House of Representatives

Explanatory Memorandum

(Circulated by authority of the Assistant Minister for Regional Development and Territories, The Hon Nola Marino MP)

SCHEDULE 2 - AMENDMENTS OF TREASURY ACTS

Part 1 - Acts administered by ASIC

Division 1 - Acts administered by ASIC: main amendments

ASIC Supervisory Cost Recovery Levy Act 2017

Item 1 - Section 3

268. Item 1 removes an out-of-date reference to the Crown in right of Norfolk Island from section 3 of the ASIC Supervisory Cost Recovery Levy Act. This reference is removed because, following the commencement of amendments made to the NI Act by the Norfolk Island Legislation Amendment Act 2015 on 1 July 2016, this body politic no longer exists.

ASIC Supervisory Cost Recovery Levy (Collection) Act 2017

Item 2 - Subsection 4(1)

269. Item 2 removes a reference to the Crown in right of Norfolk Island from subsection 4(1) of the ASIC Supervisory Cost Recovery Levy (Collection) Act for the reason noted above.

Australian Securities and Investments Commission Act 2001

270. The Bill amends the ASIC Act to more fully extend its application to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

Item 3 - Subsections 4(1A) and (1B)

271. Item 3 repeals subsections 4(1A) and (1B) of the ASIC Act. Subsections 4(1A) and (1B) provide that the ASIC Act does not apply in Norfolk Island, Christmas Island and the Cocos (Keeling) Islands, except where prescribed in the Regulations. Repealing these subsections, in conjunction with the other amendments made by the Bill, will allow the ASIC Act to more fully extend to apply on these islands.

Item 4 - Subsection 4(3)

272. Item 4 makes consequential amendments to subsection 4(3) of the ASIC Act to ensure that certain terms that provide the basis of the application of the ASIC Act apply as intended where external territories are prescribed under paragraph 4(1)(c) of the ASIC Act. These amendments are made in the context of the extension of the application of the ASIC Act to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. In particular, it should be noted that those islands will not be treated as external territories for the purposes of the ASIC Act (see the definition of that expression inserted by item 6). Subsection 4(3) has also been modernised to enhance clarity and readability.

Items 5, 6, 7 and 8 - Subsection 5(1)

273. Item 5 amends the existing definition of 'Australia' in subsection 5(1) of the ASIC Act so that it will include Norfolk Island. References to 'Australia' in the ASIC Act currently do not include Norfolk Island, because the expression 'Australia' currently takes its meaning from paragraph 17(a) of the Acts Interpretation Act, as in force on 1 January 2005. The 2005 version of that Act applies in relation to the ASIC Act due to section 5A of the ASIC Act.

274. Item 6 inserts new definitions of the 'Commonwealth' and 'external Territory' into subsection 5(1) of the ASIC Act.

275. References to the 'Commonwealth' in the ASIC Act currently do not include Norfolk Island, for the same reason noted above. Item 6 inserts a new definition of 'Commonwealth' into subsection 5(1) of the ASIC Act that specifically includes Norfolk Island.

276. Item 6 also inserts a new definition of 'external Territory' into subsection 5(1) the ASIC Act. This definition is different to the concept of an 'external Territory' in most other Commonwealth laws. In particular, the new definition excludes Norfolk Island, Christmas Island and the Cocos (Keeling) Islands, which are generally considered to be external territories by other laws of the Commonwealth.

277. By contrast, after the amendments made by items 6 and 7, generally speaking, a territory referred to in section 122 of the Constitution will be considered by the ASIC Act to be either a 'Territory' or an 'external Territory'. The majority of the provisions of the ASIC Act will apply to a 'Territory', but not to an 'external Territory'.

278. Item 7 makes corresponding amendments to the definition of 'Territory' in subsection 5(1) of the ASIC Act. Currently, the definition of 'Territory' captures the 'Capital Territory' and the Northern Territory, and, if used in a provision that applies to an 'external Territory', captures that external territory. The amendments made by item 7 provide for a 'Territory' to include Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. As noted above, generally speaking, an external territory covered by the definition inserted by item 6 will not be captured as a territory.

279. As a result of these amendments, Norfolk Island, Christmas Island and the Cocos (Keeling) Islands will be treated as a 'Territory', and not as an 'external Territory', for the purposes of the ASIC Act. This is being done in order to simplify the extension of the ASIC Act to these islands. It also ensures these expressions have the same meaning across Treasury laws.

280. It should be noted that, notwithstanding these amendments, regulations made for the purposes of section 4 of the ASIC Act will continue to be able to modify, in certain circumstances, the definition of 'Territory', and accordingly, the definition of 'external Territory' in those circumstances.

281. Item 8 amends the definition of 'this jurisdiction' in subsection 5(1) of the ASIC Act. Subsection 4(1) of the ASIC Act provides that the Act applies in 'this jurisdiction'. The current definition of 'this jurisdiction' in subsection 5(1) is limited to referring States, the 'Capital Territory' and the Northern Territory, and does not include Norfolk Island, Christmas Island and the Cocos (Keeling) Island. Item 8, in conjunction with the other amendments made by the Bill, more fully extends the application of the ASIC Act to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands, by amending the definition of 'this jurisdiction' to include each territory (as amended by item 7).

Item 9 - Subsection 12GNA(1)

282. Item 9 amends subsection 12GNA(1) of the ASIC Act to refer to the revised concept of a territory, instead of specifically to the Australian Capital Territory and the Northern Territory. This ensures that professional standards laws in force in Norfolk Island, Christmas Island and the Cocos (Keeling) Islands limit occupational liability in relation to misleading and deceptive conduct. Generally, the professional standards laws applying in those islands will be laws of other states that are in force in those islands.

