Division 2Transitional arrangements for the former co‑operative scheme legislation

An Act to deal with matters consequential on the enactment of the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001, and for related purposes \[Assented to 28 June 2001\] The Parliament of Australia enacts: ## Part 1—Preliminary #### 1 Short title This Act may be cited as the Corporations (Repeals, Consequentials and Transitionals) Act 2001. #### 2 Commencement (1) Subject to this section, this Act commences, or is taken to have commenced, at the same time as the Corporations Act 2001. (2) Schedules 1 and 2 commence, or are taken to have commenced, at the same time as the Corporations Act 2001. (3) Subject to subsections (4) to (10), Schedule 3 commences, or is taken to have commenced, at the same time as the Corporations Act 2001. (4) Items 65 and 67 of Schedule 3 commence on the later of: (a) the time when the Corporations Act 2001 commences; or (b) the time when Part 1 of Schedule 2 to the Financial Sector (Collection of Data—Consequential and Transitional Provisions) Act 2001 commences. (5) Item 146 of Schedule 3 commences on the later of: (a) the time when the Corporations Act 2001 commences; or (b) the time when section 10 of the Commonwealth Superannuation Board Act 2001 commences. (6) Item 191 of Schedule 3 commences on the later of: (a) the time when the Corporations Act 2001 commences; or (b) the time when Part 5 of the Financial Sector (Collection of Data) Act 2001 commences. (7) Items 296 to 302 of Schedule 3 commence on the later of: (a) the time when the Corporations Act 2001 commences; or (b) the time when Part 1 of the Interactive Gambling Act 2001 commences. (8) Item 438 of Schedule 3 commences at the same time as item 35 of Schedule 1 to the Privacy Amendment (Private Sector) Act 2000 commences. (9) Item 495 of Schedule 3 commences on the later of: (a) the time when the Corporations Act 2001 commences; or (b) the time when item 14 of Schedule 1 to the Superannuation Legislation (Commonwealth Employment) Repeal and Amendment Act 2001 commences. (10) Items 574 and 575 of Schedule 3 commence on the later of: (a) the time when the Corporations Act 2001 commences; or (b) the time when the definitions of debenture and interest in section 45 of the Workplace Relations (Registered Organisations) Act 2001 commence. (11) Subject to subsection (12), Schedule 4 commences, or is taken to have commenced, at the same time as the Corporations Act 2001. (12) If Parts 4 to 10 of the Administrative Review Tribunal Act 2001 have not commenced before the Corporations Act 2001 commences: (a) Schedule 4 to this Act does not commence; and (b) Schedule 5 to this Act commences at the same time as Parts 4 to 10 of the Administrative Review Tribunal Act 2001 commence. (13) If Parts 4 to 10 of the Administrative Review Tribunal Act 2001 have commenced before the Corporations Act 2001 commences, Schedule 5 to this Act does not commence. (14) Schedule 6 commences, or is taken to have commenced, at the same time as the Corporations Act 2001. ## Part 2—Repeals and amendments #### 3 Schedule(s) Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. ## Part 3—Special transitional arrangements for ACT ### Division 1—Transitional arrangements for the former Corporations Law and ASIC Law #### 4 Definitions In this Division: > ACT means the Australian Capital Territory. > ACT ASIC Law has the same meaning as ASIC Law of the Capital Territory had in the Corporations Act 1989 immediately before the relevant time. > ACT ASIC Regulations has the same meaning as ASIC Regulations of the Capital Territory had in the Corporations Act 1989 immediately before the relevant time. > ACT Corporations Law has the same meaning as Corporations Law of the Capital Territory had in the Corporations Act 1989 immediately before the relevant time. > ACT Corporations Regulations has the same meaning as Corporations Regulations of the Capital Territory had in the Corporations Act 1989 immediately before the relevant time. > ASIC means the Australian Securities and Investments Commission. > carried over provision: (a) of the old ACT corporations legislation—means a provision of that legislation that: (i) was in force immediately before the relevant time; and (ii) corresponds to a provision of the new corporations legislation; and (b) of the old ACT ASIC legislation—means a provision of that legislation that: (i) was in force immediately before the relevant time; and (ii) corresponds to a provision of the new ASIC legislation. > corresponds has a meaning affected by section 5. > liability includes a duty or obligation. > made includes issued, given or published. > new ASIC Act means the Australian Securities and Investments Commission Act 2001. > new ASIC legislation means: (a) the new ASIC Act; and (b) the new ASIC Regulations (as amended and in force from time to time) and any other regulations made under the new ASIC Act; and (c) the laws of the Commonwealth referred to in subparagraph (a)(ii) and (in relation to the ACT) subparagraph (b)(iii) of the definition of old ASIC legislation in subsection 254(1) of the new ASIC Act, being those laws as they apply after the relevant time; and (d) the preserved instruments. > new ASIC Regulations means the old ASIC Regulations that, because of section 264 of the new ASIC Act, have effect as if they were made under section 251 of that Act. > new Corporations Act means the Corporations Act 2001. > new Corporations legislation means: (a) the new Corporations Act; and (b) the new Corporations Regulations (as amended and in force from time to time) and any other regulations made under the new Corporations Act; and (c) the laws of the Commonwealth referred to (in relation to the ACT) in paragraph (c) of the definition of old corporations legislation in subsection 1371(1) of the new Corporations Act, being those laws as they apply after the relevant time; and (d) the preserved instruments. > new Corporations Regulations means the old Corporations Regulations that, because of section 1380 of the new Corporations Act, have effect as if they were made under section 1364 of that Act. > old ACT ASIC Law means the ACT ASIC Law as in force from time to time before the relevant time. > old ACT ASIC legislation means: (a) the old ACT ASIC Law and the old ACT ASIC Regulations, and any instruments made under that Law or those Regulations; and (b) the Corporations Act 1989, and any instruments made under that Act, as applying in relation to the old ACT ASIC Law and the old ACT ASIC Regulations from time to time before the relevant time; and (c) the laws of the Commonwealth as applying in relation to the old ACT ASIC Law and the old ACT ASIC Regulations from time to time before the relevant time as laws of, or for the government of, the ACT because of Part 8 of the Corporations Act 1989, and any instruments made under those laws as so applying. > old ACT ASIC Regulations means the ACT ASIC Regulations as in force from time to time before the relevant time. > old ACT Corporations Law means the ACT Corporations Law as in force from time to time before the relevant time. > old ACT corporations legislation means: (a) the old ACT Corporations Law and the old ACT Corporations Regulations, and any instruments made under that Law or those Regulations; and (b) the Corporations Act 1989, and any instruments made under that Act , as applying in relation to the old ACT Corporations Law and the old ACT Corporations Regulations from time to time before the relevant time; and (c) the laws of the Commonwealth as applying in relation to the old ACT Corporations Law and the old ACT Corporations Regulations from time to time before the relevant time as laws of, or for the government of, the ACT because of Part 8 of the Corporations Act 1989, and any instruments made under those laws as so applying. > old ACT Corporations Regulations means the ACT Corporations Regulations as in force from time to time before the relevant time. > order, in relation to a court, includes any judgment, conviction or sentence of the court. > pre‑commencement right or liability means a right or liability, whether civil or criminal, other than a right or liability under an order made by a court before the relevant time or a liability referred to in subsection 1397(4) of the new Corporations Act, that: (a) was acquired, accrued or incurred under: (i) a carried over provision of the old ACT corporations legislation or the old ACT ASIC legislation; or (ii) a provision of the old ACT corporations legislation or the old ACT ASIC legislation that was no longer in force immediately before the relevant time; and (b) was in existence immediately before the relevant time. > preserved instrument means: (a) in relation to the new corporations legislation—an instrument that, because of section 1399 of the new Corporations Act, has effect after the relevant time as if it were made under a provision of the new corporations legislation; and (b) in relation to the new ASIC legislation—an instrument that, because of section 275 of the new ASIC Act, has effect after the relevant time as if it were made under a provision of the new ASIC legislation; and > provision of a law includes any portion of the law. > relevant time means the time when the new Corporations Act, as originally enacted, commences. > right includes an interest or status. #### 5 Corresponding provision (1) For the purposes of this Act, a provision (the old provision) of the old ACT corporations legislation or the old ACT ASIC legislation corresponds to a provision (the new provision) of the new corporations legislation or the new ASIC legislation (and vice versa) if: (a) the old provision and the new provision are substantially the same, unless the regulations specify that the 2 provisions do not correspond; or (b) the regulations specify that the 2 provisions correspond. (2) For the purposes of paragraph (1)(a), differences of all or any of the following kinds are not sufficient to mean that 2 provisions are not substantially the same: (a) differences in the numbering of the provisions; (b) differences of a minor technical nature (for example, differences in punctuation, or differences that are attributable to the correction of incorrect cross references); (c) the fact that one of the provisions refers to a corresponding previous law and the other does not; (d) the fact that: (i) the old provision allowed a court to exercise powers on its own motion but the new provision does not; or (ii) the old provision required a court to apply a criterion of public interest but the new provision requires a court to apply a criterion of justice and equity; or (iii) the new provision requires ASIC to take account of public interest but the old provision did not; (e) other differences that are attributable to the fact that the new corporations legislation and the new ASIC legislation apply as Commonwealth laws in the States and the internal Territories; (f) other differences of a kind prescribed by the regulations for the purposes of this paragraph. (3) Subsection (2) is not intended to otherwise limit the circumstances in which 2 provisions are, for the purposes of paragraph (1)(a), substantially the same. (4) The regulations may provide that: (a) a specified provision of the old ACT corporations legislation does, or does not, correspond to a specified provision of the new corporations legislation; or (b) a specified provision of the old ACT ASIC legislation does, or does not, correspond to a specified provision of the new ASIC legislation. #### 6 Extinguishing rights and liabilities, and terminating proceedings, dealt with by new Corporations legislation (1) If, by force of: (a) Chapter 10 of the new Corporations Act; or (b) Part 16 of the new ASIC Act; a person acquires, accrues or incurs a right or liability in substitution for a pre‑commencement right or liability, the pre‑commencement right or liability is cancelled at the relevant time. (2) A proceeding in a court that: (a) was started before the relevant time; and (b) was: (i) under a provision of the old ACT corporations legislation or the old ACT ASIC legislation; or (ii) brought as, or connected with, a prosecution for an offence against a provision of the old ACT corporations legislation or the old ACT ASIC legislation; and (c) was a proceeding to which section 1383 of the new Corporations Act or section 267 of the new ASIC Act applies; and (d) had not been concluded or terminated before the relevant time; is terminated at the relevant time by force of this subsection. (3) If, by force of a Commonwealth Act (other than the new Corporations Act) referred to in sections 1393 to 1396 of the new Corporations Act, a person becomes liable to pay an amount that is the same as, and is in respect of the same matter as, an amount (the pre‑commencement amount) that was payable by the person before the relevant time under a provision of the old ACT corporations legislation, the person’s liability to pay the pre‑commencement amount is cancelled at the relevant time. (4) This section has effect despite anything in the Acts Interpretation Act 1901. #### 7 Court proceedings and orders (1) This section applies to a proceeding, whether criminal or civil, in relation to which all of the following paragraphs are satisfied: (a) the proceeding was started in a court before the relevant time; (b) the proceeding was: (i) under a provision of the old ACT corporations legislation or the old ACT ASIC legislation; or (ii) brought as, or connected with, a prosecution for an offence against a provision of the old ACT corporations legislation or the old ACT ASIC legislation; (c) the proceeding was not a proceeding to which section 1383 or 1384 of the new Corporations Act, or section 267 or 268 of the new ASIC Act, applies; (d) the proceeding had not been concluded or terminated before the relevant time. (2) Subject to subsection (3), a proceeding to which this section applies may be continued, and any order made by a court in such a proceeding may be appealed against, reviewed or enforced as if: (a) the Corporations Act 1989 and the Australian Securities and Investments Commission Act 1989 had not been repealed; and (b) the new corporations legislation and the new ASIC legislation had not come into operation. (3) Nothing in this Act, or in the Acts Interpretation Act 1901, operates to preserve the effect of an order to which subsection 1383(5) of the new Corporations Act, or subsection 267(5) of the new ASIC Act, applies and, at the relevant time, that order ceases to have effect as an order of the court by which it was made and any proceeding in relation to any such order is terminated by force of this subsection. (4) For the avoidance of doubt, Part 9 of the Corporations Act 1989 (which deals with the jurisdiction and procedure of courts) continues to have the same application to a proceeding to which this section applies as it did before the relevant time. (5) In this section: > proceeding includes: (a) a proceeding by way of appeal against, or otherwise seeking review of, an order made by a court; and (b) a proceeding to enforce an order made by a court; and (c) any other proceeding in respect of a breach of an order made by a court. ### Division 2—Transitional arrangements for the former co‑operative scheme legislation #### 8 Definitions In this Division: > ACT means the Australian Capital Territory. > Corporations Act commencement means the commencement of the Corporations Act 2001. > Corporations Law commencement means 1 January 1991. > Note: This is the day on which Chapter 5 of the Corporations Law commenced. #### 9 Winding up started before commencement (1) The provisions of the Corporations Act 2001 with respect to winding up do not apply to any body corporate whose winding up was started before the Corporations Law commencement. (2) If a body corporate’s winding up started before the Corporations Law commencement under a law in force in the ACT: (a) the body corporate is to be wound up in the same manner, and with the same incidents, as if the Companies Act 1981 had not been repealed and the Corporations Act 1989 had not been enacted; and (b) for the purposes of the winding up, the Companies Act 1981 applies, with such modifications as the circumstances require, as if a reference in that Act to the NCSC were, except in relation to a time before that commencement, a reference to the Australian Securities and Investments Commission. #### 10 Companies Liquidation Account (1) In this section: > relevant money means: (a) money that, immediately before the