Commonwealth Numbered Acts Commonwealth Numbered Acts
Contents
1 Short title etc.
2 Commencement
3 Schedules
Schedule 1--Main amendments of the Corporations Law
1 Part 1.5, the heading to Chapter 2 and Parts 2.1, 2.2, 2.3 and 2.4
Part 1.5--Small business guide
1 What registration means
2 The company structure for small business
3 Setting up a new company
4 Continuing obligations after the company is set up
5 Company directors and company secretaries
6 Shares and shareholders
7 Signing company documents
8 Funding the company's operations
9 Returns to shareholders
10 Annual financial reports and audit
11 Disagreements within the company
12 Companies in financial trouble
Chapter 2A--Registering a company
Part 2A.1--What companies can be registered
112 Types of companies
113 Proprietary companies
114 Minimum of 1 member
115 Restrictions on size of partnerships and associations
116 Trade unions cannot be registered
Part 2A.2--How a company is registered
117 Applying for registration
118 ASC gives company ACN, registers company and issues certificate
119 Company comes into existence on registration
120 Members, directors and company secretary of a company
121 Registered office
122 Expenses incurred in promoting and setting up company
123 Company may have common seal
Chapter 2B--Basic features of a company
Part 2B.1--Company powers and how they are exercised
124 Legal capacity and powers of a company
125 Constitution may limit powers and set out objects
126 Agent exercising a company's power to make contracts
127 Execution of documents (including deeds) by the company itself
Part 2B.2--Assumptions people dealing with companies are entitled to make
128 Entitlement to make assumptions
129 Assumptions that can be made under section 128
130 Information available to the public from the ASC does not constitute constructive notice
Part 2B.3--Contracts before registration
131 Contracts before registration
132 Person may be released from liability but is not entitled to indemnity
133 This Part replaces other rights and liabilities
Part 2B.4--Replaceable rules and constitution
134 Internal management of companies
135 Replaceable rules
136 Constitution of a company
137 Date of effect of adoption, modification or repeal of constitution
138 ASC may direct company to lodge consolidated constitution
139 Company must send copy of constitution to member
140 Effect of constitution and replaceable rules
141 Table of replaceable rules
Part 2B.5--Registered office and places of business
142 Registered office
143 ASC may change address of registered office to a director's address
144 Company's name must be displayed at registered office etc.
145 Opening hours of registered office of public company
146 Change of address of principal place of business
Part 2B.6--Names
Division 1--Selecting and using a name
147 When a name is available
148 A company's name
149 Acceptable abbreviations
150 Exception to requirement for using "Limited" in name
151 Exception to requirement for using "Limited" in name-- pre-existing licences
152 Reserving a name
153 Using a name and ACN on documents
154 Exception to requirement to have ACN on receipts
155 Regulations may exempt from requirement to set out information on documents
156 Carrying on business using "Limited", "No Liability" or "Proprietary" in name
Division 2--Changing a company's name
157 Company changing its name
158 ASC's power to direct company to change its name
159 ASC's power to include "Limited" in company's name
160 ASC must issue new certificate if company's name changes
161 Effect of name change
Part 2B.7 Changing company type
162 Changing company type
163 Applying for change of type
164 ASC changes type of company
165 ASC may direct a proprietary company to change to a public company in certain circumstances
166 Effect of change of type
167 Issue of shares by company or holding company--company limited by guarantee changing to company limited by shares
2 Part 3.1
3 Part 3.3
4 Before Part 3.5
Chapter 2F--Members' rights and remedies
246A Membership of a company
Part 2F.1--Oppression
Part 2F.2--Class rights
246B Varying and cancelling class rights
246C Certain actions taken to vary rights etc.
