Corporations Act 2001
View history note
Hide history noteIn this Part:
amending Act
means the
Territories Legislation Amendment Act 2020
.
commencement
means the commencement of Division 1 of Part 1 of Schedule 2 to the amending Act.
commencement day
means the day on which commencement occurs.
eligible
: a corporation is
eligible
for registration as a company under Part
5B.1
of this Act if:
(a) it is a registered company under the Norfolk Island Companies Act, other than a foreign company registered under Part 25 of that Act; and
(b) the corporation is not a Chapter 5 body corporate; and
(c) no application to wind up the corporation has been made to the Supreme Court of Norfolk Island that has not been dealt with; and
(d) 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.
Norfolk Island Companies Act
means the
Companies Act 1985
of Norfolk Island.
personal information
has the same meaning as in the
Privacy Act 1988
.
Scope of section
1678A(1)
This section applies to a corporation that is eligible for registration as a company under Part 5B.1 .
Registration
1678A(2)
ASIC must register the corporation as a company under Part 5B.1 on the commencement day, as if it had received an application for registration from the corporation in accordance with section 601BC .
1678A(3)
ASIC must register the corporation: (a) as a type of company corresponding to whichever of the types covered by subsection (4) corresponds to its type under the Norfolk Island Companies Act immediately before commencement; and (b) with the same characteristics and attributes as the corporation had immediately before commencement.
Note: Most eligible corporations will retain the same name, registered office, directors and members. However, for whether the corporation retains the same name and directors, see subsections 1678B(4) and (8) .
1678A(4)
This subsection covers the following types of company: (a) a proprietary company limited by shares; (b) an unlimited proprietary company; (c) a proprietary company limited both by shares and by guarantee; (d) a public company limited by shares; (e) an unlimited public company; (f) a company limited by guarantee; (g) a public company limited both by shares and by guarantee; (h) a no liability company.
Note: This list includes some types of company not covered by subsection 601BA(1) .
1678A(5)
However, the corporation must not be registered if, immediately before commencement, it is no longer eligible for registration as a company under Part 5B.1 .
Note: The corporation is no longer eligible for registration if it has ceased to be registered under the Norfolk Island Companies Act, if it has started to be a Chapter 5B body corporate or if an application for winding up or to approve a compromise or arrangement had been made to the Supreme Court of Norfolk Island.
References to companies in this and other laws
1678A(6)
On and after commencement, in this and any other Act, and any instrument under an Act, a reference to a company registered under a Territory law, or under a law of Norfolk Island, is taken not to include a reference to a corporation registered as a company under Part 5B.1 for the purposes of this section.
Scope
1678B(1)
This section applies to an eligible corporation that is registered as a company under Part 5B.1 for the purposes of section 1678A .
1678B(2)
ASIC must comply with subsections (3) and (4) of this section to the extent practicable, having regard to any information disclosed under section 1678C .
Registration process
1678B(3)
On the registration of the company, ASIC must: (a) give the company an ACN; and (b) issue a certificate that states:
(i) the company ' s name (see subsection (4) of this section); and
(ii) the company ' s ACN; and
(iii) the company ' s type (see subsection 1678A(4) ); and
(iv) that the company is registered as a company under this Act; and
(v) that the company is taken to be registered in Norfolk Island; and
(vi) the date of the company ' s registration.
Note: The date of the company ' s registration is the commencement day (see subsection 1678A(2) ).
Company name
1678B(4)
Despite section 601BF , ASIC must register the company with a name consisting of: (a) either:
(i) the corporation ' s name immediately before commencement; or
(b) the words required by subsection 148(2) or (3) .
(ii) if that name is prescribed by regulations made for the purposes of paragraph 147(1)(c) as unacceptable for registration - a name that consists of the expression " Australian Company Number " followed by the company ' s ACN; and
1678B(5)
If the company is registered with a name that is identical or nearly identical to a name that is reserved or registered for another body or entity under an Act covered by subsection (6) , the company ' s registration with that name does not affect the availability of the name to the company or to the other body or entity under such an Act, despite any provision of such an Act to the contrary.
