Privacy v public disclosure – does the proposed public ownership register go too far?
Introduction
The Federal Government is introducing a public register of beneficial ownership information to record who ultimately ‘owns, controls, and receives benefits’ from a company operating in Australia. The Government believes a public registry will reduce Australia’s vulnerability to money laundering and tax evasion.
What is beneficial ownership and why the need for Government action?
Beneficial ownership is defined as ‘any individual who owns through one or more shareholding more than 25 per cent of the issued capital in a company’. The Government recognises that some three million regulated entities would incur regulatory and compliance costs under the proposals, including:
- undertaking initial collection of beneficial ownership information (to the extent regulated entities do not have this information already) and provide it to regulators (if necessary); and
- identifying and adding to the register, details of new beneficial owners.
The measures are intended to align Australia which is currently not highly ranked against international benchmarks (such as the United Kingdom, France and Singapore) for the collection and disclosure of beneficial ownership information.
Proposed changes
The Government has proposed that the first phase of implementation will focus on entities that are currently regulated by the Commonwealth and required to maintain registers of legal ownership and certain natural persons who meet threshold requirements. These entities include: proprietary companies; unlisted public companies; unlisted registered managed investment schemes (MIS); and unlisted corporate collective investment vehicles.
The Government’s intention is that the registers of beneficial ownership are to be accessible by the public, either through allowing interested parties to request a copy of the register from the regulated entity or requiring regulated entities to publish their registers online.
Enforcement and penalties
The Government proposes to introduce enforcement measures and penalties to enhance compliance with the beneficial ownership disclosure regime. The Corporations Act 2001 (Cth) (Act) currently includes penalties for non-compliance for:
- failure by a company or registered MIS to maintain a register of members pursuant to section 168 (30 penalty units);
- failure by a person to provide a substantial holding notice pursuant to section 671B (2 years’ imprisonment for fault-based offence and 60 penalty units for strict liability offence);
- failure by a person to provide beneficial ownership information in response to a tracing notice (section 672B) (60 penalty units); and
- failure by a listed company or a responsible entity for a listed registered MIS to maintain a register of beneficial ownership information received in response to a tracing notice (section 672DA) (20 to 30 penalty units depending on the specific obligation breached).
Under the proposed model a regulated entity may:
- issue a notice to a person it suspects to be a beneficial owner, requesting the person provide beneficial ownership information to the entity;
- issue a ‘warning notice’ to the person if the person does not respond to, or adequately address, a valid notice within a prescribed timeframe; and
- if the person does not respond to, or adequately address, a valid warning notice within a prescribed timeframe, prevent the person from dealing in their interest by serving a notice of the restrictions to the person.
Next phase
Stakeholders are invited to submit their views on the proposed design of the first phase reform by 16 December 2022. The submission guidelines can be found here.
Check back in the next 6 months for another update regarding the reforms!
Queries
If you have any questions about this article, please get in touch with an author or any member of our Corporate & Commercial team.
Disclaimer
This information and the contents of this publication, current as at the date of publication, is general in nature to offer assistance to Cornwalls’ clients, prospective clients and stakeholders, and is for reference purposes only. It does not constitute legal or financial advice. If you are concerned about any topic covered, we recommend that you seek your own specific legal and financial advice before taking any action.