Item 10 - Paragraph 95(1)(a)

283. Item 10 amends paragraph 95(1)(a) of the ASIC Act to clarify that ASIC is not required to establish a regional office on each of Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. However, the amendments do not operate to limit ASIC's ability to establish a regional office on any of these islands if it chooses to do so under paragraph 95(1)(c) of the ASIC Act.

Item 11 - Subsection 127(2)

284. Item 11 makes a consequential amendment to subsection 127(2) of the ASIC Act to refer to 'Territory', instead of to an 'internal Territory', to ensure ASIC is authorised to disclose information as required or permitted by a prescribed law of any territory to which the ASIC Act applies. This updates the terminology of this provision to be consistent with the changes to the application of the ASIC Act, and the changes to definitions explained above. Often, the laws of Norfolk Island, Christmas Island and the Cocos (Keeling) Islands covered by subsection 127(2) of the ASIC Act will be laws of other states that are in force in those islands.

Corporations Act 2001

285. The Bill amends the Corporations Act to more fully extend its application to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

Items 12, 13 and 14 - Section 3

286. Items 12, 13 and 14 amend section 3 of the Corporations Act to clarify the constitutional basis for the operation of that Act in Norfolk Island, Christmas Island and the Cocos (Keeling) Islands, given the extension of the application of that Act to those islands.

Item 15 - Paragraphs 5(1)(b) and (c)

287. Item 15, in conjunction with other amendments made by the Bill, more fully extends the application of the Corporations Act to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. Subsection 5(3) of the Corporations Act currently provides that that Act applies in this jurisdiction. The definition of 'this jurisdiction' in section 9 does not currently include Norfolk Island, Christmas Island or the Cocos (Keeling) Islands. Amendments made by items 15, 31 and 32 in particular result in the definitions of 'Territory' and 'this jurisdiction' capturing those islands, and make a consequential amendment to subsection 5(1) to ensure the general territorial application of the Corporations Act to those islands.

Items 16 and 17

288. Items 16 and 17 remove out-of-date references to the Crown in right of Norfolk Island from section 5A of the Corporations Act. These references are removed because, following the commencement of amendments made to the NI Act by the Norfolk Island Legislation Amendment Act 2015 on 1 July 2016, this body politic no longer exists.

Item 18 - Section 9 (definition of Australia )

289. Item 18 amends the existing definition of 'Australia' in section 9 of the Corporations Act so that it will include Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. The existing definition of 'Australia' in the Corporations Act provides that, when used in a geographical sense, Australia does not include an external territory, excluding these islands. Item 18 addresses this by making amendments to the definition of 'Australia' to include each territory (as amended by item 31), which will include these islands.

Item 19 - Section 9 (definition of Capital Territory )

290. Item 19 repeals the definition of 'Capital Territory' from section 9 of the Corporations Act. This is because, following the amendments made by the Bill, the expression 'Capital Territory' is no longer used, and the full name of the Australian Capital Territory is referred to wherever necessary.

291. The 'Capital Territory' was previously defined to include a reference to the Jervis Bay Territory. This effect is maintained notwithstanding the repeal of this definition because of section 80 of the Corporations Act.

Item 20 - Section 9

292. Item 20 inserts a new definition of 'Commonwealth' into section 9 of the Corporations Act, to be consistent with the definition of 'Australia' as amended by item 18.

Items 21 and 22 - Section 9

293. Items 21 and 22 amend the definition of 'Corporations legislation' in section 9 of the Corporations Act, to the extent that definition deals with rules of court. Item 21 replaces the reference to rules of court made by the Supreme Court of the 'Capital Territory' (given the repeal of the definition of that expression by item 19) with a reference to those rules made by the Supreme Court of the Australian Capital Territory. Item 22 includes a reference to rules of court applied by the Supreme Court of Norfolk Island (given the extension of the Corporations Act to that island).

Item 23 - Section 9

294. Item 23 inserts a new definition of 'external Territory' into section 9 of the Corporations Act. This definition is different to the concept of an 'external Territory' in most other Commonwealth laws. In particular, the new definition excludes Norfolk Island, Christmas Island and the Cocos (Keeling) Islands, which are generally considered to be external territories by other laws of the Commonwealth.

295. By contrast, after the amendments made by items 23 and 31, generally speaking, a territory referred to in section 122 of the Constitution will be considered by the Corporations Act to be either a 'Territory' or an 'external Territory'. The majority of the provisions of the Corporations Act will apply to a 'Territory', but not to an 'external Territory'.

296. As a result of these amendments, Norfolk Island, Christmas Island and the Cocos (Keeling) Islands will be treated as a 'Territory', and not as an 'external Territory', for the purposes of the Corporations Act. This is being done in order to simplify the extension of the Corporations Act to these islands. It also ensures these expressions have the same meaning across Treasury laws.

Items 24, 25 and 26

297. Items 24, 25 and 26 amend the definition of 'insolvent under administration' in section 9 of the Corporations Act to remove references to bankruptcy laws of an external territory. The definition of 'insolvent under administration' makes reference to persons who are bankrupt under the law of an external territory. The concept of an external territory will no longer include Norfolk Island, Christmas Island or the Cocos (Keeling) Islands, and the Bankruptcy applies, or will apply, in those islands. The references to bankruptcy laws of an external territory will now be redundant, as the remaining external territories do not have their own bankruptcy laws. As such, the Bill removes the references to 'the law of an external Territory' in the definition of 'insolvent under administration'.

