Corporations Act 2001
This Part applies only to laws of a State or Territory that is in this jurisdiction.
5D(2) [ Corporations legislation]This Part applies only to the following Corporations legislation:
(a) this Act (including the regulations made under this Act); and
(b) Part 3 of the ASIC Act; and
(c) regulations made under the ASIC Act for the purposes of Part 3 of that Act.
Note: This Part does not apply in relation to the trustee company provisions: see section 601RAE .
View history note
Hide history noteThis Part does not apply to Part 3 of the ASIC Act, or regulations made under that Act for the purposes of Part 3 of that Act, to the extent to which they operate in relation to a contravention of Division 2 of Part 2 of that Act.
SECTION 5E CONCURRENT OPERATION INTENDED 5E(1) [ Concurrent operation]The Corporations legislation is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
5E(2) [ Particular laws]Without limiting subsection (1), the Corporations legislation is not intended to exclude or limit the concurrent operation of a law of a State or Territory that:
(a) imposes additional obligations or liabilities (whether criminal or civil) on:
(i) a director or other officer of a company or other corporation; or
(ii) a company or other body; or
(b) confers additional powers on:
(i) a director or other officer of a company or other corporation; or
(ii) a company or other body; or
(c) provides for the formation of a body corporate; or
(d) imposes additional limits on the interests a person may hold or acquire in a company or other body; or
(e) prevents a person from:
(i) being a director of; or
a company or other body; or
(ii) being involved in the management or control of;
(f) requires a company:
(i) to have a constitution; or
(ii) to have particular rules in its constitution.
Note: Paragraph (a) - this includes imposing additional reporting obligations on a company or other body.
5E(3) [ Reference to law of State or Territory imposing obligations, etc]Without limiting subsection (2), a reference in that subsection to a law of a State or Territory imposing obligations or liabilities, or conferring powers, includes a reference to a law of a State or Territory imposing obligations or liabilities, or conferring powers, by reference to the State or Territory in which a company is taken to be registered.
5E(4) [ Direct inconsistency]This section does not apply to the law of the State or Territory if there is a direct inconsistency between the Corporations legislation and that law.
Note: Section 5G prevents direct inconsistencies arising in some cases by limiting the operation of the Corporations legislation.
5E(5) [ Double jeopardy](a) an act or omission of a person is both an offence against the Corporations legislation and an offence under the law of a State or Territory; and
(b) the person is convicted of either of those offences;
the person is not liable to be convicted of the other of those offences.
SECTION 5F CORPORATIONS LEGISLATION DOES NOT APPLY TO MATTERS DECLARED BY STATE OR TERRITORY LAW TO BE AN EXCLUDED MATTER 5F(1) [ Matters declared excluded matters]Subsection (2) applies if a provision of a law of a State or Territory declares a matter to be an excluded matter for the purposes of this section in relation to:
(a) the whole of the Corporations legislation; or
(b) a specified provision of the Corporations legislation; or
(c) the Corporations legislation other than a specified provision; or
(d) the Corporations legislation otherwise than to a specified extent. 5F(2) [ Effect of matter being declared excluded matter]
(a) none of the provisions of the Corporations legislation (other than this section) applies in the State or Territory in relation to the matter if the declaration is one to which paragraph (1)(a) applies; and
(b) the specified provision of the Corporations legislation does not apply in the State or Territory in relation to the matter if the declaration is one to which paragraph (1)(b) applies; and
(c) the provisions of the Corporations legislation (other than this section and the specified provisions) do not apply in the State or Territory in relation to the matter if the declaration is one to which paragraph (1)(c) applies; and
(d) the provisions of the Corporations legislation (other than this section and otherwise than to the specified extent) do not apply in the State or Territory in relation to the matter if the declaration is one to which paragraph (1)(d) applies. 5F(3) [ Regulations as to application of s 5F(2)]
Subsection (2) does not apply to the declaration to the extent to which the regulations provide that that subsection does not apply to that declaration.
5F(4) [ Corresponding provisions of Corporations Law, ASC Law, etc]By force of this subsection, if:
(a) the Corporations Law, ASC Law or ASIC Law of a State or Territory; or
(b) a provision of that Law;
did not apply to a matter immediately before this Act commenced because a provision of a law of the State or Territory provided that that Law, or that provision, did not apply to the matter, the Corporations legislation, or the provision of the Corporations legislation that corresponds to that provision of that Law, does not apply in the State or Territory to the matter until that law of the State or Territory is omitted or repealed.
