Corporations (Transfers of Estate Assets and Liabilities—Ministerial Consent) Determination 2022

Administered by Department of the Treasury

Legislation au F2022L01438 In force Legislative Instrument

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EXPLANATORY STATEMENT

Issued by authority of the Assistant Treasurer and Minister for Financial Services

Corporations Act 2001

Corporations (Transfers of Estate Assets and Liabilities—Ministerial Consent) Determination 2022

Paragraph 601WBD(1)(b) of the Corporations Act 2001 (the Act) provides that the Minister’s consent to the transfer of estate assets and liabilities is not required if the Minister has determined in writing that their consent is not required in relation to a class of transfers. If the Ministerial determination is expressed to apply to a class of transfers, it is a legislative instrument under subsection 601WBD(3) of the Act.

The purpose of the Corporations (Transfers of Estate Assets and Liabilities—Ministerial Consent) Determination 2022 (this determination) is to remove the requirement for the Minister’s consent to the transfer of estate assets and liabilities for a particular class of transfers under paragraph 601WBD(1)(b) of the Act.

Chapter 5D of the Act implements the transfer of certain regulatory responsibilities from the States and Territories to the Commonwealth in relation to trustee companies that provide “traditional trustee company services”, including performing estate management functions, preparing wills, applying for probate of wills and establishing and operating common funds.

The Act created a national licensing system for trustee companies. These trustee companies are required to hold an Australian financial services licence covering the provision of traditional trustee company services. The trustee companies to which Chapter 5D of the Act applies are those companies listed in Schedule 8AA to the Corporations Regulations 2001.

Under the former State and Territory regulatory regimes for trustee companies, many corporate groups operated subsidiaries in the States and Territories. The function of the subsidiaries was to hold the relevant trustee company authorisation in that jurisdiction. Following the introduction of the national regulatory framework for trustee companies, many corporate groups started consolidating their traditional service businesses and transferring those businesses to a single Australian financial service licensee.

Part 5D.6 of the Act governs Australian Securities and Investments Commission (ASIC) approved transfers of estate assets and liabilities from one licensed trustee company to another. Under subsection 601WBA(1) of the Act, ASIC may, in writing, make a determination (a transfer determination) that there is to be a transfer of estate assets and liabilities from a specified trustee company to another specified trustee company. ASIC may make the transfer determination only if the Minister has consented to the transfer or if the Minister’s consent to the transfer is not required under section 601WBD.

This determination operates so that consent from the Minister under paragraph 601WBA(2)(a) of the Act is not required for all voluntary transfers of estate assets and liabilities between companies under subsection 601WBD(1) of the Act.

This determination remakes the Ministerial Determination Trustee Company Transfer of Estate Assets and Liabilities Ch 5D Corporations Act 2001 (the previous instrument) which ceased operation on 1 October 2022 under the sunsetting process. The previous instrument provided that Ministerial consent was not required for any voluntary transfers of estate assets and liabilities occurring between companies within the same corporate group (intra group transfers) and between unrelated companies (arm’s length transfers). This determination instead provides that Ministerial consent is not required for any voluntary transfers of assets and liabilities between companies. This achieves the same outcome as the previous instrument, because the only voluntary transfers that would occur are intra group transfers and arm’s length transfers. There are no voluntary transfers outside these two categories and thus the determination achieves the same policy outcome.

Public consultation was not undertaken as this determination is of a minor or machinery nature and the determination continues the operation of the previous instrument. Treasury consulted with ASIC in relation to this determination.

The Office of Best Practice Regulation (OBPR) has advised that this determination does not require a Regulatory Impact Statement because it has been assessed to have no more than a minor regulatory impact. The OBPR Reference Number is OBPR22‑03374.

Details of the determination are set out in Attachment A.

A Statement of Compatibility with Human Rights is at Attachment B. This determination is compatible with human rights as it does not raise any human rights issues.

This determination is a legislative instrument for the purposes of the Legislation Act 2003.

This determination commenced on the day after the legislative instrument was registered on the Federal Register of Legislation.

ATTACHMENT A

Details of the Corporations (Transfers of Estate Assets and Liabilities—Ministerial Consent) Determination 2022

Section 1 – Name of Determination

This section provides that the name of the Determination is the Corporations (Transfers of Estate Assets and Liabilities—Ministerial Consent) Determination 2022 (this Determination).

Section 2 – Commencement

This section provides that this Determination commenced on the day after the legislative instrument was registered on the Federal Register of Legislation.

Section 3 – Authority

This section provides that this Determination is made under the Corporations Act 2001 (the Act).

Section 4 – Definitions

This section provides that all references to ‘the Act’ mean the Corporations Act 2001.

Section 5 –When Ministerial Consent to a Transfer is Not Required

This section provides that Ministerial consent is not required for any voluntary transfers of estate assets and liabilities between companies under subsection 601WBD(1) of the Act.

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Corporations (Transfers of Estate Assets and Liabilities—Ministerial Consent) Determination 2022

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The purpose of the Corporations (Transfers of Estate Assets and Liabilities—Ministerial Consent) Determination 2022 (this determination) is to remove the requirement for the Minister’s consent to the transfer of estate assets and liabilities for a particular class of transfers under paragraph 601WBD(1)(b) of the Corporations Act 2001 (the Act).

This determination operates so that consent from the Minister under paragraph 601WBA(2)(a) of the Act is not required for all voluntary transfers of estate assets and liabilities between companies under subsection 601WBD(1) of the Act.

Human rights implications

This Legislative Instrument does not engage any of the applicable rights or freedoms.

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

 

Overview

The Corporations (Transfers of Estate Assets and Liabilities—Ministerial Consent) Determination 2022 was enacted to streamline the process of transferring estate assets and liabilities between companies under the Corporations Act 2001. This legislative instrument was introduced to address the bureaucratic burden associated with obtaining Ministerial consent for certain transfers, thereby facilitating smoother transitions within corporate groups and between unrelated entities. The determination, made under the authority of the Assistant Treasurer and the Minister for Financial Services, aims to remove the need for Ministerial consent for voluntary transfers of estate assets and liabilities between companies, as specified in subsection 601WBD(1) of the Act. The policy objective is to enhance operational efficiency and reduce regulatory barriers within the national licensing system for trustee companies, which was established to implement the transfer of certain regulatory responsibilities from the States and Territories to the Commonwealth.

Scope and Application

The Corporations (Transfers of Estate Assets and Liabilities—Ministerial Consent) Determination 2022 applies to transfers of estate assets and liabilities between companies under the Corporations Act 2001, specifically those transfers that do not require the Minister's consent. This determination removes the requirement for the Minister’s consent for all voluntary transfers of estate assets and liabilities between companies, as specified under subsection 601WBD(1) of the Act. The application of this determination is within the Commonwealth jurisdiction, and it operates to streamline the process of transferring estate assets and liabilities among companies by eliminating the need for Ministerial consent for voluntary transfers. This determination effectively applies to trustee companies that provide traditional trustee company services and are listed in Schedule 8AA to the Corporations Regulations 2001. There are no exclusions or exemptions specified in this determination, as it broadly applies to all voluntary transfers between companies under the outlined conditions. This legislative instrument operates to ensure a more efficient regulatory process concerning the transfer of estate assets and liabilities within the national licensing system for trustee companies.

Key Provisions

The Corporations (Transfers of Estate Assets and Liabilities—Ministerial Consent) Determination 2022 (paragraphs 4 and 5) clarifies the conditions under which the Minister's consent is not required for transfers of estate assets and liabilities between companies. Specifically, under Section 5, the determination states that Ministerial consent is not required for any voluntary transfers of estate assets and liabilities between companies as per subsection 601WBD(1) of the Corporations Act 2001 (the Act). This means that companies can proceed with such transfers without needing explicit approval from the Minister, provided they meet the criteria outlined in the Act. The obligations and requirements imposed by this determination on the entities involved are primarily centred around ensuring that the transfers comply with the provisions of the Corporations Act. Companies must ensure that any voluntary transfers of estate assets and liabilities adhere to the regulatory framework and are conducted in a manner that is consistent with the Act. This includes maintaining proper records and documentation to substantiate the transfer and ensuring that the transfer does not contravene any other provisions of the Act or related regulations. Breaches of the provisions set forth in this determination can lead to legal consequences. While the determination itself does not explicitly outline specific offences or penalties, violations of the Corporations Act, which govern these transfers, can result in substantial penalties. For instance, under the Corporations Act, individuals and entities can face civil penalties for non-compliance, which may include fines and other financial penalties. Additionally, if the breach is deemed severe, it could lead to criminal charges, which carry potential imprisonment depending on the nature and extent of the breach. It is important for entities to be aware of these potential repercussions and ensure full compliance with the Act.

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Corporate Law & Governance
Instrument
Legislative Instrument
Concepts
Regulatory Standards
Reporting & Disclosure Obligations
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.