Corporations Act 2001

The operation of this Act in the referring States is based on:

the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)); and

the legislative powers that the Commonwealth Parliament has in respect of matters to which this Act relates because those matters are referred to it by the Parliaments of the referring States under paragraph 51(xxxvii) of the Constitution.

The State referrals fully supplement the Commonwealth Parliament’s other powers by referring the matters to the Commonwealth Parliament to the extent to which they are not otherwise included in the legislative powers of the Commonwealth Parliament.

The operation of this Act in the Territories is based on:

the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of those Territories; and

the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution.

The operation of this Act outside Australia is based on:

the legislative power the Commonwealth Parliament has under paragraph 51(xxix) of the Constitution; and

the other legislative powers that the Commonwealth Parliament has under section 51 of the Constitution; and

the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of the external Territories.

The operation of this Act in a State that is not a referring State is based on:

the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxxvii)) and section 122 of the Constitution; and

the legislative powers that the Commonwealth Parliament has in respect of matters to which this Act relates because those matters are referred to it by the Parliaments of the referring States under paragraph 51(xxxvii) of the Constitution.

A State is a referring State if the Parliament of the State has referred the matters covered by subsections (4) and (5) to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution:

if and to the extent that the matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); and

if and to the extent to which the matters are included in the legislative powers of the Parliament of the State.

A State is a referring State even if the State reference Act includes a provision to the effect that nothing in the State reference Act is intended to enable the making of laws pursuant to the amendment reference with the sole or main underlying purpose or object of regulating industrial relations matters even if, but for that provision in the State reference Act, the law would be a law with respect to a matter referred to the Parliament of the Commonwealth by the amendment reference.

A State is a referring State even if a law of the State provides that the reference to the Commonwealth Parliament of either or both of the matters covered by subsections (4) and (5) is to terminate in particular circumstances.

This subsection covers the matters to which the referred provisions relate to the extent of making laws with respect to those matters by including the referred provisions in the initial Corporations Act and the initial ASIC Act.

This subsection covers the matters of the formation of corporations, corporate regulation and the regulation of financial products and services to the extent of the making of laws with respect to those matters by making express amendments of this Act or the ASIC Act.

A State ceases to be a referring State if the State’s initial reference terminates.

A State ceases to be a referring State if:

the State’s amendment reference terminates; and

subsection (8) does not apply to the termination.

A State does not cease to be a referring State because of the termination of its amendment reference if:

the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and

the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published; and

that State’s amendment reference, and the amendment reference of every other State, terminates on the same day.

In this section:

the initial Corporations Act; and

the initial ASIC Act;

Section 9 defines this jurisdiction as the area that includes:

each referring State (including its coastal sea); and

each Territory (including its coastal sea, if any); and

also, for the purposes of the application of a provision of Chapter 7 or an associated provision (see subsection (10))—any external Territory in which the provision applies because of subsection (9) (but only to the extent provided for in that subsection).

Throughout this Act, this jurisdiction therefore consists of:

either:

the whole of Australia (if all the States are referring States); or

Australia (other than any State that is not a referring State) if one or more States are not referring States; and

also, when used in or in relation to a provision of Chapter 7 or an associated provision (see subsection (10))—any external Territory in which the provision applies because of subsection (9) (but only to the extent provided for in that subsection).

Each provision of this Act applies in this jurisdiction.

Subject to subsection (8), each provision of this Act also applies, according to its tenor, in relation to acts and omissions outside this jurisdiction.

Each provision of this Act applies according to its tenor to:

natural persons whether:

resident in this jurisdiction or not; and

resident in Australia or not; and

Australian citizens or not; and

all bodies corporate and unincorporated bodies whether:

formed or carrying on business in this jurisdiction or not; and

formed or carrying on business in Australia or not.

Paragraph (b)—many of the provisions in this Act apply only in relation to companies (that is, to companies that are registered under this Act).

This Act does not apply to an act or omission in a State that is not a referring State to the extent to which that application would be beyond the legislative powers of the Parliament (including powers it has under paragraphs 51(xxxvii) and (xxxix) of the Constitution).