5F(5) [ Regulations as to application of s 5F(4)]Subsection (4) does not apply to the application of the provisions of the Corporations legislation to the matter to the extent to which the regulations provide that that subsection does not apply to the matter.
5F(6) [ ``matter'']In this section:
matter
includes act, omission, body, person or thing.
Section overrides other provisions of the Corporations legislation
5G(1)
This section has effect despite anything else in the Corporations legislation.
Section does not deal with provisions capable of concurrent operation
5G(2)
This section does not apply to a provision of a law of a State or Territory that is capable of concurrent operation with the Corporations legislation.
Note: This kind of provision is dealt with by section 5E .
When this section applies to a provision of a State or Territory law
5G(3)
This section applies to the interaction between:
(a) a provision of a law of a State or Territory (the State provision ); and
(b) a provision of the Corporations legislation (the Commonwealth provision );
only if the State provision meets the conditions set out in the following table:
| Conditions to be met before section applies | [ operative] | ||
| Item | Kind of provision | Conditions to be met | |
| 1 | a pre-commencement (commenced) provision | (a) the State provision operated, immediately before this Act commenced, despite the provision of: | |
| (i) the Corporations Law of the State or Territory (as in force at that time); or
(ii) the ASC or ASIC Law of the State or Territory (as in force at that time); |
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| that corresponds to the Commonwealth provision; and | |||
| (b) the State provision is not declared to be one that this section does not apply to (either generally or specifically in relation to the Commonwealth provision) by: | |||
| (i) regulations made under this Act; or
(ii) a law of the State or Territory. |
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| 2 | a pre-commencement (enacted) provision | (a) the State provision would have operated, immediately before this Act commenced, despite the provision of: | |
| (i) the Corporations Law of the State or Territory (as in force at that time); or
(ii) the ASC or ASIC Law of the State or Territory (as in force at that time); |
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| that corresponds to the Commonwealth provision if the State provision had commenced before the commencement of this Act; and | |||
| (b) the State provision is not declared to be one that this section does not apply to (either generally or specifically in relation to the Commonwealth provision) by: | |||
| (i) regulations made under this Act; or
(ii) a law of the State or Territory. |
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| 3 | a post-commencement provision | the State provision is declared by a law of the State or Territory to be a Corporations legislation displacement provision for the purposes of this section (either generally or specifically in relation to the Commonwealth provision) | |
| 4 | a provision that is materially amended on or after this Act commenced if the amendment was enacted before this Act commenced | (a) the State provision as amended would have operated, immediately beforethis Act commenced, despite the provision of: | |
| (i) the Corporations Law of the State or Territory (as in force at that time); or
(ii) the ASC or ASIC Law of the State or Territory (as in force at that time); |
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| that corresponds to the Commonwealth provision if the amendment had commenced before the commencement of this Act; and | |||
| (b) the State provision is not declared to be one that this section does not apply to (either generally or specifically in relation to the Commonwealth provision) by: | |||
| (i) regulations made under this Act; or
(ii) a law of the State or Territory. |
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| 5 | a provision that is materially amended on or after this Act commenced if the amendment is enacted on or after this Act commenced | the State provision as amended is declared by a law of the State or Territory to be a Corporations legislation displacement provision for the purposes of this section (either generally or specifically in relation to the Commonwealth provision) |
Note 1: Item 1 - subsection (12) tells you when a provision is a pre-commencement (commenced) provision.
Note 2: Item 1 paragraph (a) - For example, a State or Territory provision enacted after the commencement of the Corporations Law might not have operated despite the Corporations Law if it was not expressly provided that the provision was to operate despite a specified provision, or despite any provision, of the Corporations Law (see, for example, section 5 of the Corporations (New South Wales) Act 1990).
Note 3: Item 2 - subsection (13) tells you when a provision is a pre-commencement (enacted) provision.
Note 4: Item 3 - subsection (14) tells you when a provision is a post-commencement provision.
Note 5: Subsections (15) to (17) tell you when a provision is materially amended after commencement.
State and Territory laws specifically authorising or requiring act or thing to be done
5G(4)
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.
Instructions given to directors under State and Territory laws
5G(5)
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) without limiting subsection (4):
(i) prohibit a director from complying with the instruction or direction; or
(ii) impose a liability (whether civil or criminal) on a director for complying with the instruction or direction.
