These amendments replicate the provisions of the Commonwealth Registers Bill in the Corporations Act, Credit Act, and Business Names Act.

These related amendments fall into two categories. Firstly, amendments to the Corporations Act, the Credit Act and the Business Names Act replicate the new Act almost in its entirety with no substantive differences. These replications are included for constitutional reasons related to the terms upon which the states referred power to the Commonwealth for relevant matters. These terms require amendments relying on the referrals to be made to the Commonwealth Acts that were tabled in state parliaments in connection with each respective referral. All references in this memorandum to the 'new Act' include the replicated provisions in the Corporations Act, Credit Act and the Business Names Act unless indicated otherwise. Secondly, amendments are made to a number of Acts as a result, or in support, of the new regime. These amendments are referred to as 'consequential amendments' in this memorandum.

The Commissioner is currently the Registrar of the Australian Business Register. See section 28 of the ABN Act.

Registers established by regulations will be made subject to the new regime by amendments made to those regulations.

The transitional arrangement ends on 30 January 2019. The registrar may continue to hold historical data after this date.

Register originally kept by virtue of section 789 of the Corporations Act (repealed by Act No. 122) of 2001 and before that by section 789 of the Corporations Law (as set out in section 82 of the Corporations Act 1989 ).

Register originally kept by virtue of section 789 of the Corporations Act (repealed by Act No. 122) of 2001 and before that by section 789 of the Corporations Law (as set out in section 82 of the Corporations Act 1989 ).

Described as the 'relevant provider' register in the regulations.

Formerly kept under section 1286 of the Corporations Act. Section 1286 was repealed in 2016 by the Insolvency Law Reform Act 2016 , which inserted section 15-1 of Schedule 2 to the Corporations Act.

Regulation 10.2.96 preserves the operation of subsection 1155(1) of the Corporations Act as originally enacted.

Regulation 10.2.96 preserves the operation of subsection 789(1) of the Corporations Act as originally enacted.

Regulation 10.2.96 preserves the operation of a register kept for the purposes of maintaining information obtained under section 791 of the Corporations Act as originally enacted.

Regulation 10.2.96 preserves the operation of section 31E of the Insurance (Agents and Brokers) Act 1984 as in force immediately before the commencement of item 1 of schedule 1 to the Financial Services Reform Act 2001 (FSR commencement).

Regulation 10.2.96 preserves the operation of subsection 22(1) of the Insurance (Agents and Brokers) Act 1984 as in force immediately before the FSR commencement.

Regulation 10.2.96 preserves the operation of subsection 22(1) of the Insurance (Agents and Brokers) Act 1984 as in force immediately before the FSR commencement.

Section 7 of the Public Service Act 1999 defines Agency to mean: a Department, an Executive Agency; or a Statutory Agency. Section 4A of the Taxation Administration Act 1953 provides that for the purposes of the Public Service Act, the Commissioner and the APS employees assisting the Commissioner together constitute a Statutory Agency.

Note that functions and powers conferred on the registrar by the Corporations Act, the Credit Act and the Business Names Act must be performed and exercised by the registrar under the replicated provisions in those Acts due to the terms upon which the states referred power to the Commonwealth in relation to those Acts. To ensure this, the Commonwealth Registers Bill 2019 includes provisions that ensure that the regime in that Bill cannot operate with respect to functions or powers under the Corporations Act, the Credit Act, the Business Names Act or any other Act that may rely on a similar referral. See clauses 5 (definition of 'excluded law'), 7 and 8 of the Commonwealth Registers Bill 2019.

The ability to integrate and link information is important to the effective and efficient administration of the new registry regime given that the data being brought into the new regime is currently maintained on a number of discrete registers and includes historical data.

Such provisions include transitional provisions that provide for the completion of actions started but not finished by ASIC at the time a registrar is first appointed. Such actions can be completed by either ASIC or the registrar to ensure continuity of registry administration.

Official employment is defined by the new law to capture persons who may have access to information under the new regime because they are employed by the Commonwealth or are a delegate of the registrar. In particular, a person is in official employment for the purposes of the new law if they: are appointed or employed by the Commonwealth; perform services for the Commonwealth (for example, as a contractor); or exercise powers or perform functions under a delegation by the registrar.

Protected information is defined in the new law so as to capture information disclosed or obtained by a person in the course of their duties in relation to the new registry regime. In particular, the new law defines protected information to mean information: obtained by a person in the course of the person's official employment; and is disclosed to, or obtained by, any person under, or in relation to, the new registry regime (which includes the new Act or another Commonwealth law in connection with particular functions or powers of the registrar).

See section 127 of the ASIC Act.

See section 30 of the ABN Act.

See section 355-25 of Schedule 1 to the Taxation Administration Act 1953 .

Attorney-General's Department, September 2011 edition.

