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2001
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CORPORATIONS (FEES) BILL 2001
EXPLANATORY MEMORANDUM
(Circulated by authority of
the Minister for Financial
Services and Regulation, the Honourable J.B. Hockey MP
and the
Attorney-General, the Honourable Daryl Williams AM QC MP)
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1.1. The Corporations (Fees) Bill 2001 is one of a package of bills responding to the High Court’s decisions in Re Wakim; ex parte McNally (1999) 198 CLR 511 and The Queen v Hughes (2000) 74 ALJR 802; 171 ALR 155.
1.2. The other bills are:
• Corporations Bill 2001;
• Australian Securities and Investments Commission Bill 2001;
• Corporations (Securities Exchanges Levies) Bill 2001;
• Corporations (Futures Organisations Levies) Bill 2001;
• Corporations (National Guarantee Fund Levies) Bill 2001; and
• Corporations (Repeals, Consequentials and Transitionals) Bill 2001.
1.3. The object of these seven Bills is to establish a replacement legislative foundation for the Corporations Law scheme. This Bill will, in effect, re-enact the provisions of the corporations legislation concerning the imposition of fees and charges in the form of taxation legislation that complies with Commonwealth constitutional requirements. It also establishes certain transitional arrangements.
1.4. Further information about the background to these Bills may be found in the explanatory memorandum to the Corporations Bill 2001.
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2.1. The Bill is part of a package of measures which will for practical purposes restore the regulatory environment which existed before the High Court’s decisions in Hughes and Wakim.
2.2. On that basis, the Office of Regulation Review has advised that a Regulation Impact Statement is not required for the Bill.
2.3. The Bill does not have any financial impact.
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3.1. The short title of the Act will be the Corporations (Fees) Act 2001.
3.2. The Bill will commence at the same time as the Corporations Act 2001.
3.3. The Crown will be bound by the Act to the extent that the Crown, in any capacity, is bound by a provision or provisions of the Corporations Act 2001 under which a chargeable matter arises or to which a chargeable matter relates.
3.4. The definition of ‘chargeable matter’ is based on the definition of that expression in section 9 of the Corporations Law. Part 10.1 of the Corporations Act 2001 defines the expression ‘old Corporations Law’ to mean, in relation to a particular State or Territory, the Corporations Law of that State or Territory within the meaning of the Corporations (Name of State) Act for that State or Territory, as in force from time to time before commencement of the Corporations Act 2001. When used generally, it is taken to mean the Corporations Law as set out in section 82 of the Corporations Act 1989.
3.5. Other expressions used in the Bill have the same meanings as in the Corporations Act 2001.
3.6. Fees for chargeable matters may be prescribed in the regulations. Any fees prescribed will be imposed as a tax to ensure compliance with Commonwealth constitutional requirements.
3.7. Clause 6 effectively reproduces the effect of section 1352 of the Corporations Law and sections 25 and 26 of the Corporations Act 1989.
3.8. Clause 7 identifies the person who is liable to pay the fee imposed for each chargeable matter under the Corporations Act 2001. It also establishes the time at which the liability arises. The following table summarises the effect of the clause:
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Chargeable matter (within the definition of ‘chargeable
matter’ under clause 4(1))
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Who is liable
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Time liability arises
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(a) lodgement of a document
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person who lodges the document
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when the document is lodged
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(b) registration of a document
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person requesting registration, or if there is no request the person who
lodges the document
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when the request for registration is made, or if there is no request, when
the document is lodged
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(c) inspection or search of a register or document kept by ASIC
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person requesting the inspection or search
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when the request is made
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(d) information made available by ASIC
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person who requests the information
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when the request is made
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(e) production of register or document by ASIC under a subpoena
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person who filed the subpoena
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when the subpoena is served on ASIC
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(f) issuing a document or copy, granting a licence, consent or approval, or
doing any other act by the Minister or ASIC
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person requesting issue of the document or copy, the grant of the licence,
consent or approval, or any other act; if there is no request, the person for
whose benefit the act is done
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when the request is made, or if there is no request, when the act is
done
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(g) making an inquiry of or application to ASIC or the Minister
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person who makes the inquiry or application
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when the inquiry or application is made
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(h) submitting a document to ASIC for examination
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person submitting the document
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when the document is submitted
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(i) making an application to the Panel
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person who makes the application
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when the application is made
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(j) an act by the Panel in dealing with an application to it
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the party or parties that the Panel determines are to pay the fee
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when the Panel makes that determination
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3.9. The party liable and the time at which the liability arises is being specified to ensure that the fees imposed are imposed as taxes.
3.10. Clause 8 will allow the Governor-General to make the regulations contemplated by clauses 5 and 6.
3.11. The Corporations (Fees) Regulations made under the Corporations Act 1989 will have effect, and may be amended or repealed, as if they were made under clause 8 of the Bill for the purposes of clause 5 or 6.
3.12. A fee that was payable under Corporations Law, section 1351, immediately before the Bill commences will be imposed on the person as a tax under subclause 9(2) of the Bill, to ensure a smooth transition from the commencement of the Corporations Act 2001.
3.13. It is expected that the pre-existing liability under the Corporations Law of the States and the Northern Territory will be extinguished by State and Northern Territory legislation. Liabilities to pay fees under the Corporations Law of the ACT will be extinguished by the Corporations (Repeals, Consequentials and Transitionals) Bill 2001.