Explanatory Statement

Issued by authority of the Assistant Treasurer

Corporations Amendment (Name Exemption) Regulations 2019

Corporations Act 2001

The Corporations Act 2001 (the Act) provides for the regulation of corporations and financial services. Section 1364 of 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.

The Corporations Amendment (Name Exemption) Regulations 2019 (the Regulations) repeal the Corporations (Change of Incorporation) Regulations 2002 (the 2002 Regulations) and insert regulation 2B.6.02A in the Corporations Regulations 2001 (Corporations Regulations). The Regulations preserve the limited number of provisions in the 2002 Regulations which remain relevant, prior to them sunsetting on 1 October 2019.

The Regulations are made for the purposes of subsection 5H(5) of the Act which allows regulations to modify the operation of the Act to facilitate the registration of a company and subsection 5I(1) of the Act which allows regulations to be made to modify the operation of the Act so that there is no inconsistency between the Act and a specified State or Territory law.

Subregulation 2B.6.02A(1) provides that subsection 148(2) of the Act does not apply to Westpac Banking Corporation (Westpac). This allows Westpac to continue to omit the word 'Limited' from the end of its company name.

Subregulation 2B.6.02A(2) specifies the Westpac Banking Corporation (Transfer of Incorporation) Act 2000 (NSW) (Westpac Incorporation Transfer Act) for the purposes of subsection 5I(1) of the Act. The Westpac Incorporation Transfer Act deems the registration of Westpac and provides that its company name is 'Westpac Banking Corporation'. The Westpac Incorporation Transfer Act is inconsistent with the Act which provides its own procedures for registration and requires the word 'Limited' to be included in company names. By specifying the Westpac Incorporation Transfer Act, the Regulations modify the Act so that the provisions of the Westpac Incorporation Transfer Act apply instead of the Act. In doing so, Westpac's registration as a public company limited by shares is preserved for the purposes of the Act.

The Corporations Regulations are exempt from sunsetting (as provided by item 18(d) of section 12 in the Legislation (Exemptions and Other Matters) Regulation 2015). Remaking the relief in the Corporations Regulations (rather than in a standalone legislative instrument such as the 2002 Regulations) means that the relief provided to Westpac by the Regulations will be ongoing.

The 2002 Regulations facilitated the registration of Westpac and The Australian Gas Light Company (AGL) as public companies limited by shares under the Act. Prior to the 2002 Regulations, Westpac and AGL were each joint stock companies, an older form of corporate entity with some but not all features of a modern company. The 2002 Regulations provided relief to Westpac and AGL from certain requirements under the Act in order to facilitate their conversion as public companies limited by shares. This relief included allowing Westpac or AGL (amongst others) to:

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omit the word 'Limited' from the company name;

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retain their Australian Registered Body Number; and

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deal with share capital, members, auditing and director's benefits differently than as required for other public companies under the Act.

The other relief provided to Westpac and AGL under the 2002 Regulations is repealed as that relief is now redundant.

Treasury undertook direct consultation with AGL Energy Limited, Jemena Limited, Westpac and the Australian Securities and Investments Commission. Public consultation was not considered necessary.

The Office of Best Practice Regulation (OBPR) considered the effect of the Regulations and certified that the Regulations do not require a Regulation Impact Statement (OBPR ID 24261).

A Statement of Compatibility with Human Rights is in the Attachment.

The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.

The Regulations commence on the day after it is registered.

ATTACHMENT

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Corporations Amendment (Name Exemption) Regulations 2019

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The Corporations Amendment (Name Exemption) Regulations 2019 (the Regulations) repeal the Corporations (Change of Incorporation) Regulations 2002 (the 2002 Regulations) and remake the limited number of remaining non-redundant provisions, prior to the 2002 Regulations sunsetting on 1 October 2019.

The 2002 Regulations facilitated the registration of Westpac and AGL as public companies limited by shares under the Act.

The Regulations continue to facilitate this registration for Westpac and ensure there is no inconsistency between the Corporations Act 2001 and a specified State or Territory law, namely the Westpac Banking Corporation (Transfer of Incorporation) Act 2000 (NSW). Specifically, the Regulations will continue to allow Westpac to omit the word 'Limited' from the end of its company name.

The remaking of these provisions is not intended to affect the substantive meaning or operation of the existing provisions that remain current. The Regulations do not remake the large majority of provisions in the 2002 Regulations which are now redundant.

Human rights implications

The Regulations do not engage any of the applicable rights or freedoms because it relates to continuing relief for Westpac rather than affecting the rights or freedoms of individuals.

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.