House of Representatives

Corporations Amendment (Crowd-sourced Funding) Bill 2016

Explanatory Memorandum

(Circulated by authority of the Treasurer, the Hon Scott Morrison MP)


Corporations Act, Chapter 6D.


Corporations Act, s45A(2) defines a small proprietary company as a proprietary company with at least two of: consolidated financial revenue of less than $25 million; consolidated gross assets of less than $12.5 million; and fewer than 50 employees.


Corporations Act, s45A(3) defines a large proprietary company as a proprietary company with at least two of: consolidated financial revenue of $25 million or greater; consolidated gross assets of $12.5 million or greater; and 50 or more employees.


Corporations Act, s113(3), subject to exceptions for offers to existing shareholders and employees of the company or subsidiary. Proprietary companies may make offers where that offer would not require disclosure under Chapter 6D.


Corporations Act, s708.


Under s761A of the Corporations Act, carrying on a financial services business is defined as providing a financial service. Provision of a financial service is defined in s766A.


Corporations Act, s912A.


Corporations Act, Division 2, Part 7.7.


As defined in the Corporations Act, s767A. Under s911A(2)(d), an intermediary that is a holder of an AML is not required to also hold an AFSL.


Corporations Act, s724.


ASIC Class Order 02/273: Business Introduction or Matching Services.


Corporations Act, Chapter 5C sets out specific requirements in relation to managed investment schemes.


See: http://www.treasury.gov.au/ConsultationsandReviews/Consultations/2014/Crowd-sourced-Equity-Funding


The Corporations Amendment (Crowd-sourced Funding) Bill 2015, introduced into Parliament in December 2015, specified eligibility caps of $5 million turnover per annum and $5 million in gross assets.


The Corporations Amendment (Crowd-sourced Funding) Bill 2015, introduced into Parliament in December 2015, specified caps of $5 million annual turnover and gross assets.


The Corporations Amendment (Crowd-sourced Funding) Bill 2015, introduced into Parliament in December 2015, specified a cooling off period of 5 business days.


Small proprietary companies and large proprietary companies are defined in s45A of the Corporations Act. Key differences in compliance requirements for small proprietary companies compared to large proprietary companies include annual financial reports and directors' reports and audit. Differences in compliance requirements for small proprietary, large proprietary and public companies under current arrangements are discussed further in section 4.4.


ASIC Class Order 02/273: Business Introduction or Matching Services.


Corporations Act, Part 2M.3, Division 1 outlines financial reporting requirements. Large proprietary companies and public companies must prepare annual financial reports and directors' reports. Under s292, small proprietary companies are only required to prepare an annual financial report in certain circumstances, including in response to a direction by shareholders with at least 5 per cent of votes in the company or by the Australian Securities and Investments Commission. Small and large proprietary companies are defined under s45 according to certain revenue, asset and employee thresholds.


Corporations Act, s301 provides that the annual financial reports must be audited in accordance with Part 2M.3, Division 3. Small proprietary companies that prepare a financial report in response to a shareholder direction under s293 do not need to obtain an audit if that direction did not ask for the financial report to be audited.


ASIC Class Order 02/273: Business Introduction or Matching Services, which allows issuers to raise up to $5 million per 12 month period from up to 20 investors without the use of a disclosure document, rather than the $2 million limit under the small scale personal offer exemption.


Corporations Act 2001 , s708.


Corporations Act 2001 , s724.


Corporations Act 2001 , s724.


Corporations Act 2001 , s981B.


Corporations Act 2001 , s708.


Based on ABS labour rates in the RIS guidelines, including employer costs.


In the absence of reliable data on charge-our rates for small legal firms, estimate obtained from Hays data on salaries for legal staff, assuming a senior associate at a small private practice with a $120,000 annual salary corresponding to an hourly rate of $61.53. A 1.75x multiplier is applied to approximate charge-out costs, based on the approach for labour rates in the RIS guidelines.


Sourced from previous Treasury analysis of costs associated with applying for an AFSL.


Sourced from previous Treasury analysis of costs associated with AFSL compliance.


Estimates obtained from AFSL Compliance, http://www.afslcompliance.com.au/index.php/popular-information11/item/48-what-does-it-cost.


Based on ABS labour rates in the RIS guidelines, including employer costs.


Ibid.


Ibid.


Ibid.


Based on ABS labour rates in the RIS guidelines, including employer costs.


Based on ABS labour rates in the RIS guidelines, including employer costs.


Sourced from previous Treasury analysis on Australian Market Licence modification and exemption power (OBPR ref: 16839).


Estimates of wage rate are for a legal partner at top tier firm $250,000 (per annum) salary. Hourly wage rate is based on an assumed average work week of 37.5 hours. Source: 'The 2015 Hays Salary Guide: salary and recruiting trends', https://www1.hays.com.au/salary/output/pdf2015/HaysSalaryGuide_2015-AU_legal.pdf


Ibid.


Sourced from previous Treasury analysis on Australian Market Licence modification and exemption power (OBPR ref: 16839).


Estimates of wage rate are for a finance manager based in Sydney $156,000 (per annum) salary. Hourly wage rate is based on an assumed average work week of 37.5 hours. Source: 'Hudson: Salary Guides 2015: Accounting & Finance, Australia', http://au.hudson.com/portals/au/documents/Salary%20Guides/SalaryTables2015-Aus-AF.pdf


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