OPCA theorists in Australia often claim that our original government was hijacked, and the entity is now just a “corporation posing as a government” and hold as evidence of this fallacy, our registration details in the United States Security Exchange Commission.
The registrations of various bodies with the SEC in the US does not make them an American company.
Firstly, when the names of countries appear in EDGAR search results, it simply means that a foreign government that has issued securities for sale to U.S. investors, and has therefore registered those securities in accordance with section 12(b) and (c) of the Securities Exchange Act 1934.
Secondly, this registration with the S.E.C. does not establish or incorporate anything, even in the U.S. companies are created by registration with their state regulatory bodies, and this must occur before any SEC application. To register with the SEC the legal entity must already exist. (See Register with the S.E.C.)
Thirdly, there are very distinct differences between the TYPE of SEC registration in comparison to an actual privately owned American company (Form 10-k U.S. Company) as well as a privately owned Australian company (Form 6-k Australian Company) and that of the Australian Government, (Form 18-k annual report foreign governments).
The Securities Exchange Acts
Entities issuing stock, bonds, or others securities to investors in the United States must register the offering with the SEC under the Securities Act of 1933. Section 3(a)(2) exempts registration requirements for any securities issued or guaranteed:
“by the United States or any territory thereof, or by the District of Columbia, or by any State of the United States, or by any political subdivision of a State or territory, or by any public instrumentality of one or more States or territories….”
However, this does not include foreign governments and their political subdivisions. Similar to public companies, if such foreign governments offer securities publicly in the U.S., they have to register the securities with the SEC. When the foreign government registers its securities, the government’s registration statements and other filings appear in the EDGAR database system.
Braysich v The Queen [2009] WASCA 178 (At 25)
“In the United States, federal regulation of securities transactions emerged from the ruins of the 1929 stock market crash. The Securities Act of 1933, 48 Stat 74, as amended, 15 USC chap 77a and following, was intended to provide investors with proper disclosure of material information in relation to public offerings of securities in commerce, to protect investors against fraud and to promote ethical standards of honesty and fair dealing. The Securities Exchange Act 1934,48 Stat 891, 15 USC chap 78j(b) was intended primarily to protect investors against manipulation of stock prices by regulating securities transactions and imposing regular reporting requirements on companies listed on national securities exchanges. See Ernst & Ernst v Hochfelder (1976) 425 US 185, at 194 ‑ 195.”
Put simply, the SEC registration allows the Australian Government access to what is called an American Depository Receipt. The A.D.R. evidences our home market security which trades in the U.S. and it is custodised with their local bank, called the Custodian. Basically, they represent our equity and debt. These US. Securities enable investors to trade freely on their major exchange in U.S. Dollars, pay dividends or interest in their currency, and settle, clear and transfer according to standard U.S. practices.
The type of SEC registration
Scenario One:
It is claimed that this is a “corporate version” of the real “Commonwealth of Australia” and it is now under U.S. Government control. Just the fact alone, that the Commonwealth of Australia, and every other foreign government offering securities in the U.S. uses Schedule B as the form of registration, and is required to lodge Form 18k for annual reports, clearly labelled “For Foreign Governments and Political Subdivisions Thereof” establishes that the entity involved is not a division of the U.S. Government. If they were, they would be exempt from any registration requirements, as explained above.
Secondly, none of the filings are for a “Registered Corporation” but clearly labelled as pertaining to a Foreign Government, an entity that actually is a Corporate Sole. This is not a uniquely Australian obligation either. Every other foreign government that has offerings in the U.S also lodges the same Form 18-k annually, and uses the same Schedule B form of registration, as it is required by the Securities Act of 1934, for all foreign issuers trading on the U.S. market.
This Form 18 application “For Foreign Governments and Political Subdivisions Thereof” sets out the reasons for the registration, and the following Form 18-K sets out the requirement for the Annual Reports.
Form 18-k annual report foreign governments Note that the Commonwealth of Australia Annual Report is Form 18-k:
Scenario Two:
In comparison, if one were to contend the entity was a U.S. company or private U.S. corporation, (like McDonalds or KFC) they wouldn’t be able to use Form 18-k. These entities are registered corporations formed in the U.S., and for those reasons they are required to use Form 10-K labelled “ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934.”
