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Corporations Legislation Amendment (Deregulatory and Other Measures) Bill 2014



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BILLS DIGEST NO. 58, 2014-15 27 NOVEMBER 2014

Corporations Legislation Amendment (Deregulatory and Other Measures) Bill 2014 Kali Sanyal Economics Section

Contents

Glossary .............................................................................. 3

Purpose of the Bill ............................................................... 4

Structure of the Bill ............................................................. 4

Background ......................................................................... 4

Committee consideration .................................................... 4

Senate Selection of Bills Committee........................................ 4

Senate Standing Committee for the Scrutiny of Bills .............. 4

Parliamentary Joint Committee on Human Rights .................. 4

Statement of Compatibility with Human Rights .................... 5

Policy position of non-government parties/independents ..... 5

Position of major interest groups ......................................... 5

Financial implications .......................................................... 5

Schedule 1—Key issues and provisions ................................. 5

100-member rule ..................................................................... 5

Background ............................................................................ 5

100-member rule and ‘shareholder democracy’ in Australia ................................................................................ 5

2000 Companies and Securities Advisory Committee Review ................................................................................... 6

Arguments for the amendment ............................................ 7

Interests of small investors ................................................... 8

Key provisions........................................................................ 8

Improving remuneration reporting ......................................... 9

Clarifying the financial year................................................ 10

Date introduced: 22 October 2014

House: House of Representatives

Portfolio: Treasury

Commencement: On Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

ISSN 1328-8091

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Streamlining auditor appointment for companies limited by guarantee ..................................................................... 10

Schedule 2—Key issues and provisions ............................... 11

Takeovers Panel ..................................................................... 11

Remuneration Tribunal.......................................................... 11

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Glossary The following abbreviations and acronyms are used in this Bills Digest:

Abbreviation Definition

AASB Australian Accounting Standards Board

AUASB Auditing and Assurance Standards Board

ASIC Australian Securities and Investments Commission

ASIC Act Australian Securities and Investments Commission Act 2001

Bill Corporations Legislation Amendment (Deregulatory and Other Measures) Bill 2014

CAMAC Corporations and Markets Advisory Committee

Corporations Act Corporations Act 2001

Corporations Regulations

Corporations Regulations 2001

EGM Extraordinary general meeting

FRC Financial Reporting Council

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Purpose of the Bill The purpose of the Corporations Legislation Amendment (Deregulatory and Other Measures) Bill 2014 (the Bill) is to implement the following separate and unrelated measures:

• to amend the existing rights of 100 shareholder members of a corporation to require that a general meeting be called and held

• to require listed companies to report on the number, rather than the value of options that lapse during a financial year in their remuneration of key management personnel

• to allow unlisted companies not to prepare a remuneration report

• to explain when a company may treat a period of less than 12 months as a financial year

• to allow certain companies limited by guarantee to be free from appointing or retaining an auditor

• to change the operation of the Takeovers Panel so that it can operate while members are overseas and

• to give extra power to Remuneration Tribunal to fix remuneration for certain Corporations Act bodies.

Structure of the Bill The Bill contains two Schedules.

Schedule 1 amends the Corporations Act 20011 to:

• withdraw rights of 100 shareholders to call an extraordinary general meeting of a listed company

• allow companies not to report the value of options, if lapsed, in the remuneration of key management personnel; and provide that unlisted companies are not required to prepare a remuneration report

• clarify when a financial year may be less than 12 months and

• exempt certain companies limited by guarantee from the need to appoint or retain an auditor.

Schedule 2 introduces changes to the Australian Securities and Investments Commission Act 2001 (ASIC Act)2 to improve the functionality of the Takeovers Panel and to extend the Remuneration Tribunal’s remuneration setting responsibility.

Background A draft version of the Bill was released for public comment in April 2014. According to Senator Cormann, the Minister for Finance and Acting Assistant Treasurer, the measures in the Bill ‘will remove unnecessary regulation, clarify existing regulatory obligations and enhance the efficient operation of certain government bodies’.3

Committee consideration Senate Selection of Bills Committee On 30 October 2014, the Senate Selection of Bills Committee deferred consideration of the Bill to its next meeting.4

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills had no comments in relation to the Bill.5

Parliamentary Joint Committee on Human Rights In its report of 14 November 2014 the Parliamentary Joint Committee on Human Rights stated that it considered that the Bill is compatible with human rights. The Committee has concluded its examination of the Bill.6

1. Corporations Act 2001, accessed 17 November 2014. 2. Australian Securities and Investments Commission Act 2001, accessed 17 November 2014. 3. M Cormann (Minister for Finance and Acting Assistant Treasurer), Consultation open on amendments to the corporations law, media release, 10 April 2014, accessed 7 November 2014.

