House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Housing and Assistant Treasurer, the Hon Michael Sukkar MP)

Chapter 1 Modernisation of Commonwealth registers

Outline of chapter

1.1 The legislative package creates a new Act called the Commonwealth Registers Act 2019 (the new Act) and makes related amendments ^[2] to a range of existing laws to create a new Commonwealth business registry regime. It sets out:

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what information is subject to the new regime;

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who may be appointed to administer the new regime as its registrar;

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the functions and powers of the registrar;

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how the registrar performs its functions and exercises its powers;

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the framework for protecting and disclosing information held by the registrar; and

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other matters that support the new regime.

Context of amendments

1.2 The Australian Government has committed to simplifying its interactions with business to support growth, innovation and employment.

1.3 The National Business Simplification Initiative, announced in 2016, aims to reduce the time that businesses spend complying with regulations and interacting with government so that they can focus on growing their business, creating more jobs, and developing new products and market opportunities. The Initiative is a Commonwealth led agreement between federal, state and territory governments to work together to make it simpler to do business in Australia.

1.4 As part of the Initiative, the Government is developing a modern approach to managing Commonwealth registers to provide more user-friendly and streamlined registry services. The initial focus of this modernisation process is on the registers kept by ASIC as well as the Australian Business Register, which is kept by the Commissioner of Taxation (the Commissioner).

Summary of new law

1.5 The new law facilitates a modern government registry regime that is flexible, technology neutral and governance neutral. The regime initially applies to the business registers administered by ASIC and the Australian Business Register, which is kept by the Commissioner. Additional government registers may be brought into the regime by future legislative reforms.

1.6 Under the new regime the Minister will appoint an existing Commonwealth body to be the registrar. Different registrars can be appointed for different functions or powers of the registrar.

1.7 The functions and powers of the registrar are largely set out in existing Commonwealth laws. In particular, most powers and functions are set out in the Commonwealth acts that contain the registers being brought into the new regime. These acts include the Corporations Act, the ABN Act, the Business Names Act, the Credit Act, and the SIS Act.

1.8 The registrar performs its functions and exercises its powers in accordance with the data standards and other Commonwealth laws. The data standards are disallowable instruments made by the registrar. They may deal with a variety of matters including what information may be collected for the purposes of performing the registrar's functions, how such information is to be given to the registrar, and how information held by the registrar is to be stored.

1.9 The new law provides for the protection and disclosure of information held by the registrar. It is an offence for an official to disclose information held by the registrar unless the disclosure is authorised. A disclosure is authorised where: it is for the purposes of the new registry regime; it happens in the course of the performance of an official's duties; each person to whom the information relates consents to the disclosure; the information is disclosed to a government agency for the performance of its functions; or, the benefits associated with the disclosure outweigh the risks (including privacy risks) after those risks have been mitigated.

1.10 All decisions made by the registrar under the new Act are reviewable by the Administrative Appeals Tribunal except those made by disallowable instrument.

Comparison of key features of new law and current law

Detailed explanation of new law

1.11 The legislative package creates the new Act and makes consequential amendments to a suite of existing laws to create a new Commonwealth business registry regime. It sets out:

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what information is subject to the new regime;

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who may be appointed to administer the new regime as its registrar;

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the functions and powers of the registrar;

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how the registrar performs its functions and exercises its powers;

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the framework for protecting and disclosing information held by the registrar; and

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other matters that support the new regime.

1.12 The objective of the new regime is to facilitate a modern government registry regime that is flexible, technology neutral and governance neutral, and that facilitates timely and efficient access to information (including, where appropriate, on a real time basis) by regulators and other users of the information. The new Act includes a simplified outline of its contents to assist readers understand the new regime. [Clauses 3 and 4 of the Commonwealth Registers Bill 2019]

What information is subject to the new regime?

1.13 Initially, information related to 35 existing business registers will be subject to the new registry regime. The existing business registers comprise 34 registers currently kept by ASIC and the Australian Business Register, which is currently kept by the Commissioner ^[3] . Table 1.1 lists the registers being brought into the new regime and the current legislative provision(s) that establish the register. ^[4]

Table 1.1 - Registers being brought into the new regime

* Historical register. The registrar holds the information contained in the register and may exercise any functions and powers preserved by transitional arrangements.

1.14 Additional registers may be brought into the new regime by future legislative reforms.

Who may be appointed registrar?

1.15 Under the new regime the Minister may, by notifiable instrument, appoint any existing Commonwealth body to be the registrar. Commonwealth body is a defined term. It is defined as meaning:

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an Agency (within the meaning of the Public Service Act 1999) ^[16] ;

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a body, whether incorporated or not, established for a public purpose by or under a law of the Commonwealth; and

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a person: holding or performing the duties of an office established by or under a law of the Commonwealth; or holding an appointment made under a law of the Commonwealth. [Definition of 'Commonwealth body', Clause 5, and subclause 6(1) of the Commonwealth Registers Bill 2019, items 1, 5, 8, 10, 14 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, section 3, paragraph 6A(a) and subsection 62A(1) of the Business Names Act, section 9, paragraph 9C(a) and subsection 1270(1) of the Corporations Act, and section 5, paragraph 16A(a) and subsection 212A(1) of the Credit Act]

1.16 Only a Commonwealth body can be appointed as the registrar. Other bodies, such as a state government body or a private body, cannot be appointed as the registrar.

1.17 Different Commonwealth bodies can be appointed registrar for different functions of the registrar. Where this occurs, a reference to 'registrar' in the new regime is taken to be a reference to each body appointed as registrar, as applicable. This enables a shared services approach to be adopted where such an approach would facilitate the efficient and effective administration of the new regime. [Subclauses 6(2) and 6(3) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, paragraph 6A(b) and subsection 62A(2) of the Business Names Act, paragraph 9C(b) and subsection 1270(2) of the Corporations Act, and paragraph 16A(b) and subsection 212A(2) of the Credit Act]

What are the functions and powers of the registrar?