Let’s use KFC for example: Note that it is Form 10-k for Annual Reports, and Form 10-q for Quarterly Reports.
Scenario Three:
Let’s contend that the entity is a foreign corporation, secretly set up in Australia first, and then registered with the SEC. These entities are foreign registered corporations, and for those reasons are required to use Form 6-k labelled “Report of foreign private issuer pursuant to Rule 13a-16 or 15d-16 under the Securities Exchange Act of 1934.”
Lets use Barbeques Galore for example: Note that it is Form 6-k.
Checkout the complete SEC Forms List for clarification, and this SEC overview of the legislative requirements regarding all foreign entities offering securities to U.S. investors.
This contention has been raised in submissions countless times in Australian courts, mostly it isn’t even responded to, the pleading is merely struck out as frivolous. (See cases in Tag “Corporate Government“). There are several judgements with responses though, like in Commonwealth Bank of Australia v Haughton [2020] SASC 135 (at 72):
“Mr Haughton’s argument then leapt to what he described as an “Edgar search result”, being a search of the US Securities and Exchange Commission, which apparently showed that there was a “Commonwealth of Australia” which was a private corporation with shareholders and that this, therefore, proved that the “Commonwealth of Australia” referred to in Commonwealth legislation is “owned by the private political parties called Commonwealth of Australia”. He then told me:
The Constitution Act of 1900 which encompasses our human rights document, the Magna Carta and all those other things and our constitutional monarchy which forces us to vote for any changes in that constitution at s.106, 107 and 129. But this one here has no constitution the Commonwealth of Australia. Mr Haughton contended that there had been no election to “turn us from a company of living people into a corporation with shareholders of the political parties”.
The registration of the “Commonwealth of Australia” as a privately owned American company was explained some time ago by the Australian Treasury in response to a freedom of information request. Registration occurred in 2009 in connection with a guarantee issued under the Australian Government Guarantee Scheme for large deposits and wholesale funding…”
The following correspondence explains these changes that occurred in 2009 following the Global Financial Crisis. It is an application to the SEC:
“…to permit the Commonwealth to use a shelf registration procedure for a registration statement on Schedule B, registering its guarantee of debt securities that may be offered and sold by eligible Australian deposit-taking institutions in SEC-registered offerings.”
Government bodies as legal entities
Nations and States, by their very structure are corporate entities, and are considered to be a single legal creature at law. They have a ‘body’ consisting of the citizens making up the group, and a ‘head’ consisting of the parliament or congress. They are juridical persons, able to sue and be sued, and possess certain rights and responsibilities under international law. This has been this way for centuries, the colonies themselves actually began as Chartered corporations, created by Royal Charter, and the Crown itself is a Corporation Sole.
What governments are not, is “corporations” in the sense that the term is commonly used today, as in MacDonald’s, Kmart, or other trading companies registered with ASIC, (Australian Securities and Investments Commission) and subject to the provisions of the Corporations Act 2001. Trading companies are created merely by registration with a nations commercial regulatory body, whereas the following entities were created by statute, making them Statutory corporations.
For example: the Commonwealth Scientific and Industrial Research Organisation, (CSIRO) the Australian Broadcasting Authority, (ABC) the Special Broadcasting Service, (SBS) the Australian Trade Commission, Australia Post, Airservices Australia, the Australian Rail Track Corporation, the Australian Egg Corporation, and the Grain Research and Development Corporation.
These publicly-traded Statutory corporations are creations of the Commonwealth and State Parliaments, many of them are traded internationally, and therefore also have registrations with the US SEC. Statutory corporations often conduct activities on a financial scale and with a labour force of a size that would easily place them within the category of the large proprietary company, had they been incorporated under corporations law.
Australian Business Number
At its core, this myth shows a flawed understanding of the nature of corporate entities, but is based on the premise that because the police, courts, councils and various government departments have an ABN, (Australian Business Number) “….this makes them a corporation.”
Government departments having an ABN doesn’t make them a corporation. If any type of department has staff that they have to allocate wages, or have expenditure which they would be subject to GST, they require an ABN number to pay wages as well as gain an exemption from the GST surcharges under the “new tax system”. The Australian Business Number Act 1999 specifically provides in section 5 that it applies to a “government entity” AS IF IT WERE an “entity”.