4. Selection of Bills Committee, Report No. 14 of 2014, 30 October 2014, accessed 4 November 2014. 5. Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 15 of 2014, 19 November 2014, p. 27, accessed 26 November 2014.

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Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill's compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.7 The Government considers that the Bill is compatible.

Policy position of non-government parties/independents At the time of writing of this Digest, there had yet to be any debate on the Bill on the floor of the Parliament. It appears that no comment has been made on the Bill by the Opposition or minor parties.

Position of major interest groups As the Bill contains a number of unrelated amendments, comments of relevant stakeholders are set out below under the heading ‘Key issues and provisions’.

Those comments are drawn from stakeholders’ responses to the Exposure Draft of the Bill released in April 2014.

Financial implications The amendments to the Bill will not have any budgetary impact.8

However, the Government expects that the amendments ‘are collectively estimated to reduce business compliance costs by around $14 million per year’.9

Schedule 1—Key issues and provisions 100-member rule

Background Section 249D of the Corporations Act provides that members with at least five per cent of the votes that may be cast at the general meeting, or at least 100 members who are entitled to vote at the general meeting, may request that the directors of a company call and arrange to hold a general meeting. The company must pay the expenses of calling and holding the meeting. The Directors must call the meeting within 21 days after the request is given to the company and the meeting must be held within two months after the request is given.10

The 100-member rule was introduced in 1983 by Attorney-General, Gareth Evans, who introduced amendments to the Companies Act 1981.11 The reform included provisions ‘in the case of a company having a share capital, not less than 100 members holding shares in the company on which there has been paid an average sum, per member, of not less than $200’.12

100-member rule and ‘shareholder democracy’ in Australia Unlike other major countries, Australia is the only country that provides for a shareholder numerical test for convening an extraordinary general meeting that applies regardless of how much share capital the convening members (requisitioners) hold. In comparable countries, it is more usual to follow the issued capital rule, where requisitioners must hold at least 5-10 per cent of the shares before they can call a general meeting.

Since the decade of economic reform and privatisation in the 1980s and 1990s, a new breed of shareholder emerged in the wake of demutualisation and the growth of large listed companies in Australia. The shareholder base for corporate Australia now encompasses a huge number of individuals, mum-and-dad retail investors,

6. Parliamentary Joint Committee on Human Rights, Fifteenth report of the 44th Parliament, 14 November 2014, p. 5, accessed 17 November 2014. 7. The Statement of Compatibility with Human Rights can be found at pages 29-30 of the Explanatory Memorandum to the Bill. 8. Explanatory Memorandum, Corporations Legislation Amendment (Deregulatory and Other Measures) Bill 2014, pp. 3-4, accessed

3 November 2014. 9. M McCormack (Parliamentary Secretary to the Minister for Finance), ‘Second reading speech: Corporations Legislation Amendment (Deregulatory and Other Measures) Bill 2014’, House of Representatives, Debates, 22 October 2014, p. 11673, accessed 4 November 2014. 10. Corporations Act, subsection 249D(5). 11. Companies Act 1981, accessed 17 November 2014. 12. Explanatory Memorandum, Companies and Securities Legislation (Miscellaneous Amendments) Bill 1983, pp. 138-9, accessed 14 November

2014.

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whose membership reaches millions. The 100-member rule thus means that companies may face an extraordinary amount of attention at the hands of a very small group of people who have the ability to call for a meeting at the company’s expense. It should be noted though that the decisions in the meeting will still have to be passed by a majority of shareholders.13

Evidence of increasing shareholder dissatisfaction arose in 1999-2001 when there were repeated calls for meeting of corporate boards. NRMA (after demutualisation) was forced to call 12 EGMs in two years to consider resolutions to remove directors. Each of those EGMs incurred several million dollars in costs and resulted in none of the relevant resolutions being passed.14