Item 27 - Section 9 (definition of national newspaper )

298. Item 27 amends the definition of 'national newspaper' in section 9 of the Corporations Act to have the meaning given in new subsection 254Q(4A) of that Act (see item 35).

Items 28, 29 and 30

299. The Bill makes a series of amendments to capture the Supreme Court of Norfolk Island in a number of court and court jurisdiction related provisions in the Corporations Act, given the extension of the application of that Act to Norfolk Island.

300. Item 28 amends the definition of 'rules' in section 9 of the Corporations Act to include the rules of the Supreme Court of Norfolk Island.

301. Items 29 and 30 amend the definitions of 'State or Territory Court' and 'State or Territory Supreme Court' in section 9 of the Corporations Act to include the Supreme Court of Norfolk Island.

302. The Court of Petty Sessions of Norfolk Island will not be captured by the definition of 'State or Territory Court', as that court will not be conferred jurisdiction by the Corporations Act. The exclusion of the Court of Petty Sessions is not intended to apply in paragraph 12GJ(2)(d) of the ASIC Act, as it is intended that this definition does not apply in that context.

Item 31 - Section 9 (definition of Territory )

303. Item 31 amends the definition of 'Territory' in section 9 of the Corporations Act. The definition of 'Territory' currently only captures the 'Capital Territory', the Northern Territory and an external territory. The amendments made by item 31 provide for a 'Territory' to include Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. As noted above, generally speaking, an external territory covered by the definition inserted by item 23 will not be captured as a territory.

304. After the amendments made by items 23 and 31, generally speaking, a territory referred to in section 122 of the Constitution will be considered by the Corporations Act to be either a 'Territory' or an 'external Territory'. The majority of the provisions of the Corporations Act will apply to a 'Territory', but not to an 'external Territory'.

305. As a result of these amendments, Norfolk Island, Christmas Island and the Cocos (Keeling) Islands will be treated as a 'Territory', and not as an 'external Territory', for the purposes of the Corporations Act. This is being done in order to simplify the extension of the Corporations Act to these islands. It also ensures these expressions have the same meaning across Treasury laws.

Item 32 - Section 9 (paragraphs (b) and (c) of the definition of this jurisdiction )

306. Item 32 amends the definition of 'this jurisdiction' in section 9 of the Corporations Act to include Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. The current definition of 'this jurisdiction' in section 9 does not include these islands. Subsection 5(3) of the Corporations Act provides that each provision of that Act applies in this jurisdiction. Accordingly, item 32, in conjunction with the other amendments made by the Bill, more fully extends the application of the Corporations Act to these islands by amending the definition of 'this jurisdiction' to include each territory (as amended by item 31).

307. The definition of 'this jurisdiction' is restated in subsection 5(1) of the Corporations Act, and corresponding amendments are made to that provision by item 15.

Items 33, 34 and 35

308. Items 33 and 34 amend subsections 254Q(3) and (4) of the Corporations Act. Those provisions require the advertisement of matters in a 'daily newspaper circulating generally throughout Australia' relating to certain forfeitures and sales of shares in no liability companies. The definition of 'Australia' is being amended to include Norfolk Island, Christmas Island and the Cocos (Keeling) Islands, and there may not always be the same physically circulating newspaper on those islands and the remainder of Australia. Accordingly, the Bill makes amendments to allow advertising in a daily newspaper which is available online throughout Australia (including on those islands). This is done using the new concept of national newspaper inserted by item 35.

309. Item 35 inserts a revised definition of 'national newspaper' into the Corporations Act to provide that a newspaper is considered national if it circulates generally in Australia, whether in printed form or online. Australia (as defined in section 9, and as amended by item 18) includes Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. The definition of 'national newspaper' is also moved from section 9 to section 254Q of the Corporations Act (with a signpost inserted into section 9), as this is the only section where the definition is currently used in that Act.

Item 36 - section 527

310. Item 36 makes a consequential amendment to section 527 of the Corporations Act to replace the reference to the 'Capital Territory' (given the repeal of the definition of that expression by item 19) with a reference to the Australian Capital Territory.

Items 37, 38 and 40

311. Items 37, 38 and 40 make amendments to remove references to a court of an external territory from sections 581 and 916G of the Corporations Act. As Norfolk Island, Christmas Island and the Cocos (Keeling) Islands will no longer be considered external territories for the purposes of the Corporations Act, these references are redundant because none of the remaining external territories have their own courts.

Item 39 - Paragraphs 900A(1)(b) and (c)

312. Item 39 amends section 900A of the Corporations Act to clarify that Part 7.5A of that Act applies in relation to things connected with a territory, with an external territory, or with another place outside of Australia. These amendments clarify section 900A given the changes to the terminology made by the Bill.

Item 41 - Subsection 1044B(1)

313. Item 41 amends subsection 1044B(1) of the Corporations Act to refer to the revised concept of a territory, instead of specifically to the Australian Capital Territory and the Northern Territory. This ensures that professional standards laws in force in Norfolk Island, Christmas Island and the Cocos (Keeling) Islands limit occupational liability in relation to misleading and deceptive conduct. Generally, the professional standards laws applying in those islands will be laws of other states that are in force in those islands.

Items 42, 43, 44, 45, 46 and 47

314. Items 42 and 43, in conjunction with amendments to court definitions made by items 29 and 30, amend sections 1337B and 1337D to confer jurisdiction on the Supreme Court of Norfolk Island with respect to:

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civil matters arising under the corporations legislation;

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matters arising under the ADJR Act relating to decisions made under the corporations legislation; and

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judicial review of decisions to prosecute, and of criminal justice process decisions, made by officers of the Commonwealth in the prosecution of (and associated appeals from) offences against the corporations legislation.

