Jane Hume (Victoria, Liberal Party, Minister for Superannuation, Financial Services and the Digital Economy) Share this | Hansard source

I table two supplementary explanatory memoranda relating to the government amendments to be moved on this bill. On behalf of the government, I seek leave to move government amendments (1) to (5) and (7) to (10) on PG150 together.

Leave granted.

I move:

(1) Schedule 1, page 3 (before line 4), before the heading specifying Corporations Act 2001, insert:

Part 1—Main amendments

(2) Schedule 1, item 31, page 13 (line 5), omit "At the end of Chapter2G", substitute "After Part2G.4".

(3) Schedule 1, item 31, page 17 (lines 13 to 26), omit subsections 253RB(4) to (7).

(4) Schedule 1, item 31, page 18 (lines 21 to 35), omit subsections 253RC(4) to (7).

(5) Schedule 1, page 21 (after line 15), after item 33, insert:

Part 2—Other amendments

Corporations Act 2001

33A In the appropriate position in Chapter 2G

Insert:

Part 2G.6—Exceptional circumstances

253T Exceptional circumstances—AGM

(1) A public company is taken to comply with subsections 250N(1) and (2) in relation to an AGM if:

(a) the company is in a class of companies specified in a determination under subsection (2); and

(b) the company holds the AGM within the period of extension specified in the determination.

(2) ASIC may, by legislative instrument, make a determination specifying a class of public companies, if ASIC considers that it may be unreasonable to expect the companies in the specified class to hold AGMs within the time required under section 250N because of a situation that is beyond the control of those companies.

(3) The determination must specify a period of extension of that time.

(4) The determination may be subject to specified conditions applying to public companies in the specified class. A company to which a condition specified in the determination applies must comply with the condition. The Court may order the company to comply with the condition in a specified way.

(5) Unless revoked earlier, the determination is repealed at the end of 12 months after the day on which it commences.

253TA Exceptional circumstances—virtual meetings

(1) An entity may hold a meeting of its members, using virtual meeting technology only (even if this is not required or permitted by the entity's constitution expressly), if:

(a) the entity is specified in a determination under subsection (2); or

(b) the entity is in a class of entities specified in a determination under subsection (2).

(2) ASIC may make a determination specifying an entity, or a class of entities, if ASIC considers that it may be unreasonable to expect the specified entity, or entities in the specified class, to hold meetings wholly or partially at one or more physical venues because of a situation that is beyond the control of the entity, or the entities in the class.

(3) The determination is:

(a) a notifiable instrument, if it specifies an entity; or

(b) a legislative instrument, if it specifies a class of entities.

(4) The determination may be subject to specified conditions applying to the specified entity, or to entities in the specified class. An entity to which a condition specified in the determination applies must comply with the condition. The Court may order the entity to comply with the condition in a specified way.

(5) Unless revoked earlier, the determination is repealed at the end of 12 months after the day on which it commences.

(6) A reference in this section to an entity is a reference to any of the following:

(a) a company;

(b) a registered scheme.

33B After section 1344

Insert:

1345 Exceptional circumstances—giving documents

(1) Subsections (2) to (4) apply in relation to a document that is required or permitted under this Act to be given by an entity to another entity (the recipient) if:

(a) the entity giving the document is specified, or is in a class of entities specified, in a determination under subsection (5); and

(b) the document is specified, or is in a class of documents specified, in the determination.

Giving document by electronic communication etc.

(2) If the determination specifies that the document, or documents in that class, may be given in accordance with this subsection, then the document may be given:

(a) by means of an electronic communication; or

(b) by giving the recipient (by means of an electronic communication or otherwise) sufficient information to allow the recipient to access the document electronically.

(3) However, electronic communication or electronic access may only be used if, at the time the electronic communication is used or information about the electronic access is given, it is reasonable to expect that the document would be readily accessible so as to be useable for subsequent reference.

Extension of time

(4) If the requirement or permission mentioned in subsection (1) is for the document to be given within a particular time, the document is taken to have been given within that time if:

(a) the determination specifies a period of extension of that time that applies to the giving of the document by the entity to the recipient; and

(b) the specified period of extension starts after the determination is made; and

(c) the document is given by the entity to the recipient within the specified period of extension.

ASIC may make determination

(5) ASIC may make a determination specifying:

(a) an entity, or a class of entities; and

(b) a document, or a class of documents, required or permitted to be given under this Act (including a class that is any such document); and

(c) one or more matters mentioned in subsections (6) and (7).

(6) ASIC may specify that the document, or documents in that class, may be given in accordance with subsection (2) (giving document by electronic communication etc.), if ASIC considers that it may be unreasonable to expect the specified entity, or entities in the specified class, to give the document, or documents in the specified class, in a physical form because of a situation that is beyond the control of the entity, or the entities in the class.

(7) To the extent that the document, or documents in that class, are required or permitted under the Act to be given by the entity, or the entities in the class, within a particular time (the original time), ASIC may specify a period of extension of that time applying in relation to the giving of the document or documents in that class, if ASIC considers that it may be unreasonable to expect the entity, or entities in the class, to give the document, or documents in the class, within the original time, because of a situation that is beyond the control of the entity, or the entities in the class.

Other matters relating to determination

(8) A determination under subsection (5) is:

(a) a notifiable instrument, if it specifies an entity; or

(b) a legislative instrument, if it specifies a class of entities.

