Australia is NOT a foreign corporation registered with the U.S. S.E.C.

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.

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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. 1)

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).

Click to access sec.gov-_-the-laws-that-govern-the-securities-industry.pdf


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) 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.


Extract from Braysich v The Queen [2009] WASCA 178 3

(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, 4 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.” 5

Click to access securities-act-of-1933.pdf

Click to access sea34.pdf

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.

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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.

Click to access form18.pdf

Click to access form18-k.pdf

Form 18-k annual report foreign governments 6 Note that the Commonwealth of Australia Annual Report. 7 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.”

Form 10-k U.S. Company 8

Let’s use KFC 9 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.”

Form 6-k Australian Company 10

Lets use Barbeques Galore 11 for example: Note that it is Form 6-k.

Checkout the complete SEC Forms List 12 for clarification, and this SEC overview 13 of the legislative requirements regarding all foreign entities offering securities to U.S. investors.


Extract from  Commonwealth Bank of Australia v Haughton [2020] SASC 135 (at 72): 14

“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: 15

“…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.”

Click to access sec-021709-schb-incoming.pdf


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.

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Extract from “Government Contracts: Federal, State and Local”; By Nicholas Seddon 16

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 sometimes 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 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. 17 It specifically for the purposes of that particular Act, but not for the wider purposes, for example, of applying that definition to other Acts.

Extract from Williamson v Hodgson [2010] WASC 95 (at 43-46): 18

“Another submission made today in the course of argument was that the entity who issued Mr Williamson with the infringement notice had an Australian business number or ABN.  Mr Williamson submitted that he was therefore being prosecuted by a corporation and not the police.

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.  It is irrelevant to the validity of the infringement notice or any subsequent prosecution that the entity who issued the infringement notice had an ABN.”


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) 19 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.”


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: 20

“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:

“Documents relating to registration with the SEC of the Australian Government as a privately owned American company”. 21

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.

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