Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]


CORPORATIONS (CHANGE OF INCORPORATION) AMENDMENT REGULATIONS 2002 (NO. 1) 2002 NO. 174

EXPLANATORY STATEMENT

STATUTORY RULES 2002 No. 174

Issued by the Authority of the Parliamentary Secretary to the Treasurer

Corporations Act 2001

Corporations (Change of Incorporation) Amendment Regulations 2002 (No. 1)

Section 1364 of the Corporations Act 2001 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing, among other things, matters that are required by the Act to be prescribed by regulations, or necessary or convenient to be prescribed by regulations for carrying out or giving effect to the Act.

Section 51 of the Act states that regulations may be made that modify the operation of the Act so that provisions of the Corporations legislation do not apply to a matter that is dealt with by a law of a State or Territory specified in the regulations. The Regulations specify The AGL Corporate Conversion Act 2002 (NSW) (the AGL Act).

The purpose of the Regulations is to facilitate the conversion of the Australian Gas Light Company (AGL) to a public company limited by shares under the AGL Act. The conversion of AGL is occurring as Part of the NSW Government's deregulation of the gas market.

AGL was established under the NSW Australian Gaslight Company Act 1837. It is a limited liability unincorporated body of proprietors, or Joint Stock Company. Joint Stock Companies are an older form of corporate entity with some but not all the features of a modem company.

The Regulations:

•       exempt AGL from the requirement in section 148 of the Act that it have "Limited" in its name by deleting section 148(2);

•       allow AGL to retain its Australian Registered Business Number (ARBN) as its Australian Company Number (ACN) after the conversion, and the continued use of the letters ARBN instead of ACN for a period of two years following the date of registration by inserting paragraphs by inserting subsections 153(2A) and (2B) to the Act;

•       allow the redemption of preference shares issued by AGL in accordance with the AGL Act, as an alternative to existing rules under the Act (item 11, Schedule 2 under item 3 of Schedule 1 of the Regulations refers);

•       allow AGL to reduce its share capital as permitted by the AGL Act by inserting section 258G (item 12, Schedule 2 under item 3 of Schedule 1 of the Regulations refers);

•       allow shareholder approval of financial assistance for the self-acquisition of shares to be by preserved resolution, within the meaning of the AGL Act, by inserting paragraph 260C(5)(e);

•       allow the auditors of AGL immediately before the conversion to be AGL's auditors after conversion by deleting subsections 327(1), (3) and (4) and substituting new subsections;

•       allow the remuneration of directors to be authorised expressly or impliedly by a preserved resolution of members of AGL until such time as it can be ratified by a meeting of members, by inserting subsection 202A(3) to the Act.

•       exempt AGL from the requirement that an application for registration under Part 5B.1 of the Act include the name and address of each person who is to be a member of a body by deleting section 601BC(2)(e);

•       specify how Division 1 of Part 5B.1 of the Act (which covers the registration of bodies corporate as companies) will apply to AGL, by inserting Division 1 A to Part 5B.1 to deal with the interaction between Division 1 and the AGL Corporate Conversion Act;

•       exempt AGL from the requirement that an application for registration under Part 5B.1 of the Act include information about the number of shares each member holds or will hold, how much has been paid or agreed to be paid for the shares, and the amount remaining unpaid by deleting section 601BC(2)(1);

•       exempt AGL from the requirement that an application for registration under Part 5B.1 of the Act include information about shares issued for non cash consideration section 601BC(2)(m);

•       exempt AGL from the requirement that an application for registration under Part 5B.1 of the Act include evidence that a vote of 75% of members consented to incorporation and the members were given 21 days to vote on a resolution, by deleting subsection 61 BC(8)(f); and

•       allow reference in a licensed market's operating rules to the approval of the members of an entity (whether expressed in the form of a resolution or otherwise) to include, for AGL, approval by a preserved resolution by adding section 793CA to the Act.

The State and the Northern Territory Ministers on the Ministerial Council for Corporations have been consulted on the Regulations and have given their agreement, as required by the Corporations Agreement between State, Northern Territory and Commonwealth Ministers.

Details of the Regulations are set out in the Attachment.

The Regulations commence on gazettal.

ATTACHMENT

Corporations (Change of Incorporation) Amendment Regulations 2002 (No. 1)

Regulation 1 - Name of regulations

Regulation 1 provides for the name of the regulations.

Regulation 2 - Commencement

Regulation 2 provides that the regulations commence on gazettal.

Regulation 3 - Amendment ofCorporations (Change of Incorporation) Regulations 2002

Regulation 3 provides that Schedule 1 amends the Corporations (Change of Incorporation) Regulations 2002.

Schedule 1 Amendments

Item 1 in Schedule 1 inserts after regulation 4:

"5 Modification of the Act for AGL

For subsection 51 (1) of the Act:

(a) the operation of the Act is modified in accordance with Schedule 2; and

(b) the AGL Corporate Conversion Act 2002 of New South Wales is specified."

Item 2 in Schedule 1 substitutes for Schedule 1, heading:

Schedule 1 Modifications for Westpac Banking Corporation

Item 3 in Schedule 1 inserts after Schedule 1:

Schedule 2 Modifications for AGL

Item 1 in Schedule 2 inserts in section 9, after the definition of agency:

"AGL means the body corporate constituted with the name 'The Australian Gas Light Company' under the AGL Corporate Conversion Act.

AGL Corporate Conversion Act means the AGL Corporate Conversion Act 2002 of New South Wales."