1.18 The new law sets out the functions and powers of the registrar.

1.19 A body's functions comprise those actions or activities that are properly performed by the body. The new law provides that the functions of the registrar are:

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such functions as are conferred on the registrar by a law of the Commonwealth;

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such functions as may be prescribed by rules made by the Minister; and

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such functions as are incidental to the functions mentioned above.

[Clause 7 of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, section 62B of the Business Names Act, section 1270A of the Corporations Act and section 212B of the Credit Act]

1.20 A power is something a body can do. The new law ties the powers of the registrar to its functions. In particular, it provides that the powers of the registrar include:

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such powers as are conferred on the registrar in relation to its functions by a law of the Commonwealth; and

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the power to do all things necessary or convenient to be done for or in connection with the performance of those functions.

[Clause 8 of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, section 62C of the Business Names Act, section 1270B of the Corporations Act and section 212C of the Credit Act]

Most functions and powers are set out in existing laws

1.21 The functions and powers of the registrar are largely set out in existing Commonwealth laws. In particular, most are set out in the existing provisions of primary and subordinate legislation that relate to the registers being brought into the new regime (see Table 1.1). These provisions are contained in various parts of the Corporations Act, the Corporations Regulations, the ABN Act, the Business Names Act, the Credit Act, the Credit Regulations, and the SIS Act. ^[17]

1.22 It is not practicable to comprehensively list all of the functions and the powers that have been transferred to the registrar through amendments to existing legislation. They are set out in hundreds of consequential amendments that are made to support the new regime. However, the amended functions and powers relate to registry matters such as:

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the subject matters for which the registrar can collect information;

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how persons make applications to the registrar for certain things (for example, the allocation of an Australian Business Number);

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the ability of the registrar to assess those applications; and

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the ability of the registrar to hold information.

1.23 The consequential amendments do not create new functions and powers. Rather, they transfer existing functions and powers, which are currently allocated to specific regulators, to the registrar. Paragraphs 1.91 to 1.103 of this explanatory memorandum provide further information in relation to the consequential amendments.

Core functions and powers are set out in the new Act

1.24 Functions and powers of the registrar are also set out in the new Act which contains the core provisions of the new regime. These functions and powers apply to all information subject to the new regime. They are designed to enable the regime to apply in a holistic, consistent and flexible manner regardless of the information it contains. Examples of such functions and powers include: the registrar's ability to make data standards relating to the performance of its functions and powers; and the registrar's ability to make a disclosure framework relating to the disclosure of protected information.

1.25 Several benefits derive from the functions and powers contained in the new Act. In particular, they overcome several undesirable features of the current registries regime. These features include:

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registers being maintained separately from each other despite sometimes holding similar information - resulting in clients having to provide the same information several times in relation to different registers;

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regulators having limited abilities to determine what information is required for each register - resulting in registers becoming outdated;

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regulators having varying abilities to determine the manner and form in which registry information is collected and the business rules associated with such collections - resulting in inefficiencies, including an inability to make full use of technology (for example, email and the internet) and to consistently and flexibly deal with incomplete or defective applications; and

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different and sometimes inconsistent rules applying to the management and use of registers - resulting in Government failing to make best use of registry data.

Additional functions may be prescribed by the rules

1.26 The Minister may prescribe additional functions for the registrar by rules made for this purpose. This ability is supported by a rule making power that enables the Minister, by legislative instrument, to make rules prescribing matters: required or permitted by the new Act to be prescribed by the rules; or, necessary or convenient to be prescribed for carrying out or giving effect to the new Act. [Paragraph 7(c) and subclause 25(1) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, paragraph 62B(b) and subsection 62U(1) of the Business Names Act, paragraph 1270A(b) and subsection 1270T(1) of the Corporations Act and paragraph 212B(b) and subsection 212U(1) of the Credit Act]

1.27 This power is intended to provide flexibility for the new regime, particularly with respect to the registrar's functions. Examples of additional functions that could be prescribed by the Minister include functions regarding the management of Commonwealth data or functions around educating the public about data resources and data security. While functions permitting the collection of additional data could be prescribed, such collections could only proceed on a voluntary basis as there is no provision for penalties for non-compliance.

1.28 Further information regarding the new rule making power more generally is contained in paragraphs 1.85 to 1.90 of this memorandum. For present purposes, it is noted that any rules made using this power (including rules prescribing additional functions for the registrar) are legislative instruments and are subject to parliamentary oversight through the disallowance process set out in the Legislation Act 2003.

How does the registrar perform its functions and powers?

1.29 The registrar performs its functions and powers in accordance with the data standards and other Commonwealth laws. [Clause 15 of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, section 62K of the Business Names Act, section 1270J of the Corporations Act and section 212K of the Credit Act]

Data standards

1.30 The new law allows the registrar to make data standards on matters relating to the performance of the registrar's functions and the exercise of the registrar's powers. The data standards may deal with a variety of registry related matters that are currently dealt with by prescriptive rules in primary legislation that are not uniform, technology neutral or governance neutral. [Subclause 13(1) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsection 62H(1) of the Business Names Act, subsection 1270G(1) of the Corporations Act and subsection 212H(1) of the Credit Act]

1.31 To assist readers to understand the role of the data standards, the new Act provides examples of what the data standards may cover. These examples clarify that the data standards may provide for matters such as the following:

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what information may be collected for the purposes of the performance of the registrar's functions and the exercise of the registrar's powers;

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how such information may be collected;

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the manner and form in which such information is given to the registrar;

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when information is to be given to the registrar;

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how information held by the registrar is to be authenticated, verified or validated;

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how information held by the registrar is to be stored;

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the correction of information held by the registrar;

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the manner and form of communication between the registrar and persons who give information to the registrar or seek to access information held by the registrar; and

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integrating or linking information held by the registrar. ^[18] [Subclause 13(2) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsection 62H(2) of the Business Names Act, subsection 1270G(2) of the Corporations Act and subsection 212H(2) of the Credit Act]

1.32 These examples are an inclusive list of the matters that may be dealt with by the data standards. Their inclusion in the new Act is not intended to limit the matters that may properly be dealt with by the data standards. [Subclause 13(2) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsection 62H(2) of the Business Names Act, subsection 1270G(2) of the Corporations Act and subsection 212H(2) of the Credit Act]

