Corporations Act 2001

CHAPTER 10 - TRANSITIONAL PROVISIONS  

PART 10.1 - TRANSITION FROM THE OLD CORPORATIONS LEGISLATION  

Division 1 - Preliminary  

SECTION 1371   DEFINITIONS  

1371(1)   [ Definitions]  

In this Part:

carried over provision
of the old corporations legislation of a State or Territory in this jurisdiction means a provision of the old corporations legislation of that State or Territory that:

(a) was in force immediately before the commencement; and

(b) corresponds to a provision of the new corporations legislation.

commencement
means the commencement of this Act.

corresponds
has a meaning affected by subsections (2), (3) and (4).

instrument
means:

(a) any instrument of a legislative character (including an Act or regulations) or of an administrative character; or

(b) any other document.

liability
includes a duty or obligation.

made
includes issued, given or published.

new corporations legislation
means:

(a) this Act; and

(b) the new Corporations Regulations (as amended and in force from time to time) and any other regulations made under this Act; and

(c) the laws of the Commonwealth referred to in paragraph (c) of the definition of old corporations legislation , being those laws as they apply after the commencement; and

(d) the preserved instruments.

new Corporations Regulations
means the regulations that, because of section 1380, have effect as if they were made under section 1364.

old application Act
for a State or Territory means:

(a) in the case of New South Wales - the Corporations (New South Wales) Act 1990 of New South Wales as in force from time to time before the commencement; or

(b) in the case of Victoria - the Corporations (Victoria) Act 1990 of Victoria as in force from time to time before the commencement; or

(c) in the case of Queensland - the Corporations (Queensland) Act 1990 of Queensland as in force from time to time before the commencement; or

(d) in the case of Western Australia - the Corporations (Western Australia) Act 1990 of Western Australia as in force from time to time before the commencement; or

(e) in the case of South Australia - the Corporations (South Australia) Act 1990 of South Australia as in force from time to time before the commencement; or

(f) in the case of Tasmania - the Corporations (Tasmania) Act 1990 of Tasmania as in force from time to time before the commencement; or

(g) in the case of the Australian Capital Territory - the old Corporations Act; or

(h) in the case of the Northern Territory - the Corporations (Northern Territory) Act 1990 of the Northern Territory as in force from time to time before the commencement.

old Corporations Act
means the Corporations Act 1989 as in force from time to time before the commencement.

old Corporations Law
means:

(a) when used in relation to a particular State or Territory - the Corporations Law of that State or Territory, within the meaning of the old application Act for that State or Territory, as in force from time to time before the commencement; or

(b) when used in general terms - the Corporations Law set out in section 82 of the old Corporations Act as in force from time to time before the commencement.

old corporations legislation
of a particular State or Territory means:

(a) the old Corporations Law and old Corporations Regulations of that State or Territory, and any instruments made under that Law or those Regulations; and

(b) the old application Act for that State or Territory, and any instruments made under that Act; and

(c) either:

(i) when used in relation to a State or the Northern Territory - the laws of the Commonwealth as applying in relation to the old Corporations Law and the old Corporations Regulations of the State or Territory from time to time before the commencement as laws of, or for the government of, that State or Territory because of Part 8 of the old Application Act for that State or Territory, and any instruments made under those laws as so applying; or

(ii) when used in relation to the Australian Capital Territory - the laws of the Commonwealth referred to in subparagraph (i), but as applying of their own force in relation to the old Corporations Law and old Corporations Regulations of the Territory, and any instruments made under those laws as so applying.

old Corporations Regulations
means:

(a) when used in relation to a particular State or Territory - the Corporations Regulations of that State or Territory, within the meaning of the old application Act for that State or Territory, as in force from time to time before the commencement; or

(b) when used in general terms - the regulations made under section 22 of the old Corporations Act as in force from time to time before the commencement.

order
, in relation to a court, includes any judgment, conviction or sentence of the court.

pre-commencement right or liability
has the meaning given by subsection 1400(1) or 1401(1).

preserved instrument
means an instrument that, because of section 1399, has effect after the commencement as if it were made under a provision of the new corporations legislation.

right
includes an interest or status.

substituted right or liability
has the meaning given by subsection 1400(2) or 1401(3).

this Part
includes regulations made for the purposes of any of the provisions of this Part.

1371(2)   [ Corresponding provisions or parts]  

Subject to subsection (4), for the purposes of this Part, a provision or part (the old provision or part ) of the old corporations legislation of a State or Territory corresponds to a provision or part (the new provision or part ) of the new corporations legislation (and vice versa) if:

(a) the old provision or part and the new provision or part are substantially the same, unless the regulations specify that the 2 provisions or parts do not correspond; or

(b) the regulations specify that the 2 provisions or parts correspond.

Note: The range of provisions of the new corporations legislation that may be corresponding provisions for the purposes of this Part is affected by sections 1401 and 1408, which take certain provisions of the old corporations legislation to be included in the new corporations legislation.

1371(3)   [ Provisions or parts substantially the same]  

For the purposes of paragraph (2)(a), differences of all or any of the following kinds are not sufficient to mean that 2 provisions or parts are not substantially the same:

(a) differences in the numbering of the provisions or parts;

(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) that fact that:

(i) the old provision or part allowed a court to exercise powers on its own motion but the new provision or part does not; or

(ii) the old provision or part required a court to apply a criterion of public interest but the new provision or part requires a court to apply a criterion of justice and equity; or

(iii) the new provision or part requires ASIC to take account of public interest but the old provision or part did not;

(e) other differences that are attributable to the fact that the new corporations legislation applies as a Commonwealth law throughout this jurisdiction;

(f) other differences of a kind prescribed by the regulations for the purposes of this paragraph.

This subsection is not intended to otherwise limit the circumstances in which 2 provisions or parts are, for the purposes of paragraph (2)(a), substantially the same.

1371(4)   [ Regulations]  

The regulations may provide that a specified provision of the old corporations legislation of a State or Territory does, or does not, correspond to a specified provision of the new corporations legislation.