246D Variation, cancellation or modification without unanimous support of class
246E Variation, cancellation or modification with unanimous support of class
246F Company must lodge documents and resolutions with the ASC
246G Member's copies of documents and resolutions
Part 2F.3--Inspection of books
247A Order for inspection of books of company or registered managed investment scheme
247B Ancillary orders
247C Disclosure of information acquired in inspection
247D Company or directors may allow member to inspect books (replaceable rule see section 135)
Chapter 2G--Meetings
Part 2G.1--Directors' meetings
Division 1--Resolutions and declarations without meetings
248A Circulating resolutions of companies with more than 1 director (replaceable rule see section 135)
248B Resolutions and declarations of 1 director proprietary companies
Division 2--Directors' meetings
248C Calling directors' meetings (replaceable rule see section 135)
248D Use of technology
248E Chairing directors' meetings (replaceable rule see section 135)
248F Quorum at directors' meetings (replaceable rule see section 135)
248G Passing of directors' resolutions (replaceable rule see section 135)
Part 2G.2--Meetings of members of companies
Division 1--Resolutions without meetings
249A Circulating resolutions of proprietary companies with more than 1 member
249B Resolutions of 1 member companies
Division 2--Who may call meetings of members
249C Calling of meetings of members by a director (replaceable rule--see section 135)
249CA Calling of meetings of members of a listed company by a director
249D Calling of general meeting by directors when requested by members
249E Failure of directors to call general meeting
249F Calling of general meetings by members
249G Calling of meetings of members by the Court
Division 3--How to call meetings of members
249H Amount of notice of meetings
249HA Amount of notice of meetings of listed company 85
249J Notice of meetings of members to members and directors
249K Auditor entitled to notice and other communications
249L Contents of notice of meetings of members
249M Notice of adjourned meetings (replaceable rule--see section 135)
Division 4--Members' rights to put resolutions etc. at general meetings
249N Members' resolutions
249O Company giving notice of members' resolutions
249P Members' statements to be distributed
Division 5--Holding meetings of members
249Q Purpose
249R Time and place for meetings of members
249S Technology
249T Quorum (replaceable rule--see section 135)
249U Chairing meetings of members (replaceable rule--see section 135)
249V Auditor's right to be heard at general meetings
249W Adjourned meetings
Division 6--Proxies and body corporate representatives
249X Who can appoint a proxy (replaceable rule for proprietary companies and mandatory rule for public companies--see section 135)
249Y Rights of proxies
249Z Company sending appointment forms or lists of proxies must send to all members
250A Appointing a proxy
250B Proxy documents
250BA Proxy documents--listed companies
250C Validity of proxy vote
250D Body corporate representative
Division 7--Voting at meetings of members
250E How many votes a member has (replaceable rule--see section 135)
250F Jointly held shares (replaceable rule--see section 135)
250G Objections to right to vote (replaceable rule--see section 135)
250H Votes need not all be cast in the same way
250J How voting is carried out (replaceable rule--see section 135)
250K Matters on which a poll may be demanded
250L When a poll is effectively demanded
250M When and how polls must be taken (replaceable rule--see section 135)
Division 8--AGMs of public companies
250N Public company must hold AGM
250P Extension of time for holding AGM
250R Business of AGM
250S Questions and comments by members on company management at AGM
250T Questions by members of auditors at AGM
Part 2G.3--Minutes and members' access to minutes
251A Minutes
251AA Disclosure of proxy votes--listed companies
251B Members' access to minutes
Part 2G.4--Meetings of members of registered managed investment schemes
Division 1--Who may call meetings of members
252A Calling of meetings of members by responsible entity
252B Calling of meetings of members by responsible entity when requested by members
252C Failure of responsible entity to call meeting of the scheme's members
252D Calling of meetings of members by members
252E Calling of meetings of members by the Court
Division 2--How to call meetings of members
252F Amount of notice of meetings
252G Notice of meetings of members to members, directors and auditors
252H Auditors entitled to other communications
252J Contents of notice of meetings of members
252K Notice of adjourned meetings
Division 3--Members' rights to put resolutions etc. at meetings of members
252L Members' resolutions
252M Responsible entity giving notice of members' resolutions
252N Members' statements to be distributed
Division 4--Holding meetings of members