1.33 The new Act clarifies that the data standards may include different provisions relating to different functions or powers of the registrar. This ensures that the data standards do not need to adopt a 'one size fits all' approach to the administration of registry functions and powers. The variety of functions and powers given to the registrar means that the registrar should be able to tailor data standards so that they are appropriate for the different purposes for which they may be made. [Subclause 13(3) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsection 62H(3) of the Business Names Act, subsection 1270G(3) of the Corporations Act and subsection 212H(3) of the Credit Act]

1.34 This approach of enabling the registrar to make data standards facilitates the efficient and effective administration of registry services. Data standards can be readily amended over time to keep up with changes in best practice, industry preference, the needs of those using registry services, and technology. The flexibility offered also enables a 'tell us once' approach to the collection of information, minimising the number of interactions clients have with the registrar. Currently, a reporting entity may have to provide the same information to multiple registers, increasing regulatory burden and the cost of administering registry services.

1.35 To ensure these benefits can be realised the new law includes provisions that ensure the data standards may request information in a wide variety of ways that make best use of available technology. In particular, the new law expressly clarifies that:

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the data standards may provide that information is to be given to the registrar in electronic form, or any other specified form; and

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a requirement under a law that information is to be provided to the registrar in a particular form or manner (however described), including a requirement that information is to be "lodged" or "furnished", is not taken to restrict by implication what the data standards may provide in relation to that information. [Clause 14 of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, section 62J of the Business Names Act, section 1270H of the Corporations Act and section 212J of the Credit Act]

1.36 The new law includes provisions designed to promote the smooth transition of registry functions and powers from one registrar to another. ^[19] As already noted, under the new regime the Minister may appoint any government body as registrar for particular functions and powers and may change the appointed body at any time. Should the body appointed as registrar for particular functions and powers change, the new law provides that any existing data standards continue to apply until the new registrar has prepared replacement standards. [Subclauses 13(4) of the Commonwealth Registers Bill 2019, items 5, 10, 18, 359, 1315, 1414 and 1467 of Schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsection 62H(4) of the Business Names Act, schedule 3 of the Business Names Registration (Transitional and Consequential Provisions) Act 2011, subsection 1270G(4) and Part 10.34 of the Corporations Act, subsection 212H(4) of the Credit Act and Schedule 7 of the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009]

1.37 Data standards are disallowable instruments for the purposes of the Legislation Act 2003. Under that Act, legislative instruments and their explanatory statements must be tabled in both Houses of the Parliament within six sitting days after the date of registration of the instrument on the Federal Register of Legislation. Once tabled, the instruments will be subject to the same level of parliamentary scrutiny as regulations (including consideration by the Senate Standing Committee on Regulations and Ordinances), and notice of a motion to disallow the instruments may be given in either House of the Parliament within 15 sitting days after the date the instruments are tabled.

1.38 In accordance with the requirements of the Legislation Act 2003, the registrar must be satisfied that appropriate consultation has been undertaken prior to making the data standards. This would include, for example, the registrar consulting with regulators who use registry information to carry out their statutory functions or powers before the registrar makes a data standard that relates to information used by those regulators. It would also include consultation with industry where industry is likely to be affected by the data standard and consultation is reasonably practicable.

Other Commonwealth laws

1.39 The registrar must also perform its functions and exercise its powers in compliance with any other applicable law of the Commonwealth. These laws fall into two broad categories. [Clause 15 of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, section 62K of the Business Names Act, section 1270J of the Corporations Act and section 212K of the Credit Act]

1.40 The first category relates to current laws governing the registers being brought into the new regime. These laws will continue to apply in relation to functions and powers assigned to the registrar until such time as data standards are made in relation to them. This ensures the smooth transition of functions and powers into the new registry regime in circumstances where data standards in relation to those functions and powers do not yet exist. In particular, it avoids any possibility of a situation arising where there is an absence of law in relation to how registry functions and powers are performed. [Subclause 15(1) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsection 62K(1) of the Business Names Act, subsection 1270J(1) of the Corporations Act and subsection 212K(1) of the Credit Act]

1.41 The second category relates to other laws of the Commonwealth that properly apply to the registrar. These include laws of general application such as those relating to freedom of information, archiving of Commonwealth records, good governance, and the management of financial resources. [Subclause 15(2) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsection 62K(2) of the Business Names Act, subsection 1270J(2) of the Corporations Act and subsection 212K(2) of the Credit Act]

How is information held by the registrar protected and disclosed?

1.42 The new law provides for the protection and disclosure of information held by the registrar, including disclosure via a disclosure framework made by the registrar.

Protection of registry information

1.43 It is an offence for an official to record or disclose information held by the registrar unless the recording or disclosure is authorised. In particular, unless authorised, a person commits an offence if:

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the person is, or has been, in official employment ^[20] ;

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the person makes a record of information, or discloses information to another person; and

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the information is protected information ^[21] that was obtained by the person in the course of their official employment. [Clause 5, definitions of 'official employment' and 'protected information', and subclause 17(1) of the Commonwealth Registers Bill 2019, items 1, 5, 8, 10, 14, 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, section 3 and subsection 62M(1) of the Business Names Act, section 9 and subsection 1270L(1) of the Corporations Act, and section 5 and subsection 212M(1) of the Credit Act]

1.44 The maximum penalty for disclosing registry information in breach of this offence provision is imprisonment for two years. The penalty is consistent with comparable provisions in other Acts, including the ASIC Act ^[22] , the ABN Act ^[23] and the Taxation Administration Act 1953 ^[24] . The principles set out in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers ^[25] were also considered in determining the applicable penalty. [Subclause 17(1) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsections 62M(1) and 62M(2) of the Business Names Act, subsections 1270L(2)and 1270L(3)of the Corporations Act and subsection 212M(1) and 212M(2) of the Credit Act]

Disclosure of registry information

1.45 As mentioned above, the prohibition against recording and disclosing registry information does not apply where the recording or disclosure is authorised. A recording or disclosure is authorised if:

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the recording or disclosure is for the purposes of the new Act or happens in the course of the performance of the duties of a person's official employment;

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the disclosure is to another person for use, in the course of the performance of the duties of the other person's official employment, in relation to the performance of the functions of a government entity ^[26] ;

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each person to whom the information relates consents to the disclosure; or

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the disclosure is in accordance with the disclosure framework.

