Corporations (Fees) Amendment Regulations 2002 (No. 2) 2002 No. 146
EXPLANATORY STATEMENT
Statutory Rules 2002 No. 146
Issued by the Authority of the Parliamentary Secretary to the Treasurer
Corporations (Fees) Act 2001
Corporations (Fees) Amendment Regulations 2002 (No. 2)
Section 8 of the Corporations (Fees) Act 2001 (the Act) provides that the Governor-General may make regulations for the purposes of sections 5 and 6 of that Act.
Section 5 provides that, subject to section 6 of the Act, regulations may prescribe fees for chargeable matters and two or more fees may be prescribed for the same chargeable matter. Fees prescribed by the regulations are imposed as taxes.
Section 6 of the Act provides, inter alia, that the regulations may prescribe a fee of an amount not exceeding $5 000 for a chargeable matter (subsection 6(1)), except for a chargeable matter referred to in paragraph (1) or (k) of subsection 4(1), for which a fee may not exceed $25 000 (subsection 6(3)).
Subsection 4(1) defines "chargeable matters". They include lodging documents under the Corporations Act 2001; inquiring or applying to the Minister, or to the Australian Securities and Investments Commission (ASIC), in relation to a matter arising under that Act; or the doing of any act by the Takeovers Panel in dealing with applications to the Panel under that Act.
The purpose of the proposed Regulations is to amend the Corporations (Fees) Regulations 2001 to increase fees for chargeable matters, as defined in the Act. Whilst the increases to these fees will not fully recover the true costs involved, they are a significant step toward a "user pays" system of ASIC servicing.
None of the fees set out in the proposed Regulations exceeds the $5 000 limit referred to in subsection 6(1) of the Act for a fee that is stated as a prescribed amount. Where two or more fees apply in respect of the same chargeable matter, the total of those fees does hot exceed the upper limit of $25 000 referred to in subsection 6(3).
Fees for lodging annual returns of proprietary companies and small transferring financial institutions would remain at their current level of $200.
The responsible State and Northern Territory Ministers on the Ministerial Council for Corporations have been consulted about the proposed Regulations as required by clause 505 of the Corporations Agreement reached between State, Northern Territory and Commonwealth Ministers who had responsibilities in relation to corporate regulation in June 1990. The approval of the Ministerial Council is not required for amendments to regulations relating to fees.
Details of the proposed Regulations are set out in the Attachment.
The proposed Regulations would commence on 1 July 2002.
ATTACHMENT
Regulation 1: Name of Regulations
Regulation 1 provides that the Regulations are the Corporations (Fees) Amendment Regulations 2002 (No. 2).
Regulation 2: Commencement
Regulation 2 provides that the Regulations commence on 1 July 2002.
Regulation 3: Amendment of Corporations (Fees) Regulations 2001
Regulation 3 provides that Schedule 1 amends the Corporations (Fees) Regulations 2001.
Schedule 1: Amendments
Item 1 - Schedule
The purpose of the proposed regulations is to amend the Corporations (Fees) Regulations 2001 to increase fees in line with the recommendations of the Expenditure Review Committee in April 2002.
The changes in quantum of fees are set out in the following table:
Provision | Omit each
mention of ($) |
Insert ($) |
Subparagraph 5 (a) (i) | 720 | 740 |
Paragraph 22 (b) | 300 | 900 |
Paragraph 23 (b) | 210 | 500 |
Paragraph 24 (b) | 120 | 300 |
Paragraph 28 (a) | 60 | 65 |
Paragraph 28 (b) | 240 | 260 |
Overview
The Corporations (Fees) Amendment Regulations 2002 (No. 2) were enacted to align with the Corporations (Fees) Act 2001, providing a framework for the imposition of fees for various chargeable matters related to corporate regulation in Australia. The regulations were introduced to address the need for fee adjustments that reflect the costs associated with administering corporate laws while moving towards a more sustainable "user pays" system. The enacting body responsible for these regulations is the Governor-General, under the authority granted by Section 8 of the Corporations (Fees) Act 2001. The primary policy objective is to ensure that fees prescribed under the regulations contribute significantly to the operational costs of entities such as ASIC, without exceeding the statutory limits set by the Act. The increases in fees, although not fully recovering the true costs, represent a substantial step towards achieving a more balanced financial model for the regulation of corporations in Australia.
Scope and Application
The Corporations (Fees) Amendment Regulations 2002 (No. 2) are designed to modify the Corporations (Fees) Regulations 2001 by increasing fees associated with various chargeable matters under the Corporations (Fees) Act 2001. The Act applies to corporations, their directors, and other entities as defined under the Corporations Act 2001, as well as to individuals and businesses lodging documents and making inquiries or applications under the Act. The fees pertain to actions such as lodging annual returns, making inquiries with ASIC, and applying to the Takeovers Panel, among others. These amendments are intended to partially shift the costs of ASIC's services to a user-pays model. The amendments are effective nationally, as they apply to the Commonwealth jurisdiction. The fees outlined in the Regulations do not exceed the prescribed limits, with a maximum of $5,000 for most chargeable matters and $25,000 for specific matters. The Regulations were developed following consultations with relevant Ministers, and they will come into effect on 1 July 2002. The changes in fees are implemented in line with recommendations from the Expenditure Review Committee in April 2002.
Key Provisions
The Corporations (Fees) Amendment Regulations 2002 (No. 2) (referred to in the Explanatory Statement as the "Regulations") are designed to amend the Corporations (Fees) Regulations 2001 by increasing fees for various chargeable matters as defined in the Corporations (Fees) Act 2001 (the "Act") (sections 1(1) and 3). These chargeable matters include lodging documents under the Corporations Act 2001, inquiring or applying to the Minister or the Australian Securities and Investments Commission (ASIC) in relation to matters arising under that Act, or the doing of any act by the Takeovers Panel in dealing with applications to the Panel under that Act (section 4(1) of the Act). The Regulations aim to enhance a "user pays" system of ASIC servicing by adjusting the fees, although they do not fully recover the true costs involved (section 8 of the Act).
The Regulations impose certain obligations and requirements on the parties or entities governed by them. Specifically, they mandate that fees for chargeable matters are imposed as taxes and that the fees prescribed by the regulations are subject to the limits specified in the Act (section 5 and 6 of the Act). Notably, the Regulations ensure that none of the fees exceed the $5,000 limit for a prescribed amount, as outlined in subsection 6(1) of the Act, and that the total of fees for the same chargeable matter does not exceed the upper limit of $25,000 referred to in subsection 6(3) (section 6 of the Act). Furthermore, the fees for lodging annual returns of proprietary companies and small transferring financial institutions remain unchanged at $200 (Schedule 1 of the Regulations).
The Regulations do not explicitly outline specific offences, penalties, or civil or criminal consequences for breaches. However, given that the fees prescribed by the regulations are imposed as taxes, it is reasonable to infer that non-compliance with these fee requirements could potentially lead to civil or criminal consequences under the broader tax and regulatory framework in Australia. Such consequences may include fines or other penalties as stipulated in the relevant Acts and regulations governing taxation and corporate law.
The Regulations are set to commence on 1 July 2002, as specified in Regulation 2 (Schedule 1 of the Regulations). The responsible State and Northern Territory Ministers on the Ministerial Council for Corporations have been consulted about the proposed Regulations, as required by clause 505 of the Corporations Agreement. However, the approval of the Ministerial Council is not necessary for amendments to regulations relating to fees. The detailed changes and new fee amounts are outlined in Schedule 1 of the Regulations.