Corporations Act 2001
SCHEDULE 4
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TRANSFER OF FINANCIAL INSTITUTIONS AND FRIENDLY SOCIETIES
PART 7
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TRANSITIONAL PROVISIONS
CLAUSE 37
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UNCLAIMED MONEY
37(1)
On and from the transfer date, section 414 applies to a sum or other property that, immediately before the transfer date, is covered by section 414 as applied by:
(a) section 337 of the Financial Institutions Code of a State or Territory; or
(b) section 399 of the Friendly Societies Code of a State or Territory.
37(2)
On and from the transfer date, section 544 applies to an amount of money that, immediately before the transfer date, is covered by section 544 as applied by:
(a) section 342 of the Financial Institutions Code of a State or Territory; or
(b) section 403 of the Friendly Societies Code of a State or Territory.
37(3)
Sections 414 and 544, as applied by this clause, apply as if:
(a) references to Part 9.7 were references to the unclaimed money law of the State or Territory; and
(b) references to the Commission or ASIC were references to the Minister administering the unclaimed money law of the State or Territory.
37(4)
In this clause:
(a) the Unclaimed Money Act 1995 of New South Wales; or
(b) the Unclaimed Moneys Act 1962 of Victoria; or
(c) Part 8 of the Public Trustee Act 1978 of Queensland; or
(d) the Unclaimed Money Act 1990 of Western Australia; or
(e) the Unclaimed Moneys Act 1891 of South Australia; or
(f) the Unclaimed Moneys Act 1918 of Tasmania; or
(g) the Unclaimed Moneys Act 1950 of the Australian Capital Territory; or
(h) the Companies (Unclaimed Assets and Moneys) Act 1963 (NT).
CLAUSE 38 - MODIFICATION BY REGULATIONS 38(1)
The regulations may modify the operation of this Act (including the provisions applied by clause 36) in relation to:
(a) a company registered under clause 3; or
(b) a company that is permitted to use the expression building society , credit union or credit society under section 66 of the Banking Act 1959 ; or
(c) a company that is a friendly society for the purposes of the Life Insurance Act 1995 ; or
(d) a specified class of any of those companies.
38(2)
Regulations made for the purposes of this clause may only modify this Act in relation to the following matters:
(a) issuing, cancelling or redeeming membership shares or redeemable preference shares;
(b) inspection of the register of members required by section 169;
(c) giving notice of a meeting of a company ' s members;
(d) members ' rights to request the directors to hold a general meeting or to move a resolution at a general meeting;
(e) issuing share certificates for membership shares or redeemable preference shares, or numbering those shares;
(f) the publication of the names and addresses of members in the annual return;
(g) the report to members required by section 314;
(h) disposing of securities in a company if the whereabouts of the holder of the securities is unknown as described in section 1343;
(i) the treatment of members who hold shares jointly or who have jointly given a guarantee;
(j) selective buy-backs.
38(2A)
Without limiting paragraph (2)(c) , regulations made under this clause may provide for ASIC to make, by legislative instrument, a determination relating to manners in which notice mentioned in that paragraph may be published.
38(3)
Regulations made for the purposes of this clause may not:
(a) create an offence with a penalty greater than 10 penalty units; or
(b) increase the penalty for an existing offence; or
(c) substitute for an existing offence an offence with a penalty greater than the penalty for the existing offence; or
(d) modify an obligation, contravention of which will result in committing an offence, so as to make it more difficult to comply with.
CLAUSE 39 - REGULATIONS MAY DEAL WITH TRANSITIONAL, SAVING OR APPLICATION MATTERS 39(1)
The regulations may deal with matters of a transitional, saving or application nature relating to:
(a) the transfer of the registration of transferring financial institutions to this Act; or
(b) the amendments made by Schedule 3 to the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 .
39(2)
Without limiting subclause (1), the regulations may provide for a matter to be dealt with, wholly or partly, in any of the following ways:
(a) by applying (with or without modifications) to the matter:
(b) by otherwise specifying rules for dealing with the matter;
(c) by specifying a particular consequence of the matter, or of an outcome of the matter, for the purposes of this Act.
39(3)
Without limiting subclause (1) or (2), the regulations may provide for the continued effect, for the purposes of this Act, of a thing done or instrument made, or a class of things done or instruments made, before the transfer date under or for the purposes of a provision of a previous governing Code of a transferring financial institution of a State or Territory. In the case of an instrument, or class of instruments, the regulations may provide for the instrument or instruments to continue to have effect subject to modifications.
39(4)
Without limiting subclause (3), regulations providing for the continued effect of things done or instruments made may permit all or any of the following matters to be determined in writing by a specified person, or by a person in a specified class of persons:
(a) the identification of a thing done or instrument made, or a class of them, that is to continue to have effect;
(b) the purpose for which a thing done or instrument made, or a class of them, is to continue to have effect;
(c) any modifications subject to which an instrument made, or a class of instruments made, is to continue to have effect.
39(5)
Without limiting subclause (1) or (2), the regulations may provide for the application of Chapter 5 of this Act or a similar law about external administration (in whole or in part and with or without modification) to a transferring financial institution of a State or Territory if, immediately before the transfer date:
(a) the institution is under external administration (however described); and
(b) the provisions of Chapter 5 are not already applied to it, or in relation to it, by a law of the State or Territory.
39(6)
In this clause, a reference to a law , whether of the Commonwealth or of a State or Territory, includes a reference to an instrument made under such a law.
Note: See section 1465A .