Item 2 in Schedule 2 inserts in section 9 after the definition of controller:

"conversion day has the meaning given by subsection 4(1) of the AGL Corporate Conversion Act."

Item 3 Schedule 2 inserts in section 9 after the definition of premises:

"preserved resolution has the same meaning as in subsection 5(1) of the AGL Corporate Conversion Act."

Item 4 in Schedule 2 inserts in section 9 after the definition of registrable body:

"registration day has the same meaning as in subsection 4(1) of the AGL Corporate Conversion Act."

Item 5 in Schedule 2 omits "(2) or" from subsection 148(1).

Item 6 in Schedule 2 omits subsection 148(2).

Item 7 in Schedule 2 inserts in section 149, table, after item 8:

9       Australian Registered Body ARBN        Number

10       Registered                             Regd

Item 8 in Schedule 2 inserts after section 153(2):

"(2A) However, AGL may use the expression 'Australian Registered Body Number' followed by its ARBN instead of the expression 'Australian Company Number' followed by its ACN until 2 years after the registration day.

(2B)       For subsection (2A), AGL's ARBN is taken to be the ARBN of the registered body that became AGL on the conversion day."

Item 9 in Schedule 2 inserts after section 200(3):

"(1A) For AGL, member approval (express or implied) may be given in a preserved resolution.

(1B)       Subsections (2) to (4) do not apply to member approval given in a preserved resolution."

Item 10 in Schedule 2 inserts after subsection 202A(2):

"(3)       Until a determination is made under subsection (1) about the remuneration of the directors of AGL, they are to be paid the remuneration authorised expressly or impliedly by a preserved resolution."

Item 11 in Schedule 2 substitutes for paragraphs 254K(a) and (b):

"(a)       both:

(i) if the shares are fully paid up; and

(ii) out of profits or the proceeds of a new issue of shares made for the purpose of the redemption; or

(b)       in accordance with the AGL Corporate Conversion Act."

Item 12 in Schedule 2 inserts after section 25817:

11258G       Reductions by AGL

AGL may reduce its share capital as permitted by the AGL Corporate Conversion Act."

Item 13 in Schedule 2 omits "shareholders." from paragraph 260(1)(b) and substitute "shareholders;

or"

Item 14 in Schedule 2 inserts after paragraph 260(1)(b):

"(c)       for AGL - a preserved resolution."

Item 15 in Schedule 2 inserts after subsection 260B(l):

"(1A) Subsections (4) to (7) do not apply to approval by a preserved resolution."

Item 16 in Schedule 2 omits "terms." from paragraph 260C(5)(d) and will insert "terms;"

Item 17 in Schedule 2 inserts after paragraph 260C(5)(d):

"(e)       for AGL, assistance given under an employee share scheme that has been approved by a preserved resolution."

Item 18 in Schedule 2 inserts after subsection 296(2):

"(3)       The accounting standards and any further requirements in the regulations do not apply to a matter to the extent that the matter is dealt with by section 22 of the AGL Corporate Conversion Act."

Item 19 in Schedule 2 omits "The" in section 304 and insert "(1) The."

Item 20 in Schedule 2 inserts in section 304:

"(2)       The accounting standards and any further requirements in the regulations do not apply to a matter to the extent that the matter is dealt with by section 22 of the AGL Corporate Conversion Act."

Item 21 in Schedule 2 substitutes the following for subsections 327(1) to (4):

"(1)       The auditor holding office under subsection 40(1) of the AGL Corporate Conversion Act is taken to be the auditor of AGL.

(3)       A company must, at each annual general meeting, if there is a vacancy in the office of the auditor of the company, appoint a person or persons, a firm or firms, or a person or persons and a firm or firms to fill the vacancy.

(4)       An auditor mentioned in subsection (1) or a person or firm appointed as auditor under subsection (3) holds office until:

(a) death or removal or resignation from office in accordance with section 329; or

(b) ceasing to be capable of acting as an auditor by reason of subsection 324(1) or (2)."

Item 22 in Schedule 2 omits paragraphs 601BC(2)(e), (1) and (m).

Item 23 in Schedule 2 omits "incorporation; and" from paragraph 601BC(8)(e) and will insert "incorporation."

Item 24 in Schedule 2 omits paragraph 601BC(8)(f).

Item 25 in Schedule 2 inserts after section 601BD(1):

"(1A)       The numerical component of an ACN given to AGL must be the same as the numerical component of the ARBN of the registered body that was AGL, as defined in subsection 4(1) of the AGL Corporate Conversion Act, immediately before the conversion day."

Item 26 in Schedule 2 inserts in Part 5B.1, after Division 1:

"Division 1A Application of Division 1 to AGL

601BLA Application of Division 1 to AGL

(1)       An application for registration of AGL under Division 1 may be made before the conversion day.

(2)       Section 601 BC applies to an application mentioned in subsection (1) as if references in that section to information, documents or evidence about the body to which the application relates were references to information, documents or evidence that, because of the AGL Corporate Conversion Act will, or will be likely to, apply to AGL after the conversion day.

(3)       If an application for registration of AGL is made before the conversion day, ASIC may register AGL on the conversion day."

Item 27 in Schedule 2 inserts after section 793C:

"793CA Compliance with operating rules - AGL:

A reference in a licensed market's operating rules to the approval of the members of an entity (whether expressed in the form of a resolution or otherwise) is taken to include, for AGL, approval by a preserved resolution."


[Index] [Related Items] [Search] [Download] [Help]