[Clause 5, definition of 'government entity', and subclauses 17(2) and 17(3) of the Commonwealth Registers Bill 2019, items 1, 5, 8, 10, 14, 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, section 3 and subsections 62M(2) and 62M(3) of the Business Names Act, section 9 and subsections 1270L(2)and 1270L(3) of the Corporations Act, and section 5 and subsections 212M(2) and 212M(3) of the Credit Act]

1.46 A defendant carries an evidential burden for establishing that a recording or disclosure of registry information was authorised. To satisfy this evidential burden the defendant must adduce or point to evidence that suggests a reasonable possibility that the recording or disclosure was authorised. ^[27] Once this is done, the prosecution bears the burden of proof. [Subclause 17(3) of the Commonwealth Registers Bill 2019]

1.47 The new law expressly authorises disclosure to a government entity in relation to the performance or exercise of its functions or powers. The intent of this authorisation is to, for example, ensure ASIC has real-time access to all the registry information it requires in order to exercise its regulatory functions or powers. [Subclauses 17(2) and 17(3) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsection 62M(2) of the Business Names Act, subsection 1270L(2) of the Corporations Act and subsection 212M(2) of the Credit Act]

1.48 The new law clarifies how its protection and disclosure regime relates to other secrecy provisions in Commonwealth law. The effect of the new law is that other Commonwealth secrecy provisions ^[28] do not apply in addition to the new law's protection and disclosure regime unless expressly designated. The following secrecy provisions have been designated for this purpose:

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sections 18 to 18B and 92 of the Australian Security Intelligence Organisation Act 1979;

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section 34 of the Inspector-General of Intelligence and Security Act 1986;

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sections 39 to 41 of the Intelligence Services Act 2001;

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a provision of a law of the Commonwealth prescribed by the rules;

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a provision of a law of the Commonwealth of a kind prescribed by the rules; and,

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section 8WB of the Taxation Administration Act 1953 (which contains special rules relating to the disclosure of tax file numbers) ^[29] .

[Clause 18 of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, section 62N of the Business Names Act, section 1270M of the Corporations Act and section 212N of the Credit Act]

1.49 The intent of the new law in this regard is to avoid unnecessary overlap in the operation of secrecy provisions in relation to registry information. It is not optimal for multiple secrecy provisions to unnecessarily apply to the same piece of information. For example, the Productivity Commission identified over 500 different secrecy provisions and found that they often interacted in a way that leads to undesirable complexity, resulting in unnecessary barriers to data access that stifles socially beneficial activities. ^[30]

1.50 Similarly, the new regime's disclosure framework is expressly authorised for the purposes of paragraph 6.2(b) of the Privacy Act 1988. Paragraph 6.2(b) of the Privacy Act 1988 allows disclosure of personal information where it is authorised by an Australian law. As the new disclosure framework is such an Australian law, this provision simply clarifies the operation of the current law. [Clause 20 of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, section 62Q of the Business Names Act, section 1270P of the Corporations Act and section 212Q of the Credit Act]

1.51 The new regime exempts a person from being required to provide registry information to a court except where the disclosure is necessary for giving effect to a taxation law or an Australian business law. What constitutes a taxation law is defined in section 995-1 of the Income Tax Assessment Act 1997 to include: a provision of an Act for which the Commissioner has general administration; legislative instruments made under such a provision; or the Tax Agent Services Act 2009 or regulations made under that Act. The new law defines Australian business law to mean a law of the Commonwealth, or of a State or Territory, that is a law that regulates, or relates to the regulation of, business or persons engaged in business. This definition is based on the definition of 'business law' in section 3 of the Mutual Assistance in Business Regulation Act 1992. ^[31] [Clause 21 of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, section 62R of the Business Names Act, section 1270Q of the Corporations Act and section 212R of the Credit Act]

1.52 The new law in this respect is based on existing subsection 30(5) of the ABN Act, which is being repealed by the new law. That subsection currently exempts a person from having to provide protected documents or information (as defined in the ABN Act) to a court except where the proceedings relate to a taxation law. The provision guards against registry information being required to be produced for purposes unrelated to its collection.

The disclosure framework

1.53 The new law provides that the registrar may make the disclosure framework referred to in the final dot point of paragraph 1.45. Under the disclosure framework the registrar may authorise the disclosure of registry information where it is satisfied that the benefits of disclosure outweigh the risks, after those risks have been mitigated. [Subclauses 16(1) and 16(5) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsections 62L(1) and 62L(5) of the Business Names Act, subsections 1270K(1) and 1270K(5) of the Corporations Act and subsections 212L(1) and 212L(5) of the Credit Act]

1.54 The disclosure framework may provide for any matter related to the disclosure of registry information. For example, the disclosure framework may provide for matters such as:

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the circumstances in which information must not be disclosed without the consent of the person to whom it relates;

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the circumstances in which de-identified information may be disclosed;

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the circumstances in which information may be disclosed to the general public;

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the circumstances in which confidentiality agreements are required for the disclosure of information; and

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the imposition of conditions on disclosure of information. [Subclause 16(2) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsection 62L(2) of the Business Names Act, subsection 1270K(2) of the Corporations Act and subsection 212L(2) of the Credit Act]

1.55 In addition, the new law clarifies that the disclosure framework may include different provisions relating to different functions or powers of the registrar. This ensures that the disclosure framework can be tailored to particular functions and powers of the registrar. [Subclause 16(3) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsection 62L(3) of the Business Names Act, subsection 1270K(3) of the Corporations Act and subsection 212L(3) of the Credit Act]