In short, what is an “entity” for the purposes of the Australian Business Number Act 1999 may not be a separate legal entity for wider purposes”, as explained in Elston v Commonwealth of Australia [2013] FCA 108. It specifically for the purposes of that particular Act, but not for the wider purposes, for example, of applying that definition to other Acts.
Williamson v Hodgson [2010] WASC 95 (at 43-46):
“A person or entity does not become a corporation because that person or entity has an ABN. An ABN is required for any organisation or individual who carries on an enterprise with a GST turnover above a certain sum. Further, anyone who wishes to claim GST credits or fuel tax credits needs an ABN. An ABN holder may be an individual, a corporation, a partnership or government entity. It is not necessary that the entity be engaged in a profit‑making venture.”
The Corporations Act 2001
In fact, when it comes to the actual definition of a “corporation” for the purposes of the Corporations Act 2001, section 57A(2) states:
“Neither of the following is a corporation:
(a) an exempt public authority;
(b) a corporation sole.”
And section 3 states:
“exempt public authority” means a body corporate that is incorporated within Australia or an external Territory and is: a public authority; or an instrumentality or agency of the Crown in right of the Commonwealth, in right of a State or in right of a Territory.”
In Corica v Shire Of Mundaring [2016] WASC 356, the appellants contended: “…that various entities, including the respondent, the respondent’s solicitors, this Court and the State of Western Australia, are ‘trading corporations’ within the meaning of s 51(xx) of the Commonwealth Constitution, which was said to have various consequences for the validity or efficacy of the proceedings against the appellants…”
The court responded (at 94) that:
“These submissions are misconceived and wrong for reasons I will explain shortly. Apart from the flaws of such submissions as a matter of legal principle, submissions of a similar kind have already been rejected by this Court and by the Court of Appeal on numerous occasions: see, for example, Palmer v City of Gosnells [2014] WASCA 102 and the authorities therein cited. It is unfortunate that some litigants in this Court, and especially self-represented persons, continue to be seduced by these arguments and to run the risk of costs orders being made against them by repeating the arguments in litigation when they are doomed to failure.
It is unnecessary to enter into the question whether any of the entities to which the appellants referred are trading corporations within the meaning of s 51(xx) of the Constitution. Even if they were, that fact would have no consequences in the context of these proceedings. Section 51(xx) confers on the Commonwealth Parliament power to make laws for the peace, order and good government of the Commonwealth with respect to ‘foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’. The legislative power of the Commonwealth Parliament under s 51 is concurrent with that of the States. That is, it is entirely open to the States to legislate in respect of trading corporations, subject to the operation of s 109 of the Constitution. Section 109 deals with any conflicts between Commonwealth and State laws made in the exercise of concurrent legislative power by providing that, if a Commonwealth law and a State law are inconsistent, the former prevails and the latter is inoperative to the extent of any inconsistency. The appellants did not point to any Commonwealth law which was inconsistent with any State law engaged in these proceedings, nor could they have.”
In Palmer v City of Gosnells [2013] WASC 446, the appellants claimed (at 7) that: “…the City of Gosnells is subject to the ‘Corporations Law of the Commonwealth and as such is unable to claim from or prosecute the Defendants other than as a result of a contract…” and (at 27) that “…there were grounds for objection to his Honour’s preliminary decision including a document which asserted that ‘Australia has got an ABN number in America. They’re owned by a corporation…”
The court noted (at 107) that:
“Counsel for the Palmers on this appeal, Dr Walsh, had also represented Mr O’Connell last year in the Court of Appeal in O’Connell v The State of Western Australia [2012] WASCA 96. In that case, the Court of Appeal rejected a near-identical submission to the first two points made by Dr Walsh in this Court. Mazza JA (with whom Martin CJ and Buss JA agreed) described Dr Walsh’s submission (at 88) as follows: since ‘the Department of the Attorney General has an Australian Business Number (ABN), the courts in this State have effectively become corporations. Thus, it is said the judiciary is no longer a separate and independent arm of government’. It is not necessary to repeat the reasoning of Mazza JA. It suffices to set out his conclusion that this argument: “…is totally devoid of merit. The identical argument has been decided in this court in a number of cases including Glew v The Shire of Greenough [2006] WASCA 260; and Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289. An application to the High Court for special leave to appeal against the first of those decisions was refused: Glew v Shire of Greenough [2007] HCATrans 520 (6 September 2007).”
