COMPANIES (TRUSTEES AND PERSONAL REPRESENTATIVES) (NATIONAL UNIFORM LEGISLATION) IMPLEMENTATION BILL 2010

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

SERIAL NO. 92

EXPLANATORY STATEMENT

GENERAL OUTLINE

This Bill amends the Companies (Trustees and Personal Representatives) Act following the passing by the Commonwealth Parliament of the Corporations Legislation Amendment (Financial Services Modernisation) Act 2009.

The Bill repeals provisions dealing with:

§	licensing and reporting requirements;
§	fees that may be charged;
§	duties of officers and employees;
§	restrictions on ownership and control;
§	minimum capital requirements; and
§	common funds.

The Bill inserts savings, transitional and other provisions as well as provisions (including exemption from Territory Tax) dealing with ‘compulsory transfer determinations’ made by the Australian Securities and Investment Commission (ASIC) under Division 2 of 
Part 5D.6 of the Corporations Act 2001.

NOTES ON CLAUSES

Part 1		Preliminary matters

Clause 1.	Short Title.

This is a formal clause which provides for the citation of the Bill.  The Bill when passed may be cited as the Trustee Companies 
(National Uniform Legislation) Implementation Act 2010.

Clause 2.	Commencement 

The Act will commence on a date fixed by the Administrator by notice in the Gazette.

Part 2	Amendment of Companies (Trustees and Personal Representatives Act)	
 
Clause 3.	Act amended 
	
The Act being amended is the Companies (Trustees and Personal Representatives) Act.

Clause 4.	Repeal of section 4

Section 4 contains savings provisions relating to the commencement of the Act in 1981.  These provisions are spent, and are repealed.

Clause 5.	Amendment of section 5 (Definitions)

Some redundant definitions are repealed, and some new definitions are inserted.  Some redundant words are omitted from some definitions.

Clause 6.	Repeal of section 6 to 13, 25, 27 and 27A

Provisions relating to matters now covered by the Corporations Act 2001, or that are otherwise redundant, are repealed.

Clause 7.	Repeal and substitution of section 29

This replacement section 29 makes it clear that a trustee company authorised under the Corporations Act 2001 does not have to provide an administration bond under the Administration and Probate Act.

Clause 8.	Repeal of sections 30 to 33 and 36, 38 and to 39

Provisions relating to matters now covered by the Corporations Act 2001, or that are otherwise redundant, are repealed. 

Clause 9.	Repeal of Parts IIA and III

Part IIA contains provisions relating to the transfer of business between two particular trustee companies in 1984.  These provisions are spent, and are repealed.

Part III provides for authorized companies to act as an executor of a will.  The new provisions in the Corporations Act 2001 do not permit any company other than trustee company (within the meaning of that Act) to be executor of a will, and as a consequence this part is repealed.
Clause 10.	Repeal of Part IV heading

The heading to Part IV is repealed.  The amendment and consequential shortening of the Act means there is no longer a need for a separate Part IV.

Clause 11.	Repeal of section 48 

The redundant definition of “company” is repealed.

Clause 12.	Repeal and substitution of section 53 to 56

Provisions relating to matters now covered by the Corporations Act 2001, or that are otherwise redundant, are repealed.

New provisions are inserted, and they are numbered sections 53 to 56.

53	Effect of compulsory transfer under Corporations Act 2001

	This new section provides that if ASIC cancels the licence of a trustee company, then all of that trustee company’s business (including all assets and liabilities) are to be transferred to another trustee company.

54	Exemption from tax for compulsory transfer

	This new section 54 provides that there is no stamp duty, fees, charges etc payable in relation to the transfer of assets from one trustee company to another, under section 53.

Clause 13.	Amendment of section 57 (Only certain 				companies to act as executor, &c.)

The reference to an “authorized company” being able to be an executor, is removed.   The Corporations Act 2001 does not permit any company other than a trustee company to be an executor.

Clause 14.	Repeal and substitution of section 59

The Regulation making section is replaced with the current Regulation making provision.  This is a statute law revision amendment.

Clause 15.	 New Part 4

Part 4	Transitional matters for Trustee Companies 
(National Uniform Legislation) Implementation Act 2010
 
This Part provides for transitional matters, resulting from the amendment of the Act.

60	Definitions

	New definitions of terms used in this Part are inserted.

61	Authorised company may continue to act

An Authorised company under the Act that is acting as executor of a will or trustee of the estate of a deceased person before the amendment of the Act, can continue to act in that role, as if the Act had not been amended.

62	Savings and transitional regulations

New section 62 provides that Regulations of a savings or transitional nature may be made.  These Regulations may have retrospective application (to the date the Act was amended).  
This will allow for Regulations to be made addressing any unforseen technical or like issues that may arise, as a consequence of the amendment of the Act and the amendments to the Corporations Act 2001.  This Regulation making power (and any Regulations made under it) expire two years after the commencement of the Act.
	
Clause 16.	Repeal of Schedule 2

Schedule 2 relates to repealed section 4(1), and being redundant is to be repealed.

Clause 17.	Further amendments

This clause provides for a Schedule, that contains a number of consequential amendments to various sections of the Act.  These amendments make minor changes to omit incorrect terms or references or insert correct terms or references, and make other changes of a statute law revision nature.

Part 3	Repeal of Companies (Trustees and Personal Representatives) Regulations

Clause 18.	Repeal
 
The Regulations made under the Act are redundant, and are repealed.