Explanatory Statement

Issued by the authority of the Parliamentary Secretary to the Treasurer

Corporations Act 2001

Subsection 1364(1) of the Corporations Act 2001 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed by regulations, or necessary or convenient to be prescribed by such regulations for carrying out or giving effect to the Act.

Section 350 of the Act provides that where there is a requirement to lodge a form with the Australian Securities and Investments Commission (ASIC) in the prescribed form, and a document is prescribed in the Corporations Regulations 2001 (the Principal Regulations), then that prescribed form must be lodged. Further, section 350 provides that where a prescribed form is required but no form is contained in the Principal Regulations, the form that ASIC has approved must be used. Though these ASIC approved forms are not contained in the Principal Regulations themselves, the provisions of the Act to which these ASIC approved forms apply are listed in the Principal Regulations.

Paragraph 265(4)(b) and subsections 268(1) and 268(2) of the Act provide for persons lodging documents with ASIC that relate to the registration of company charges. Under existing arrangements, forms for lodgement under those provisions are prescribed in Schedule 2 to the Corporations Regulations. The relevant forms are prescribed forms 309, 311, 312 and 350.

The Regulations amend the Principal Regulations to remove prescribed forms 309, 311, 312 and 350 from Schedule 2 to the Regulations and, instead, list paragraph 265(4)(b) and subsections 268(1) and 268(2) in regulation 1.0.03A as provisions under which forms are prescribed for the purposes of the Act.

The purpose of the Regulations is to remove the prescription of the paper forms from the Principal Regulations and to allow ASIC to create approved forms that may be lodged electronically.

Under the Corporations Agreement 2002, the State and Territory Governments referred their constitutional powers with respect to corporate regulation to the Commonwealth. Under subclauses 506(1) and 507(2) of the Corporations Agreement, the Commonwealth is required to consult with and receive the approval of at least three State and Territory Ministers of the Ministerial Council for Corporations (the Council) before making a regulation under the national law. The Commonwealth has received approval of the Council for the Regulations. In addition, under subclause 511(3), the Commonwealth is required to consult with the Council as to whether proposed regulations should be exposed for public comment for between one and three months. The Commonwealth has received the approval of the Council to waive the public disclosure period for the Regulations.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulations commence on 1 July 2007.

Details of the Regulations are set out in the Attachment.

ATTACHMENT

Details of the Corporations Amendment Regulations 2007 (No. 4)

Regulation 1 - Name of Regulations

This regulation provides that the title of the Regulations is the Corporations Amendment Regulations 2007 (No. 4).

Regulation 2 - Commencement

This regulation provides for the Regulations to commence on 1 July 2007.

Regulation 3 - Amendment of Corporations Regulations 2001

This regulation provides that the Corporations Regulations 2001 (the Principal Regulations) are amended as set out in Schedule 1.

Schedule 1 - Amendments

Item [1] - Regulation 1.0.03A, table, before item 1

This item adds references to paragraph 265(4)(b) and subsections 268(1) and 268(2) to the table in regulation 1.0.03A. These additions have the effect of providing that any documents that are required to be lodged under those provisions must be in the prescribed form.

Item [2] - Regulation 1.0.03A, note

This item updates the reference in the note to regulation 1.0.03A to indicate that forms for the documents mentioned in the table are not prescribed in the Principal Regulations as at 1 July 2007.

Items [3] and [4] - Schedule 1, items 25, 26A, 27 and 28

These items remove forms 309, 311, 312 and 350 from the list of forms that are prescribed in Schedule 2 to the Principal Regulations.

Items [5], [6] and [7] - Schedule 2, forms 309, 311, 312 and 350

These items remove forms 309, 311, 312 and 350 from Schedule 2 to the Principal Regulations.