1678B(6)
The Acts covered by this subsection are: (a) this Act; and (b) the Business Names Registration Act 2011 ; and (c) the Business Names Registration (Transitional and Consequential Provisions) Act 2011 .
Company constitution
1678B(7)
The company ' s constitution on registration is the memorandum and articles of association of the corporation as in force immediately before commencement.
Note: Section 601BG (which deals with the constitutions of companies registered under Part 5B.1 ) does not apply to the company. But within 3 months after the date of registration, the company must modify its constitution to give effect to Part 5B.1 (see section 601BH ).
Company directors
1678B(8)
If, immediately before commencement, a person who is a director of the corporation does not meet the requirements of section 201B , that person does not become a director of the company on its registration.
For the purposes of ASIC performing functions or duties, or exercising powers, under this Part, or any rules made under section 1678D : (a) the Registrar of Companies under the Norfolk Island Companies Act (the Norfolk Island Registrar ) may disclose to ASIC information (including personal information) obtained for the purposes of that Act; and (b) ASIC may record or use information disclosed under paragraph (a); and (c) ASIC may disclose to the Norfolk Island Registrar information (including personal information) obtained for the purposes of this Act; and (d) the Norfolk Island Registrar may record or use information disclosed under paragraph (c).
1678C(2)
In addition, for the purposes mentioned in subsection (1): (a) ASIC may, by written notice given to an eligible corporation, request the corporation to provide specified information (including personal information) in relation to the registration of the corporation as a company under Part 5B.1 ; and (b) the eligible corporation may disclose the requested information to ASIC; and (c) ASIC may record or use information disclosed under paragraph (b).
Note: This section constitutes an authorisation for the purposes of the Privacy Act 1988 and other laws (including the common law).
(Repealed) SECTION 1678E SAVING OF RULES IN RELATION TO PARTICULAR CORPORATIONS 1678E(1)
Despite the repeal of section 1678D by subsection (5) of that section, a rule of the kind mentioned in paragraph 1678D(2)(b) continues in force until the earlier of the following times: (a) the end of the period specified under subsection 1678D(3) for the rule; (b) when the rule is repealed under subsection (2).
Note: Paragraph 1678D(2)(b) provides that ASIC may make rules under subsection 1678D(1) in relation to the registration of a particular corporation or corporations.
1678E(2)
A rule of the kind mentioned in paragraph 1678D(2)(b) may, under this subsection, be repealed before the end of the period specified under subsection 1678D(3) .
Scope
1678F(1)
This section applies if commencement (within the meaning of this Part) occurs on or after the application day within the meaning of subsection 1653(1) .
1678F(2)
This section applies in relation to a person who: (a) is not an eligible officer immediately before commencement; and (b) becomes an eligible officer because of the registration of a company under Part 5B.1 for the purposes of section 1678A (which deals with the registration of former Norfolk Island companies).
Note: When such a company is registered, the former directors of the Norfolk Island company generally become directors of the registered company (see subsection 1678A(3) ). Such a director is an eligible officer (see section 1272B ).
Transitional application period for Norfolk Island company directors to apply for director identification numbers
1678F(3)
If a period (the transitional application period ) is specified under subsection (5) of this section, section 1272C applies to the person as if: (a) the reference in subparagraph 1272C(2)(a)(ii) to an application period specified by regulations were instead a reference to the transitional application period; and (b) the reference in subparagraph 1272C(2)(a)(ii) to the start of the application period specified by regulations were instead a reference to when the transitional application period came into effect; and (c) the reference in subparagraph 1272C(2)(a)(iii) to the start of a longer period (if any) allowed by the Registrar under section 1272E were instead a reference to when the transitional application period came into effect.
Note: Section 1272C requires an eligible officer to have a director identification number, but allows a certain time (an application period) within which an application can be made for a director identification number.
1678F(4)
Until a transitional application period comes into effect, section 1272C does not apply to the person.
1678F(5)
The Minister may, by legislative instrument, specify a transitional application period for the purposes of subsection (3).
1678F(6)
Subsection 1653(4) does not apply to the person.
Note: Subsection 1653(4) applies a default period of 28 days under section 1272C within which an application can be made for a director identification number.