1.56 To support the effectiveness of the disclosure framework in relation to circumstances in which confidentiality agreements are required for the disclosure of registry information, penalties can apply to a person who contravenes such an agreement. In particular, a person commits an offence if they are party to a confidentiality agreement required by the disclosure framework and fail to comply with the agreement. The maximum penalty for the offence is 100 penalty units or imprisonment for two years, or both. The penalty is consistent with comparable provisions in other Acts, including the ASIC Act. ^[32] The principles set out in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers ^[33] were also considered in framing the offence and determining the applicable penalty. [Subclause 16(4) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsection 62L(4) of the Business Names Act, subsection 1270K(4) of the Corporations Act and subsection 212L(4) of the Credit Act]

1.57 The above approach to disclosure aligns with the Productivity Commission's 2017 recommendation to take a more principled approach to the release of Government data. In particular, the Commission recommended that Government data be able to be released publically where the benefits of the release outweigh the risks involved (including privacy risks) after those risks have been mitigated to the extent practicable. ^[34] The intention of this recommendation was to capture the benefits of 'big data' while managing all risks of disclosure, not just those relating to personal information.

1.58 It is envisaged that the ability to make a disclosure framework will provide the registrar with flexibility regarding the release of registry information. For example, the framework could allow a trusted user (for instance a university whose IT systems, processes and staff have been vetted) to access information that may not be appropriate for wider dissemination where a social benefit exists and appropriate undertakings are made.

1.59 As is the case with respect to data standards, the new law includes provisions designed to promote the smooth transition of registry functions and powers from one registrar to another. Should the body appointed as registrar for particular functions and powers change, the new law provides that any existing disclosure framework continues to apply until the new registrar has prepared a replacement framework. [Subclause 16(7) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsection 62L(7) of the Business Names Act, subsection 1270K(7) of the Corporations Act and subsection 212L(7) of the Credit Act]

1.60 The disclosure framework is a disallowable instrument for the purposes of the Legislation Act 2003. Under that Act, legislative instruments and their explanatory statements must be tabled in both Houses of the Parliament within six sitting days after the date of registration of the instrument on the Federal Register of Legislation. Once tabled, the instruments will be subject to the same level of parliamentary scrutiny as regulations (including consideration by the Senate Standing Committee on Regulations and Ordinances), and notice of a motion to disallow the instruments may be given in either House of the Parliament within 15 sitting days after the date the instruments are tabled. In addition to parliamentary oversight, the disclosure framework is subject to a privacy impact assessment under the Privacy Act 1988 and the consultation requirements contained in the Legislation Act 2003. [Subclause 16(1) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsection 62L(1) of the Business Names Act, subsection 1270K(1) of the Corporations Act and subsection 212L(1) of the Credit Act]

1.61 The consultation requirements contained in the Legislation Act 2003 require the registrar to be satisfied that appropriate consultation has been undertaken on the disclosure framework, prior to making the disclosure framework. This would include the registrar consulting with regulators who use registry information in support of their functions and powers, where such regulators are likely to be affected by the proposed framework or have expertise relevant to the disclosure of information held by the registrar. It would also include consultation with industry where industry is likely to be affected by the disclosure framework and consultation is reasonably practicable.

1.62 The new law also allows a person to apply to the registrar to prevent an inappropriate disclosure of registry information that relates to them. The data standards may provide for how such applications are to be made and decided. However, where the registrar is satisfied that the disclosure is not appropriate, the disclosure is taken to not be in accordance with the disclosure framework. ^[35] [Clause 19 of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, section 62P of the Business Names Act, section 1270N of the Corporations Act and section 212P of the Credit Act]

What other matters does the new law provide for?

1.63 The new law also provides for other matters designed to support the effectiveness and efficiency of the registry regime. In this respect, the new regime provides for:

•

when the Minister can direct the registrar;

•

the circumstances in which, and to whom, the registrar may delegate its functions and powers;

•

the use of assisted decision making processes by the registrar;

•

review rights with respect to decisions made by the registrar;

•

the extent to which the registrar and associated persons may be liable for damages in connection with the new regime;

•

the admissibility of registry information in court proceedings;

•

the information that must be included in the registrar's annual report about the operation of the new regime; and

•

what rules may be made by the Minister for the purposes of the new regime.

Directions by the Minister

1.64 The new law enables the Minister to give binding directions of a general nature to the registrar about the performance of its functions and powers. Similar directions powers exist in current laws of the Commonwealth. ^[36] [Subclauses 9(1), 9(3) and 9(5) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsections 62D(1), 62D(3) and 62D(5) of the Business Names Act, subsection 1270C(1), 1270C(3) and 1270C(5) of the Corporations Act and subsections 212D(1), 212D(3) and 212D(5) of the Credit Act]

1.65 This direction power promotes the effective and efficient operation of the new regime. In particular, the power ensures a coordinated approach to the performance of the registrar's functions and powers given that those functions and powers may be dispersed across several government bodies. For instance, where functions and powers are dispersed the Minister could direct that all registry information be stored on a central IT platform rather than on individual databases maintained by appointed bodies. The power could also be used, for example, to:

•

make directions that promote business continuity and minimise disruption where there is a change in the body to which particular registry functions and powers are assigned;

•

direct the registrar to comply with particular standards, for example this could include any current or future whole of government standards relating to data management;

•

direct that forms are to include warnings or notices about certain things, for examples penalties for making false statements; or

•

direct as to consultation processes that are to be followed prior to making data standards or the disclosure framework (any such requirements would be in addition to those required by the Legislation Act 2003). [Subclauses 9(1), 9(2), 9(3) and 9(5) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsections 62D(1), 62D(2), 62D(3) and 62D(5) of the Business Names Act, subsection 1270C(1), 1270C(2), 1270C(3) and 1253(5) of the Corporations Act and subsections 212D(1), 212D(2), 212D(3) and 212D(5) of the Credit Act]

1.66 The new law also enables the Minister to direct the registrar as to particular matters to be dealt with in the data standards or disclosure framework. For example, the Minister could direct that the disclosure framework provide for the provision of specified information to a particular government body that requires the information. Where the Minister makes such a direction, the registrar must include the matter in its disclosure framework whether or not they are satisfied of the matters set out in paragraph 1.53 of this memorandum. However, the Minister cannot direct the registrar as to how they are to apply the data standards or disclosure framework in a particular case. [Subclauses 9(2), 9(4), 9(5) and 16(6) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsections 62D(2), 62D(4), 62D(5) and 62L(6) of the Business Names Act, subsection 1270C(2), 1270C(4), 1270C(5) and 1270K(6) of the Corporations Act and subsections 212D(2), 212D(4), 212D(5) and 212L(6) of the Credit Act]

1.67 All directions by the Minister must be in writing and are legislative instruments for the purposes of the Legislation Act 2003. As noted in the Bill, the Legislation (Exemptions and Other Matters) Regulations 2015 provide that section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to an instrument that is a direction by a Minister to any person or body. ^[37] [Subclause 9(1) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsection 62D(1) of the Business Names Act, subsection 1270C(1) of the Corporations Act and subsections 212D(1) of the Credit Act]

Delegation by the registrar

1.68 The new registers regime includes a delegation power that can be used by the registrar to assist them in the performance of their functions and powers. ^[38] The power provides that the registrar may delegate all or any of its functions or power (other than the power to make data standards or the disclosure framework) to any person to whom it may delegate any of its other functions, as a Commonwealth body, under Commonwealth law. [Paragraph 10(1)(a) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, paragraph 62E(1)(a) and subsection 62E(2) of the Business Names Act, paragraph 1270D(1)(a) and subsection 1270D(2) of the Corporations Act, and paragraph 212E(1)(a) and subsection 212E(2) of the Credit Act]

1.69 The new law therefore effectively adopts the existing delegation regime (if any) applicable to the body appointed as registrar. This should in practice allow any existing delegations, with respect to functions and powers being transferred to the registrar, to remain in place should the registrar so desire. As already noted, these functions and powers may generally be described as registry in nature (as opposed to being regulatory in nature).

1.70 The new law also permits the registrar to delegate its functions and powers to any person of a kind specified in the rules. This allows the rules to rectify a situation where the above mentioned delegation arrangements are not sufficient to facilitate the effective and efficient administration of the new regime. Any such rules are legislative instruments and are therefore subject to requirements of the Legislation Act 2003, including parliamentary oversight through the disallowance process and appropriate consultation. ^[39] [Paragraph 10(1)(b) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, paragraph 62E(1)(b) of the Business Names Act, paragraph 1270D(1)(b) of the Corporations Act and paragraph 212E(1)(b) of the Credit Act]

Assisted decision making

1.71 The new law allows the registrar to use processes to assist it to make decisions. In particular, the new law permits the registrar to arrange for the use, under the registrar's control, of a process to assist decision making for any purpose for which the registrar may make a decision, other than decisions reviewing other decisions. The new law enables the registrar to use a wide variety of processes and technologies for this purpose (including computer applications and systems) and a decision made using such a process is taken to be a decision of the registrar. [Subclause 11(1) and 11(2) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsections 62E(1) and 62E(3) of the Business Names Act, subsections 1270E(1) and 1270E(3) of the Corporations Act and subsections 212E(1) and 212E(3) of the Credit Act]

1.72 The administration of functions and powers being transferred to the registrar requires it to make a large number of decisions. The use of assisted decision making processes, including computer automated and computer-assisted decision making, will improve the timeliness and accuracy of decision making and enable the registrar to deliver a high standard of service in an effective and efficient manner. The new law provides a sound legislative basis to ensure these benefits can be realised.

1.73 The new law includes provisions to promote the appropriate use of assisted decision making processes. For example:

•

the use of such processes must be arranged by the registrar and used under its control;

•

any decision made by such processes must comply with all of the requirements of the legislative provisions under which the decision was made. This means, for instance, that any review mechanism applicable to the decision remains in place; and

•

the registrar may change a decision made by an assisted decision making process if it is satisfied that the decision is wrong. In this circumstance, a person would not need to request a review of the incorrect decision because the registrar is able to change the decision on its own motion. [Subclauses 11(1) and 11(3) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsections 62F(1) and 62F(3) of the Business Names Act, subsections 1270E(1) and 1270E(3) of the Corporations Act and subsections 212F(1) and 212F(3) of the Credit Act]

Review rights

1.74 All decisions made by the registrar under the new regime are subject to merits review by the Administrative Appeals Tribunal, except decisions made by legislative instrument. This includes decisions made by the registrar under the data standards or disclosure framework. Decisions made by legislative instrument are subject to the processes applicable to such instruments, including parliamentary oversight via the disallowance process, rather than merits review. ^[40] [Clause 22 of the Commonwealth Registers Bill 2019, items 4, 12 and 17 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsection 56(2) of the Business Names Act, subsection 1317B(1) of the Corporations Act and subsection 327(1) of the Credit Act]

Statutory immunity

1.75 The new law provides statutory immunity for acts done in good faith in connection with the new registry regime. The provision operates with respect to persons who may be involved in the performance of functions and powers under the new regime. These include: the Minister; the registrar, including its staff and members; a delegate of the registrar, including its staff; and, employees and officers of Commonwealth bodies. Such persons are immune from an action or other proceeding for damages for or in relation to an act done, or omitted to be done, in good faith in performance of any function, or in the exercise or purported exercise of any power, under the new law. [Clause 12 of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, section 62G of the Business Names Act, section 1270F of the Corporations Act and section 212G of the Credit Act]

1.76 This immunity is necessary to ensure that persons involved in the performance of functions or powers of the registrar can carry out their duties in good faith without the risk of incurring personal liability. In the absence of this immunity such persons may be concerned that their duties, which may involve a large number of decisions (such as whether to register a company) and the maintenance of large amounts of data related to corporations and businesses, may expose them to undue personal liability.

1.77 This statutory immunity would not be absolute. It would only apply in relation to acts or omissions carried out in good faith in connection with the new regime. In addition, the new provision does not affect the ability of the registrar or an associated person to incur contractual liability. For example, the provision does not extend to contractual arrangements entered into by the registrar or an associated person.