The person is not taken to be a director of a company or body for the purposes of the Corporations legislation merely because the directors of the company or body are accustomed to act in accordance with the person's instructions.
Use of names authorised by State and Territory laws
5G(6)
The provisions of Part 2B.6 and Part 5B.3 of this Act 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.
Meetings held in accordance with requirements of State and Territory laws
5G(7)
The provisions of Chapter 2G of this Act do not apply to the calling or conduct of a meeting of a company to the extent to which the meeting is called or conducted in accordance with a provision of a law of a State or Territory. Any resolutions passed at the meeting are as valid as if the meeting had been called and conducted in accordance with this Act.
External administration under State and Territory laws
5G(8)
The provisions of Chapter 5 of this 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.
State and Territory laws dealing with company constitutions
5G(9)
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 this Act are not complied with in relation to the provision.
5G(10)
If a provision of a law of a State or Territory provides that additional requirements must be met for an alteration of a company's constitution to take effect, the alteration does not take effect unless those requirements are met.
Other cases
5G(11)
A provision of the Corporations legislation does not operate in a State or Territory to the extent necessary to ensure that no inconsistency arises between:
(a) the provision of the Corporations legislation; and
(b) a provision of a law of the State or Territory that would, but for this subsection, be inconsistent with the provision of the Corporations legislation.
Note 1: A provision of the State or Territory law is not covered by this subsection if one of the earlier subsections in this section applies to the provision: if one of those subsections applies there would be no potential inconsistency to be dealt with by this subsection.
Note 2: The operation of the provision of the State or Territory law will be supported by section 5E to the extent to which it can operate concurrently with the provision of the Corporations legislation.
Pre-commencement (commenced) provision
5G(12)
A provision of a law of a State or Territory is a pre-commencement (commenced) provision if it:
(a) is enacted, and comes into force, before the commencement of this Act; and
(b) is not a provision that has been materially amended after commencement (see subsections (15) to (17)).
Pre-commencement (enacted) provision
5G(13)
A provision of a law of a State or Territory is a pre-commencement (enacted) provision if it:
(a) is enacted before, but comes into force on or after, the commencement of this Act; and
(b) is not a provision that has been materially amended after commencement (see subsections (15) to (17)).
Post-commencement provision
5G(14)
A provision of a law of a State or Territory is a post-commencement provision if it:
(a) is enacted, and comes into force, on or after the commencement of this Act; and
(b) is not a provision that has been materially amended after commencement (see subsections (15) to (17)).
Provision materially amended after commencement
5G(15)
A provision of a law of a State or Territory is materially amended after commencement if:
(a) an amendment of the provision commences on or after the commencement of this Act; and
(b) neither subsection (16) nor subsection (17) applies to the amendment.
5G(16)
A provision of a law of a State or Territory is not materially amended after commencement under subsection (15) if the amendment merely:
(a) changes:
(i) a reference to the Corporations Law or the ASC or ASIC Law, or the Corporations Law or the ASC or ASIC Law of a State or Territory, to a reference to the Corporations Act or the ASIC Act; or
(ii) a reference to a provision of the Corporations Law or the ASC or ASIC Law, or the Corporations Law or ASC or ASIC Law of a State or Territory, to a reference to a provision of the Corporations Act or the ASIC Act; or
(iii) a penalty for a contravention of a provision of a law of a State or Territory; or
(iv) a reference to a particular person or body to a reference to another person or body; or
(b) adds a condition that must be met before a right is conferred, an obligation imposed or a power conferred; or
(c) adds criteria to be taken into account before a power is exercised; or
(d) amends the provision in [ sic ] way declared by the regulations to not constitute a material amendment for the purposes of this subsection.
5G(17)
A provision of a law of a State or Territory is not materially amended after commencement under subsection (15) if:
(a) the provision as amended would be inconsistent with a provision of the Corporations legislation but for this section; and
(b) the amendment would not materially reduce the range of persons, acts and circumstances to which the provision of the Corporations legislation applies if this section applied to the provision of the State or Territory law as amended.