315. Item 44 makes a consequential amendment to section 1337E of the Corporations Act to reflect changes to court definitions. Section 1337E will not confer jurisdiction on the Court of Petty Sessions of Norfolk Island, as that court will not be captured by the concept of a state or territory court.

316. Item 45 amends section 1337F of the Corporations Act to ensure that an appeal may not be instituted from a decision of the Supreme Court of Norfolk Island to a court of a state or another territory.

317. Item 46 amends section 1337P of the Corporations Act to remove references in that section to a court of an external territory. As Norfolk Island, Christmas Island and the Cocos (Keeling) Islands will no longer be considered external territories for the purposes of the Corporations Act, these references are redundant as none of the remaining external territories have their own courts.

318. Item 47 ensures that the rules of evidence of the Supreme Court of Norfolk Island can apply in the conduct of relevant proceedings under the corporations legislation.

319. Item 48 amends section 1337T of the Corporations Act to replace references to the 'Capital Territory' (given the repeal of the definition of that expression by item 19) with references to the Australian Capital Territory.

Items 49, 50, 51, 52, 53, 54 and 55

320. These items amend sections 1338B and 1338C of the Corporations Act to confer jurisdiction to the Supreme Court of Norfolk Island with respect to offenders or persons charged with offences against the corporations legislation. These items also make consequential amendments, including amendments to enhance clarity and readability.

321. These provisions will not confer jurisdiction on the Court of Petty Sessions of Norfolk Island, as that court will not be captured by the concept of a state or territory Court.

National Consumer Credit Protection Act 2009

322. The Bill amends the National Consumer Credit Protection Act to more fully extend its application to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

Item 56 - Subsection 5(1) (definition of Australia )

323. Item 56 repeals the definition of 'Australia' from subsection 5(1) of the National Consumer Credit Protection Act. This definition currently excludes Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. Repealing the definition will allow the definition in section 2B of the Acts Interpretation Act to apply, which includes these islands. This is necessary as part of extending the Act to apply on those islands.

Item 57 - Subsection 5(1) (definition of Territory )

324. Item 57 amends the definition of 'Territory' in subsection 5(1) of the National Consumer Credit Protection Act. Subsection 21(1) of the National Consumer Credit Protection Act provides that that Act applies in this jurisdiction. Subsection 21(2) defines this jurisdiction as each referring state and each territory. 'Territory' currently means the Australian Capital Territory, the Northern Territory and the Jervis Bay Territory. The Bill amends the definition to include Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. The amendment made by item 57 extends the application of the National Consumer Credit Protection Act to these islands.

Item 58 - Paragraph 73(10)(a)

325. Item 58 amends paragraph 73(10)(a) of the National Consumer Credit Protection Act to remove a reference to a court of an external territory. Paragraph 73(10)(a) extends the application of subsection 73(8) to courts outside of this jurisdiction. As Norfolk Island, Christmas Island and the Cocos (Keeling) Islands will no longer be considered as outside this jurisdiction for the purposes of the National Consumer Credit Protection Act, the reference to courts of an external territory in subsection 73(10) will now be redundant, given Australia's remaining external territories do not have their own courts.

Items 59 and 60

326. Item 59 amends section 187 of the National Consumer Credit Protection Act to confer jurisdiction on the Supreme Court of Norfolk Island in relation to civil matters arising under that Act. Item 60 amends section 189 of that Act to prevent appeals for matters arising under that Act from decisions of the Supreme Court of Norfolk Island to a court of a state or another territory, or to the Federal Circuit Court.

327. These provisions will not confer jurisdiction on the Court of Petty Sessions of Norfolk Island.

Item 61 - After subsection 204(2)

328. Item 61 amends section 204 of the National Consumer Credit Protection Act to ensure that only the Supreme Court of Norfolk Island is conferred with criminal jurisdiction in relation to persons charged with offences under that Act, and not a lower court of Norfolk Island (the Court of Petty Sessions).

Item 62 - Subsection 204(1) of the National Credit Code

329. Item 62 repeals the definitions of 'Australia' and 'Commonwealth' from subsection 204(1) of the National Credit Code (in Schedule 1 to the National Consumer Credit Protection Act). These definitions currently exclude Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. Repealing these definitions will allow the definitions in section 2B of the Acts Interpretation Act to apply, which include these islands. This is necessary as part of extending the Act to apply on those islands.

Item 63 - Subsection 204(1) of the National Credit Code

330. Item 63 inserts a definition of 'Territory' into the National Credit Code (in Schedule 1 to the National Consumer Credit Protection Act). The definition inserted by item 63 is identical to the definition that will apply to the primary provisions of that Act (as amended by item 57). This is done as part of applying the Code to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

Division 2 - Acts administered by ASIC: transitional provisions

Australian Securities and Investments Commission Act 2001

Item 64 - In the appropriate position

331. Item 64 inserts new Part 35 of the ASIC Act. New section 334 includes a transitional rule-making power for ASIC to aid in the application of the ASIC Act to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. Rules made under this power will take the form of legislative instruments, and will be subject to Parliamentary disallowance.

332. The rules may deal with specified individuals and companies, or classes of individuals and companies. This will give ASIC the flexibility to deal with existing companies on a case-by-case or class basis, so as to manage the practical aspects of the changeover and help businesses to move successfully into the new regulatory environment. It will also enable ASIC to deal with unforeseen practical issues and unintended consequences as they become apparent without the need for further legislative action (which would delay the transition process).