Corporations Law commencement, stood to the credit of the Companies Liquidation Account established by section 428 of the Companies Act 1981; and (b) money that, after the Corporations Law commencement, was or is paid into the Companies Liquidation Account under provisions of the Companies Act 1981 that were taken to continue in force after the Corporations Law commencement for the purposes of windings up started before that commencement. (2) Relevant money is to be dealt with in accordance with section 427 of the Companies Act 1981. #### 11 General (1) If, immediately before the Corporations Act commencement, an Act repealed by Part 2 of Schedule 1 to this Act applied in the ACT to a matter, that Act: (a) continues to apply to that matter after that commencement despite its repeal; and (b) if that Act applied to that matter immediately before that commencement with particular modifications—it continues to apply to the matter with the same modifications. (2) For the purposes of subsection (1), if a company was dissolved before the Corporations Law commencement, the Companies Act 1981 is taken to have applied to the dissolution immediately before the Corporations Act commencement. ## Part 4—Functions of Commonwealth agencies in relation to transitional national scheme law matters #### 12 Definitions (1) In this Part: > authority, in relation to the Commonwealth, includes: (a) a body corporate, or an unincorporated body, established for a public purpose by or in accordance with an Act; and (b) a court, tribunal or authority established by or in accordance with an Act; for example: (c) the Administrative Appeals Tribunal; and (d) the Australian Federal Police. > non‑federal proceeding means: (a) a proceeding in relation to which: (i) paragraphs 1383(1)(a), (b) and (d) of the Corporations Act 2001 are satisfied but paragraph 1383(1)(e) of that Act is not satisfied; or (ii) paragraphs 267(1)(a), (b) and (d) of the Australian Securities and Investments Commission Act are satisfied but paragraph 267(1)(e) of that Act is not satisfied; or (b) an enforcement proceeding, or an appeal or review proceeding, in relation to an order of a court made before the commencement in relation to a proceeding that was: (i) under a provision of the old corporations legislation of a State or Territory in this jurisdiction; or (ii) brought as, or connected with, a prosecution for an offence against a provision of the old corporations legislation of a State or Territory in this jurisdiction; or (iii) under a provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory; or (iv) brought as, or connected with, a prosecution for an offence against a provision of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory; or (c) an enforcement proceeding, or an appeal or review proceeding, in relation to an order of a court made after the commencement in relation to a proceeding referred to in paragraph (a). > officer, in relation to the Commonwealth, includes: (a) a Minister; and (b) a person holding: (i) an office established by or under an Act; or (ii) an appointment made under an Act; or (iii) an appointment made by the Governor‑General or a Minister but not under an Act; and (c) a person who is a member or officer of an authority of the Commonwealth; and (d) a person who is in the service or employment of the Commonwealth, or of an authority of the Commonwealth, or is employed or engaged under an Act; for example: (e) a member or special member of the Australian Federal Police; and (f) the Director of Public Prosecutions; and (g) the Ombudsman; and (h) the Privacy Commissioner; and (i) a Special Prosecutor. > old ASIC legislation has the same meaning as in section 254 of the Australian Securities and Investments Commission Act 2001. > old corporations legislation has the same meaning as in section 1371 of the Corporations Act 2001. > transitional national scheme function or power means a function or power in relation to a non‑federal proceeding that is expressed to be conferred by or under a law of a State or Territory in this jurisdiction. > Note: Commonwealth authorities and officers may have such functions or powers under the State and Territory legislation dealing with the transition from the applied Corporations Law regime to the Corporations Act 2001. #### 13 Continuing functions of Commonwealth agencies under State and Territory national scheme laws (1) Commonwealth authorities and officers: (a) have the transitional national scheme functions and powers; and (b) have the functions and powers conferred on them by virtue of the operation of Part 3 of this Act (special transitional arrangements for the ACT). (2) A Commonwealth authority or officer: (a) is not subject to any directions in relation to the performance or exercise of a transitional national scheme function or power; and (b) is not under a duty to perform or exercise a transitional national scheme function or power. (3) Subsection (2) does not apply to the Australian Securities and Investments Commission. > Note: Subsection 271(2) of the Australian Securities and Investments Commission Act 2001 deals with the performance and exercise of transitional national scheme functions by ASIC. ## Part 5—Regulations #### 14 The regulations (1) The Governor‑General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) Without limiting subsection (1), the regulations may provide that certain provisions of Part 3 are taken to be modified as set out in the regulations. Those provisions then have effect as if they were so modified.