Government entity is defined in the new law as having the meaning given by section 41 of the ABN Act. That section defines government entity as including: a department of state of the Commonwealth, a state or a territory; a department of the Parliament established under the Parliamentary Services Act 1999 ; an Executive Agency, or Statutory Agency, within the meaning of the Public Service Act 1999 ; and certain organisations established by the Commonwealth, a state or a territory to carry on an enterprise or established for a public purpose by an Australian law. Explicit authorisations to disclose registry information in accordance with intergovernmental agreements to state or territory officials for the performance of their official duties are contained in the replicated provisions of the new Act. These explicit authorisations exists for the purposes of compliance with intergovernmental agreements between the states/territories and the Commonwealth which require the states and territories to be given access to registry information collected under the Corporations Act, the Business Names Act and the Credit Act.

See subsection 13.3(3) of the Criminal Code .

The new law defines secrecy provision for this purpose as a provision of a law of the Commonwealth (other than under the new regime) that prohibits or regulates the use or disclosure of information.

The registrar may request and record tax file numbers only for the purposes of the director identification number regime (see Chapter 2 of this memorandum). The effect of designating section 8WB is that the registrar is unable to disclose tax file information it holds unless otherwise authorised by law.

See the Productivity Commission report on Data Availability and Use, May 2017, at pp 33, 131 to 133 and 331.

However, note that the definition in the new regime is confined to only Australian business laws.

See subsections 127(4D) and 127(4E) of the ASIC Act.

Attorney-General's Department, September 2011 edition.

Productivity Commission Inquiry Report No. 82, Data Availability and Use, May 2017. See, for example, recommendation 6.1 and pp. 100 and 125 of the report.

Note that the relevant information may still be recorded or disclosed: for the purposes of the new law (for example, storing the information in a register); or, in the course of the performance of the duties of a person's official employment in relation to the registrar or any other government entity (for example, this may occur to assist an entity enforce a law of the Commonwealth).

See, for example, section 29 of the Competition and Consumer Act 2010 and section 12 of the Australian Securities and Investments Commission Act 2001 .

See sections 9 and 11 of the Legislation (Exemptions and Other Matters) Regulations 2015 .

In performing a delegated function or exercising a delegated power, the delegate must comply with any written direction of the registrar.

As already noted, the use of rules as opposed to regulations reflects current drafting practice.

See the Legislation Act 2003 .

These consequential amendments are contained in Part 2 of Schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019.

For example, ASIC retains the power to commence criminal proceedings for all offences under the Corporations Act (see section 1315 of that Act). There are also some key areas of regulatory functions and powers, which operate in tandem with registry provisions, that will remain with ASIC. These include: deciding whether an entity should be registered for the purposes of some professional registers and for the Managed Investment Scheme register; determining what information must be provided by administrators of insolvent companies; and using discretion to decide when entities should be deregistered on the basis of non-compliance with regulatory provisions.

In particular, the new law abolishes any subject matter specific registers in affected laws and replaces them with a regime in which all information related to those functions and powers is held by the registrar.

Note: The amendments to the Business Names Registration (Fees) Act 2011 , the Corporations (Fees) Act 2001 and the National Consumer Credit Protection (Fees) Act 2009 are introduced into Parliament as three separate Bills. Notwithstanding the consequential nature of the amendments being made, it is OPC's practice not to include amendments of imposition Acts in omnibus amendment Bills if the amendments of the imposition Acts could be characterised as, or may appear to be, impositions of taxation. This practice is aimed at ensuring that such amendments comply with section 55 of the constitution which requires laws imposing taxation to deal only with the imposition of taxation.

See recommendation 15.6 of the Productivity Commission's report.

A 'de facto' director is a person who is not validly appointed as a director but who acts in the position of a director. See the definition of 'director' in section 9 of the Corporations Act and section 683-1 of the CATSI Act.

A 'shadow director' is a person who is not validly appointed as a director but the directors of the body are accustomed to act in accordance with the person's instructions or wishes.

The statement in the legislation that class exemptions are made by way of legislative instruments is inserted to assist readers. Such instruments are legislative in nature as they determine the law or alter the content of the law, rather than determine particular cases or particular circumstances in which the law is to apply or is not to apply.

See section 8 of the Legislation Act 2003 .

See Part 2A.1 of the Corporations Act.

See Part 2A.2 of the Corporations Act.

Under section 601FA of the Corporations Act a responsible entity for such a scheme must be a public company.

The DIN requirement applies whether or not a company registered under the Corporations Act is also registered under another law for a particular purpose, for example as a not-for-profit entity under the Australian Charities and Not-For Profits Commission Act 2012 .

See section 1378 of the Corporations Act, which provides that companies registered under Part 2A.2 of the old Corporations Law of a State or Territory continue to be registered as if they were registered under Part 2A.2 of the Corporations Act.

Section 21 provides that a body corporate that has a place of business in Australia carries on business in Australia. The section (and Division 3 of Part 1.2 of the Act more generally) also provides some additional information to elucidate the concept of carrying on a business. However, the term is not comprehensively defined in the Act.

'In Australia' or 'in this jurisdiction' means within the geographic area of each state and territory in Australia, including the coastal sea and, for the purposes of Chapter 7, any prescribed external territory: see section 5 (General territorial application of Act) and the definition of 'Australia' in section 9.

See section 601CD of the Corporations Act.

See section 601CE of the Corporations Act.

See section 9 of the Corporations Act.

Registrable Australian body is defined in section 9 as a body corporate (which is not a company, exempt public authority or corporation sole); or, an Australian unincorporated body that may sue or be sued or may hold property in the name of its secretary or an officer of the body.

For this reason, this memorandum refers to the relevant obligation as being to apply for a DIN prior to appointment rather than as a requirement to have a DIN.

For example, this power could be applied to the benefit of directors residing in very remote areas should that remoteness affect their ability to apply for a DIN prior to appointment.

See subsection 13.3(3) of the Criminal Code .

This ensures that people who are directors at the time the new requirement starts do not 'automatically' breach the obligation to obtain a DIN. Such existing directors would not have been able to obtain a DIN prior to being appointed a director and will therefore be allowed a transitional period in which to do so (which will be specified in the instrument).

The power of the registrar to extend the period is identical to that applicable to the first obligation discussed in paragraph 2.36 of this memorandum.

A defendant bears an evidential burden in relation to this matter. The significance of this burden and the rational for imposing it on the defendant are as described in paragraph 2.38 of this memorandum.

The Registrar of Aboriginal and Torres Strait Islander Corporations is charged with the administration of the CATSI Act (see section 658-1 of the Act). However, for ease of understanding this memorandum generally refers to ORIC rather than the Registrar of Aboriginal and Torres Strait Islander Corporations.

Without these amendments made by the new law it would be an offence under section 8WA of the Taxation Administration Act 1953 for the registrar to request a person's tax file number.

In particular, the registrar is generally permitted to disclose tax file information to the Commissioner for the purposes of verifying with the Commissioner that the number belongs to the person who provided it.

See paragraphs 2.35 to 2.41 of this memorandum.

It is a decision for the registrar as to how to treat cancelled numbers. The registrar could, for example, decide to reuse the number or to quarantine the number.

As explained in paragraphs 1.39 to 1.41 of this memorandum, the registrar must also perform its functions and powers in accordance with any other applicable laws of the Commonwealth. An example of such a law is section 8WA of the Taxation Administration Act 1953 , which limits the use and disclosure of tax file number information.

Note that while all these matters may be dealt with by the data standards this does not mean that they must be dealt with by the standards.

In particular, the registrar may decide to reuse a DIN that has previously been allocated to a person but then cancelled, whether or not the cancellation occurred by operation of law or because of a decision made by the registrar.

In particular, the new law also allows the data standards to require a registered foreign company or registered Australian body to provide the registrar with details of any existing DIN held by a new director of the body. In the case of the CATSI Act, the new law amends the information that must be provided to ORIC when a person becomes a director of an Aboriginal and Torres Strait Islander corporation so that it includes the person's DIN, or the fact that the person does not have a DIN.

Attorney-General's Department, September 2011 edition.

The Regulatory Powers Act provides that a maximum penalty of 60 penalty units can be imposed by an infringement notice, which is the amount set out in A Guide to Framing Commonwealth Offences , Infringement Notices and Enforcement Powers, issued by the Attorney-General's Department.

Note that 'place' and 'place of the alleged contravention' are not defined in the Regulatory Powers Act. The terms take their ordinary meaning.

Consistent with the current structure of the CATSI Act, the definition of 'Commonwealth registrar' is inserted into Part 17-2 (Interpretation of other expressions) of the CATSI Act.

The application day need not be the same for the purposes of the new requirement under the CATSI Act and Corporations Act respectively.

As the instrument made by the Minster is a legislative instrument it is subject to requirements of the Legislation Act 2003 , including parliamentary oversight through the disallowance process and appropriate consultation. The power to make this instrument under the Corporations Act is separate to the power to make it under the CATSI Act. This means that a different period can be specified for CATSI Act purposes to that specified for Corporations Act purposes.

See paragraph 2.81 of this memorandum.

Parliamentary Joint Committee on Human Rights, General Comment No 43 Article 14: Right to equality before courts and tribunals and to a fair trial, CCPR/C/CG/32, 23 August 2007, [30].

Attorney-General's Department, September 2011 edition.

See paragraphs 1.91 to 1.103 of this memorandum.

Item refers to the item number of the relevant amendment in schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019.

Item refers to the item number of the relevant amendment in schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019.

Item refers to the item number of the relevant amendment in schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019.

Item refers to the item number of the relevant amendment in schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019.