A further example occurred in 2003 when the environmental group, the Wilderness Society, collected the necessary 100 shareholders to require logging company Gunns to convene an EGM to vote on a resolution to ban old-growth logging. ‘The resolution was voted down by a wide margin.’15

In recent times, some concerned social groups promoted their advocacy using the 100-member rule, when they called a meeting of Woolworths during 2012. This happened when 210 shareholders asked the company to hold an EGM to consider resolutions in relation to $1 limits on poker machines. ‘Unsurprisingly, the resolution received just 2.5 per cent support’.16

Shareholder activism is not limited to retail investors, or lobby groups or domestic political activists. A trend is emerging where Australian corporations see moves by international groups getting increasingly involved in shareholder activism in Australia as well. In 2012, US-based hedge fund Lone Star Value Investors LP used this rule to requisition an EGM, in an attempt to reconstitute the board of Antares Energy Limited, an ASX-listed oil and gas firm. This move apparently was based on profit motive rather than any political or social motive. ‘Though unsuccessful, Lone Star’s proposal to remove two directors from the Antares board and nominate five of its own candidates for election would have given it effective control of Antares with a shareholding of around six per cent’.17

Another recent example is the call for an EGM of Santos, an oil major. In March 2014, a group of environmental organisations presented the Santos board with a shareholder resolution supported by more than 100 individual shareholders calling for the company to abandon its Narrabri coal seam gas project in New South Wales.18 The meeting of the Santos Board passed a resolution on 16 May 2014 not to withdraw from the Narrabri coal seam gas project with more than 99 per cent of shareholders’ approval.19

Those who advocate maintaining the 100-member rule claim that it provides an important element of corporate accountability and that assertions of its misuse for fringe causes are overstated.20

2000 Companies and Securities Advisory Committee Review The 100-member rule was also contained in the predecessor of the Corporations Act—the Corporations Law— and was considered by the Companies and Securities Advisory Committee (the Advisory Committee) in its 2000 report entitled: Shareholder Participation in the Modern Listed Public Company (Report).21

That Report states:

13. A Lumsden, ‘Proposed removal of 100-member rule—are its nine lives finally up?’ Corrs Chambers Westgarth Lawyers website, 11 April 2014, accessed 26 November 2014. 14. Ibid.

15. J Walker, ‘The 100-member rule may be gone, but shareholder activism is here to stay’, The Conversation, 30 October 2014, accessed 4 November 2014. 16. A Lumsden, op. cit. 17. J Walker, op. cit. 18. P Manning, ‘Santos’ open flame: can it snuff out the protests on coal seam gas?’, Crikey, 20 March 2014, accessed 27 November 2014. 19. Santos, ASX market announcements, 16 May 2014, accessed 25 November 2014. 20. A Colla and B Oude-Vrielink, ‘Reducing the compliance burden for business: some welcome reforms on the horizon’, Minter Ellison Lawyers

website, 17 April 2014, accessed 6 November 2014. 21. Companies and Securities Advisory Committee, Shareholder participation in the modern listed public company: final report, June 2000, accessed 17 November 2014. During the period in which the Committee was developing its report, subsection 249D(1) of the Corporations Act was suspended as a response to concerns raised by the 100 shareholder test. See [2.4] of the Report.

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2.8 All comparable overseas jurisdictions employ only an issued share capital test. In the UK, one or more shareholders holding not less than 10% of the paid-up voting share capital of a publicly listed company may requisition a general meeting. A recent UK Consultation Paper supported retaining the 10% threshold for requisitioning a meeting. In other European countries, the shareholder thresholds range from 5% to 20% of voting capital.

2.9 In New Zealand and Canada, shareholders holding at least 5% of a corporation’s issued voting shares may requisition a meeting.

2.10 The United States Revised Model Business Corporation Act, which is a model for the companies statutes of the various States, applies a 10% of capital threshold. However, the Delaware General Corporation Law, under which approximately half of US public corporations are incorporated, only gives the board of directors statutory power to convene an extraordinary meeting. Whether shareholders may also requisition a meeting and the threshold for exercise of that power are left to the constitutions of particular companies.

22

The Advisory Committee concluded:

2.22 The Advisory Committee considers that any shareholder numerical test is unsatisfactory. It has no counterpart in any other comparable jurisdiction. Instead …, the threshold for requisitioning any general meeting of a listed public company should be a proportion of the company’s issued share capital.

Only shareholders who collectively hold at least 5% of the issued voting share capital should be entitled to exercise this requisition power.

