Corporations (Queensland) Act 1990

The Act is directed at:

• The Queensland Parliament and Executive (as the jurisdiction that has voluntarily applied Commonwealth law).
• Companies incorporated or operating in Queensland during the period of the cooperative scheme.
• ASIC, which exercises its powers in Queensland under the ASIC Law of Queensland as applied by section 58.
• Courts exercising jurisdiction in corporations matters, particularly where cross-vesting is relevant.
• The Commonwealth Minister and Queensland Minister, who may enter into arrangements under section 77.
• Persons subject to proceedings in Queensland for offences against or arising from the Corporations Law of Queensland or corresponding laws of other jurisdictions.

The Crown is not specifically addressed in a Crown-binding clause in the source, but the applicable provisions themselves (drawn from the Commonwealth Acts) would have their own Crown-binding provisions.

The Act's practical effect today is most directly felt by:

• Practitioners and parties involved in proceedings arising from conduct under the old Corporations Law (pre-2001).
• Companies that were incorporated or had their affairs regulated under the old scheme and have historical matters still on foot.
• Historians and researchers of Australian corporate law development.

The Act imposes few direct obligations on private parties. Its obligations fall primarily on the Queensland Government and its ministers:

Section 5 (protection of the Act from later Queensland laws): later Queensland Acts and instruments cannot amend or repeal, or alter the effect of, the Act or the applicable provisions of Queensland, unless the later Act expressly provides that it operates despite the Act.

Section 6: other Queensland laws enacted before the commencement continue to operate unless affected by the Act.

Part 8, Division 2 (section 28 and following): offences against the applicable provisions of Queensland are to be treated as offences against Commonwealth law. This is the mechanism that enables Commonwealth criminal law procedure, sentencing, and enforcement to apply to companies law offences in Queensland.

Section 29: Commonwealth criminal laws apply in relation to offences against the applicable provisions of Queensland as if those provisions were Commonwealth laws. For Queensland law purposes, such an offence is taken to be a Commonwealth offence and not a Queensland offence.

Section 37 (investigation by Commission): ASIC has functions and powers to investigate contraventions or suspected contraventions of applicable provisions.

Section 38 (legal proceedings): the Commission may bring proceedings for contraventions of applicable provisions.

Section 40 (disclosure of information): specific rules govern disclosure of information obtained under the applicable provisions.

Section 77 (ministerial arrangements): the Queensland Minister and Commonwealth Minister may make arrangements conferring functions and powers on Commonwealth or State authorities or officers in relation to applicable provisions or relevant State laws.

Governor-General by section 13 (application orders): the Governor-General may make orders declaring that certain Commonwealth laws do not apply to a specified body corporate, or that specified modifications apply. Queensland is given a corresponding power in section 15 to make application orders for Queensland-specific adjustments.

Queensland Governor and Minister: sections 15, 16, and 17 give the Governor (on the recommendation of the Minister) power to make application orders modifying how the Corporations Law of Queensland applies to particular bodies corporate.

Courts: Part 9 (Division 1 and 2) vests civil and criminal jurisdiction in the Queensland Supreme Court, Federal Court, and Family Court for corporations law matters, and creates the cross-vesting framework for inter-jurisdictional disputes.

ASIC (as the Commission): under Parts 11 and 12, ASIC has powers and functions in Queensland to administer and enforce the ASIC Law of Queensland, including investigation, prosecution support, and the panel and disciplinary board functions in Part 11 (Divisions 4-5).

Minister's power to regulate (section 80): the Queensland Governor in Council may make regulations prescribing matters required or permitted by the Act or necessary for its administration, including modifying the effect of sections 29-31 in respect of particular laws or offences.

Penalties (Part 12, Division 2, section 79): all fines, penalties, and other money (other than fees and taxes) under the applicable provisions of Queensland that are payable to the Crown or a public body are paid to the Commonwealth or a Commonwealth authority, not to Queensland. The financial flow of penalties under the cooperative scheme went to the Commonwealth.

Criminal enforcement (sections 28-35): offences against the applicable provisions of Queensland are treated as Commonwealth offences for investigative and prosecutorial purposes. The Commonwealth Director of Public Prosecutions and Commonwealth law enforcement agencies have jurisdiction. Queensland law enforcement and prosecution bodies have concurrent powers under sections 34-35.

Civil enforcement (section 38): ASIC may bring civil proceedings for contraventions of the applicable provisions.

Evidence and admissibility (section 39): specific rules govern the admissibility of evidence and documents produced under the applicable provisions.

Application of penalties across jurisdictions (sections 32-33): persons convicted of offences against the applicable provisions in any jurisdiction may be proceeded against in Queensland, and vice versa, on an "as if" basis.

The Act does not establish detailed administrative processes for private parties. Its process provisions relate to inter-governmental coordination:

Application orders: can be made by the Governor in Council (Queensland) under section 15, with notification in the Gazette. These modify how the Corporations Law applies to particular bodies.

Arrangements (section 77-78): ministerial arrangements between Queensland and the Commonwealth must be published in the Queensland Government Gazette and the Commonwealth of Australia Gazette within 21 days of making.

Companies Liquidation Account (Part 10): any money held in the Companies Liquidation Account at the commencement of the Act is transferred to a prescribed person or authority. Rules for the account govern the administration of unclaimed or surplus funds in company liquidations.

Transitional (Part 13): the transitional provisions deal with the conversion from the predecessor cooperative scheme laws (State-based Companies Codes) to the national scheme. Division 2 addresses staff transfers from predecessor agencies. Division 3 deals with exemptions. Division 4 deals with the Australian Stock Exchange. Division 6 addresses application and saving provisions arising from amendments to the Act.

Corporations Act 1989 (Cth): the source of the Corporations Law applied by section 7. This Act was replaced by the Corporations Act 2001 (Cth), but its provisions as they were in force immediately before repeal continue to apply through section 7.

Corporations Act 2001 (Cth): the successor to the cooperative scheme, enacted under the Commonwealth's direct constitutional power following state referrals. The 2001 Act now directly governs corporations law in Queensland, rendering the Corporations Law of Queensland largely superseded for prospective matters. The Queensland Act retains relevance for historical proceedings and transitional matters.

ASIC Act 2001 (Cth): the successor to the ASIC Act 1989 applied by section 58 of this Act.

Corporations legislation (other States): the corresponding Acts in Victoria, NSW, South Australia, Western Australia, Tasmania, and other jurisdictions apply the same Corporations Law as local law. The definition of "corresponding law" in section 3 captures all of these.

Jurisdiction legislation (cross-vesting): the cross-vesting of civil and criminal jurisdiction in Part 9 interacts with the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and corresponding state laws.

Commonwealth administrative laws (defined in section 3): the Administrative Review Tribunal Act 2024 (Cth) (excluding Part 7), the Freedom of Information Act 1982 (Cth), the Ombudsman Act 1976 (Cth), and the Privacy Act 1988 (Cth), with their regulations, form part of the administrative law architecture that applies to actions under the applicable provisions.

Applicable provisions of other jurisdictions: by applying the corresponding laws framework (sections 28-35), the Act creates a seamless enforcement network across all participating jurisdictions.

The substantive law is not here: a practitioner researching Queensland corporations law after 2001 should go to the Corporations Act 2001 (Cth) and the ASIC Act 2001 (Cth). The Corporations (Queensland) Act 1990 is the enabling shell, not the substance.

Section 5 blocks later Queensland amendment: any later Queensland Act that attempts to amend or repeal the applicable provisions, or alter their effect, is ineffective unless it expressly says it operates despite the Corporations (Queensland) Act 1990 (section 5). This is an entrenching provision.

The Act is frozen at the date of repeal: sections 7 and 8 apply the Corporations Law as it was in force immediately before the repeal of section 82 of the Corporations Act 1989 (Cth). The applicable provisions do not update automatically to reflect later Commonwealth amendments (post-2001 Act). This matters when construing historical conduct.

Offences under the old law are Commonwealth offences for enforcement: even though the Corporations Law of Queensland is a State law, offences against it are treated as Commonwealth offences for investigative and prosecutorial purposes (section 29). This is a constitutional device to achieve national uniformity.

Fees and taxes are separate: section 79 applies only to fines and penalties (which flow to the Commonwealth). Fees and taxes collected under the applicable provisions are governed by separate provisions in Part 7 (Imposition of fees and taxes).

Territory exclusion: the definition of "Territory" in this Act excludes the Northern Territory (section 3). The ACT is included in the term "Capital Territory." This is a structural feature of the original cooperative scheme that affects how some cross-jurisdictional provisions are read.

Historical enforcement action: ASIC investigates conduct that occurred in 2000, before the Corporations Act 2001 commenced. The conduct involves a Queensland company raising capital under the old Corporations Law. The investigation and prosecution proceed using Commonwealth investigative powers as if the old Corporations Law were a Commonwealth law (section 29). The Queensland Director of Public Prosecutions could also bring proceedings (section 35), but ASIC's Commonwealth powers prevail.

Winding up of a pre-2001 company: a Queensland company incorporated under the old Corporations Law of Queensland has an unresolved winding up proceeding commenced in 2000. The Queensland Supreme Court retains jurisdiction under the cross-vesting provisions in Part 9. The substantive law applied is the Corporations Law of Queensland (frozen at the time of repeal), not the 2001 Act.

Ministerial arrangement: the Queensland Minister and the Commonwealth Minister agree that ASIC officers will perform certain functions under Queensland financial services law. Section 77 provides the authority for this arrangement. Notice must be published in both the Queensland Government Gazette and the Commonwealth Gazette within 21 days (section 78).

Application order for a Queensland body corporate: a Queensland government-owned corporation seeks to be treated differently under the Corporations Law of Queensland for a specific purpose. The Queensland Governor in Council may make an application order under section 15 effecting the required modification, within the limits allowed by Part 5 of the Act.