for Corporations, come into effect on the day after their registration on the Federal Register of Legislative Instruments.