252P Time and place for meetings of members
252Q Technology
252R Quorum
252S Chairing meetings of members
252T Auditors' right to be heard at meetings of members
252U Adjourned meetings
Division 5--Proxies and body corporate representatives
252V Who can appoint a proxy
252W Rights of proxies
252X Responsible entity sending appointment forms or lists of proxies must send to all members
252Y Appointing a proxy
252Z Proxy documents
253A Validity of proxy vote
253B Body corporate representative
Division 6--Voting at meetings of members
253C How many votes a member has
253D Jointly held interests
253E Responsible entity and associates cannot vote if interested in resolution
253F How to work out the value of an interest
253G Objections to a right to vote
253H Votes need not all be cast in the same way
253J How voting is carried out
253K Matters on which a poll may be demanded
253L When a poll is effectively demanded
Division 7--Minutes and members' access to minutes
253M Minutes
253N Members' access to minutes
Chapter 2H--Shares
254AA Shares to have nominal value
Part 2H.1--Issuing and converting shares
254A Power to issue bonus, partly-paid, preference and redeemable preference shares
254B Terms of issue
254CA Nominal value of shares issued after registration
254CB Share premium
254CC Issue of shares at a discount
254D Pre-emption for existing shareholders on issue of shares in proprietary company (replaceable rule--see section 135)
254E Court validation of issue
254F Bearer shares and stock must not be issued
254G Conversion of shares
254H Resolution to convert shares into larger or smaller number
Part 2H.2--Redemption of redeemable preference shares
254J Redemption must be in accordance with terms of issue
254K Other requirements about redemption
254L Consequences of contravening section 254J or 254K
Part 2H.3--Partly-paid shares
254M Liability on partly-paid shares
254N Calls may be limited to when company is externally-administered
254P No liability companies--calls on shares
254Q No liability companies--forfeiture and sale of shares for failure to meet call
254R No liability companies--redemption of forfeited shares
Part 2H.4--Capitalisation of profits
254S Capitalisation of profits (replaceable rule--see section 135)
Part 2H.5--Dividends
254T Dividends to be paid out of profits
254U Other provisions about paying dividends (replaceable rule--see section 135)
254V When does the company incur a debt?
254W Dividend rights
Part 2H.6--Notice requirements
254X Notice to ASC of share issue
254Y Notice to ASC of share cancellation
Chapter 2J--Transactions affecting share capital
Part 2J.1--Share capital reductions and share buy-backs
Division 1--Reductions in share capital not otherwise authorised by law
256A Reductions in share capital
256B Court order confirming the reduction
256C The creditor protection test
256D Putting the capital reduction into effect
256E Effect of reduction of share capital on members and former members
256F Consequences of failing to comply with section 256A
Division 2--Share buy-backs
257AA Purpose
257A The company's power to buy back its own shares
257B Buy-back procedure--general
257C Buy-back procedure--shareholder approval if the 10/12 limit exceeded
257D Buy-back procedure--special shareholder approval for selective buy-back
257E Buy-back procedure--lodgment of offer documents with the ASC
257F Notice of intended buy-back
257G Buy-back procedure--disclosure of relevant information when offer made
257H Acceptance of offer and transfer of shares to the company
257J Signposts to other relevant provisions
Division 3--Other share capital reductions
258A Unlimited companies
258B Right to occupy or use real property
258C Brokerage or commission
258D Cancellation of forfeited shares
258E Other authorised reductions
258F Reductions because of lost capital
Part 2J.2--Self-acquisition and control of shares
259A Directly acquiring own shares
259B Taking security over own shares or shares in holding company
259C Issuing or transferring shares to controlled entity
259D Company controlling entity that holds shares in it
259E When a company controls an entity
259F Consequences of failing to comply with section 259A or 259B
Part 2J.3--Financial assistance
260A Financial assistance by a company for acquiring shares in the company or a holding company
260B Shareholder approval
260C Exempted financial assistance
260D Consequences of failing to comply with section 260A
Part 2J.4--Interaction with general directors' duties
260E General duties still apply
5 Part 3.6
Chapter 2M--Financial reports and audit
Part 2M.1--Overview
285 Overview of obligations under this Chapter
Part 2M.2--Financial records
286 Obligation to keep financial records
287 Language requirements
288 Physical format
289 Place where records are kept
290 Director access
291 Signposts to other relevant provisions
Part 2M.3--Financial reporting
