Corporations (Review Fees) Amendment Regulations 2003 (No. 1)

Administered by Department of the Treasury

Legislation au F2003B00387 Regulations Not in force Legislative Instrument

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Corporations (Review Fees) Amendment Regulations 2003 (No. 1) 2003 No. 370

EXPLANATORY STATEMENT

Statutory Rules 2003 No. 370

Issued by the Authority of the Parliamentary Secretary to the Treasurer

Subject       - Corporations (Review Fees) Act 2003

Corporations (Review Fees) Amendment Regulations 2003 (No. 1)

Under amendments to the Corporations Act 2001 (the Corporations Act) and the Corporations (Fees) Act 2001 (the Corporations (Fees) Act) made by the Corporations Legislation Amendment Act 2003 (the Corporations Legislation Amendment Act) and the Corporations (Fees) Amendment Act 2003, annual returns lodged with the Australian Securities and Investments Commission (ASIC) by companies and registered managed investment schemes, amongst others, have been replaced by new information lodgment requirements to assist ASIC to maintain an accurate database in relation to the companies and registered schemes it regulates. The Corporations Act previously required all Australian companies and registered schemes to pay a fee on lodging an annual return with ASIC by 31 January each year.

The Corporations (Review Fees) Act 2003 (the Act) provides for an annual review fee with respect to the review date of a company or registered scheme (usually the anniversary of its registration with ASIC). The annual review fee replaces the annual return lodgment fee, which existed prior to the commencement on 1 July 2003 of the Corporations Legislation Amendment Act.

Section 8 of the Act provides that the Governor-General may make regulations for the purposes of the Act. Subsection 6(1) of the Act allows review fees to be prescribed by specifying an amount of up to $10,000. Section 5 of the Act provides that the regulations may prescribe fees in relation to review dates for companies, registered schemes and certain natural persons and entities (the fees are imposed as taxes).

In conjunction with the abolition of company annual returns, the Act permits regulations to prescribe review fees in respect of certain review dates. The due dates for review fees imposed on companies and other entities, including registered schemes, are imposed under subsection 1351(3) of the Corporations Act.

The Corporations (Review Fees) Regulations 2003 (the Principal Regulations) prescribe review fees in respect of review dates for the types of companies listed in Schedule 1 to those Regulations and for registered schemes.

The purpose of the Regulations is to amend the Principal Regulations to prescribe fees for the late payment of review fees made in respect of review dates for the types of companies listed in the new Schedule 1 to the Principal Regulations and for registered schemes.

Allowing for the CPI increase effected by the Corporations (Fees) Amendment Regulations 2003 (No. 2), the current review fees are commensurate with the annual return lodgment fees previously imposed under item 7 of Schedule 1 to the Corporations (Fees) Regulations 2001.

The late payment fees are commensurate with fees prescribed for late lodgment of a document with ASIC under item 28 of Schedule 1 to the Corporations (Fees) Regulations 2001, as amended by the Corporations (Fees) Amendment Regulations 2003 (No. 2)).

The Corporations Agreement between the States, the Northern Territory and the Commonwealth, which reflects the constitutional basis of the national corporations legislation, requires the Commonwealth to consult members of the Ministerial Council for Corporations before making amendments to regulations made under the Corporations Act and the Corporations (Fees) Act. Members of the Ministerial Council for Corporations have been consulted about the Regulations. The approval of the Ministerial Council is not required for amendments to regulations relating to fees.

Details of the Regulations are in the Attachment.

The Regulations commence on 1 January 2004.

Authority: Section 8 of the Corporations (Review Fees) Act 2003

ATTACHMENT

DETAILS OF THE CORPORATIONS (REVIEW FEES) AMENDMENT REGULATIONS 2003 (No. 1)

Regulation 1:       Name of Regulations

Regulation 1 provides that the Regulations are known as the Corporations (Review Fees) Amendment Regulations 2003 (No. 1).

Regulation 2:       Commencement

Regulation 2 provides that the Regulations commence on 1 January 2004.

Regulation 3:       Amendment of Corporations (Review Fees) Regulations 2003

Regulation 3 provides that Schedule 1 to the Regulations amends the Corporations (Review Fees) Regulations 2003.

Schedule 1:       Amendments

Item 1 of Schedule 1 to the Regulations replaces the existing regulation 4 (Review fees) with a new regulation 4.

New subregulation 4(1) prescribes the fees mentioned in Part 1 of the new Schedule 1 to the Regulations in relation to review dates for a company or registered scheme. New subregulation 4(1) is, in substance, the same as existing subregulation 4(1).

New subregulation 4(2) prescribes the fees mentioned in Part 2 of the new Schedule 1 in relation to review dates for a company or a registered scheme in the circumstances mentioned in Part 2 of the new Schedule 1.

New subregulation 4(3) prescribes the amounts mentioned in a Part of the new Schedule 1 as review fees for the purposes of subsection 6(1) of the Corporations (Review Fees) Act 2003 (the Act). New subregulation 4(3) is, in substance, the same as existing subregulation 4(2).

Subsection 6(1) of the Act provides that the regulations may prescribe review fees in relation to the review dates of companies and other entities by specifying an amount not exceeding $10,000 as the fee. Amounts prescribed by the regulations are subject to regulation 5, which provides that no fee is prescribed for the second review date in a financial year.

Item 2 of Schedule 1 to the Regulations replaces the existing Schedule 1 to the Regulations with a new Schedule 1 in two Parts. New Part 1 of the new Schedule 1 is, in substance, the same as the existing Schedule 1.

Part 2 of the new Schedule 1 imposes a late fee in relation to review dates for a company or registered scheme in the following circumstances:

•       where a review fee is paid within one month after the due date for payment of a review fee in relation to the review date for the company or registered scheme.......a fee of $65;

•       where a review fee is paid more than one month after the due date for payment of a review fee in relation to the review date for the company or registered scheme.......a fee of $270.

 

Overview

The Corporations (Review Fees) Amendment Regulations 2003 (No. 1) were introduced to address the changes in the legislative framework surrounding the lodgment of annual returns by companies and registered managed investment schemes. These regulations were enacted under the authority of the Corporations (Review Fees) Act 2003 and are intended to replace the previous annual return lodgment fee with a new annual review fee structure, as mandated by the Corporations Legislation Amendment Act 2003 and the Corporations (Fees) Amendment Act 2003. This legislative shift was driven by the need to streamline and modernise the regulatory requirements for companies and schemes regulated by the Australian Securities and Investments Commission (ASIC). The objective of these amendments is to ensure that the review fees prescribed by the regulations are aligned with the changes in the lodgment requirements, maintaining a consistent and fair fee structure for all entities subject to ASIC's oversight. The regulations also establish late payment fees to encourage timely compliance with the new review fee requirements.

Scope and Application

The Corporations (Review Fees) Amendment Regulations 2003 (No. 1) amends the Corporations (Review Fees) Regulations 2003, which are made under the Corporations (Review Fees) Act 2003. These Regulations apply to companies, registered managed investment schemes, and certain natural persons and entities regulated by the Australian Securities and Investments Commission (ASIC). The primary focus of these regulations is to prescribe fees for the late payment of review fees in relation to review dates, which are typically the anniversary of a company or registered scheme's registration with ASIC. The fees are intended to replace the previously imposed annual return lodgment fees and are set to be commensurate with the former annual return lodgment fees, adjusted for inflation. The Regulations provide specific amounts for late fees, with a fee of $65 for payments made within one month after the due date and a higher fee of $270 for payments made more than one month after the due date. The Act allows for review fees to be prescribed up to a maximum of $10,000, and these fees are imposed as taxes. The regulations commenced on 1 January 2004, following consultation with members of the Ministerial Council for Corporations as required by the Corporations Agreement.

Key Provisions

The Corporations (Review Fees) Amendment Regulations 2003 (No. 1) (the Regulations) amend the Corporations (Review Fees) Regulations 2003 (the Principal Regulations) by prescribing fees for late payment of review fees in relation to review dates for companies and registered schemes (regulation 3). The Regulations specify fees for late payment of review fees in relation to review dates for companies or registered schemes (Schedule 1). The Regulations set a fee of $65 for review fees paid within one month after the due date, and a fee of $270 for review fees paid more than one month after the due date (Schedule 1, Part 2). The Regulations are intended to align with the annual return lodgment fees previously imposed, adjusted for the Consumer Price Index increase (Attachment). The Regulations impose obligations on companies and registered schemes to pay review fees by the due date, and additional fees if payment is made late. Specifically, the Regulations require companies and registered schemes to pay a review fee within the specified timeframe to avoid additional charges (Schedule 1, Part 2). The fees are imposed as taxes and are subject to the maximum amount of $10,000 as specified in subsection 6(1) of the Corporations (Review Fees) Act 2003. The due dates for review fees are specified in subsection 1351(3) of the Corporations Act. Breach of the Regulations, such as failure to pay review fees on time or pay the additional late fees, may result in financial penalties. The Regulations do not specify a maximum penalty for non-compliance, but the prescribed fees for late payment can be considered a form of penalty. Companies and registered schemes must ensure compliance with the Regulations to avoid incurring additional costs. Additionally, failure to maintain accurate records of fees paid and due dates could result in further administrative consequences. The Regulations are in line with the Corporations Agreement between the States, the Northern Territory, and the Commonwealth, which requires consultation with members of the Ministerial Council for Corporations before making amendments to regulations under the Corporations Act and the Corporations (Fees) Act. However, the approval of the Ministerial Council is not necessary for amendments to regulations relating to fees. The Regulations were developed in consultation with relevant stakeholders to ensure they align with the objectives of the Corporations (Review Fees) Act 2003 and the broader legislative framework governing corporations in Australia. The Regulations commence on 1 January 2004, as specified in regulation 2. This commencement date ensures that companies and registered schemes have adequate notice to adjust their financial planning and compliance processes in accordance with the new requirements. The Regulations are effective from this date and apply to all relevant entities governed by the Corporations (Review Fees) Act 2003. The Regulations aim to streamline the process of fee payments for review dates, ensuring that companies and registered schemes maintain their compliance with the legislative requirements.

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