SECTION 5H REGISTRATION OF BODY AS COMPANY ON BASIS OF STATE OR TERRITORY LAW 5H(1)
A body is taken to be registered under this Act as a company of a particular type under section 118 if a law of a State or Territory in this jurisdiction: (a) provides that the body is a deemed registration company for the purposes of this section; and (b) specifies:
(i) the day on which the body is to be taken to be registered (the registration day ) or the manner in which that day is to be fixed; and
(ii) the type of company the body is to be registered as under this Act;
(iii) the company ' s proposed name (unless the ACN is to be used in its name);
and subsections (2) and (3) are satisfied.
5H(2)
A notice setting out the following details must be lodged before the registration day: (a) the name and address of each person who is to be a member on registration; (b) the present given and family name, all former given and family names and the date and place of birth of each person who is to be a director on registration; (c) the present given and family name, all former given and family names and the date and place of birth of each person who consents in writing to become a company secretary; (d) the address of each person who is to be a director or company secretary on registration; (e) the address of the company ' s proposed registered office; (f) for a public company - the proposed opening hours of its registered office (if they are not the standard opening hours); (g) the address of the company ' s proposed principal place of business (if it is not the address of the proposed registered office); (h) for a company limited by sharesor an unlimited company - the following:
(i) the number and class of shares each member agrees in writing to take up;
(ii) the amount (if any) each member agrees in writing to pay for each share;
(i) for a public company that is limited by shares or is an unlimited company, if shares will be issued for non-cash consideration - the prescribed particulars about the issue of the shares, unless the shares will be issued under a written contract and a copy of the contract is lodged with the application; (j) for a company limited by guarantee - the proposed amount of the guarantee that each member agrees to in writing.
(iii) if that amount is not to be paid in full on registration - the amount (if any) each member agrees in writing to be unpaid on each share;
[ CCH Note: S 5H(2) will be substituted by No 69 of 2020, s 3, Sch 1 [ 360] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 5H(2) will read:
5H(2)
A notice must be lodged with the Registrar before the registration day. The notice must meet any requirements of the data standards.]
5H(3)
If the company: (a) is to be a public company; and (b) is to have a constitution on registration;
a copy of the constitution must be lodged before the registration day.
[ CCH Note: S 5H(3) will be amended by No 69 of 2020, s 3, Sch 1 [ 361], by inserting " with the Registrar " after " lodged " , (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
5H(4)
On the registration day, the body is taken: (a) to be registered as a company under this Act; and (b) to be registered in the State or Territory referred to in subsection (1).
5H(5)
The regulations may modify the operation of this Act to facilitate the registration of the company.
5H(6)
Without limiting subsection (5) , the regulations may make provision in relation to: (a) the share capital of the company on registration; and (b) the issue of a certificate of registration on the basis of the company ' s registration.
SECTION 5I REGULATIONS MAY MODIFY OPERATION OF THE CORPORATIONS LEGISLATION TO DEAL WITH INTERACTION BETWEEN THAT LEGISLATION AND STATE AND TERRITORY LAWS 5I(1) [ Regulations]
The regulations may modify the operation of the Corporations legislation so that:
(a) provisions of the Corporations legislation do not apply to a matter that is dealt with by a law of a State or Territory specified in the regulations; or
(b) no inconsistency arises between the operation of a provision of the Corporations legislation and the operation of a provision of a State or Territory law specified in the regulations. 5I(2) [ Matters which may be prescribed]
Without limiting subsection (1), regulations made for the purposes of that subsection may provide that the provision of the Corporations legislation:
(a) does not apply to:
(i) a person specified in the regulations; or
(ii) a body specified in the regulations; or
(iii) circumstances specified in the regulations; or
(iv) a person or body specified in the regulations in the circumstances specified in the regulations; or
(b) does not prohibit an act to the extent to which the prohibition would otherwise give rise to an inconsistency with the State or Territory law; or
(c) does not require a person to do an act to the extent to which the requirement would otherwise give rise to an inconsistency with the State or Territory law; or
(d) does not authorise a person to do an act to the extent to which the conferral of that authority on the person would otherwise give rise to an inconsistency with the State or Territory law; or
(e) does not impose an obligation on a person to the extent to which complying with that obligation would require the person to not comply with an obligation imposed on the person under the State or Territory law; or
(f) authorises a person to do something for the purposes of the Corporations legislation that the person:
(i) is authorised to do under the State or Territory law; and
(ii) would not otherwise be authorised to do under the Corporations legislation; or
(g) will be taken to be satisfied if the State or Territory law is satisfied. 5I(3) [ ``matter'']
In this section: