Corporations Legislation Amendment Act 2003 (24 of 2003)
Schedule 1 Repeal of annual return requirements
Corporations Act 2001
30 Part 2N.1
Repeal the Part, substitute:
Part 2N.1 - Review date
345A Review date
(1) The review date for a company is:
(a) either:
(i) if the company became registered as a company after the commencement of this Act - the anniversary of the company's registration as a company under this Act; or
(ii) otherwise - the date of the company's incorporation or registration as a company, as recorded in a register maintained by ASIC under section 1274; or
(b) if a choice of a different date has effect under section 345C - that different date.
(1A) If:
(a) a company was incorporated as a company or became registered as a company before the commencement of this Act; and
(b) there is no date of incorporation of the company as a company or registration of the company as a company recorded in a register maintained by ASIC under section 1274; and
(c) paragraph (1)(b) does not apply to the company;
the review date for the company is the date determined by ASIC and notified to the company.
(1B) If, apart from this subsection, the review date for a company would be February 29, the review date for the company is February 28.
(2) The review date for a registered scheme is:
(a) the anniversary of the scheme's registration as a registered scheme; or
(b) if a choice of a different date has effect under section 345C - that different date.
345B Company or responsible entity may change review date
(1) With ASIC's approval, a company may choose as its review date a date that is different from the anniversary of its registration.
(2) With ASIC's approval, the responsible entity of a registered scheme may choose as the review date for the scheme a date that is different from the anniversary of its registration.
(3) If ASIC approves the choice, ASIC must notify the company or responsible entity in writing.
345C When choice has effect
If ASIC notifies the company or responsible entity of its approval under section 345B, the choice has effect:
(a) if the different date occurs before the next review date for the company or scheme - at the time that ASIC notifies its approval; or
(b) otherwise - immediately after the next review date for the company or scheme.
Part 2N.2 - Extract of particulars
346A ASIC must give an extract of particulars each year
(1) ASIC must, within 2 weeks after each review date for a company or a registered scheme, give to the company or responsible entity of the scheme an extract of particulars for the company or scheme.
(2) If an agreement or approval under subsection 352(1) covers the lodgment of a response to an extract of particulars for a company, ASIC may satisfy subsection (1) by making the extract available to the company or its agent by electronic means.
(3) An extract of particulars must specify the date of issue.
346B ASIC may ask questions
ASIC may include, in an extract of particulars for a company or a registered scheme, a requirement that the company or responsible entity of the scheme provide a particular prescribed by the regulations for the purposes of this section.
346C Requirements in relation to an extract of particulars
Respond if a particular is incorrect
(1) A company, or responsible entity of a registered scheme, must respond to an extract of particulars that it receives if any particular set out in the extract is not correct as at the date of receipt. The response must comply with subsection (3).
Respond if required to provide a particular
(2) A company, or responsible entity of a registered scheme, must respond to an extract of particulars that it receives if the extract includes a requirement to provide a particular under section 346B. The response must comply with subsection (3).
Contents of response
(3) The response to an extract of particulars by a company, or by the responsible entity of a registered scheme:
(a) must be lodged within 28 days after the date of issue of the extract; and
(b) must be in the prescribed form; and
(c) must be signed or authenticated; and
(d) if subsection (1) applies - must be such that the particulars set out in the extract, taken together with the response, are correct as at the date the response is signed or authenticated; and
(e) if subsection (2) applies - must provide the required particular, correct as at the date the response is signed or authenticated.
Response satisfies other requirements to notify
(4) If a company responds to an extract of particulars:
(a) correcting a particular; or
(b) providing a particular;
in accordance with subsection (3), any requirement elsewhere in this Act to lodge a prescribed form in relation to the particular is satisfied by the response.
(5) Subsection (4) does not affect the company's liability for late lodgment fees incurred before the response to the extract of particulars is lodged or continuing offences committed before that time.
Strict liability offences
(6) An offence based on subsection (1) or (2) is an offence of strict liability.
Note: For strict liability , see section 6.1 of the Criminal Code.
Part 2N.3 - Solvency resolution
347A Directors must pass a solvency resolution after each review date
(1) The directors of a company must pass a solvency resolution within 2 months after each review date for the company.
(2) Subsection (1) does not apply to the directors of a company that has lodged a financial report with ASIC under Chapter 2M within the period of 12 months before the review date.
Note: The defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal Code.
(3) An offence based on this section is an offence of strict liability.
Note: For strict liability , see section 6.1 of the Criminal Code.
347B Notice to ASIC
(1) If the directors of a company pass a negative solvency resolution under section 347A, the company must notify ASIC of that fact, in the prescribed form, within 7 days after the resolution is passed.
(2) If:
(a) subsection 347A(1) applies to the directors of a company; and
(b) the directors have not passed a solvency resolution under section 347A within 2 months after a review date;
the company must notify ASIC of that fact, in the prescribed form, within 7 days after the end of the 2 month period following the review date.
(3) An offence based on this section is an offence of strict liability.
Note: For strict liability , see section 6.1 of the Criminal Code.
347C Payment of review fee is taken to be a representation by the directors that the company is solvent
(1) If:
(a) a company has paid its review fee in respect of a review date; and
(b) the company has not lodged a notice under section 347B within 7 days after the end of the 2 month period following the review date; and
(c) the company has not lodged a financial report with ASIC under Chapter 2M within the period of 12 months before the review date;
the directors of the company are taken to have represented to ASIC, as at the end of the 2 month period following the company's review date, that, in their opinion, there are reasonable grounds to believe that the company will be able to pay its debts as and when they become due and payable.
Note: Directors are not taken to have passed a solvency resolution for the purposes of section 347A merely because they are taken, under this subsection, to have made a representation to ASIC.
(2) Subsection (1) does not apply if the directors prove that they made a positive solvency resolution under section 347A within 2 months after the end of the review date.
Part 2N.4 - Return of particulars
348A ASIC may give a return of particulars
(1) ASIC may give to a company or responsible entity of a registered scheme a return of particulars for the company or scheme if:
(a) the company or responsible entity has not paid the company's or scheme's review fee by the due date; or
(b) ASIC suspects or believes that particulars recorded in relation to the company or scheme in a register maintained by ASIC under subsection 1274(1) are not correct; or
(c) no documents have been lodged with ASIC in relation to the company or scheme for at least one year.
(2) If an agreement or approval under subsection 352(1) covers the lodgment of a response to a return of particulars for a company, ASIC may satisfy subsection (1) by making the return available to the company or its agent by electronic means.
(3) A return of particulars must specify the date of issue.
348B ASIC may ask questions
ASIC may include, in a return of particulars for a company or a registered scheme, a requirement that the company or responsible entity of the scheme provide a particular prescribed by the regulations for the purposes of this section.
348C ASIC may require a solvency resolution and statement
(1) ASIC may include, in a return of particulars for a company, a requirement that the company comply with subsection (2) or subsection (3). The company may choose which subsection to comply with.
(2) The company complies with this subsection if:
(a) before the company lodges a response to the return of particulars, the directors of the company pass a solvency resolution; and
(b) the response to the return of particulars states whether the resolution passed was a positive solvency resolution or a negative solvency resolution.
(3) The company complies with this subsection if the response to the return of particulars states the date on which the directors passed a positive solvency resolution under section 347A in respect of the company's most recent review date.
348D General requirements in relation to a return of particulars
Response is required
(1) A company, or responsible entity of a registered scheme, must respond to a return of particulars that it receives. The response must comply with subsection (2).
Contents of response
(2) The response to a return of particulars by a company, or by the responsible entity of a registered scheme:
(a) must be lodged with ASIC within 28 days after the date of issue of the return; and
(b) must be in the prescribed form; and
(c) must be signed or authenticated; and
(d) if, as at the date that the response is signed or authenticated, any particular set out in the return is not correct - must be such that the particulars set out in the return, taken together with the response, are correct as at the date the response is signed or authenticated; and
(e) if the return includes a requirement that the company or responsible entity of the scheme provide a particular under section 348B - must provide the required particular, correct as at the date the response is signed or authenticated; and
(f) if the return includes a requirement to comply with a subsection of section 348C - must include the statement required by the subsection that the company chooses to comply with.
Response satisfies other requirements to notify
(3) If a company responds to a return of particulars:
(a) correcting a particular; or
(b) providing a particular;
in accordance with subsection (2), any requirement elsewhere in this Act to lodge a prescribed form in relation to the particular is satisfied by the response.
(4) Subsection (3) does not affect the company's liability for late lodgment fees incurred before the response to the extract of particulars is lodged or continuing offences committed before that time.
Strict liability offences
(5) An offence based on subsection (1) is an offence of strict liability.
Note: For strict liability , see section 6.1 of the Criminal Code.
Part 2N.5 - Notice by proprietary companies of changes to ultimate holding company
349A Proprietary companies must notify ASIC of changes to ultimate holding company
(1) If an event mentioned in section 349B, 349C or 349D happens in relation to a proprietary company, the proprietary company must notify ASIC, in the prescribed form and within 28 days after the event, of the details required by that section.
(2) An offence based on subsection (1) is an offence of strict liability.
Note: For strict liability , see section 6.1 of the Criminal Code.
349B Another company becomes an ultimate holding company
If another company becomes an ultimate holding company in relation to a proprietary company, the proprietary company must notify ASIC of:
(a) the other company's name; and
(b) either:
(i) if the other company is registered in Australia - its ABN, ACN or ARBN; or
(ii) if the other company is not registered in Australia - the place at which it was incorporated or formed; and
(c) the date on which the other company became an ultimate holding company in relation to the proprietary company.
349C A company ceases to be an ultimate holding company
If a company ceases to be an ultimate holding company in relation to a proprietary company, the proprietary company must notify ASIC of:
(a) the name of the company that ceased to be an ultimate holding company in relation to the proprietary company; and
(b) the date the cessation occurred.
349D Ultimate holding company changes its name
If an ultimate holding company in relation to a proprietary company changes its name, the proprietary company must notify ASIC of the new name of the ultimate holding company.