60Displacement of certain provisions of the Corporations Act

#### 60 Displacement of certain provisions of the Corporations Act 60 Displacement of certain provisions of the Corporations Act > > (1) The provisions of Divisions 1–9 of this Part are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to Chapter 5 of the Corporations Act. > > > > Note— > > > > Chapter 5 of the Corporations Act makes provision for the external administration of companies and certain other bodies. > > > > Section 5G (4) of the Corporations Act provides that a provision of the Corporations legislation does not— > > > > > (a) prohibit the doing of an act, or > > > > > (b) impose a liability (whether civil or criminal) for doing an act, > > > > if a provision of a law of a State or Territory specifically authorises or requires the doing of that act. Section 27 of this Act specifically authorises a liable entity and its directors and other officers to conduct the entity’s business as provided by this Part even if insolvent. Part 5.7B of the Corporations Act prohibits a company and its directors and officers from trading while insolvent. > > > > Section 5G (8) of the Corporations Act provides that the provisions of Chapter 5 of that 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. > > > > Section 5G (9) of the Corporations Act provides that 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 that Act are not complied with in relation to the provision. Section 42 (3) of this Act provides that certain provisions relating to the removal and appointment of directors are taken to be part of the constitution of a liable entity. > > > > Section 5G (11) of the Corporations Act provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency. > > > > However, section 5G (3) of the Corporations Act provides that section 5G will only apply to a provision of a law of a State or Territory enacted after the commencement of that Act if a law of the State or Territory declares the provision to be a Corporations legislation displacement provision for the purposes of that section. > > > (2) Without limiting subsection (1), section 26 is declared to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act in relation to the provisions of Part 2B.6 of that Act. > > > > Note— > > > > Part 2B.6 of the Corporations Act makes provision for the use of names by companies. > > > > Section 5G (6) of the Corporations Act provides that the provisions of Part 2B.6 and Part 5B.3 of that Act (which relate to the use of names) do not— > > > > > (a) 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 > > > > > (b) 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. > > > (3) Without limiting subsection (1), sections 28 and 52 are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to Part 5A.1 of that Act. > > > > Note— > > > > Part 5A.1 of the Corporations Act makes provision for the deregistration of companies. > > > > Section 5G (5) of the Corporations Act provides that if a provision of a law of a State or Territory specifically— > > > > > (a) authorises a person to give instructions to the directors or other officers of a company or body, or > > > > > (b) requires the directors of a company or body to— > > > > > > > (i) comply with instructions given by a person, or > > > > > > > (ii) have regard to matters communicated to the company or body by a person, or > > > > > (c) provides that a company or body is subject to the control or direction of a person, > > > > a provision of the Corporations legislation does not— > > > > > (d) prevent the person from giving an instruction to the directors or exercising control or direction over the company or body, or > > > > > (e) prohibit a director from complying with the instruction or direction, or > > > > > (f) impose a liability (whether civil or criminal) on a director for complying with the instruction or direction. > > > > Section 5G (11) of the Corporations Act provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency. > > > (4) Without limiting subsection (1), section 30 is declared to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act in relation to section 601AG of the Corporations Act. > > > > Note— > > > > Section 601AG of the Corporations Act enables certain persons to recover amounts under an insurance contract previously held by a deregistered company. > > > > Section 5G (11) of the Corporations Act provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency.