EXPLANATORY STATEMENT
Select Legislative Instrument 2010 No. 56
Issued by the Authority of the Minister for Financial Services, Superannuation and Corporate Law
Corporations (Fees) Act 2001
Corporations (Fees) Amendment Regulations 2010 (No. 1)
Section 8 of the Corporations (Fees) Act 2001 (the Fees Act) provides that the Governor‑General may make regulations for the purposes of sections 5, 5A and 6 of the Fees Act, which deal with the imposition of fees for things done under the Act.
The Corporations Act 2001 (the Act) was recently amended by the Corporations Legislation Amendment (Financial Services Modernisation) Act 2009 (Modernisation Act) in relation to a number of financial services matters, including the regulation of debentures.
Complementary regulations have been made to prescribe the way in which the register is established or maintained, including the details that must be entered into the register by ASIC. Those regulations are known as the Corporations Amendment Regulations 2010 (No. 1).
In providing the register, ASIC is providing the public with access to the quarterly report which the borrower must provide to the trustee and ASIC under section 283BF of the Act. In providing this access, these regulations amend the Corporations (Fees) Regulations 2001 to set out that ‘no fee’ will be prescribed for this purpose.
Details of the Regulations are set out in Attachment A.
Public consultation on an exposure draft of the then Corporations Legislation Amendment (Financial Services Modernisation) Bill 2009 occurred in May/June 2009. The details to be included in the regulations were also considered as part of that process. Further consultation on the draft regulations was undertaken from 21 August 2009 for a four‑week period. No comments were received.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
ATTACHMENT A
Details of the Corporations (Fees) Amendment Regulations 2010 (No. 1)
Regulation 1 – Name of Regulations
This regulation provides that the name of the Regulations is the Corporations (Fees) Amendment Regulations 2010 (No. 1).
Regulation 2 – Commencement
This regulation provides that the Regulations commence on the day after they are registered.
Regulation 3 – Amendment of Corporations (Fees) Regulations 2001
This regulation provides that the Corporations (Fees) Regulations 2001 are amended as set out in Schedule 1.
Schedule 1 – Amendment
Item [1] – Schedule 1, after item 30
Item 1 inserts a new item 30AB in Schedule 1 – Fees, to provide that no fee applies for inspecting, or an enquiry involving the inspection of, a quarterly report lodged with ASIC which must be provided to the trustee by the borrower as required under the Act. This access is available to persons via the register relating to trustees for debenture holders.
Overview
The Corporations (Fees) Amendment Regulations 2010 (No. 1) were enacted to address a gap in the regulatory framework concerning the fees associated with accessing quarterly reports related to debentures, following amendments to the Corporations Act 2001 by the Corporations Legislation Amendment (Financial Services Modernisation) Act 2009. These regulations were issued under the authority of the Minister for Financial Services, Superannuation and Corporate Law, with the intent to ensure that the implementation of the new legislative requirements does not impose additional financial burdens on stakeholders. The objective of these regulations is to facilitate public access to the quarterly reports which borrowers must provide to trustees and the Australian Securities and Investments Commission (ASIC), ensuring that this critical information remains accessible without charge. The regulations amend the Corporations (Fees) Regulations 2001 to specify that no fee will be applied for the inspection of these reports.
Scope and Application
The Corporations (Fees) Amendment Regulations 2010 (No. 1) apply to the Corporations (Fees) Act 2001, which allows the Governor-General to make regulations concerning the imposition of fees for actions carried out under the Act. These regulations specifically amend the Corporations (Fees) Regulations 2001 to establish that no fee will be prescribed for inspecting or inquiring about a quarterly report lodged with the Australian Securities and Investments Commission (ASIC) that must be provided to the trustee by the borrower as mandated by the Corporations Act 2001. This applies to all entities and individuals involved in the lodging and inspection of these quarterly reports, primarily within the financial services sector. The regulations are designed to enhance public access to information regarding debenture holders through the register maintained by ASIC. The amendments apply nationally and are applicable to all entities and individuals subject to the Corporations Act 2001, ensuring consistent application across Australia. The regulations are a legislative instrument under the Legislative Instruments Act 2003 and come into effect the day after they are registered on the Federal Register of Legislative Instruments.
Key Provisions
The Corporations (Fees) Amendment Regulations 2010 (No. 1) amend the Corporations (Fees) Regulations 2001, establishing specific provisions concerning fees for certain activities under the Corporations (Fees) Act 2001 (Fees Act). Regulation 3, through Schedule 1, introduces a new fee item, 30AB, which specifies that no fee will be prescribed for inspecting, or making an enquiry involving the inspection of, a quarterly report lodged with the Australian Securities and Investments Commission (ASIC). This report, which must be provided to the trustee by the borrower as required under the Corporations Act 2001, is now accessible to the public through the register relating to trustees for debenture holders (Schedule 1, item 1). This access is intended to provide greater transparency and facilitate public access to information concerning debenture holders.
The obligations imposed by these Regulations are primarily on ASIC and the trustees of debentures. ASIC must ensure that the register is established and maintained in accordance with the amended regulations, including ensuring that the quarterly reports from borrowers are made publicly accessible without any fee. Trustees, on the other hand, are required to submit the quarterly reports to ASIC as mandated by section 283BF of the Corporations Act 2001. These reports must contain the necessary details to facilitate the public's access via the register.
Breaches of the provisions in these Regulations may lead to both civil and criminal consequences. For instance, if ASIC fails to maintain the register as required or if trustees do not submit the quarterly reports, they could face enforcement actions under the Corporations Act 2001. This may include penalties for non-compliance, which can be substantial depending on the severity and intent of the breach. While specific maximum penalties are not detailed in the Explanatory Statement, they could include fines or other sanctions as provided under the relevant sections of the Corporations Act 2001. In cases where the breach is deemed to be a criminal offence, individuals or entities could face criminal penalties, including imprisonment, depending on the nature and impact of the breach.