Commonwealth Numbered Regulations - Explanatory Statements

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CORPORATIONS (FEES) REGULATIONS (AMENDMENT) 1998 NO. 184

Statutory Rules 1998 No. 184

Issued by the Authority of the Treasurer

Corporations Act 1989

Corporations (Fees) Regulations (Amendment)

Section 22 of the Corporations Act 1989 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act or the Corporations Law (the Law), prescribing matters required or permitted by the Law to be prescribed by regulations, or necessary or convenient to be prescribed by regulations for carrying out or giving effect to the Law.

Section 25 of the Act provides that the regulations may prescribe fees (including fees that are taxes) for chargeable matters. Chargeable matters are defined in section 9 of the Law as:

(a)       the lodgement, registration or submission for examination of documents under the Law;

(b)       the inspection or search of registers kept by, or documents in the custody of the Australian Securities Commission (the ASC), or the production by the ASC under a subpoena of such registers or documents, and the issuing of documents or copies of documents by the ASC; and

(c)       the making of inquiries of, or applications to, the Minister or the ASC in relation to a matter arising under the Law and the granting of licences, consents or approvals, or the doing of any other act under the Law, by the Minister or the ASC.

Subsection 26(2) of the Act provides that where a fee is prescribed as a stated amount, that amount is not to exceed $5,000. Subsection 26(3) of the Act provides that two or more fees may be prescribed for the same chargeable matter.

Subsection 1352(1) of the Law adds the further provision that the upper limit on the aggregate amount of the fees payable for a chargeable matter is $25,000.

The principal purposes of the Corporations (Fees) Regulations (Amendment) are to:

*        amend the Corporations (Fees) Regulations (the Principal Regulations) consequential upon

       the changes to the Law made by the Managed Investments Act 1998 and by the Company Law

       Review Act 1998; and

*        amend cross-references in the Corporations (Fees) Regulations to provisions m the Law to

       take account of the renumbering and relocation of provisions in the Law by the Managed

       Investments Act 1998 and by the Company Law Review Act 1998; and

*       correct a number of punctuation errors in the Principal Regulations.

Details of the regulations are as follows.

Regulation 1: Commencement

Regulation 1.1 provides that, subject to Regulation 1.2, these regulations commence after the commencement of item 198 in Schedule 3 to the Company Law Review Act 1998. Regulation 1.2 provides that Regulations 4.4, 4.8, 4.23 and 4.32 commence immediately after the commencement of the Managed Investments Act 1998.

Regulation 2: Amendment

Regulation 2.1 provides that the Principal Regulations are amended as set out in these regulations.

Regulation 3: New regulation 2A

Regulation 3.1 inserts a new Corporations Regulation 2A into the Principal Regulations. The new regulation defines the term "special purpose company" for the purpose of item 7 of the Schedule to the Principal Regulations. The definition is based on the existing definition of that term in Part 1 of the Schedule to the Principal Regulations. Part 1 of the Schedule to the Principal Regulations is repealed by Regulation 4.1. The new definition takes account of changes in terminology and the renumbering of provisions in the Law made by the Company Law Review Act 1998.

Regulation 4: Schedule (Fees)

Regulation 4 amends the Schedule to the Principal Regulations (the Schedule).

Part 1 of the Schedule currently sets out the definition of the term "special purpose company" for the purposes of item 7 of Part 2 of the Schedule. Regulation 3.1 inserts a new definition for this term into the Principal Regulations. Regulation 4.1 therefore omits Part 1 of the Schedule.

Regulation 4.2 omits the heading for Part 2 of the Schedule. This heading will not be required following the omission of Part 1 of the Schedule.

Regulations 4.3 and 4.5 correct punctuation errors in items 1 and 2 of the Schedule. They have the effect of omitting the apostrophe from the terms "dealer's", "adviser's" and "broker's" where they appear in those items.

Regulation 4.4 inserts anew item 1A into the Schedule prescribing a fee of $230 for a responsible entity seeking to amend its existing dealers licence to authorise it to operate a managed investment scheme or managed investment schemes of a particular kind.

Regulations 4.6, 4.7, 4.10, 4.11, 4.15, 4.16, 4.17, 4.18, 4.19, 4.26, 4.32 and 4.34 make technical amendments to reflect the renumbering of the provisions in the Law. Regulations 4.17, 4.18, 4.22, 4.24, 4.27, 4.29, 4.30 and 4.35 have the effect of omitting references in the Principal Regulations to "the Commission" or "the Australian Securities Commission" and substituting a reference to "ASC".

Regulation 4.8 inserts a new item 6A into the Schedule to reflect the requirement under the Managed Investments Act 1998 for all managed investment schemes to be registered with the ASC. Item 6A(a) prescribes a fee of $870 on an application to the ASC to register a scheme that exists when the Managed Investments Act 1998 commences. Paragraph 6A(b) prescribes a fee of $1730 on an application to the ASC to register a scheme that commences operation after the Managed Investments Act 1998 commences.

Regulation 4.9 has the effect of inserting a new paragraph (d) into item 7 of the Schedule. Paragraph (d) prescribes a fee of $870 on lodging an annual return by a registered scheme. This fee is the same as that prescribed for an annual return lodged by a public company.

Regulation 4.12 omits items 9A, 9B and 9C from the Schedule and substitutes new items 9A and 9B. Item 9A(a) prescribes a fee of $870 on lodging under section 319 of the Law an annual report by a disclosing entity other than a company or registered scheme. Item 9A(b) exempts from a fee an annual report lodged under section 319 of the Law by a company or a registered scheme. Item 9B exempts from a fee a half yearly report lodged by a disclosing entity under section 320.

Regulation 4.13 omits items 11 and 12 from the Schedule because the registration process under the Managed Investments Act 1998 will repeal the existing requirement to obtain approval from the ASC for deeds and trustees.

Regulation 4.14 omits item 21 from the Schedule because after commencement of the Company Law Review Act 1998 the chargeable matters to which they relate will be addressed by other items in the Schedule.

Regulation 4.20 amends item 25(b) of the Schedule to prescribe a fee of $60 for a document lodged under Part 5C of the Law for which no fee is otherwise prescribed by the Schedule.

Regulation 4.21 amends item 26 of the Schedule to take account of the repeal by the Company Law Review Act 1998 of the requirement for companies to have a memorandum of association.

Regulations 4.23 and 4.25 have the effect of inserting the term "registered scheme" into items 30 and 33 of the Schedule respectively to take account of the introduction of registered schemes into the Law by the Managed Investments Act 1998.

Regulation 4.31 omits item 38 from the Schedule with the effect that no fee will be payable on lodging copy of a resolution amending a company's constitution.