Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2001
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CORPORATIONS (FUTURES ORGANISATIONS LEVIES) BILL 2001
EXPLANATORY MEMORANDUM
(Circulated by authority of
the Minister for Financial
Services and Regulation, the Honourable J.B. Hockey MP
and the
Attorney-General, the Honourable Daryl William AM QC MP)
1.1. The Corporations (Futures Organisations Levies) Bill 2001 is one of a package of bills responding to the High Court’s decisions in Re Wakim; ex parte McNally (1999) 198 CLR 511 and The Queen v Hughes (2000) 74 ALJR 802; 171 ALR 155.
1.2. The other bills are:
• Corporations Bill 2001;
• Australian Securities and Investments Commission Bill 2001;
• Corporations (Fees) Bill 2001;
• Corporations (Securities Exchanges Levies) Bill 2001;
• Corporations (National Guarantee Fund Levies) Bill 2001; and
• Corporations (Repeals, Consequentials and Transitionals) Bill 2001.
1.3. The object of these seven Bills is to establish a replacement legislative foundation for the Corporations Law scheme. This Bill will, in effect, re-enact the provisions of the Corporations legislation concerning levies and contributions payable to futures organisations in the form of taxation legislation that complies with Commonwealth constitutional requirements. It also establishes certain transitional arrangements.
1.4. Further information about the background to these Bills may be found in the explanatory memorandum for the Corporations Bill 2001.
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2.1. The Bill is part of a package of legislation which will for practical purposes restore the regulatory environment which existed before the High Court’s decisions in Hughes and Wakim.
2.2. On that basis, the Office of Regulation Review has advised that a Regulation Impact Statement is not required for the Bill.
2.3. The Bill does not have any financial impact.
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3.1. The short title of the Act will be the Corporations (Futures Organisations Levies) Act 2001.
3.2. The Bill will commence at the same time as the Corporations Act 2001.
3.3. Part 10.1 of the Corporations Act 2001 defines the expression ‘old Corporations Law’ to mean, in relation to a particular State or Territory, the Corporations Law of that State or Territory within the meaning of the Corporations (Name of State) Act for that State or Territory, as in force from time to time before commencement of the Corporations Act 2001. When used generally, it is taken to mean the Corporations Law as set out in section 82 of the Corporations Act 1989.
3.4. Other expressions used in the Bill that are defined in a provision of the Corporations Bill 2001 that apply for the purposes of Part 8.6 of that Bill have the same meaning in this Bill.
3.5. The Bill provides for the imposition of the following levies:
(a) the ‘futures organisation (application for membership) fidelity fund contribution’ that will be payable under subclause 1234(1) of the Corporations Bill 2001 by a person seeking admission to membership of a futures organisation as mentioned in subclause 1234(1);
(b) the ‘futures organisation (annual membership) fidelity fund contribution’ that will be payable under subclause 1234(2) of the Corporations Bill 2001 by a member of a futures organisation referred to in subclause 1234(2);
(c) any ‘futures organisation additional fidelity fund contribution’ that will be payable under subclause 1235(1) of the Corporations Bill 2001 by a member of a futures organisation referred to in subclause 1235(1).
3.6. These levies are equivalent to those presently payable under subsections 1234(1), 1234(2) and 1235(1) of the Corporations Law respectively.
3.7. The futures organisation will be able to determine the amount (not being less than $500) of the ‘futures organisation (application for membership) fidelity fund contribution’ levy payable by a person, or class of persons (subclause 5(1)). It will also be able to determine the amount (not being less than $100) of the ‘futures organisation (annual membership) fidelity fund contribution’ levy payable by a member, or class of members (subclause 5(2)).
3.8. The futures organisation will be able to determine the amount of any ‘futures organisation additional fidelity fund contribution’ levy in relation to the contributing member, or class of contributing members (subclause 5(3)). A person will not be liable to pay more than $5,000 in ‘futures organisation additional fidelity fund contribution’ levies, with a ceiling of $1,000 payable in any 12 month period (subclauses 5(3) and (4)). To facilitate a smooth transition between the Corporations Law and the Corporations Act 2001, amounts paid under the corresponding levy established under the Corporations Law will count towards the limits established under clause 5 (subclause 5(5)).
3.9. Subclauses 7(1) and (2) of the Bill will impose as a tax any fee that is payable under subsections 1234(2) or 1235(1) of the Corporations Law immediately before the Bill commences. Such fees will thereafter be covered by levies imposed under clause 4.
3.10.. It is expected that the pre-existing liability under the Corporations Law of the States and the Northern Territory will be extinguished by State and Northern Territory legislation. Liabilities to pay fees under the Corporations Law of the ACT will be extinguished by the Corporations (Repeals, Consequentials and Transitionals) Bill 2001.
3.11. To aid with the transition from the Corporations Law to the Corporations Act 2001, subclause 7(3) provides that a determination made under subsections 1234(1), 1234(2) or 1235(1) of the Corporations Law will have effect as a determination made for the purposes of subclauses 5(1), 5(2) or 5(3) respectively.