Commonwealth Numbered Regulations - Explanatory Statements

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COMMONWEALTH BANK (CONVERSION INTO PUBLIC COMPANY) REGULATIONS 1991 NO. 56

STATUTORY RULES 1991 No. 56

ISSUED BY THE AUTHORITY OF THE TREASURER

COMMONWEALTH BANKS ACT 1959

COMMONWEALTH BANK (CONVERSION INTO PUBLIC COMPANY) REGULATIONS

Section 129 of the Commonwealth Banks Act 1959 (the Act) provides that regulations may be made for the purposes of the Act.

The provisions of the Commonwealth Banks Restructuring Act 1990 (the Restructuring Act), once proclaimed, have the effect of converting the Commonwealth Bank under the name Commonwealth Bank of Australia into a public company on 17 April 1991.

Subsection 27C(2) of the Commonwealth Banks Act 1959 (the Act), which comes into effect on 2 April 1991, provides that, subject to the regulations, the CBA's application to the Australian Securities Commission (ASC) under subsection 85(1) of the Companies Act 1981 to be registered as a company, must be accompanied by the documents required by subsection 85(4) of the Companies Act 1981. The equivalent subsections in the Corporations Law, which has succeeded the Companies Act 1981, are subsections 133(1) and 136(1) respectively.

The CBA is not in a position to comply with the requirements under subsections 133(1) and 136(1) of the Corporations Law for two reasons. First, many of the requirements are not applicable to the CBA because it is currently a statutory corporation rather than a company. Second, the remaining requirements are not relevant to the CBA because they apply to the case where a corporation is registered in a foreign jurisdiction.

The Regulations are based on the precedent set by similar regulations that were necessary to convert the Overseas Telecommunications Commission into a company.

Subsection 136(1) of the Corporations Law requires that the application to the ASC in order to be registered as a company be made under subsection 133(1) in the prescribed form. The prescribed form is Form 202 of the Corporations Regulations. As the CBA is presently a statutory corporation and not a company with a board of directors, the contents of Form 202 needed to be amended. The Schedule inserted by regulation 4 of the Regulations specifies a registration form applicable to the CBA. It enables the CBA to provide the relevant information in a manner which follows as far as practicable the requirements of Form 202.

Subsection 136(1) of the Corporations Law requires an application to the ASC to be accompanied by a current certificate of incorporation (or like document) in the applicant's place of origin. Because the CBA cannot comply with this requirement, paragraph 5(a) of the Regulations provides for the CBA to lodge a certificate signed by its Managing Director relating to its status under the Act and the provision for it to be converted into a public company.

Paragraph 136(1)(a) of the Corporations Law requires the CBA to produce certain evidence to the ASC to the effect that it complies with the prerequisite conditions of eligibility for registration prescribed in sections 134 and 135 of the Corporations Law. Because these conditions are not applicable to the CBA, paragraph 5(b) of the Regulations provides for the CBA to lodge a certificate with the ASC to the effect that its registration is authorised under the Act and that the CBA has complied with the requirements of the Act for registration as a public company under the name "Commonwealth Bank of Australia".

Paragraph 136(1)(c) of the Corporations Law would require the CBA to lodge with the ASC a certified printed copy of its constitution. Paragraph 5(c) in the Regulations provides for the CBA's Memorandum and Articles of Association, which the CBA is required to lodge with the ASC under paragraph 27C(1)(c) of the Act, to be taken to be compliance with paragraph 136(1)(c) of the Corporations Law.

Paragraph 136(1)(d) of the Corporations Law requires the CBA to lodge with the ASC a statement with particulars of its share capital, shares issued and the surname, initials and address of its shareholders. As the CBA in its current form cannot comply with this last requirement, and as the issue of shares to the sole shareholder, the Commonwealth of Australia, is determined by the Act, paragraph 5(d) of the Regulations provides for the CBA to lodge a certificate with the ASC to the effect that there has been compliance with the requirements of the Act.

The Regulations commenced on 2 April 1991. This date was chosen because the section 27C of the Act also commenced on 2 April 1991.