The decision was appealed in Palmer v City of Gosnells [2014] WASCA 102, where it was held that:
“None of the grounds of appeal, as elaborated on in the submissions, have a reasonable prospect of succeeding. The same issues have been repeatedly raised in the Supreme Court and dismissed. See for example Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231; Glew v Shire of Greenough [2006] WASCA 260 (special leave refused: Glew v Shire of Greenough [2007] HCATrans 520); Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289; Glew v City of Greater Geraldton [2012] WASCA 94; Glew v Frank Jasper Pty Ltd [2012] WASCA 93; Krysiak v Hodgson [2009] WASCA 114; Glew v The Governor of Western Australia [2009] WASC 14; Glew v Frank Jasper Pty Ltd [2010] WASCA 87; O’Connell v The State of Western Australia [2012] WASCA 96 [92]. The grounds of appeal are devoid of any merit.”
Feedback
Response from the US Security and Exchanges Commission
The assertion that Australia is a “private U.S. corporation” was raised with Nina Smallwood-Johnson (Attorney) Office of Investor Education and Advocacy, of the U.S. Securities and Exchange Commission. She was asked why entire countries need to register their name with the SEC:
“The fact that names of countries appear in EDGAR does not mean that the entire country has registered its name with the S.E.C., it means that the country is a foreign government that has issued securities for sale to U.S. investors and has therefore registered those securities.”
Response from the Commonwealth Treasury
Many misunderstand the following response from The Treasury in relation to a Freedom of Information request, just because the request terms are reproduced. The request was:
The wording in the request was reproduced verbatim in the search results, as it is with any Freedom of Information request.
It might of been: “Documents relating to registration with the SEC of the Australian Government as a cafe operated by Mickey Mouse.” …and that wording in the request would of likewise been reproduced in the identical search results. It doesn’t confirm that Mickey Mouse is the CEO of a cafe franchise named the Australian Government, and neither does this confirm it is privately owned American company.
The results of the request is the most important factor, and that is merely: “Documents relating to registration with the SEC of the Australian Government…” and that is what was supplied…
Sadly, most never get past this point, and explore the documents, or the reason for the registration, and the very marked differences between the type of SEC registration in comparison to an actual “…privately owned American company”. Unfortunately that type of critical thought escapes those seeking confirmation of their preexisting beliefs. Those seeking the truth of the matter are not so easily convinced. It is quite obvious that these words were written by the applicant, and do not even constitute a reply from the Australian Government.
If you note the references in the scenarios described above, there are very distinct differences between the type of SEC registration in comparison to an actual privately owned American company (Form 10-k U.S. Company) as well as a privately owned Australian company (Form 6-k Australian Company) and that of the Australian Government, (Form 18-k annual report foreign governments) which clearly substantiates that the Australian Government is not a “…privately owned American company” at all.
On page 13 of the documents relating to Australia’s registration with the SEC supplied by the Treasury under the Freedom of Information request, it states in no uncertain terms that Australia is a SOVEREIGN STATE, and that the registration does not have the effect of waiving any sovereign immunity, nor does it place Australia under the jurisdiction of US courts, nor does the registration create any attachment or execution against Australia’s property or revenue in default of any obligations.
Also confirming that the status of the nation has not been altered by this registration, can be found on pages 15 to 18, where it outlines the form of government in Australia, citing both the historical developments of federation and the constitutional arrangements in place.
Professor Sinclair Davidson, an expert in institutional economics from RMIT University in Melbourne, told AAP FactCheck that the title of the Treasury web page featuring the FOI request was misleading as the document did not show the government was a “privately owned American company” and that “it’s stated very clearly within that document Australia is a sovereign nation.”
Dr Karen Alpert, a lecturer from the University of Queensland’s School of Business, said that it appeared Treasury had just used the FOI request wording for the title of the corresponding page on it’s site, “even though that does not describe what’s happening”.
A spokeswoman for Treasury replied in an email that “the Australian government is not a US corporation”. She said:
“The Australian government was registered with the US Securities and Exchange Commission for the purposes of guaranteeing ADI debt securities covered by the Guarantee Scheme for Large Deposits and Wholesale Funding, which ended in 2015”.