[ CCH Note: The reference to " section 1465A " is a reference to the former Corporations Law.]
On and from the transfer date, section 414 applies to a sum or other property that, immediately before the transfer date, is covered by section 414 as applied by:
(a) section 337 of the Financial Institutions Code of a State or Territory; or
(b) section 399 of the Friendly Societies Code of a State or Territory.
37(2)
On and from the transfer date, section 544 applies to an amount of money that, immediately before the transfer date, is covered by section 544 as applied by:
(a) section 342 of the Financial Institutions Code of a State or Territory; or
(b) section 403 of the Friendly Societies Code of a State or Territory.
37(3)
Sections 414 and 544, as applied by this clause, apply as if:
(a) references to Part 9.7 were references to the unclaimed money law of the State or Territory; and
(b) references to the Commission or ASIC were references to the Minister administering the unclaimed money law of the State or Territory.
37(4)
In this clause:
(a) the Unclaimed Money Act 1995 of New South Wales; or
(b) the Unclaimed Moneys Act 1962 of Victoria; or
(c) Part 8 of the Public Trustee Act 1978 of Queensland; or
(d) the Unclaimed Money Act 1990 of Western Australia; or
(e) the Unclaimed Moneys Act 1891 of South Australia; or
(f) the Unclaimed Moneys Act 1918 of Tasmania; or
(g) the Unclaimed Moneys Act 1950 of the Australian Capital Territory; or
(h) the Companies (Unclaimed Assets and Moneys) Act 1963 (NT).
View history note
Hide history noteCLAUSE 38 - MODIFICATION BY REGULATIONS 38(1)
The regulations may modify the operation of this Act (including the provisions applied by clause 36) in relation to:
(a) a company registered under clause 3; or
(b) a company that is permitted to use the expression building society , credit union or credit society under section 66 of the Banking Act 1959 ; or
(c) a company that is a friendly society for the purposes of the Life Insurance Act 1995 ; or
(d) a specified class of any of those companies.
38(2)
Regulations made for the purposes of this clause may only modify this Act in relation to the following matters:
(a) issuing, cancelling or redeeming membership shares or redeemable preference shares;
(b) inspection of the register of members required by section 169;
(c) giving notice of a meeting of a company ' s members;
(d) members ' rights to request the directors to hold a general meeting or to move a resolution at a general meeting;
(e) issuing share certificates for membership shares or redeemable preference shares, or numbering those shares;
(f) the publication of the names and addresses of members in the annual return;
(g) the report to members required by section 314;
(h) disposing of securities in a company if the whereabouts of the holder of the securities is unknown as described in section 1343;
(i) the treatment of members who hold shares jointly or who have jointly given a guarantee;
(j) selective buy-backs.
38(2A)
Without limiting paragraph (2)(c) , regulations made under this clause may provide for ASIC to make, by legislative instrument, a determination relating to manners in which notice mentioned in that paragraph may be published.
38(3)
Regulations made for the purposes of this clause may not:
(a) create an offence with a penalty greater than 10 penalty units; or
(b) increase the penalty for an existing offence; or
(c) substitute for an existing offence an offence with a penalty greater than the penalty for the existing offence; or
(d) modify an obligation, contravention of which will result in committing an offence, so as to make it more difficult to comply with.
CLAUSE 39 - REGULATIONS MAY DEAL WITH TRANSITIONAL, SAVING OR APPLICATION MATTERS 39(1)
The regulations may deal with matters of a transitional, saving or application nature relating to:
(a) the transfer of the registration of transferring financial institutions to this Act; or
(b) the amendments made by Schedule 3 to the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 .
39(2)
Without limiting subclause (1), the regulations may provide for a matter to be dealt with, wholly or partly, in any of the following ways:
(a) by applying (with or without modifications) to the matter:
(i) provisions of a law of the Commonwealth, or of a State or Territory; or
(ii) provisions of a repealed or amended law of the Commonwealth, or of a State or Territory, in the form that those provisions took before the repeal or amendment; or
(iii) a combination of provisions referred to in subparagraphs (i) and (ii);
(b) by otherwise specifying rules for dealing with the matter;
(c) by specifying a particular consequence of the matter, or of an outcome of the matter, for the purposes of this Act.
39(3)
Without limiting subclause (1) or (2), the regulations may provide for the continued effect, for the purposes of this Act, of a thing done or instrument made, or a class of things done or instruments made, before the transfer date under or for the purposes of a provision of a previous governing Code of a transferring financial institution of a State or Territory. In the case of an instrument, or class of instruments, the regulations may provide for the instrument or instruments to continue to have effect subject to modifications.
39(4)
Without limiting subclause (3), regulations providing for the continued effect of things done or instruments made may permit all or any of the following matters to be determined in writing by a specified person, or by a person in a specified class of persons:
(a) the identification of a thing done or instrument made, or a class of them, that is to continue to have effect;
(b) the purpose for which a thing done or instrument made, or a class of them, is to continue to have effect;
(c) any modifications subject to which an instrument made, or a class of instruments made, is to continue to have effect.
39(5)
Without limiting subclause (1) or (2), the regulations may provide for the application of Chapter 5 of this Act or a similar law about external administration (in whole or in part and with or without modification) to a transferring financial institution of a State or Territory if, immediately before the transfer date:
(a) the institution is under external administration (however described); and
(b) the provisions of Chapter 5 are not already applied to it, or in relation to it, by a law of the State or Territory.
39(6)
In this clause, a reference to a law , whether of the Commonwealth or of a State or Territory, includes a reference to an instrument made under such a law.