333. The power is limited. The rule-making power cannot be used to create an offence or a civil penalty, provide powers of arrest, detention, entry, search or seizure, impose a tax, appropriate the Consolidated Revenue Fund, or directly amend the text of the ASIC Act.

334. Similar powers were conferred on the minister under Division 2 of Part 1 of Schedule 5 to the Territories Legislation Amendment Act.

335. Due to the breadth of the rule-making power, new Part 35 of the ASIC Act will be automatically repealed by new section 335 of that Act after approximately one year. The rule-making power will self-repeal on the first Monday that occurs 12 months after the commencement of the substantive amendments to the ASIC Act. Any rules in force at the time this Part is repealed will be automatically repealed. This will ensure that the rule-making power is only used to address transitional issues, and is not an ongoing power that is available to alter the operation of the law.

Corporations Act 2001

Item 65 - In the appropriate position in Chapter 10

336. Item 65 inserts new Part 10.51 into the Corporations Act, which makes transitional provision in relation to the amendments made by Schedule 2 of the Bill to extend the application of the Corporations Act to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

337. Primarily, these provisions require ASIC to transfer the registration of corporations currently registered as companies under the Norfolk Island Companies Act to instead be registered under the Corporations Act.

338. New section 1678 of the Corporations Act provides that a corporation will be eligible to be transferred if:

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the corporation is a registered company under the Norfolk Island Companies Act, other than a foreign company registered under Part 25 of that Act (foreign companies will remain registered in their host jurisdiction);

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the corporation is not a Chapter 5 body corporate (as defined in section 9 of the Corporations Act);

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no application to wind up the corporation has been made to the Supreme Court of Norfolk Island that has not been dealt with;

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no application to approve a compromise or arrangement between the corporation and another person has been made to the Supreme Court of Norfolk Island that has not been dealt with.

339. New section 1678A of the Corporations Act will require ASIC to register each eligible corporation under Part 5B.1 of that Act. ASIC will be required to do this on the day the Corporations Act commences applying to Norfolk Island. Unlike the standard process in Part 5B.1, an application is not required for ASIC to register the eligible corporation (as an application will be deemed to have been made in accordance with section 601BC by the transitional provisions). ASIC will not have discretion whether or not to register any eligible corporation.

340. However, the corporation must not be registered if, immediately before the Corporations Act commences applying to Norfolk Island, the corporation is no longer eligible (for example, because an application has been made in the Supreme Court of Norfolk Island for the corporation to be wound up).

341. Part 5B.1 of the Corporations Act is well suited to the registration, under that Act, of existing corporations originally established under other laws. Importantly, it includes provisions that deal with maintaining the existing legal status of the corporation after it is registered as a company under the Corporations Act. For example, section 601BM of the Corporations Act provides that the registration of a company under Part 5B.1 does not create a new legal entity, affect the body's existing property, rights or obligations, or render defective any legal proceedings by or against the body.

342. ASIC must register the eligible corporation as the same type of corporation the eligible corporation was under the Norfolk Island Companies Act immediately before its registration under that Act. ASIC must register the corporation with the same characteristics and attributes as the corporation had immediately before its registration under the Corporations Act. The list of possible corporation types is provided in the Bill. Some of the types in this list do not correspond to the types generally available for registration under the Corporations Act (but relate to types that were available under the Norfolk Island Companies Act). This ensures that a Norfolk Island company's type will not change when it is registered under the Corporations Act.

343. After a company is registered under these provisions, a reference to a company registered under a territory law, or under a law of Norfolk Island, in this Act, in any other Act, or in any other instrument under an Act, will not include a reference to the company. This means that, after the transition, the law will treat the company as being a company registered under the Corporations Act, rather than as being a company registered under the Norfolk Island Companies Act.

344. New section 1678B of the Corporations Act includes processes and other provisions related to the registration of an eligible corporation under Part 5B.1 of that Act, as required by new section 1678A of that Act.

345. Firstly, upon registering the company, ASIC must:

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give the company an ACN;

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issue a certificate that states;

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the company's name;

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the company's ACN;

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the company's type;

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that the company is registered as a company under the Corporations Act;

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that the company is taken to be registered in Norfolk Island; and

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the date of the company's registration.

346. The certificate is of the same effect as certificates issued for other companies registered under the Corporations Act.

347. ASIC must register the company with a name consisting of either:

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the corporation's name immediately before commencement; or

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if that name is unacceptable for registration because of regulations made under paragraph 147(1)(c) of the Corporations Act-the expression 'Australian Company Number' followed by the company's ACN; and

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the words required by subsections 148(2) or (3), that is, the word 'Limited' for a limited public company, the words 'Proprietary Limited' for a limited proprietary company, or the word 'Proprietary' for unlimited proprietary company.

348. A corporation will be registered with its existing name (as long as that is not unacceptable for registration) even if it is identical or nearly identical to the name of another body or entity already registered or reserved under the Corporations Act or the Business Names Registration Act 2011 (or its transitional Act).

349. The registration of a Norfolk Island company with such a name also will not affect the availability of that name to those other bodies or entities. This means, for example, that any company that already has a name identical to the name of a Norfolk Island company will also be able to continue to retain its existing name.

350. The company's constitution upon registration is the memorandum and articles of association of the corporation as immediately before registration.

351. Existing section 601BH of the Corporations Act will require the company to modify its constitution within 3 months after registration to give effect to its registration under Part 5B.1. This will ensure that the company's constitution complies with the requirements of the Corporations Act, where they differ from the Norfolk Island Companies Act.

