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Financial Sector (Collection of Data) Bill 2001

Part 2 Registration of corporations

   

7  Registrable corporations

             (1)  Subject to subsection (2), a corporation is a registrable corporation if, and only if, the corporation is a foreign corporation, a trading corporation formed within the limits of Australia or a financial corporation so formed and:

                     (a)  the sole or principal business activities in Australia of the corporation are the borrowing of money and the provision of finance; or

                     (b)  the sum of the values of such of the assets in Australia of the corporation as consist of debts due to the corporation, being debts resulting from transactions entered into in the course of the provision of finance by the corporation, exceeds:

                              (i)  50%; or

                             (ii)  if a greater or lesser percentage is prescribed by the regulations—the percentage so prescribed;

                            of the sum of the values of all the assets in Australia of the corporation; or

                     (c)  the corporation engages in the provision of finance in the course of carrying on in Australia a business (whether or not that business is its sole or principal business) of selling goods by retail and the sum of the values of such of the assets of the corporation and of any corporation that is related to the corporation as consist of debts due to the corporation concerned, being debts resulting from transactions entered into in the course of the provision of finance by that corporation, exceeds:

                              (i)  $25,000,000; or

                             (ii)  if a greater or lesser amount is prescribed by the regulations—the amount so prescribed.

             (2)  A corporation is not a registrable corporation if:

                     (a)  the corporation, not being a company, society or association, is established for a public purpose by a law of the Commonwealth, of a State or of a Territory; or

                     (b)  the corporation is an ADI for the purposes of the Banking Act 1959 ; or

                     (c)  the corporation is a benefit society registered under a law of a State or of a Territory providing for the registration of benefit societies; or

                     (d)  the corporation is a medical benefits organisation or hospital benefits organisation registered under the National Health Act 1953 ; or

                     (e)  the corporation is registered under the Life Insurance Act 1995 ; or

                      (f)  the sole or principal business in Australia of the corporation is insurance business within the meaning of the Insurance Act 1973 ; or

                     (g)  the corporation is authorised by a law of a State or of a Territory to act as an executor, administrator and trustee; or

                     (h)  the sole or principal purpose for which the corporation borrows money is to lend money to a corporation or corporations that, because of subsection 34(2) or (3), is not or are not to be taken to be related to the first-mentioned corporation but would, but for that subsection, be treated as being so related because of subsection 34(1); or

                      (i)  the sum of the values of all the assets of the corporation and of every corporation that is related to the corporation does not exceed:

                              (i)  $5,000,000; or

                             (ii)  if a greater or lesser amount is prescribed by the regulations—the amount so prescribed; or

                      (j)  APRA has, by order in writing published in such manner and form as APRA determines to be appropriate, exempted the corporation from the obligation to register under this Act.

             (3)  The reference in paragraph (2)(h) to the lending of money to a corporation does not include a reference to the provision of finance to the corporation by way of acquiring debts due to the corporation or of purchasing securities other than securities issued by the corporation.

8   Register of entities

             (1)  APRA must cause a Register of Entities to be kept for the purposes of this Act.

             (2)  APRA must ensure that the Register of Entities is available for inspection by any member of the public at an office of APRA during normal business hours.

             (3)  A person may:

                     (a)  inspect the Register of Entities; or

                     (b)  take an extract from, or make a copy of, that Register;

if the person pays the fee (if any) prescribed by the regulations.

9   Obligations of corporations

             (1)  If, on the commencement of this Part, a registrable corporation is not a registered entity, the corporation must, before the end of 60 days after the date of commencement of this Part, give to APRA the documents mentioned in subsection (5).

Penalty:  50 penalty units.

Note:          If a corporation to which subsection (1) applies fails to give the documents to APRA before the end of the period specified in that subsection, the obligation to give them to APRA continues after the end of that period with daily offences being committed until the obligation is complied with (see section 4K of the Crimes Act 1914 ).

             (2)  If, after the commencement of this Part, a corporation becomes a registrable corporation, whether at the time of its incorporation or at a later time and whether or not the corporation has previously been a registrable corporation, the corporation must, before the end of 60 days after the day on which it becomes a registrable corporation, give to APRA the documents mentioned in subsection (5).

Penalty:  50 penalty units.

Note:          If a corporation to which subsection (2) applies fails to give the documents to APRA before the end of the period specified in that subsection, the obligation to give them to APRA continues after the end of that period with daily offences being committed until the obligation is complied with (see section 4K of the Crimes Act 1914 ).

             (3)  APRA may, before the end of the period referred to in subsection (1) or (2) (including any period that is taken to be substituted for that period by any other application or applications of this subsection) allow a longer period for the giving by a particular corporation of documents in accordance with that subsection and, in that case, the longer period is taken, for the purposes of the application of that subsection in relation to that corporation, to be substituted for the period referred to in that subsection.

