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Chapter 1—Introductory

1.   Short title [see Note 1]

This Act may be cited as the Corporations Act 2001.

2.   Commencement [see Note 1]

This Act commences on a day to be fixed by Proclamation.

3.   Constitutional basis for this Act

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

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

(b)    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.

Note:  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.

(2)    The operation of this Act in the Northern Territory and the Capital Territory is based on:

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

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

Despite subsection 22(3) of the Acts Interpretation Act 1901, this Act as applying in those territories is a law of the Commonwealth.

(3)    The operation of this Act outside Australia is based on:

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

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

(c)     the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of those Territories.

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

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

(b)   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.

4.   Referring States

Reference of matters by State Parliament to Commonwealth Parliament

(1)     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:

(a)    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

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

This subsection has effect subject to subsections (6) and (7).

(2)     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.

(3)     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.

Reference covering initial Corporations Act and ASIC Act

(4)    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.

Reference covering amendments of this Act and ASIC Act

(5)    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.

Effect of termination of reference

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

(7)    A State ceases to be a referring State if:

(a)    the State’s amendment reference terminates; and

(b)    subsection (8) does not apply to the termination.

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

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

(b)    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

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

Definitions

 (9)  In this section:

amendment reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (5).

express amendment of this Act or the ASIC Act means the direct amendment of the text of this Act or the ASIC Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by Commonwealth Acts, but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of this Act or the ASIC Act.

initial ASIC Act means the ASIC Act as originally enacted.

initial Corporations Act means this Act as originally enacted.

initial reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (4).

referred provisions means:

(a)    the initial Corporations Act; and

(b)    the initial ASIC Act;

to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States.

State reference Act for a State is the law under which the initial reference and the amendment reference are given.

5.   General territorial application of Act

Geographical coverage of “this jurisdiction”

(1)    Section 9 defines this jurisdiction as the area that includes:

(a)    each referring State (including its coastal sea); and

(b)    the Capital Territory (including the coastal sea of the Jervis Bay Territory); and

(c)     the Northern Territory (including its coastal sea); and

(d)    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).

(2)    Throughout this Act, this jurisdiction therefore consists of:

(a)    either:

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

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

(b)    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).

Operation in this jurisdiction

(3)    Each provision of this Act applies in this jurisdiction.

Operation outside this jurisdiction

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

Residence, place of formation etc.

(7)    Each provision of this Act applies according to its tenor to:

(a)    natural persons whether:

(i)      resident in this jurisdiction or not; and

(ii)     resident in Australia or not; and

(iii)    Australian citizens or not; and

(b)    all bodies corporate and unincorporated bodies whether:

(i)      formed or carrying on business in this jurisdiction or not; and

(ii)     formed or carrying on business in Australia or not.

Note:     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).

Operation in non‑referring States

(8)    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).

Expanded application of provisions of Chapter 7 and associated provisions

(9)    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:

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

(b)    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.

Meaning of associated provisions

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

(a)    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

(b)    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

(c)     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.

5A.   Application to the Crown

(1)    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.

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

(3)    Chapters 6, 6A, 6B, 6C and 6D:

(a)    bind the Crown in right of the Commonwealth; and

(b)    do not bind the Crown in right of any State, of the Capital Territory, of the Northern Territory or of Norfolk Island.

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

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

5B.   ASIC has general administration of this Act

Subject to the ASIC Act, ASIC has the general administration of this Act.

5C.   Application of the Acts Interpretation Act 1901

(1)    Until the date of commencement of section 4 of the Legislative Instruments (Transitional and Consequential Amendments) Act 2003 (the Legislative Instruments commencement day), the Acts Interpretation Act 1901 as in force on 1 November 2000 applies to this Act.

(2)    On and after the Legislative Instruments commencement day, the Acts Interpretation Act 1901 as in force on that day applies to this Act.

(3)    Amendments of the Acts Interpretation Act 1901 made after the Legislative Instruments commencement day do not apply to this Act.