352. If a person who is a director of an eligible corporation does not meet the requirements of section 201B of the Corporations Act (that is, be an individual who is at least 18 years old, and who has not been disqualified from managing corporations), that person does not become a director of the company when its registration takes effect under that Act.

353. A person disqualified from managing corporations may remain a director when the company is registered under the Corporations Act if, at the time of registration, the person has been granted permission by ASIC under section 206GAB or been granted leave by the Court under section 206G.

354. A body corporate will not be able to remain as a director of a Norfolk Island company upon transition of the company's registration to the Corporations Act.

355. New section 1678C of the Corporations Act makes provision to ensure that ASIC has sufficient information to register an eligible corporation under Part 5B.1 of that Act, as required by new section 1678A of that Act.

356. Firstly, for the purposes of ASIC performing its functions or duties or exercising its powers to transfer the registration of companies from the Norfolk Island Companies Act to the Corporations Act:

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the Registrar of Companies under the Norfolk Island Companies Act may disclose to ASIC information (including personal information) obtained for the purposes of that Act; and

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ASIC may record or use information disclosed; and

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ASIC may similarly disclose to the Registrar of Companies information; and

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the Norfolk Island Registrar may record or use the information disclosed.

357. Secondly, ASIC may, by giving written notice to an eligible corporation, request the corporation to provide any specified information in relation to the registration of the corporation under the Corporations Act. The eligible corporation is authorised to disclose the requested information (including personal information) to ASIC and ASIC may record or use the information the eligible corporation discloses.

358. These provisions authorise the use and disclosure of personal information for the purposes of the Privacy Act and other laws (including the common law).

359. New section 1678D includes a transitional rule-making power for ASIC to aid in the application of the Corporations Act to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. This includes the ability to make rules about:

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the relationship between the application of the Corporations Act to those islands and the amendments of this and any other Act made by the Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2020 (including providing for the new Commonwealth Registrar to exercise powers, or perform functions, of ASIC under new Part 10.51 of the Corporations Act); and

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the registration of a particular corporation or corporations under Part 5B.1 of the Corporations Act, as required by new Part 10.51 of that Act; and

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if the Norfolk Island Companies Act is repealed-the repeal of that Act.

360. Rules relating to the registration of particular corporations will give ASIC the flexibility to deal with particular issues arising in relation to existing companies on a case-by-case or class basis. This will enable ASIC to manage the practical aspects of the transition and help businesses to move successfully into the new regulatory environment. It will also enable ASIC to deal with unforeseen practical issues and unintended consequences as they become apparent without the need for further primary legislative amendments (which would delay the transition process).

361. The rule-making power cannot be used to create an offence or a civil penalty, provide powers of arrest, detention, entry, search or seizure, impose a tax, appropriate the Consolidated Revenue Fund or directly amend the text of the Corporations Act.

362. Similar powers were conferred on the minister under Division 2 of Part 1 of Schedule 5 to the Territories Legislation Amendment Act.

363. Due to the breadth of the rule-making power, it will be automatically repealed after approximately one year. The rule-making power will self-repeal on the first Monday that occurs 12 months after the commencement of the substantive amendments to the Corporations Act. Any rules in force at the time this Part is repealed will automatically be repealed. This will ensure that the rule-making power is only used to address transitional issues, and is not an ongoing power that is available to alter the operation of the law.

364. However, new section 1678E of the Corporations Act can save rules that relate to the registration of a particular corporation or corporations for a period beyond the repeal of section 1678D. Such rules may remain in force for up to two years after the commencement of the substantive amendments to the Corporations Act, which is approximately 12 months after the repeal of section 1678D of that Act. Section 1678D requires each rule relating to a particular corporation to specify the period during which it is to remain in force. Such a rule will remain in force for the specified period, unless it is repealed beforehand.

365. The extended period for rules relating to the registration of particular corporations is necessary to enable an orderly assessment to be conducted of whether more permanent arrangements may be required in respect of the issues that have arisen in the course of transition of those companies' registration.

366. New section 1678F of the Corporations Act inserts a transitional application period for existing directors and other eligible officers of Norfolk Island companies to obtain a director identification number after the company's registration is transferred to the Corporations Act.

367. Due to new section 1272C of the Corporations Act, to be inserted by Schedule 2 to the Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2020, directors and other eligible officers of companies will be required to have a director identification number. Schedule 2 to that Act also inserts new section 1653 into the Corporations Act, which includes a transitional application period for persons who are eligible officers before an 'application day', to give sufficient time for those officers to apply for a director identification number.

368. As it is possible that the substantive amendments to the Corporations Act made by the Bill will commence on or after the application day referred to in section 1653, new section 1678F provides an alternative transitional application period in relation to existing directors and other eligible officers of Norfolk Island companies transitioning to the Corporations Act. This transitional period applies to a person who:

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is not an eligible officer immediately before commencement of the application of the Corporations Act to Norfolk Island; and

•

becomes an eligible officer because of the registration of a Norfolk Island company due to new Part 10.51 of that Act.

369. This transitional provision is intended to mirror subsection 1653(2) of the Corporations Act. Section 1678F applies if the Corporations Act starts applying to Norfolk Island after the application day referred to in section 1653. In such a case, subsection 1653(2) will not cover a person first becoming an eligible officer due to the transition of a company from the Norfolk Island Companies Act to the Corporations Act (because the person would not be an eligible officer immediately before the application day). If the application day instead occurs after this transition, section 1678F will not apply in relation to these Norfolk Island company directors and officers, and subsection 1653(2) will instead apply.