The regulations may provide that, in specified circumstances, a specified external Territory is included in this jurisdiction for the purposes of a specified provision of Chapter 7 (the applicable provision). If the regulations do so:

the applicable provision applies in that external Territory in those circumstances; and

the associated provisions (see subsection (10)) in relation to the applicable provision apply in that external Territory in relation to the applicable provision as so applying.

For the purposes of this section, the associated provisions in relation to a provision of Chapter 7 are:

the provisions of Chapters 1, 9 (including the provisions of Division 2 of Part 9.4 that create offences and of Part 9.4B that allow for pecuniary penalty orders) and 10 as they apply or have effect in relation to, or for the purposes of, the provision; and

any regulations or other instruments (including any that create offences or allow for pecuniary penalty orders) made under this Act for the purposes of any of the provisions covered by paragraph (a); and

if regulations made for the purposes of subsection (9) have been made in relation to the provision—any other provisions of this Act, or any regulations or other instruments made under this Act (including any that create offences or allow for pecuniary penalty orders), specified in those regulations.

To avoid doubt, a reference in this section to the Crown in a particular right includes a reference to an instrumentality or agency (whether a body corporate or not) of the Crown in that right.

Chapter 5 (except Part 5.8) binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.

Chapters 6, 6A, 6B, 6C and 6D:

bind the Crown in right of the Commonwealth; and

do not bind the Crown in right of any State, of the Australian Capital Territory or of the Northern Territory.

A provision of Chapter 5D, 6CA or 7 only binds the Crown in a particular capacity in circumstances (if any) specified in the regulations.

Nothing in this Act makes the Crown in any right liable to a pecuniary penalty or to be prosecuted for an offence.

This Part applies only to laws of a State or Territory that is in this jurisdiction.

This Part applies only to the following Corporations legislation:

this Act (including the regulations made under this Act); and

Part 3 of the ASIC Act; and

regulations made under the ASIC Act for the purposes of Part 3 of that Act.

This Part does not apply in relation to the trustee company provisions: see section 601RAE.

This Part does not apply to Part 3 of the ASIC Act, or regulations made under that Act for the purposes of Part 3 of that Act, to the extent to which they operate in relation to a contravention of Division 2 of Part 2 of that Act.

The Corporations legislation is not intended to exclude or limit the concurrent operation of any law of a State or Territory.

Without limiting subsection (1), the Corporations legislation is not intended to exclude or limit the concurrent operation of a law of a State or Territory that:

imposes additional obligations or liabilities (whether criminal or civil) on:

a director or other officer of a company or other corporation; or

a company or other body; or

confers additional powers on:

a director or other officer of a company or other corporation; or

a company or other body; or

provides for the formation of a body corporate; or

imposes additional limits on the interests a person may hold or acquire in a company or other body; or

prevents a person from:

being a director of; or

being involved in the management or control of;

requires a company:

to have a constitution; or

to have particular rules in its constitution.

Paragraph (a)—this includes imposing additional reporting obligations on a company or other body.

Without limiting subsection (2), a reference in that subsection to a law of a State or Territory imposing obligations or liabilities, or conferring powers, includes a reference to a law of a State or Territory imposing obligations or liabilities, or conferring powers, by reference to the State or Territory in which a company is taken to be registered.

This section does not apply to the law of the State or Territory if there is a direct inconsistency between the Corporations legislation and that law.

Section 5G prevents direct inconsistencies arising in some cases by limiting the operation of the Corporations legislation.

If:

an act or omission of a person is both an offence against the Corporations legislation and an offence under the law of a State or Territory; and

the person is convicted of either of those offences;

Subsection (2) applies if a provision of a law of a State or Territory declares a matter to be an excluded matter for the purposes of this section in relation to:

the whole of the Corporations legislation; or

a specified provision of the Corporations legislation; or

the Corporations legislation other than a specified provision; or

the Corporations legislation otherwise than to a specified extent.