Division 1--Annual financial reports and directors' reports
292 Who has to prepare annual financial reports and directors' reports
293 Small proprietary company--shareholder direction
294 Small proprietary company--ASC direction
295 Contents of annual financial report
296 Compliance with accounting standards and regulations
297 True and fair view
298 Annual directors' report
299 Annual directors' report--general information
300 Annual directors' report--specific information
300A Annual directors' report--specific information to be provided by listed companies 193
301 Audit of annual financial report
Division 2--Half-year financial report and directors' report
302 Disclosing entity must prepare half-year financial report and directors' report
303 Contents of half-year financial report
304 Compliance with accounting standards and regulations
305 True and fair view
306 Half-year directors' report
Division 3--Audit and auditor's report
307 Audit
308 Auditor's report on annual financial report
309 Auditor's report on half-year financial report
310 Auditor's power to obtain information
311 Reporting to ASC
312 Assisting auditor
313 Special provisions on audit of borrowing corporations and guarantor bodies
Division 4--Annual financial reporting to members
314 Annual financial reporting to members
315 Deadline for reporting to members
316 Member's choices for annual financial information
317 Consideration of reports at AGM
318 Additional reporting by debenture issuers
Division 5--Lodging reports with the ASC
319 Lodgment of annual reports with the ASC
320 Lodgment of half-year reports with the ASC
321 ASC power to require lodgment
322 Relodgment if financial statements or directors' reports amended after lodgment
Division 6--Special provisions about consolidated financial statements
323 Directors and officers of controlled entity to give information
323A Auditor's power to obtain information from controlled entity
323B Controlled entity to assist auditor
323C Application of Division to entity that has ceased to be controlled
Division 7--Financial years and half-years
323D Financial years and half-years
Division 8--Disclosure by listed companies of information filed overseas 210
323DA Listed companies to disclose information filed overseas 210
6 Divisions 2 and 3 of Part 3.7 and Part 3.8
Part 2M.5--Accounting standards
334 Accounting standards
335 Equity accounting
336 Comparative amounts
337 Interpretation of accounting standards
338 Severing invalid provisions
339 Evidence of text of accounting standard
Part 2M.6--Exemptions and modifications
340 ASC's power to make specific exemption orders
341 ASC's power to make class orders
342 Criteria for specific exemption orders and class orders
343 Modification by regulations
Part 2M.7--Sanctions for contraventions of Chapter
344 Contravention of Part 2M.2 or 2M.3
Chapter 2N--Annual returns and lodgments with the ASC
Part 2N.1--Annual returns
345 Deadline for lodging annual return
346 Solvency resolution--companies
347 Lodging annual return with ASC
348 Contents of annual return--companies
349 Contents of annual return--registered schemes
Part 2N.2--Lodgments with ASC
350 Forms for documents to be lodged with ASC
351 Signing documents lodged with ASC
352 Documents lodged with ASIC electronically 223
7 Division 4 of Part 4.1 224
8 Parts 4.2, 4.3, 4.4 and 4.5 224
9 After Chapter 5 225
Chapter 5A--Deregistration of companies 225
601AA Deregistration--voluntary 225
601AB Deregistration--ASC initiated 226
601AC Deregistration--following amalgamation or winding up 227
601AD Effect of deregistration 228
601AE What the ASC does with the property 228
601AF ASC's power to fulfil outstanding obligations of deregistered company 230
601AG Claims against insurers of deregistered company 230
601AH Reinstatement 230
Chapter 5B--Bodies corporate registered as companies, and registrable bodies 232
Part 5B.1--Registering a body corporate as a company 232
Division 1--Registration 232
601BA Bodies corporate may be registered as certain types of companies 232
601BB Bodies registered as proprietary companies 233
601BC Applying for registration under this Part 233
601BD ASC gives body ACN, registers as company and issues certificate 236
601BE Registered office 237
601BF Name 237
601BG Constitution 238
601BH Modifications of constitution 238
601BJ ASC may direct company to apply for Court approval for modifications of constitution 238
601BK Establishing registers and minute books 239
601BL Registration of registered bodies 239
Division 2--Operation of the Corporations Law 239
601BM Effect of registration under this Part 239
601BN Liability of members on winding up 240
601BP Bearer shares 240
601BR First AGM 241
601BS Modification by regulations 241
Part 5B.3--Names of registrable Australian bodies and foreign companies 242
601DA Reserving a name 242
601DB Acceptable abbreviations 242
601DC When a name is available 243