370. The minister is empowered to make a legislative instrument which specifies the transitional application period for new section 1678F. During the transitional application period, individuals who become eligible officers because of the registration of a Norfolk Island company can apply for a director identification number without contravening section 1272C. Until such a period is determined, section 1272C of the Corporations Act will not apply in relation to the eligible officer.

371. As noted above, a small number of Norfolk Island companies may be ineligible to transition from being registered under the Norfolk Island Companies Act to the Corporations Act. This may occur, for example, if there is an application to wind up the company immediately before the Corporations Act starts to apply to Norfolk Island. If such a company remains registered under the Norfolk Island Companies Act after that time, the company may become a registrable Australian body for the purposes of the Corporations Act (as defined in section 9 of the Corporations Act). The Corporations Act applies certain requirements to registrable Australian bodies, noting particularly that the company may need to be registered under Part 5B.2 in order to carry on business within this jurisdiction but outside of Norfolk Island (see section 601CA). Rules under section 1678D are also able to make provision in relation to the registration of companies that later become eligible.

National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009

Item 66 - In the appropriate position

372. Item 66 inserts new Schedule 18 into the National Consumer Credit Protection (Transitional and Consequential Provisions) Act. New item 1 of that Schedule includes a transitional rule-making power for ASIC to aid in the application of the National Consumer Credit Protection Act to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. Rules made under this power will take the form of legislative instruments, and will be subject to Parliamentary disallowance.

373. The rules may deal with specified individuals and companies, or classes of individuals and companies. This will give ASIC the flexibility to deal with existing companies on a case-by-case or class basis, so as to manage the practical aspects of the changeover and help businesses to move successfully into the new regulatory environment. It will also enable ASIC to deal with unforeseen practical issues and unintended consequences as they become apparent without the need for further legislative action (which would delay the transition process). The power is limited. The rule-making power cannot be used to create an offence or a civil penalty, provide powers of arrest, detention, entry, search or seizure, impose a tax, appropriate the Consolidated Revenue Fund or directly amend the text of the National Consumer Credit Protection Act.

374. Similar powers were conferred on the minister under Division 2 of Part 1 of Schedule 5 to the Territories Legislation Amendment Act.

375. Due to the breadth of the rule-making power, new Schedule 18 will be automatically repealed by item 2 of that Schedule after approximately one year. The rule-making power will self-repeal on the first Monday that occurs 12 months after the commencement of the substantive amendments to the National Consumer Credit Protection Act. Any rules in force at the time this power is repealed will be automatically repealed. This will ensure that the rule-making power is only used to address transitional issues, and is not an ongoing power that is available to alter the operation of the law.

Part 2- Other Treasury Acts

Competition and Consumer Act 2010

376. The Bill amends the Competition and Consumer Act to more fully extend its application to Norfolk Island. The Act already has some application to Norfolk Island, and already applies to Christmas Island and the Cocos (Keeling) Islands. However, several provisions in the Act do not apply to Norfolk Island such as those that apply in relation to a territory.

Items 67 to 69 - Subsection 4(1) (definition of authority )

377. Items 67 to 69 amend the definitions of 'authority' and 'authority of the Commonwealth' in subsection 4(1) of the Competition and Consumer Act. The amendment in item 67 is consequential to the changes to the meaning of external territory and of territory made by items 70 and 71. The amendments in items 68 and 69 include a note to refer readers to alternative definitions of 'State or Territory authority' and 'authority of the Commonwealth' for the purposes of Part VIIA of the Competition and Consumer Act in section 95A of that Act.

Items 70 and 71 - Subsection 4(1)

378. Item 70 inserts a new definition of 'external Territory' into subsection 4(1) of the Competition and Consumer Act. Currently, the Competition and Consumer Act does not currently define 'external Territory'. As a result, section 2B of the Acts Interpretation Act applies and provides that Norfolk Island, Christmas Island and the Cocos (Keeling) Islands are external territories under the Competition and Consumer Act.

379. The new definition of 'external Territory' is different to the concept of an 'external Territory' in most other Commonwealth laws. In particular, the new definition will exclude Norfolk Island, Christmas Island and the Cocos (Keeling Islands), which are generally considered to be external territories by other laws of the Commonwealth.

380. By contrast, after the amendments made by items 70 and 71, generally speaking, a territory referred to in section 122 of the Constitution will be considered by the Competition and Consumer Act to be either a 'Territory' or an 'external Territory'. Provisions that determine the application of the Competition and Consumer Act often apply with respect to a 'Territory' (see, for example, section 6 of that Act), in addition to the application of provisions of the Act in other respects (for example, in relation to constitutional corporations).

381. Item 71 makes corresponding amendments to the definition of 'Territory' in subsection 4(1) of the Competition and Consumer Act, so that expression includes Norfolk Island. The definition of 'Territory' currently includes Christmas Island and the Cocos (Keeling) Islands, but not Norfolk Island. As noted above, this definition is key to the application provisions of a number of parts of the Competition and Consumer Act, and this amendment ensures Norfolk Island is captured within these application provisions.

382. As a result of these amendments, Norfolk Island, Christmas Island and the Cocos (Keeling) Islands will be treated as a 'Territory', and not as an 'external Territory', for the purposes of the Competition and Consumer Act. This is being done in order to simplify the extension of the Competition and Consumer Act to these islands. It also ensures these expressions have the same meaning across Treasury laws.

