Corporations (Commonwealth Authorities and Officers) Regulations (Amendment) 1991 No. 311
EXPLANATORY STATEMENT
STATUTORY RULES 1991 No. 311
Issued by the Authority of the Attorney-General
Corporations Act 1989
Corporations (Commonwealth Authorities and Officers) Regulations (Amendment)
Section 73 of the Corporations Act 1989 (the Act) empowers the Governor-General to make regulations, not inconsistent with the Act, prescribing matters which are required or permitted by the Act, or necessary or convenient to be prescribed for carrying out or giving effect to the Act (other than Part 5).
Section 47 of the Act permits the making of Regulations under section 73 to provide that prescribed authorities and officers of the Commonwealth have prescribed functions and powers that are expressed to be conferred on them by or under corresponding laws.
The purpose of the Regulations is to rectify a technical error in the drafting of the Regulations made under sections 47 and 73 of the Act by omitting the definition of 'corresponding law' in regulation 2.
Details of the Regulations are at Attachment A.
Attachment A
Regulation 1
Commencement
This regulation provides for regulation 3 to commence on 1 January 1991. The regulation rectifies a technical error in the Corporations (Commonwealth Authorities and Officers) Regulations, and it is desirable, in the interests of commercial certainty, that its operation commence from the date when those Regulations first came into force, being 1 January 1991.
Subsection 48(2) of the Acts Interpretation Act 1901 provides that a regulation expressed to operate retrospectively has no effect where, if the regulation so took effect:
(a) the rights of a person (other than the Commonwealth or an authority of the Commonwealth) existing at the date of notification, would be affected in a manner prejudicial to that person; or
(b) liabilities would be imposed on any person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitting to be done before the date of notification.
Advice has been obtained from the Chief General Counsel that the defect in regulation 2, which the amending Regulations correct, is an obvious error which would be recognised by the Courts as such. In consequence the Regulations would be operative notwithstanding the defect in regulation 2. The amendment to correct the technical error in the drafting of the Regulations does not, therefore, adversely affect the rights of persons or impose additional liabilities and does not contravene subsection 48(2) of the Acts Interpretation Act 1901.
Regulation 2
Amendment
This regulation states that the Corporations (Commonwealth Authorities and Officers) Regulations are amended as set out in these Regulations.
Regulation 3
Read literally the Corporations (Commonwealth Authorities and Officers) Regulations might have been regarded as inoperative in consequence of the defining of 'corresponding law' in regulation 2 as a corresponding law within the meaning of section 58 of the Corporations Law, rather than section 38 of the Corporations Act 1989. As noted above, however, the Chief General Counsel has advised that this literal defect in the provisions would have been regarded by the Courts as an obvious error and the Regulations would have been operative despite the error.
Amending regulation 3 puts the matter beyond doubt by correcting the defect and omitting the definition of 'corresponding law'. In consequence, the definition of corresponding law in section 38 of the Corporations Act will apply.
Overview
The Corporations (Commonwealth Authorities and Officers) Regulations (Amendment) 1991 No. 311 were enacted to correct a technical error in the Corporations (Commonwealth Authorities and Officers) Regulations, ensuring the regulations operate as intended without any adverse effect on existing rights or liabilities of individuals or entities. The problem identified was a drafting error in the definition of 'corresponding law' within the regulations, which, if left uncorrected, could have potentially rendered the regulations inoperative. The amendment was authorised under section 73 of the Corporations Act 1989, with the objective of ensuring the regulations are consistent with the Act and do not create any unforeseen legal issues. The regulation was issued by the authority of the Attorney-General and commenced on 1 January 1991 to maintain commercial certainty from the original date of the regulations' enforcement. The advice from the Chief General Counsel confirmed that the error would be recognised as such by the courts, thus allowing the regulations to remain effective despite the defect.
Scope and Application
The Corporations (Commonwealth Authorities and Officers) Regulations (Amendment) 1991 No. 311 serves to amend the existing Corporations (Commonwealth Authorities and Officers) Regulations under the Corporations Act 1989. The primary objective of this amendment is to rectify a technical drafting error in the original Regulations, specifically by omitting the incorrect definition of 'corresponding law' from regulation 2. This omission ensures that the definition of 'corresponding law' as outlined in section 38 of the Corporations Act 1989 is correctly applied. The Regulations are applicable to prescribed authorities and officers of the Commonwealth, ensuring that their functions and powers, as conferred by or under corresponding laws, are clearly and accurately defined. These Regulations operate nationally across Australia, aligning with the scope and intent of the Corporations Act 1989, which is a Commonwealth statute. The amendment does not introduce new exclusions, exemptions, or thresholds but rather ensures the accuracy and operational effectiveness of the existing framework.
Key Provisions
The Corporations (Commonwealth Authorities and Officers) Regulations (Amendment) 1991 No. 311 aims to amend the Corporations (Commonwealth Authorities and Officers) Regulations to correct a technical drafting error (reg. 3). Specifically, it removes the definition of 'corresponding law' in regulation 2, allowing the definition in section 38 of the Corporations Act 1989 to apply. Regulation 1 specifies that the amendment commences on 1 January 1991, the date when the original Regulations came into force (reg. 1). The purpose is to ensure commercial certainty and rectify an obvious error that would have been recognised as such by the Courts (reg. 3).
The Regulations impose obligations on prescribed authorities and officers of the Commonwealth by clarifying their functions and powers, as expressed in corresponding laws (s. 47). By omitting the incorrect definition of 'corresponding law', the Regulations ensure that these authorities and officers operate in accordance with the Corporations Act 1989, maintaining consistency with the broader legislative framework (reg. 3). The omission of the incorrect definition avoids any potential confusion or inoperability of the Regulations, ensuring that the intended functions and powers are correctly conferred (reg. 3).
There are no specific offences, penalties, or consequences outlined in the Regulations for breaches of the amended provisions. However, any failure to comply with the corrected functions and powers as defined by the Corporations Act 1989 could result in legal challenges or actions under the Act. The primary focus of the Regulations is to correct the technical error and ensure the smooth operation of the relevant provisions, rather than imposing penalties for non-compliance (reg. 3). The advice from the Chief General Counsel confirms that the technical error does not adversely affect the rights of persons or impose additional liabilities, aligning with the provisions of the Acts Interpretation Act 1901 (reg. 3).