601DD Registered Australian bodies and registered foreign companies can carry on business with some names only 244
601DE Using a name and ARBN 244
601DF Exception to requirement to have ARBN on receipts 245
601DG Regulations may exempt from requirement to set out information on documents 245
601DH Notice of name change must be given to the ASC 245
601DJ ASC's power to direct a registered name be changed 246
10 After Part 9.10 247
Chapter 10--National scheme provisions 247
1362A Recognition of companies from other jurisdictions 247
1362B Transfer of registration 247
1362BA Compensation for compulsory acquisition 248
Chapter 11--Application and transitional provisions 249
Part 11.1--Introduction of the Corporations Law 249
1362CA Existing company 249
1362CB Existing company taken to be registered under the Corporations Law 249
1362CC Constitution of existing company 250
1362CD Application of Law to existing companies 250
1362CE Acts preparatory to external administration of existing company 251
1362CF Appointments of receivers 251
1362CG Application of Division 2 of Part 5.6 251
1362CH Reinstatement of companies deregistered before commencement 251
1362CJ Registrable Australian bodies and foreign companies 251
11 After Division 9 of Part 9.11 253
Division 10--Changes resulting from the Company Law Review Act 1998 253
1412 Meaning of commencement , new Law and old Law 253
1413 Registration--existing companies continue to be registered 253
1414 Registration--application orders under subsection 112(3) of the old Law 254
1415 Basic features of a company--memorandum and articles are taken to be constitution 255
1416 Basic features of a company--companies limited both by shares and by guarantee 255
1417 Basic features of a company--acts before external administration of existing company 256
1418 Basic features of a company--registered office 256
1419 Basic features of a company--opening hours of registered office of public company 256
1420 Basic features of a company--name, reservation of name and ACN continues 256
1421 Members' rights and remedies--applications for inspection orders under repealed provisions 257
1422 Meetings--AGM before commencement 257
1423 Meetings--first AGM for companies incorporated before commencement 257
1424 Meetings--general transitional arrangements 258
1425 Nominal value 259
1426 Share capital--calls on partly-paid shares 260
1427 Share capital--provisions in constitution about amount of share capital and division into shares 260
1428 Share capital--conversion of stock into shares 261
1429 Share capital--previous Law continues to apply to capital reductions initiated before commencement 261
1430 Share capital--continued operation of other repealed provisions 262
1431 Financial reports and audit--application of Chapter 2M to periods that end after commencement, and continued application of repealed provisions to past periods 262
1432 Financial reports and audit--lodgment of accounts by public companies that are not disclosing entities 262
1433 Financial reports and audit--continued operation of accounting standards 262
1434 Financial reports and audit--continued operation of exemption orders 263
1435 Annual returns--solvency resolution 264
1436 Annual returns--application of annual return provisions 264
1437 Deregistration--previous Law continues to apply to deregistrations initiated before commencement 265
1438 Deregistration--property vested in ASC under previous laws 265
1439 Deregistration--reinstatement of registration where application under section 571 or subsection 574(3) made before commencement 266
1440 Deregistration--deregistration of companies dissolved under the State Bank (Corporatisation) Act 1994 of South Australia 266
1441 Accounting standards made under section 32 of the Corporations Act 1989 267
1442 References in State laws and other documents 267
Schedule 2--Consequential amendment of the Corporations Law 269
Part 1--Registering a company (new
Chapter 2A)
Basic features of a company (new Chapter 2B)
Members' rights and
remedies (new Chapter 2F) 269
Part 2--Meetings (new Chapter 2G) 299
Part
3--Shares (new Chapter 2H)
Transactions affecting share capital (new Chapter
2J) 307
Part 4--Financial reports and audit (new Chapter 2M) 321
Part 5--Annual returns and ASC lodgments (new Chapter 2N) 339
Part 6--Deregistration of companies (new Chapter 5A) 341
Schedule 3--Amendment of the Corporations Law to relocate provisions and make other structural changes 346
Schedule 4--Consequential amendment of other legislation 367
Australian Securities Commission Act 1989 367
Foreign Acquisitions and Takeovers Act 1975 368
Pooled Development Funds Act 1992 369
Service and Execution of Process Act 1992 371
Schedule 5--Amendments in relation to nominal value and share capital reductions 373
Corporations Law 373
Pooled Development Funds Act 1992 387
No. 61, 1998
An Act to amend the Corporations Law, and for related purposes
[ Assented to 29 June 1998 ]
The Parliament of Australia enacts: