EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 175

Issued by the authority of the Minister for Financial Services, Superannuation and Corporate Law

 

 

Subject - Corporations Act 2001

Corporations Amendment Regulations 2009 (No. 6)

 

Subsection 1364(1) of the Corporations Act 2001 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

Chapter 2C of the Act provides for the maintenance of registers of members. Generally, a body corporate is required to provide public access to its register of members.

 

However, Part 12.8 of the Corporations Regulations provides certain entities with the option of requiring as a condition of access and use of the information recorded on the register that the information obtained will not be divulged other than to specified persons and that the information will only be used for specified purposes. Such entities may also refuse access if they are not satisfied that allowing the person to access to the register is in the interests of the members as a whole. Regulation 12.8.02 provides that these entities are: a transferring financial institution of a State or Territory; a company permitted to use the expression building society, credit society or credit union, as defined under section 66 of the Banking Act 1959; or a friendly society. Additionally, where a person seeks access to a member register of a body corporate listed under regulation 12.8.02 for the purpose of sending material to members, Part 2C.3 of the Corporations Regulations permits the body corporate to arrange for the material to be provided directly to members via a mailing house without giving access to the register.

 

Parts 2C.3 and 12.8 of the Corporations Regulations provide additional privacy protection for companies whose member list may be equivalent to their customer list.

 

Regulation 12.8.02 of the Corporations Regulations lists the bodies corporate that may make use of the mailing house established under Part 2C.3 of those Regulations, rather than providing public access to the register of members of the body corporate.

 

The Regulations insert ‘restricted access insurer’ as defined in the Private Health Insurance Act 2007 (Private Health Insurance Act) into the list of entities to which regulation 12.8.02 of the Corporations Regulations applies.

 

A restricted access insurer is a health insurer providing cover to a specific industry or group, usually on a not-for-profit basis. A person must be a member of the industry or group in order to join the health fund.

 

The Private Health Insurance Act requires that all private health insurers incorporate. The Regulations are in response to the security concerns which arise for members of restricted access insurers, for example, employees of a police service, on incorporation in relation to the requirement to provide public access to their registers of members.

 

Under the Corporations Agreement 2002, the Commonwealth must consult with and obtain the approval of the Ministerial Council for Corporations before making amendments to certain provisions of the Corporations Regulations. The Council was consulted about these amendments, and notified of the Minister’s intention to dispense with the period of public consultation, due to the very narrow application of the reform and the fact that targeted stakeholder consultation was undertaken.

 

The proposed Regulations would be a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commence the day after they are registered on the Federal Register of Legislative Instruments.