1.78 Similar provisions currently exist in related laws. For example, subsection 246(1) of the ASIC Act provides for statutory immunity for particular persons, including ASIC, ASIC members, ASIC staff and delegates. In particular, it provides that relevant people are not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in performance or purported performance of any function, or in exercise or purported exercise of any power, conferred or expressed to be conferred by or under the corporations legislation, or a prescribed law of the Commonwealth, a State or a Territory. ASIC and its members and staff are also provided with statutory immunity under section 78 of the Business Names Act on similar terms.

Admissibility of registry information

1.79 The new law inserts a provision dealing with the use in court proceedings of information held by the registrar. The purpose of the provision is to enable a document, or a copy of a document, that purports to be an extract of information held by the registrar, to be admissible as prima facie evidence of the information stated in it (without the need for certification or any further proof of, or the production of, the original). That is, the document, or copy of the document, is proof, in the absence of evidence to the contrary, of any information stated in it that purports to be held by the registrar. However, the document is not so admissible if it appears to the court to have been revised or tampered with in a way that affects, or is likely to affect, the information. [Subclause 23(1) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsection 62S(1) of the Business Names Act, subsection 1270R(1) of the Corporations Act and subsection 212S(1) of the Credit Act]

1.80 This provision assists the administration of justice and reduces the administrative burden on the registrar. The provision means that any information held by the registrar can be taken as correct unless proven otherwise and can be relied upon as such in any court proceedings. It also minimises the circumstances in which the registrar must formally certify documents in support of proceedings.

1.81 Notwithstanding the above, the new law enables the registrar to give a person a certified copy of, or extract from, the information held by the registrar. Such a certified copy is also admissible as prima facie proof of the information that is stated in it and that purports to be held by the registrar. However, where both a certified copy and uncertified copy of information are inconsistent with each other, the certified copy prevails. [Subclauses 23(2) and 23(3) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsections 62S(2) and 62S(3) of the Business Names Act, subsections 1270R(1) and 1270R(3) of the Corporations Act and subsections 212S(1) and 212S(3) of the Credit Act]

1.82 The new law enables the rules to prescribe a fee for obtaining certified information from the registrar. Where a fee is prescribed it must be paid before the registrar can provide the certified information. [Subclause 23(2) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsection 62S(2) of the Business Names Act, subsection 1270R(2) of the Corporations Act and subsection 212S(2) of the Credit Act]

1.83 These new rules regarding the admissibility of registry information are not intended to otherwise affect the rules of evidence. In particular, the new rules do not limit the manner in which evidence may be adduced, or the admissibility of evidence, under the Evidence Act 1995. [Subclause 23(4) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsection 62S(4) of the Business Names Act, subsection 1270R(4) of the Corporations Act and subsection 212S(4) of the Credit Act]

Information to be included in the registrar's annual report

1.84 The new law provides that each annual report prepared by the registrar must include information about the performance of the registrar's functions and exercise of the registrar's power during that period. The new law does not itself require any government body appointed registrar to prepare an annual report. Any such requirement is specified by existing laws where appropriate. The new law simply requires that the annual report include information about the body's role as registrar. [Clause 24 of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, section 62T of the Business Names Act, section 1270S of the Corporations Act and section 212T of the Credit Act]

Rules made by the Minister

1.85 The new law provides the Minister with a rule making power. In particular, the Minister may, by legislative instrument, make rules prescribing matters: required or permitted by the new regime to be prescribed by the rules; or, necessary or convenient to be prescribed for carrying out or giving effect to the new Act. [Subclause 25(1) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsection 62U(1) of the Business Names Act, subsection 1270T(1) of the Corporations Act and subsection 212U(1) of the Credit Act]

1.86 Dealing with these matters in instruments rather than regulations accords with the Office of Parliamentary Counsel's (OPC) Drafting Direction No. 3.8 - Subordinate legislation. That Drafting Direction states that 'OPC's starting point is that subordinate instruments should be made in the form of legislative instruments (as distinct from regulations) unless there is good reason not to do so'.

1.87 Consistent with the Drafting Direction, the approach of dealing with these matters in instruments (rather than regulations) has a number of advantages including:

•

it facilitates the use of a single type of legislative instrument (or a reduced number of types of instruments) being needed for the Act;

•

it enables the number and content of the legislative instruments under the Act to be rationalised;

•

it simplifies the language and structure of the provisions in the Act that provide the authority for the legislative instruments; and

•

it shortens the Act.

1.88 Due to these advantages, the Drafting Direction states that drafters should adopt this approach where appropriate with new Acts.

1.89 The Drafting Direction states that matters such as compliance and enforcement, the imposition of taxes, setting amounts to be appropriated, and amendments to the text of an Act, should be included in regulations unless there is a strong justification otherwise. The new Act does not enable instruments to provide for any of these matters. This is clarified by a provision that specifically prevents instruments from covering these types of matters. [Subclause 25(2) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsection 62U(2) of the Business Names Act, subsection 1270T(2) of the Corporations Act and subsection 212U(2) of the Credit Act]

1.90 The new law also clarifies that a rule made under this power is a legislative instrument for the purposes of the Legislation Act 2003. Under that Act, legislative instruments and their explanatory statements must be tabled in both Houses of the Parliament within 6 sitting days after the registration of the instrument on the Federal Register of Legislation. Once tabled, the instruments will be subject to the same level of parliamentary scrutiny as regulations (including consideration by the Senate Standing Committee on Regulations and Ordinances), and notice of a motion to disallow the instruments may be given in either House of the Parliament within 15 sitting days after the date the instruments are tabled. [Subclause 25(1) of the Commonwealth Registers Bill 2019, items 5, 10 and 18 of schedule 1 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019, subsection 62U(1) of the Business Names Act, subsection 1270T(1) of the Corporations Act and subsection 212U(1) of the Credit Act]

Consequential amendments

1.91 The 35 business registers are brought into the modernised regime through consequential amendments to the legislation under which those registers are administered. ^[41] These consequential amendments:

•

make the registrar responsible for administering the functions and powers that make up the registers;

•

replace prescription of various matters with the requirements of the data standards and disclosure framework;

•

remove other aspects of the registers that are displaced by the new regime; and

•

allow the registrar to collect fees relating to the registers.

