On 1 October 2018, the Australian Government released the following for public consultation:
- Commonwealth Registers Bill 2018; and
- Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2018.
Together, these Bills consolidate a number of Australian business registers administered by a Australian Business Registrar.
What's prompted this new legislation?
The consolidation of 31 Australian Securities and Investments Commission (ASIC) business registers was first announced by the Australian Government in the 2018-19 Budget. This was in response to complaints that the current legislative framework is not digital technology-friendly, lacks cross-agency accessibility and results in duplication and inconsistent rules applying to the use of data on different registers. Having all business registers on a single platform should allow the Registrar to flexibility adapt, and respond to, changes in technology to improve user experience, and simplify the way that clients interact with Government business registers. This is also in keeping with the Government's National Business Simplification Initiative announced in 2016, which aims to reduce the time that businesses spend complying with regulations and interacting with Government.
Overview of the modernisation of Commonwealth registers
What information is subject to the new regime?
The initial plan is for 35 existing business registers to be subject to the new regime. This includes the Australian Business Register, the ACN Register, various Credit Registers, the Register of disqualified company directors and other officers, and the Register of financial services licensees, among others. Other Government registers may be brought into the regime by future legislative reforms.
Who can be appointed as registrar?
The Minister may appoint any existing Commonwealth body or agency to be the registrar.
What can the registrar do?
The functions and powers of the registrar are largely set out in existing provisions of legislation that relate to the registers being brought into the new regime - for example, the Corporations Act, ABN Act, Business Names Act, Credit Act and so on. This shows that the proposed legislation is not creating any new functions and powers ‒ rather, it is transferring existing functions and powers to one centralised registrar.
One key power is the registrar's ability to make data standards that govern how it will perform its functions and powers. These standards outline, among other things, what information can be collected, how it will be collected, given to the registrar, authenticated, verified, stored and corrected, and how the registrar will communicate with persons who give or seek information.
It is clear that the data standards can include different provisions relating to different functions or powers of the registrar, meaning that there does not need to be a "one size fits all" approach to the administration of registry functions and powers. They can also be readily amended over time in order to keep up with best practice, industry preference and changes in technology.
How can information held by the registrar be disclosed?
Disclosure is authorised if:
- it occurs in the course of performance of the duties of a person's employment;
- the person to whom the information relates consents to the disclosure;
- a Government entity requires information to exercise its powers; or
- the registrar is satisfied that the benefits of disclosure outweigh the risks (and after those risks have been mitigated), for example, with releasing certain de-identified information to the general public.
How is my company's information protected?
There are strict provisions outlining how information on the register will be protected. Namely, it is an offence for an official to record or disclose information held by the registrar unless the recording or disclosure is authorised. The maximum penalty for breaching this offence is imprisonment for two years, which is consistent with comparable provisions in other Acts such as the ASIC Act.
What else does the new regime offer?
The new regime also deals with:
- the registrar's ability to make data standards that govern in greater specificity how the registrar will perform its functions and powers;
- when the Minister can direct the registrar;
- the circumstances in which the registrar may delegate its functions;
- statutory immunity for persons involved in the performance of functions under the new regime;
- the use of assisted decision-making processes by the registrar;
- review rights with respect to decisions made by the registrar; and
- the admissibility of registry information in court proceedings.
The proposed legislation is a positive step towards cutting down the regulatory burden associated with setting up and running Australian businesses and will also allow Australia's regulatory regime to better adapt to technological disruption. Companies should prepare for the legislation's enactment, for example by monitoring the progress of the Bill, and reviewing what information it has previously provided to the various Commonwealth registers, ensuring it is up to date.