             (4)  Neither subsection (1) nor (2) applies to a corporation if, before the end of the period referred to in that subsection (including any period that is taken to be substituted for that period by any application or applications of subsection (3) in relation to that corporation), the corporation ceases to be a registrable corporation.

Note:          A defendant bears an evidential burden in relation to matters in subsection (4) (see subsection 13.3(3) of the Criminal Code ).

             (5)  The documents referred to in subsections (1) and (2) are:

                     (a)  a statement in writing setting out:

                              (i)  the name, the place and date of incorporation and the address of the registered office of the corporation; and

                             (ii)  the name, and the address of the registered office, of every corporation that is related to the corporation; and

                            (iii)  particulars of the principal methods by which the corporation ordinarily borrows moneys; and

                            (iv)  particulars of the principal kinds of finance ordinarily provided by the corporation; and

                     (b)  a copy of the last audited balance-sheet of the corporation; and

                     (c)  if there is no such balance-sheet or the balance-sheet includes both assets and liabilities in Australia and assets and liabilities outside Australia but does not show the assets and liabilities in Australia separately from the assets and liabilities outside Australia—a statement showing the assets and liabilities in Australia of the corporation.

             (6)  If:

                     (a)  a registered entity changes its name or the address of its registered office; or

                     (b)  a change takes place in the principal methods by which a registered entity ordinarily borrows moneys or in the principal kinds of finance ordinarily provided by a registered entity; or

                     (c)  a corporation that is related to a registered entity ceases to be so related; or

                     (d)  a corporation becomes related to a registered entity;

the registered entity must, before the end of the period of 60 days after the occurrence of the event concerned, notify APRA in writing accordingly.

Penalty:  10 penalty units.

Note:          If a financial sector entity to which subsection (6) applies fails to notify APRA before the end of the period specified in that subsection, the obligation to notify APRA continues after the end of that period with daily offences being committed until the obligation is complied with (see section 4K of the Crimes Act 1914 ).

             (7)  A corporation is not required by this section to give to APRA a statement or notification in relation to a matter if a statement or notification in relation to that matter has already been given to APRA by another corporation.

Note:          A defendant bears an evidential burden in relation to matters in subsection (7) (see subsection 13.3(3) of the Criminal Code ).

             (8)  A statement or notification by a corporation to APRA under this section must be signed by a senior officer of the corporation.

             (9)  APRA must, if requested to do so by the Secretary to the Department, give the Secretary a copy of a document received by APRA under this section.

           (10)  An offence for a contravention of subsection (1), (2) or (6) is an offence of strict liability.

10   Matters to be included in Register of Entities

                   APRA must:

                     (a)  cause to be entered in the Register of Entities the name, the address of the registered office, and any other particulars that it considers appropriate to be entered, of every corporation that gives to APRA the documents mentioned in subsection 9(5); and

                     (b)  if a registered entity notifies APRA in accordance with subsection 9(6), or APRA otherwise becomes aware, of a change in the name or the address of the registered office of the entity, or of a change in any other particulars relating to the entity that are entered in the Register—cause the Register to be altered accordingly; and

                     (c)  if a corporation whose name is entered in the Register ceases to exist, or ceases to be a registrable corporation—cause the corporation’s name, the address of its registered office, and any other particulars relating to it, to be removed from the Register.

11   List of names and categories of registered entities

             (1)  APRA must keep a list of the names of registered entities, divided into categories as APRA determines.

             (2)  APRA may at any time vary the list for the purpose of adding to it the names of corporations that become registered entities, or removing from it the names of corporations that are found not to be or cease to be registered entities, or for the purpose of transferring a corporation from one category to another category.

             (3)  In determining the category in which a corporation is to be included or in determining whether a corporation should be transferred from one category to another category, APRA must have regard to:

                     (a)  the assets and liabilities of the corporation; and

                     (b)  the principal methods by which the corporation ordinarily borrows moneys; and

                     (c)  the principal kinds of finance ordinarily provided by the corporation;

and must try to ensure that, as far as practicable, corporations carrying on the same or similar kinds of business are included in the same category.

             (4)  APRA must cause a copy of the list, and, if a variation of the list is made, a copy of the variation, to be published in the Gazette .

             (5)  If APRA prepares a new list in substitution for the existing list and any variations made to that list, subsection (4) applies in respect of the new list and any variation made to that list.

             (6)  As soon as practicable after a corporation is included in a category or is transferred from one category to another category, APRA must notify the corporation of the category in which it has been included or to which it has been transferred.

             (7)  If:

                     (a)  after a corporation has been included in a category, the corporation requests APRA to transfer the corporation to another category; or

                     (b)  after a corporation has been transferred from one category to another category, the corporation requests APRA to re-transfer the corporation to the former category or to transfer the corporation to a third category;

and the corporation gives information or makes submissions to APRA in support of the request, APRA must, after taking into account the information or submissions:

                     (c)  reconsider the question of the category in which the corporation should be included; and

                     (d)  if APRA thinks that the corporation should be transferred to a different category, vary the list accordingly.