1.92 Each of these categories of consequential amendments is explained below.

1.93 It should be noted at the outset that only 'registry' aspects of the current law are brought into the new registry regime and therefore affected by the present amendments. 'Regulatory' functions and powers are not affected by the new law and continue to be administered by the body that currently administers those functions and powers. This means that for regulatory functions and powers there is no change to the way in which the present law operates, including how the relevant regulator interacts with the entities it regulates or how information flows between them.

1.94 Whether a provision of the relevant law is 'registry' or 'regulatory' depends on its nature. Relevant factors include the purpose of the provision and the extent to which it involves the exercise of discretion or regulatory powers (such as monitoring, investigation, and enforcement powers). While all relevant factors need to be considered and balanced, generally the greater the extent of discretion and regulatory powers involved the more likely a provision is regulatory. In practice registry provisions tend to relate to the establishment, maintenance and use of registers while regulatory provisions tend to relate to things such as monitoring and enforcing the law and licencing and registering market operators and financial service providers. ^[42]

The registrar is now responsible for administering registry provisions

1.95 The consequential amendments change the registry provisions of 34 of the business registers transferred into the new regime so that they are administered by the registrar rather than by ASIC. To achieve this, the new law replaces relevant references to ASIC in the current law with references to the registrar. These changes make the registrar responsible for administering registry functions and powers instead of ASIC in the amended legislation that is currently administered by ASIC. Equivalent amendments are not required to transfer functions and powers from the Commissioner to the registrar under the ABN Act. That Act already allocates relevant functions and powers to a registrar, which is separately defined to be the Commissioner.

1.96 Key registry functions and powers that are being transferred to the registrar under this category of consequential amendments include:

•

receiving registry information (including information contained in applications for registration) from registrants;

•

recording that information (and telling the registrant when that record has been made);

•

receiving updates of registry information from registrants, including through the initiation of processes, such as annual reviews, to update registry information; and

•

making decisions about registry information, including the removing of records, and associated internal review of those decisions.

[See Appendix table A1]

Removal of prescriptive requirements from registry provisions

1.97 The consequential amendments repeal prescriptive requirements in registry provisions that relate to matters that are dealt with by the data standards under the new regime. For example, the laws under which the 35 business registers are currently administered typically prescribe matters such as: what information has to be provided by registrants to ASIC and the Australian Business Registrar (the Commissioner of Taxation); and, the manner and form in which such information has to be provided.

1.98 The consequential amendments remove such prescriptive requirements from registry provisions and replace them with an obligation to meet the requirements of the data standards. As discussed in paragraphs 1.30 to 1.38 of this memorandum, this allows the data standards to flexibly provide for matters such as what information the registrar needs in relation to its functions and powers and how that information is to be provided. [See Appendix table A2]

Displaced registry provisions are repealed and registry function is harmonised

1.99 This category of consequential amendments repeals registry provisions in the current law that are made redundant by, or are inconsistent or duplicative of, provisions in the new law. These amendments ensure that where the new law deals with a matter it applies exclusively and uniformly to all functions and powers transferred to the registrar. Under the current law there are different rules applying to different registry functions and powers and in some instances there are multiple overlapping laws relating to the same matter.

1.100 The matters the new law is intended to cover exclusively, and apply uniformly across registry functions and powers, include:

•

the use of assisted decision making processes by the registrar;

•

the extent to which the registrar and associated persons may be liable for damages in connection with the new regime;

•

the admissibility of registry information in court proceedings;

•

how registry information is to be collected and maintained; ^[43] and

•

the protection and disclosure of registry information.

[See appendix table A3]

The registrar collects fees relating to registry functions and powers

1.101 This category of consequential amendments makes the registrar the entity responsible for collecting fees relating to its functions and powers under the new law. Currently, the Fees Acts provide for the recovery of fees by ASIC for various activities related to administering the present regime of business registers. Under the new law, the registrar collects any fee related to the performance of a registry function or the exercise of a registry power.

1.102 As noted above, the Fees Acts currently permit fees to be charged in connection with certain registry services. Regulations made under these Acts prescribe the particular fees for chargeable matters. Common fees include:

•

fees for applying for the registration of an entity;

•

fees for applying to deregister an entity;

•

annual review fees;

•

business name registration and renewal fees; and

•

late fees.

1.103 These consequential amendments do not affect how the fee regime operates or the amount payable for particular fees. The amendments affect the government body that collects the fees payable in connection with those functions and powers allocated to the registrar. ^[44] [Business Names Registration (Fees) Amendment (Registries Modernisation) Bill 2019; Corporations (Fees) Amendment (Registries Modernisation) Bill 2019; and the National Consumer Credit Protection (Fees) Amendment (Registries Modernisation) Bill 2019. See also Appendix table A4]

Commencement and application provisions

1.104 The Commonwealth Registers Bill 2019 commences the day after Royal Assent. The remainder of the new registry regime commences on a date to be set by proclamation. This mechanism is used so that a commencement date can be set when administrative arrangements supporting the new regime are in place. These arrangements include the use of a new information technology platform and the development of systems and processes to support the new regime's operation. However, if any provisions do not commence within 24 months of the day that the Bill receives Royal Assent, they will automatically commence the day after the end of that period. Automatic commencement after a designated period is a standard feature of provisions that provide for commencement by proclamation. Automatic commencement ensures that laws do not sit dormant on the statute books indefinitely. [Section 2 of the Commonwealth Registers Bill, section 2 of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019]

1.105 There are application rules that apply in relation to the consequential amendments made in support of the new registry regime. In particular, each consequential amendment related to a particular function or power does not apply until a registrar is appointed with respect to that function or power. This ensures that a registry function or power continues to be administered under the current law until it is allocated by the Minister to the registrar under the new law. [Schedule 1, items 359, 1315, 1414, 1465 and 1466 of the of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019]