By force of this subsection:

none of the provisions of the Corporations legislation (other than this section) applies in the State or Territory in relation to the matter if the declaration is one to which paragraph (1)(a) applies; and

the specified provision of the Corporations legislation does not apply in the State or Territory in relation to the matter if the declaration is one to which paragraph (1)(b) applies; and

the provisions of the Corporations legislation (other than this section and the specified provisions) do not apply in the State or Territory in relation to the matter if the declaration is one to which paragraph (1)(c) applies; and

the provisions of the Corporations legislation (other than this section and otherwise than to the specified extent) do not apply in the State or Territory in relation to the matter if the declaration is one to which paragraph (1)(d) applies.

Subsection (2) does not apply to the declaration to the extent to which the regulations provide that that subsection does not apply to that declaration.

By force of this subsection, if:

the Corporations Law, ASC Law or ASIC Law of a State or Territory; or

a provision of that Law;

Subsection (4) does not apply to the application of the provisions of the Corporations legislation to the matter to the extent to which the regulations provide that that subsection does not apply to the matter.

In this section:

This section has effect despite anything else in the Corporations legislation.

This section does not apply to a provision of a law of a State or Territory that is capable of concurrent operation with the Corporations legislation.

This kind of provision is dealt with by section 5E.

This section applies to the interaction between:

a provision of a law of a State or Territory (the State provision); and

a provision of the Corporations legislation (the Commonwealth provision);

Item 1—subsection (12) tells you when a provision is a pre‑commencement (commenced) provision.

Item 1 paragraph (a)—For example, a State or Territory provision enacted after the commencement of the Corporations Law might not have operated despite the Corporations Law if it was not expressly provided that the provision was to operate despite a specified provision, or despite any provision, of the Corporations Law (see, for example, section 5 of the Corporations (New South Wales) Act 1990).

Item 2—subsection (13) tells you when a provision is a pre‑commencement (enacted) provision.

Item 3—subsection (14) tells you when a provision is a post‑commencement provision.

Subsections (15) to (17) tell you when a provision is materially amended after commencement.

A provision of the Corporations legislation does not:

prohibit the doing of an act; or

impose a liability (whether civil or criminal) for doing an act;

If a provision of a law of a State or Territory specifically:

authorises a person to give instructions to the directors or other officers of a company or body; or

requires the directors of a company or body to:

comply with instructions given by a person; or

have regard to matters communicated to the company or body by a person; or

provides that a company or body is subject to the control or direction of a person;

prevent the person from giving an instruction to the directors or exercising control or direction over the company or body; or

without limiting subsection (4):

prohibit a director from complying with the instruction or direction; or

impose a liability (whether civil or criminal) on a director for complying with the instruction or direction.

The provisions of Part 2B.6 and Part 5B.3 of this Act do not:

prohibit a company or other body from using a name if the use of the name is expressly provided for, or authorised by, a provision of a law of a State or Territory; or

require a company or other body to use a word as part of its name if the company or body is expressly authorised not to use that word by a provision of a law of a State or Territory.

The provisions of Chapter 2G of this Act do not apply to the calling or conduct of a meeting of a company to the extent to which the meeting is called or conducted in accordance with a provision of a law of a State or Territory. Any resolutions passed at the meeting are as valid as if the meeting had been called and conducted in accordance with this Act.

The provisions of Chapter 5 of this Act do not apply to a scheme of arrangement, receivership, winding up or other external administration of a company to the extent to which the scheme, receivership, winding up or administration is carried out in accordance with a provision of a law of a State or Territory.

If a provision of a law of a State or Territory provides that a provision is included, or taken to be included, in a company’s constitution, the provision is included in the company’s constitution even though the procedures and other requirements of this Act are not complied with in relation to the provision.

If a provision of a law of a State or Territory provides that additional requirements must be met for an alteration of a company’s constitution to take effect, the alteration does not take effect unless those requirements are met.

A provision of the Corporations legislation does not operate in a State or Territory to the extent necessary to ensure that no inconsistency arises between:

the provision of the Corporations legislation; and

a provision of a law of the State or Territory that would, but for this subsection, be inconsistent with the provision of the Corporations legislation.

A provision of the State or Territory law is not covered by this subsection if one of the earlier subsections in this section applies to the provision: if one of those subsections applies there would be no potential inconsistency to be dealt with by this subsection.