(9) The determination may be subject to specified conditions applying to the specified entity, or to entities in the specified class. An entity to which a condition specified in the determination applies must comply with the condition. The Court may order the entity to comply with the condition in a specified way.

(10) Unless revoked earlier, the determination is repealed at the end of 12 months after the day on which it commences.

(11) This section has effect despite any election (however described) by an entity to be given a document in a physical form.

Part 3—Application and transitional provisions

Corporations Act 2001

(7) Schedule 1, item 34, page 23 (line 25), omit the heading to section 1679F, substitute:

1679F Amendments made by Part 1 do not apply on and after 1 April 2022

(8) Schedule 1, item 34, page 23 (line 26), omit "16 September 2021", substitute "1 April 2022".

(9) Schedule 1, item 34, page 23 (line 27), before "Schedule 1", insert "Part 1 of".

(10) Schedule 1, item 34, page 23 (line 31), omit "16 September 2021", substitute "1 April 2022".

These amendments address feedback from the Senate Economics References Committee report which was tabled on 30 June 2021 and stakeholder feedback received as part of the committee's inquiry. The extended relief will give certainty to many listed and unlisted companies that have 30 June and 30 September year ends and are expected to hold their annual general meetings in the second half of this year or early next year. The amendments remove the requirement for companies and registered schemes to notify members of their right to opt in to receive meeting related documents in hard copy. That is they will not have to notify (1) within two months of the bill passing and (2) within two months of a person becoming a member.

This addresses feedback received during inquiries into the bill by the Senate Economics Legislation Committee and the Senate Economics References Committee. Stakeholders noted that the notification requirements introduced unnecessary regulatory burden because they require companies to send a bespoke notification. However, this is mitigated by the following: first, many members have already consented to receiving electronic copies; second, the company or the registered scheme will only be able to send documents via electronic means if the company has the member's electronic communication details; third, members who have not provided electronic communication details may receive a postcard with details on how to access the documents online; and, finally, members who have opted in to hard copy documents will continue to receive hard copy documents.

In addition, alternative notification requirements are being explored for future permanent reforms. Entities will also have greater certainty that as exceptional circumstances arise from time to time, such as the coronavirus crisis, ASIC will have the permanent power to issue relief. This relief includes extending the time frame in which an AGM must be held; allowing for meetings to be held virtually; allowing documents, whether or not meeting related, to be sent electronically regardless of standing elections to receive hard copies; and extending the time frame for an entity to provide documents to members. Overall the amendments provide greater flexibility and certainty for businesses to meet obligations during the disruptions caused by the coronavirus crisis. We also oppose schedule 1 in the following terms:

(6) Schedule 1, item 34, page 22 (line 17) to page 23 (line 3), section 1679B TO BE OPPOSED.

(11) Schedule 1, items 35 and 36, page 24 (lines 1 to 4) TO BE OPPOSED.

The TEMPORARY CHAIR: The question is that amendments (1) to (5) and (7) to (10) on sheet PG150 be agreed to.

Question agreed to.

The TEMPORARY CHAIR: The question is that item 34 in section 1679B and items 35 and 36 of schedule 1 stand as printed.

Question negatived.

I move government amendment (1) on sheet RS134:

(1) Schedule 2, item 55, page 37 (after line 16), at the end of Part 10.56, add:

1683B Review of operation of laws

(1) The Minister must cause a review of the operation of the amendments made by Parts 1 and 2 of Schedule 2 to the amending Act to be conducted by an independent expert within 6 months after the second anniversary of the commencement of this section.

(2) The person who conducts the review must give the Minister a written report of the review.

(3) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.

Recommendations

(4) The report may set out recommendations to the Commonwealth Government.

(5) If the report sets out one or more recommendations to the Commonwealth Government, the report must set out the reasons for those recommendations.

Government response to recommendations

(6) If the report sets out one or more recommendations to the Commonwealth Government, as soon as practicable, and in any event within 3 months, after the report is first tabled in a House of the Parliament, the Minister must cause:

(a) a statement setting out the Commonwealth Government's response to each of the recommendations to be prepared; and

(b) the statement to be published on the Department's website.

1683C Amendments made by Schedule 2 to the amending Act cease to have effect if review of operation of laws is not conducted

(1) This section applies if the Minister:

(a) fails to cause a review to be conducted in accordance with subsection 1683B(1) within the period required by that subsection; or

(b) is given a written report of a review conducted in accordance with subsection 1683B(1), but fails to cause a copy of the report to be tabled in each House of the Parliament within the period required by subsection 1683B(3); or

(c) is given a written report of a review conducted in accordance with subsection 1683B(1) that sets out one or more recommendations to the Commonwealth Government, but fails to cause a statement to be published on the Department's website within the period required by subsection 1683B(6).

(2) This Act and the ASIC Act have effect, on or after the day mentioned in subsection (3), as if the amendments made by Parts 1, 2 and 4 of Schedule 2 to the amending Act had not been made.

(3) The day (the sunsetting day) is:

(a) the day after the end of the period referred to in the applicable paragraph of subsection (1), unless paragraph (b) of this subsection applies; or

(b) if there is more than one applicable paragraph in subsection (1)—the earliest day determined under paragraph (a) of this subsection for each of those paragraphs.

(4) To avoid doubt, nothing in this section affects the validity of anything that is done, or not done, in reliance on this Act or the ASIC Act as in force before the sunsetting day.