2.23 The Committee notes that a 5% shareholding threshold is still amongst the most liberal in the world. It would not disadvantage investors in Australian companies compared with those in overseas companies, or discourage overseas investors from taking up equity in Australia.

2.24 A 5% test would not preclude shareholders who do not satisfy that test from exercising other rights, such as to place matters on the agenda of the next meeting of shareholders … or to ask questions at the meeting. 23

The views of the Advisory Committee were consistent with the 1999 Report on Matters Arising from the Company Law Review Act 1998 by the Parliamentary Joint Committee on Corporations and Securities which considered the 100 shareholder test was ‘inappropriate and open to abuse’.24

Despite the recommendation of the Advisory Committee the rule remains.

Arguments for the amendment Generally, professional bodies appear to be supportive of the Government’s initiative to repeal the 100-member rule in its current form. The reasons for that support are essentially that:

• interest- groups have unreasonably exploited the 100-member rule25

• the cost to a company of being required to call and convene an extraordinary general meeting ‘can by some accounts range from $500,000 to over $1 million’26 and

22. Ibid., pp. 9-10. 23. Ibid., pp. 14-15. 24. Parliamentary Joint Committee on Corporations and Securities, Report on matters arising from the Company Law Review Act 1998, Canberra, October 1999, p. 163, accessed 17 November 2014.

25. Business Council of Australia, Submission to the Department of the Treasury, Corporations Legislation Amendment (Deregulatory and Other Measures) Bill 2014: exposure draft, May 2014; Governance Institute of Australia, Submission to the Department of the Treasury, Corporations Legislation Amendment (Deregulatory and Other Measures) Bill 2014: exposure draft, 16 May 2014; S Mitchell ‘GetUp move faces defeat’, The Australian Financial Review, 12 November 2012, p. 17; P Durkin, ‘Boards, unions and activist groups clash over EGM rules’, The Australian Financial Review, 19 March 2014, p. 6, accessed 8 November 2014.

26. Australian Institute of Company Directors, Submission to the Department of the Treasury, Corporations Legislation Amendment (Deregulatory and Other Measures) Bill 2014: exposure draft, 12 May 2014, accessed 8 November 2014.

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• ‘the current low threshold of shareholders required to call a meeting (less than 0.05 per cent of shareholders for many major companies), allows one group of shareholders to impose these additional costs on all the other shareholders of a company’.27

With some reservation, the proposed repeal of the 100-member rule was welcomed by the Australian Shareholders Association (ASA). However, ASA noted that:

… occasionally an issue of importance arises on which there is a divergence of opinion between management and a shareholder group, and the only way of getting public focus on the issue may be by way of a s 249D requisition, given that small numbers of shareholders attend general meetings to hear the debate on requisitioned resolutions.

28

To ensure the continuity of rights of some small group of shareholders, ASA proposed an alternative option by which retail shareholders’ rights could be harnessed in Australia. Their main suggestion is that government needs to make it easier for retail shareholders to propose resolutions at AGMs. They cited the United States regulations by which ‘a single shareholder who has held more than $US2,000 worth of shares continuously for more than 12 months may propose a resolution at the AGM of any US listed company.’29

The Governance Institute disagreed with the proposals of the ASA. They hold a view ‘that the situation for shareholders in relation to their capacity to place resolutions on the agenda at an AGM is considerably more constrained in the United States than in Australia.’30

Interests of small investors There is some concern among stakeholders that small retail investors who want to raise concerns with the board may be unable to do so promptly if the 100-member rule is abolished.

Although a board is accountable to shareholders, including its small shareholders, there has to be an acknowledgment of these ‘small shareholders, who unlike institutional shareholders, may not have an opportunity to speak to the board outside of the AGM’.31

It has been argued that corporate boards do not find small shareholders’ participation in the management of companies reasonable or desirable:

Share investments carry ownership rights but not management rights. It’s an established legal principle that shareholders cannot tell directors how to run their company unless the company’s constitution explicitly gives such powers to shareholders. Shareholders have a legitimate interest in how the board exercises its powers but they have no part to play in the actual exercise of those powers.

32

Whilst the Bill proposes to repeal the rights of 100 members of a corporation to requisition an extraordinary general meeting, other rights will remain. For instance, small shareholders can continue to use the 100-member rule to put a resolution to the board, but they need to wait until the scheduled AGM to do so. 33 They will also have access to the two strikes rule, designed to hold directors accountable for executive salaries and bonuses.34 Importantly, ‘like all shareholders stuck with an underperforming board, retail investors also have the option of simply selling their shares—the ultimate form of shareholder activism’.35

Key provisions As stated above, subsection 249D of the Corporations Act provides that directors of a company must call and arrange to hold a general meeting at the request of either:

27. Business Council of Australia, Submission to Treasury, op. cit. 28. Australian Shareholder’s Association, Submission to the Department of the Treasury, Corporations Legislation Amendment (Deregulatory and Other Measures) Bill 2014: exposure draft, n.d., accessed 8 November 2014.

29. Ibid., p. 3. 30. Governance Institute of Australia, Submission to Treasury, op. cit., p. 5. 31. J Walker, op. cit. 32. J Walker, op. cit. 33. Corporations Act, paragraph 249N(1)(b). 34. Corporations Act, section 249L. 35. J Walker, op. cit.

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• members with at least five per cent of the votes that may be cast at the general meeting or

• at least 100 members who are entitled to vote at the general meeting.

Item 1 of Schedule 1 of the Bill amends subsection 249D(1) of the Corporations Act by removing the right of 100 members who are entitled to vote at a general meeting to request directors of a company to hold such a meeting—that is, an ‘extraordinary general meeting’ (EGM). Currently subsection 249(1A) confers authority for the Corporations Regulations 2001 to prescribe a different number of members who may request that a general meeting be held.36 Item 2 of Schedule 1 repeals subsection 249D(1A) of the Corporations Act to remove the regulation making power.

Under subsection 249D(5) of the Corporations Act, once the directors of a company have received a request by the members under subsection 249D(1), they are required to call a general meeting within 21 days after the request is given and hold the meeting within two months of the request.37

If directors fail to call a meeting within the specified time, a court may order a meeting of the company’s members to be called if it is impracticable to call the meeting in any other way.38

Item 10 of Schedule 1 inserts proposed Part 10.24 (sections 1547 to 1549) into the Corporations Act. The effect of proposed section 1548 is that general meetings that have been called by 100 members of a company before the commencement of this Bill are to be held in accordance with the provisions that are currently in place.

Improving remuneration reporting Section 300A of the Corporations Act sets out a range of matters which are to be included in the annual directors’ report. Subparagraph 300A(1)(e)(iv) of the Corporations Act requires disclosure by disclosing entities of the value of options that were held by key management personnel—but which lapsed during the reporting year because a condition required for the options to vest was not satisfied. Subparagraph 300A(1)(e)(vi) requires that the report also discloses the percentage of the value of key management personnel’s remuneration that consists of options.

According to the Explanatory Memorandum ‘users of remuneration reports have indicated that the disclosure of the value of lapsed options was of limited use’.39 Besides, the percentage of value of options in remuneration can already be calculated from other information provided by the company under item 15 of the table at sub-regulation 2M.3.03(1) of the Corporations Regulations 2001.

The present obligation to produce remuneration reports extends to unlisted companies due to the operation of subsection 300A(2) of the Corporations Act.

Under the proposed changes, listed disclosing entities will still be required to disclose the number of options (held by key management personnel) that lapse during a financial year and the financial year in which those options were granted. They will not have to report the value of options that lapsed. Similarly, they will not have to report the percentage value of remuneration from such options for each management personnel.

In order to make the reporting requirements less onerous for listed companies, item 3 of Schedule 1 repeals and replaces subparagraph 300A(1)(e)(iv) so that the directors’ report for a financial year for a company must—if options granted to the person as part of their remuneration lapse during the financial year—include the number of those options, and the financial year in which those options were granted.

Item 4 of Schedule 1 of the Bill repeals paragraph 300A(1)(e)(vi) so that there will no longer be a requirement to disclose the percentage of the value of the person’s remuneration for the financial year that consists of options.

Additionally, item 5 of Schedule 1 amends subsection 300A(2) by replacing the term ‘disclosing entity’ with the term ‘listed disclosing entity’ to provide unlisted entities with relief from preparing a remuneration report.

Item 10 of Schedule 1 inserts proposed section 1549 the effect of which is to allow changes to remuneration reporting obligation for financial years ending on or after the commencement of this Bill.