The operation of the provision of the State or Territory law will be supported by section 5E to the extent to which it can operate concurrently with the provision of the Corporations legislation.

A provision of a law of a State or Territory is a pre‑commencement (commenced) provision if it:

is enacted, and comes into force, before the commencement of this Act; and

is not a provision that has been materially amended after commencement (see subsections (15) to (17)).

A provision of a law of a State or Territory is a pre‑commencement (enacted) provision if it:

is enacted before, but comes into force on or after, the commencement of this Act; and

is not a provision that has been materially amended after commencement (see subsections (15) to (17)).

A provision of a law of a State or Territory is a post‑commencement provision if it:

is enacted, and comes into force, on or after the commencement of this Act; and

is not a provision that has been materially amended after commencement (see subsections (15) to (17)).

A provision of a law of a State or Territory is materially amended after commencement if:

an amendment of the provision commences on or after the commencement of this Act; and

neither subsection (16) nor subsection (17) applies to the amendment.

A provision of a law of a State or Territory is not materially amended after commencement under subsection (15) if the amendment merely:

changes:

a reference to the Corporations Law or the ASC or ASIC Law, or the Corporations Law or the ASC or ASIC Law of a State or Territory, to a reference to the Corporations Act or the ASIC Act; or

a reference to a provision of the Corporations Law or the ASC or ASIC Law, or the Corporations Law or ASC or ASIC Law of a State or Territory, to a reference to a provision of the Corporations Act or the ASIC Act; or

a penalty for a contravention of a provision of a law of a State or Territory; or

a reference to a particular person or body to a reference to another person or body; or

adds a condition that must be met before a right is conferred, an obligation imposed or a power conferred; or

adds criteria to be taken into account before a power is exercised; or

amends the provision in way declared by the regulations to not constitute a material amendment for the purposes of this subsection.

A provision of a law of a State or Territory is not materially amended after commencement under subsection (15) if:

the provision as amended would be inconsistent with a provision of the Corporations legislation but for this section; and

the amendment would not materially reduce the range of persons, acts and circumstances to which the provision of the Corporations legislation applies if this section applied to the provision of the State or Territory law as amended.

A body is taken to be registered under this Act as a company of a particular type under section 118 if a law of a State or Territory in this jurisdiction:

provides that the body is a deemed registration company for the purposes of this section; and

specifies:

the day on which the body is to be taken to be registered (the registration day) or the manner in which that day is to be fixed; and

the type of company the body is to be registered as under this Act;

the company’s proposed name (unless the ACN is to be used in its name);

A notice setting out the following details must be lodged before the registration day:

the name and address of each person who is to be a member on registration;

the present given and family name, all former given and family names and the date and place of birth of each person who is to be a director on registration;

the present given and family name, all former given and family names and the date and place of birth of each person who consents in writing to become a company secretary;

the address of each person who is to be a director or company secretary on registration;

the address of the company’s proposed registered office;

for a public company—the proposed opening hours of its registered office (if they are not the standard opening hours);

the address of the company’s proposed principal place of business (if it is not the address of the proposed registered office);

for a company limited by shares or an unlimited company—the following:

the number and class of shares each member agrees in writing to take up;

the amount (if any) each member agrees in writing to pay for each share;

if that amount is not to be paid in full on registration—the amount (if any) each member agrees in writing to be unpaid on each share;

for a public company that is limited by shares or is an unlimited company, if shares will be issued for non‑cash consideration—the prescribed particulars about the issue of the shares, unless the shares will be issued under a written contract and a copy of the contract is lodged with the application;

for a company limited by guarantee—the proposed amount of the guarantee that each member agrees to in writing.

If the company:

is to be a public company; and

is to have a constitution on registration;

On the registration day, the body is taken:

to be registered as a company under this Act; and

to be registered in the State or Territory referred to in subsection (1).

The regulations may modify the operation of this Act to facilitate the registration of the company.

Without limiting subsection (5), the regulations may make provision in relation to:

the share capital of the company on registration; and

the issue of a certificate of registration on the basis of the company’s registration.