CORPORATIONS ACT 2001 - SECT 5G Avoiding direct inconsistency arising between the Corporations legislation and State and Territory laws

CORPORATIONS ACT 2001 - SECT 5G

Section overrides other provisions of the Corporations legislation

  (1)   This section has effect despite anything else in the Corporations legislation.

Section does not deal with provisions capable of concurrent operation

  (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

  (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:

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

  (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

  (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

  (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

  (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

  (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

  (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.

  (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

  (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

  (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

  (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

  (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

  (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.

  (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 way declared by the regulations to not constitute a material amendment for the purposes of this subsection.

  (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.