36. Corporations Regulations 2001, accessed 27 November 2014. 37. Corporations Act, subsection 249D(5). B Baxt, Corporations legislation 2014, Thomson Reuters, Sydney, 2014, pp. 286-8. 38. Corporations Act, section 249G. 39. Explanatory Memorandum, p. 9.

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Clarifying the financial year Division 7 of Part 2M.3 (section 323D) of the Corporations Act identifies the financial years and half-years about which a company, registered scheme or disclosing entity has to prepare consolidated financial statements.

Section 323D provides that a financial year is usually 12 months in duration, but that directors can determine an alternative period that amends the 12-month period by not more than seven days (subsection 323D(2)) or which is necessary to synchronise the reporting period of controlled entities in order to provide consolidated financial reports (subsections 323D(3) and (4)).

Subsection 323D(2A) provides that the directors may determine that the financial year is a period of less than 12 months if none of the previous five financial years were of less than 12 months duration in reliance on subsection 323D(2A) and the change is in the best interests of the entity.

The Explanatory Memorandum provides that stakeholders have raised concerns about the interaction of subsection 323D(2A) with subsections 323D(2) and 323D(3) to (4). Specifically stakeholders are concerned that a change to the duration of a financial year of not more than seven days under subsection 323(2), or to facilitate consolidated reporting under subsections 323(3) and (4), in the last five years may mean that there is no ability to change the duration under subsection 323D(2A).

Item 6 of Schedule 1 inserts a note at the end of subsection 323D(2A) of the Corporations Act to clarify that changes to financial year duration under 323D(2) or (4) are not taken into account when determining whether the duration of the reporting entity’s financial year has been less than 12 months in the previous five financial years. The note does not change the legal operation of subsection 323D(2A), which as set out above, already provides that it does not apply if any of the previous five financial years were of less than 12 months duration in reliance on subsection 323D(2A)..

Streamlining auditor appointment for companies limited by guarantee Section 9 of the Corporations Act defines a company limited by guarantee as a company formed on the principle of having the liability of its members limited to the respective amounts that the members undertake to contribute to the property of the company if it is wound up. The guaranteed amount must be set out in the company’s application for registration.40 Such a company does not have share capital and members are not required to contribute capital while the company is operating.41

In 2010, the Corporations Amendment (Corporate Reporting Reform) Act 201042 removed the need for certain companies limited by guarantee to have their financial reports audited.43 The effect of one of the amendments in that Act was to relieve small companies limited by guarantee with annual revenue of less than $250,000 of the obligation to prepare a financial report and director’s report unless either the Australian Securities and Investments Commission (ASIC) directed them to do so, or members with at least five per cent of the votes that may be cast at the general meeting requested them to do so.

In addition, under subsection 301(3) of the Corporations Act a company limited by guarantee, with revenue of $1 million or less, has discretion to have its financial report for a financial year reviewed, rather than audited.

These provisions allow a degree of flexibility for certain companies limited by guarantee in relation to financial reporting. However, other provisions of the Corporations Act operate in a way which is inconsistent with them. For example section 327A requires public companies, including companies limited by guarantee, to appoint an auditor within one month of registration.

In order to exempt these small companies limited by guarantee from the obligation of hiring and retaining auditors, items 7 to 9 of Schedule 1 insert proposed subsections 327A(1A) and 327B(1A) into, and a note at the end of subsection 327C(1) of, the Corporations Act to put beyond doubt that a small company that is limited by guarantee and those companies limited by guarantee that have their financial reports reviewed are not required to appoint or retain an auditor.

40. Corporations Act, paragraph 117(2)(m). 41. P Lipton, A Herzberg and M Welsh, Understanding company law, 16th edn. Thomson Reuters, Sydney, 2012, p. 79. 42. Corporations Amendment (Corporate Reporting Reform) Act 2010, accessed 18 November 2014. 43. M Donaldson, Corporations Amendment (Corporate Reporting Reform) Bill 2010, Bills digest, 185, 2009-10, Parliamentary Library, Canberra,

21 June 2010, accessed 18 November 2014.

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Schedule 2—Key issues and provisions Takeovers Panel The Takeovers Panel is a peer review body that regulates corporate control transactions in widely held Australian entities, primarily by the efficient, effective and speedy resolution of takeover disputes.44 The Takeovers Panel was established under section 172 of the ASIC Act. It is given powers under Part 6.10 of the Corporations Act. The Panel has a full time Executive based in Melbourne to assist members of the Panel and the takeovers community and to draft policy.45

