Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Corporations (Repeals, Consequentials and Transitionals) Bill 2001

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.