EXPLANATORY STATEMENT
Statutory Rule 1989 No 45 Issued by the Authority of the Minister for
Transport and Communications
Section 80 of the OTC Act 1946 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
OTC will convert from a statutory corporation to a public company by virtue of section 54E of the Act which was inserted by section 11 of the OTC (Conversion into Public Company) Act 1988 (the Conversion Act). This provision will operate from 1 April 1989.
However, it is desirable that the file for the company in the National Companies and Securities Commission should contain the relevant history of OTC before conversion and describe the process of conversion and the OTC (Conversion into Public Company) Regulations are aimed at achieving this result.
Section 10 of the Conversion Act) inserted a new section 54C into the Act. This provision is already in operation. Subsection 54C(1) provides that OTC shall apply to the National Companies and Securities Commission under subsection 85(1) of the Companies Act 1981 to be registered as a company under that Act. Section 85 of the Companies Act 1981 deals with applications by foreign companies for registration.
As OTC is not a foreign company some modification of the Companies Act requirements is necessary. Subsection 54C(2) of the Act therefore allows the requirements about documents to accompany the application (set out in subsection 85(4) of the Companies Act 1981) to be modified by regulations under the Act. Details of the Regulations are set out in the Attachment.
ATTACHMENT
Details of OTC (Conversion into Public Company) Regulations
Regulation 1 | | Citation of Regulations |
Regulation 2 | | Interpretation : The OTC Act 1946 was previously called the Overseas Telecommunications Act 1946 |
Regulation 3 | | The form to accompany an application under section 85 of the Companies Act 1981 is modified as set out in the Schedule to allow for differences between a statutory corporation and a foreign company |
Regulation 4 | | A certificate signed by a Commissioner confirming that OTC was established under the Act and that it is to be converted by the Act into a public company under the name “OTC Limited”, is sufficient compliance with a requirement to lodge a certificate of incorporation |
| | A statement that the registration of OTC Limited is to be authorised under the Act, that the company is to be limited by shares by virtue of the Act, that its share capital has been ascertained and divided into shares as required by the Act, and that it has otherwise complied with the requirements of the Act regarding its conversion, is sufficient compliance with the Companies Act |
| | OTC will not have a Memorandum or Articles of Association until after the conversion is complete and it will be sufficient to lodge proposed Memorandum and Articles |
| | A certificate signed by a Commissioner setting out details of the arrangements for share capital and issuing of shares under the Act is sufficient compliance with a requirement to provide details about these matters. |
Overview
The OTC (Conversion into Public Company) Regulations 1989 were enacted to facilitate the conversion of the Overseas Telecommunications Commission (OTC) from a statutory corporation to a public company under the provisions of the OTC Act 1946. This legislative instrument was issued by the Authority of the Minister for Transport and Communications and was designed to ensure that the transition process was both smooth and legally compliant. The primary objective of these regulations is to align the conversion process with the requirements of the Companies Act 1981 while accommodating the unique circumstances of OTC as a domestic entity rather than a foreign company. By modifying the documentation and certification requirements, the regulations aim to streamline the registration process for OTC Limited, ensuring that all necessary historical and procedural details are appropriately documented in the National Companies and Securities Commission.
Scope and Application
The OTC (Conversion into Public Company) Regulations apply to the Overseas Telecommunications Commission (OTC), which is undergoing a transformation from a statutory corporation to a public company under the OTC Act 1946. These regulations are designed to facilitate the conversion process by modifying the requirements for registering OTC with the National Companies and Securities Commission, ensuring the company's historical context and conversion details are appropriately documented. The regulations operate within the Commonwealth jurisdiction, as they pertain to the national conversion of a statutory corporation into a public company. The regulations specifically exempt OTC from certain documentation requirements of the Companies Act 1981 by allowing a modified application form and a certificate from a Commissioner, thus streamlining the registration process. The application of these regulations is further detailed in the attached schedule, which outlines the specific modifications to the registration form and the acceptable certificates for compliance purposes.
Key Provisions
The OTC (Conversion into Public Company) Regulations, issued under section 80 of the OTC Act 1946, are designed to facilitate the conversion of the Overseas Telecommunications Commission (OTC) from a statutory corporation to a public company, effective from 1 April 1989. The Regulations provide a framework for OTC to apply for registration as a company under the Companies Act 1981, given that OTC is not a foreign company. As such, the Regulations modify the requirements set out in subsection 85(4) of the Companies Act 1981 to accommodate the unique circumstances of OTC's conversion (Regulation 3).
Under these Regulations, a key requirement is for OTC to submit an application to the National Companies and Securities Commission for registration as a company under the Companies Act 1981 (Section 54C(1) of the OTC Act 1946). The form accompanying this application has been modified to reflect the differences between a statutory corporation and a foreign company (Regulation 3). Additionally, a certificate signed by a Commissioner, confirming that OTC was established under the Act and is to be converted into a public company under the name "OTC Limited," is sufficient to comply with the requirement to lodge a certificate of incorporation (Regulation 4). This certificate must also confirm that the registration of OTC Limited is to be authorised under the Act, that the company will be limited by shares, that its share capital has been ascertained and divided into shares as required by the Act, and that it has otherwise complied with the requirements of the Act regarding its conversion.
Furthermore, until the conversion is complete, OTC will not have a Memorandum or Articles of Association. Instead, it will be sufficient to lodge proposed Memorandum and Articles. A separate certificate signed by a Commissioner, detailing the arrangements for share capital and issuing of shares under the Act, is sufficient to comply with the requirement to provide details about these matters (Regulation 4).
Failure to comply with the provisions of these Regulations may result in serious consequences. Under the Companies Act 1981, non-compliance with registration requirements can lead to civil and criminal penalties. In addition, under the OTC Act 1946, failure to comply with the provisions of the Act or the Regulations may result in fines and other civil penalties as determined by the relevant authorities. The maximum penalties for breaches of the OTC Act 1946 can be significant, and it is essential that OTC and its stakeholders adhere to the requirements set out in the Regulations to avoid potential legal and financial repercussions.