The ASIC Act does not apply outside Australia.46 However, the Takeovers Panel consists of members who typically hold senior roles in banks, law firms and significant corporations, and are required to travel outside Australia from time to time to fulfil their professional obligations. 47 On one interpretation of the ASIC Act, whilst panel members are outside Australia, they are perceived to be barred from performing their duties as members of the Panel. This may make the operation of the Takeovers Panel inefficient.48

In order to bring certainty of operation in such situations item 1 of Schedule 2 inserts proposed subsection 184(3A) into the ASIC Act to authorise the President of the Takeovers Panel to give directions about the members who will constitute a Panel for the purposes of performing or exercising its functions or powers in relation to particular matters under subsection 184(2), regardless of whether he, or she, is physically present in Australia.

Item 2 of Schedule 2 inserts proposed subsection 188(3) into the ASIC Act to allow a member of the Takeovers Panel to participate in proceedings, regardless of whether the member is physically present in Australia.

Remuneration Tribunal The Remuneration Tribunal is an independent, specialist body whose role is to determine, report on, or provide advice about remuneration, including allowances and entitlements that are within its jurisdiction for the following:

• federal parliamentarians, including ministers and parliamentary office holders

• judicial and non-judicial offices of federal courts and tribunals

• secretaries of departments

• full-time and part-time holders of various public offices

• principal executive officers.49

The following hierarchy of organisations responsible for setting certain terms and conditions exists:

• first, the terms and conditions of the Chairs of the Financial Reporting Council (FRC), the Australian Accounting Standards Board (AASB) and the Auditing and Assurance Standards Board (AUASB) are determined by the responsible Treasury portfolio minister (Assistant Treasurer) under the ASIC Act

• second, the remuneration, terms and conditions of the members of the FRC are determined by the minister and

• third, the conditions for members of AASB and AUASB are determined by the FRC.50

The changes proposed by Part 1 of Schedule 2 of the Bill will bring responsibility for determining the remuneration and full-time recreation leave entitlements of the chair and member positions of the FRC, the AASB and the AUASB within the Remuneration Tribunal’s power.51

44. Takeovers Panel, ‘Takeovers panel’, Takeovers Panel website, accessed 18 November 2014. 45. Takeovers Panel, ‘About the panel’, Takeovers Panel website, accessed 18 November 2014. 46. Section 4 of the ASIC Act. 47. M McCormack, op. cit., p. 11673. Takeovers Panel, ‘Panel members’, Takeovers Panel website, accessed 18 November 2014. 48. Explanatory Memorandum, op. cit., p. 21. 49. Remuneration Tribunal, ‘About us’, Remuneration Tribunal website, accessed 18 November 2014. 50. See sections 235A, 236B and 236F of the ASIC Act. 51. Explanatory Memorandum, p. 24.

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Items 3, 5 and 7 of Part 1 of Schedule 2 repeal subsections 235A(2), 236B(6) and 236F(8) and (9) of the ASIC Act to withdraw the responsibilities of the minister and the FRC for setting the terms and conditions (including remuneration) for those above agencies.

Items 4, 6 and 8 of Part 1 of Schedule 2 insert proposed sections 235AA, 236BA and 236FA into the ASIC Act, to allow the Remuneration Tribunal to determine the remuneration for members of the FRC, AASB, and AUASB, including the chairs of these organisations. Under the provisions, the Remuneration Tribunal will also determine the recreation leave entitlements of full time members (including the chairs) of these agencies. If for some reason the Tribunal does not make a determination, remuneration as well as other terms and conditions will be determined in writing by the minister.

These provisions empower the minister to determine allowances (such as travel allowances) and the grant of leave of absence other than recreation leave where members and chairs work full-time.

These provisions empowering the minister and the Remuneration Tribunal will have effect subject to the Remuneration Tribunal Act 1973.52

Transitional Provisions

Item 9 of Part 2 of Schedule 2 provides for the members, including the chairs of these organisations, to continue to have the terms and conditions of their appointment determined by the present arrangements until the Remuneration Tribunal makes a determination in relation to their appointment under the proposed changes.

52. Remuneration Tribunal Act 1973, accessed 18 November 2014.

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