Corporations (Fees) Regulations (Amendment) 1994 No. 303
EXPLANATORY STATEMENT
Statutory Rules 1994 No. 303
Issued by the Authority of the Attorney-General
Corporations Act 1989
Corporations (Fees) Regulations (Amendment)
Section 22 of the Corporations Act 1989 (the Act) empowers the Governor-General to make regulations not inconsistent with the Act or the Corporations Law of the Capital Territory (the Law) prescribing matters required or permitted by the Law to be prescribed by regulations or necessary or convenient to be prescribed by such regulations for carrying out or giving effect to the Law.
Section 25 of the Act provides that the regulations may prescribe fees (including fees that are taxes) for chargeable matters. Chargeable matters are defined in section 9 of the Law as:
(a) the lodgment, registration or submission for examination of documents under the Law;
(b) the inspection or search of registers kept by, or documents in the custody of, the Australian Securities Commission (the Commission), the production by the Commission under a subpoena of such registers or documents, and the issuing of documents or copies of documents by the Commission; and
(c) the making of inquiries of or applications to the Minister or the Commission in relation to a matter arising under the Law and the granting of licences, consents or approvals., or the doing of any other act under the Law, by the Minister or the Commission.
Subsection 26(2) of the Act provides that where a fee is prescribed as a stated amount that amount is not to exceed $5,000 while subsection 26(3) of the Act provides that two or more fees may be prescribed for the same chargeable matter.
Subsection 1352(1) of the Law adds the further provision that the upper limit on the aggregate amount of fees payable for a chargeable matter is $25,000.
The principal purpose of the Regulations is to amend the Corporations (Fees) Regulations (the Fees Regulations) by:
(a) prescribing fees for the purposes of the enhanced disclosure requirements contained in Schedule 1 of the Corporate Law Reform Act 1994 (the 1994 Act) and the fundraising provisions contained in Schedule 2 of the 1994 Act; and
(b) prescribing fees for lodging an application seeking approval of a body corporate as a securities clearing house and for giving notice of an amendment of the business rules of a securities clearing house.
In addition, a number of minor technical amendments have been made to regulation 3 of the Fees Regulations and Part 2 of the Schedule to the Fees Regulations.
Details of the accompanying Regulations are as follows.
Regulation 1: Amendment
This regulation provides that the Regulations amend the Corporations (Fees) Regulations.
Regulation 2: Regulation 3 (Prescribed fees)
This regulation substitutes a new regulation 3 for the existing regulation 3. The amendment, which is of a technical nature, inserts a heading "Prescribed Fees" immediately before the regulation.
Regulation 3: Schedule, Part 2 (Fees)
Subregulation 3.1 inserts five items, 9A to 9E, dealing with the fees that have to be paid by disclosing entities on the lodgment of financial statements:
(a) Items 9A and 9B prescribe the fees for disclosing entities that are neither companies nor undertakings (noncompanies). Item 9B sets a fee of $750 for the annual financial statements of a non-company. Item 9B also provides that no fee is payable on lodging the half-yearly financial statements of a non-company while item 9A provides that no fee is payable in respect of any annual p return that has to be lodged by a non-company if it has paid a fee under item 9B.
(b) Item 9C provides that a disclosing entity that is a company does not have to pay a fee on lodging either annual or half-yearly financial statements. However, such a company has to pay the fee set out in item 7 of Part 2 of the Schedule to the Fees Regulations (the Schedule) at the time it lodges its annual return.
(c) Items 9D and 9E prescribe the fees for disclosing entities that are undertakings. Item 9D sets a fee of $100 for lodging a management company return for an undertaking that is a disclosing entity. Item 9E provides that no fee is payable on lodging the half-yearly accounts of an undertaking that is a disclosing entity.
Prior to these amendments being made, paragraph 10(b) of the Schedule provided that no fee was payable for lodging a supplementary prospectus under section 1024 of the Corporations Law of the Australian Capital Territory (the Law). Under the amendments contained in the 1994 Act, a replacement or supplementary prospectus may be lodged under either section 1023B or section 1024 of the Law. Subregulation 3.2 amends paragraph 10(b) of the Schedule to provide that no fee is payable on lodging a replacement or supplementary prospectus under either section 1023B or section 1024 of the Law.
Section 1043B of the Law provides that a person must not offer unquoted securities of a corporation for purchase, or invite offers to buy such securities, unless the person has lodged a notice that complies with either section 1043C or section 1043D. Section 1043C sets out the requirements for the notice where the sale relates to at least 30% of the voting shares of a company while section 1043D sets out the requirements for a notice where section 1043C does not apply. Subregulation 3.3 inserts a new item 10A in the Schedule which prescribes a fee of $1,500 for a sale of shares under 1043C and a fee of $175 for a sale of other securities under section 1043D.
Subregulation 3.4 amends item 11 of the Schedule by changing the reference to 'item 11' to 'item 12'.
Subregulation 3.5 adds 'securities clearing house' to the list of organisations in item 16 of the Schedule. The fee for lodging an application for approval of a body as a securities clearing house is $1,000.
Subregulation 3.6 amends paragraph 16(d) of the Schedule by changing the reference to 'clearing house' to 'futures clearing house'.
Subregulation 3.7 amends item 17 of the Schedule by adding a new paragraph (aa). The effect of this amendment is that a fee of $100 is payable for giving notice of an amendment, or amendments, of the business rules of a securities clearing house. (All of the notices referred to in item 17 attract a fee of $100.)
Subregulation 3.8 amends paragraph 17(c) of the Schedule by changing the reference to 'clearing house' to 'futures clearing house'.
Subsection 776(2A) of the Law requires a securities exchange to lodge a statement relating to contraventions of the exchange's business or listing rules or the Corporations Law. Subregulation 3.9 provides that no fee is payable for lodging such a statement.
Subsection 1001B(1) requires an unlisted disclosing entity that becomes aware of price sensitive information that is not generally available to lodge a document containing the information. Subregulation 3.10 inserts a new item 43 in the Schedule which provides that no fee is payable for a document lodged by an unlisted disclosing entity under subsection 1001B(1).