Item 72 - Paragraph 4N(1)(b)

383. Item 72 amends section 4N of the Competition and Consumer Act to preserve the existing application of Part IIIA of the Competition and Consumer Act (about access to services) following the changes to the definition of 'external Territory'. Section 4N already extends Part IIIA to all of Australia's external territories. As Norfolk Island, Christmas Island and the Cocos (Keeling) Islands will no longer fall within the definition of 'external Territory' in the Competition and Consumer Act, without amendment to paragraph 4N(1)(b), section 4N would cease to apply to the offshore areas of those islands. To address this, the Bill amends paragraph 4N(1)(b) so that the offshore area of a territory is captured. This amendment ensures that section 4N will continue to apply Part IIIA to the offshore areas of Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

Items 73 and 74 - Subsection 95A(1)

384. Item 73 amends the definition of 'Commonwealth authority' in subsection 95A(1) of the Competition and Consumer Act to include authorities under laws in force on Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

385. Item 74 repeals the definition of a 'law of the Commonwealth' in subsection 95A(1) of the Competition and Consumer Act. The definition is redundant as a result of the amendments to the definition of 'Commonwealth authority' made by item 73.

Item 75, 76, 77 and 78 - Section 95C

386. These items amend section 95C of the Competition and Consumer Act to ensure that Part VIIA of that Act applies on Norfolk Island. Part VIIA of that Act provides mechanisms for the Australian Competition and Consumer Commission (ACCC) to monitor, and conduct inquiries into, the prices of goods and services, and intervene to restrict price increases.

387. Section 95C of the Competition and Consumer Act sets the scope of application of Part VIIA of that Act. Relevantly, section 95C provides that Part VIIA applies in relation to the supply of goods and services on Christmas Island and the Cocos (Keeling) Islands, and in relation to trade and commence between those islands and other states and territories. However, Norfolk Island is not captured by section 95C in these respects, and certain supplies of goods and services in relation to Norfolk Island are excluded by subsection 95C(2). Items 75 to 78 repeal subsection 95C(2), and amend subsection 95C(1) to include Norfolk Island in the same respects as Christmas Island and the Cocos (Keeling) Islands. The amendments also simplify the drafting of paragraphs 95C(1)(f) and (g) as a result of the amendment to the definition of 'Territory' made by item 71.

Item 79 - Subsection 137(1)

388. Item 79 amends subsection 137(1) of the Competition and Consumer Act to refer to the revised concept of a territory, instead of specifically to the Australian Capital Territory and the Northern Territory. This ensures that professional standards laws in force in Norfolk Island, Christmas Island and the Cocos (Keeling) Islands limit occupational liability in relation to misleading and deceptive conduct. Generally, the professional standards laws applying in those islands will be laws of other states that are in force in those islands.

Cross-Border Insolvency Act 2008

389. The Bill amends the Cross-Border Insolvency Act to extend its application to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

Item 80 - Section 4

390. Item 80 repeals section 4 of the Cross-Border Insolvency Act, which currently operates to exclude that Act from extending to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

Item 81 - Subsection 5(1) (definition of Australia )

391. Item 81 repeals the definition of 'Australia' from subsection 5(1) of the Cross-Border Insolvency Act. Section 6 of that Act provides that the Model Law on Cross-Border Insolvency has force of law in Australia. However, subsection 5(1) of that Act provides that 'Australia' does not include Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.

392. After the repeal of the definition of 'Australia', the standard definition in section 2B of the Acts Interpretation Act will apply instead, which includes Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. This amendment ensures the Model Law will apply in those islands.

Item 82 - Subsection 5(1)

393. Item 82 inserts a new signpost definition into section 5 of the Cross-Border Insolvency Act to direct readers to the new definition of 'external Territory' inserted into section 19 of that Act by item 85.

Items 83 and 84 - Section 7

394. Items 83 and 84 amend section 7 of the Cross-Border Insolvency Act. Subsection 7(1) provides that a reference in the Model Law to 'this State' is a reference to Australia. However, currently, subsection 7(2) excludes an external territory from the reference to Australia in subsection 7(1).

395. Item 84 repeals subsection 7(2) and the associated note so that the definition of 'Australia' is drawn from section 2B of the Acts Interpretation Act, which includes Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. This ensures a reference to Australia in the Model Law will encompass those islands. Item 83 makes a consequential amendment to renumber subsection 7(1) of that Act as section 7 (without any subsections).

Item 85 - At the end of section 19

396. Item 85 inserts a new definition of 'external Territory' into section 19 of the Cross-Border Insolvency Act. Currently, as there is no definition of 'external Territory' in the Cross-Border Insolvency Act, the term is drawn from section 2B of the Acts Interpretation Act, which includes Norfolk Island, Christmas Island and the Cocos (Keeling) Islands. Item 85 ensures that the Cross-Border Insolvency Act includes, in references in the Model Law to 'laws of this State', references to the laws of those islands. It does this by excluding those islands from the definition of 'external Territory' inserted into section 19 of that Act.

Part 3 - Contingent amendments

National Consumer Credit Protection Act 2009

Item 86 - Section 189 (table item 6)

397. Item 86 amends table item 6 of section 189 of the National Consumer Credit Protection Act. Table item 6 of section 189 is inserted by item 60 of Schedule 2 to the Bill. Item 607 of Schedule 2 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2020 (Federal Circuit and Family Court Act), if enacted, will provide that any reference to the 'Federal Circuit Court' in section 189 of the National Consumer Credit Protection Act is substituted with a reference to the 'Federal Circuit and Family Court of Australia (Division 2)'. This contingent amendment ensures that, if the Federal Circuit and Family Court Act commences, the table item will be amended to refer to the correct court.