Corporations Act 2001

Part 10.1—Transition from the old corporations legislation

(1) Subject to subsection (3), the object of this Part is to provide for a smooth transition from the regime provided for in the old corporations legislation of the States and Territories in this jurisdiction to the regime provided for in the new corporations legislation, so that individuals, bodies corporate and other bodies are, to the greatest extent possible, put in the same position immediately after the commencement as they would have been if:

(a) that old corporations legislation had, from time to time when it was in force, been valid Commonwealth legislation applying throughout those States and Territories; and

(b) the new corporations legislation (to the extent it contains provisions that correspond to provisions of the old corporations legislation as in force immediately before the commencement) were a continuation of that old corporations legislation as so applying.

Note: The new corporations legislation contains provisions that correspond to most of the provisions of the old corporations legislation. Generally, the only exceptions to this are provisions of the old corporations legislation that related to the fact that the Corporations Law operated separately in each of the States and Territories (rather than as a single national law).

(2) In resolving any ambiguity as to the meaning of any of the other provisions of this Part, an interpretation that is consistent with the object of this Part is to be preferred to an interpretation that is not consistent with that object.

(3) This Part does contain some provisions (for example, subsection 1400(4)) which apply or extend to matters under the old corporations legislation of any non‑referring State.

1371 Definitions

(1) In this Part:

carried over provision of the old corporations legislation of a State or Territory in this jurisdiction means a provision of the old corporations legislation of that State or Territory that:

(a) was in force immediately before the commencement; and

(b) corresponds to a provision of the new corporations legislation.

commencement means the commencement of this Act.

corresponds has a meaning affected by subsections (2), (3) and (4).

instrument means:

(a) any instrument of a legislative character (including an Act or regulations) or of an administrative character; or

(b) any other document.

liability includes a duty or obligation.

made includes issued, given or published.

new corporations legislation means:

(a) this Act; and

(b) the new Corporations Regulations (as amended and in force from time to time) and any other regulations made under this Act; and

(c) the laws of the Commonwealth referred to in paragraph (c) of the definition of old corporations legislation, being those laws as they apply after the commencement; and

(d) the preserved instruments.

new Corporations Regulations means the regulations that, because of section 1380, have effect as if they were made under section 1364.

old application Act for a State or Territory means:

(a) in the case of New South Wales—the Corporations (New South Wales) Act 1990 of New South Wales as in force from time to time before the commencement; or

(b) in the case of Victoria—the Corporations (Victoria) Act 1990 of Victoria as in force from time to time before the commencement; or

(c) in the case of Queensland—the Corporations (Queensland) Act 1990 of Queensland as in force from time to time before the commencement; or

(d) in the case of Western Australia—the Corporations (Western Australia) Act 1990 of Western Australia as in force from time to time before the commencement; or

(e) in the case of South Australia—the Corporations (South Australia) Act 1990 of South Australia as in force from time to time before the commencement; or

(f) in the case of Tasmania—the Corporations (Tasmania) Act 1990 of Tasmania as in force from time to time before the commencement; or

(g) in the case of the Australian Capital Territory—the old Corporations Act; or

(h) in the case of the Northern Territory—the Corporations (Northern Territory) Act 1990 of the Northern Territory as in force from time to time before the commencement.

old Corporations Act means the Corporations Act 1989 as in force from time to time before the commencement.

old Corporations Law means:

(a) when used in relation to a particular State or Territory—the Corporations Law of that State or Territory, within the meaning of the old application Act for that State or Territory, as in force from time to time before the commencement; or

(b) when used in general terms—the Corporations Law set out in section 82 of the old Corporations Act as in force from time to time before the commencement.

old corporations legislation of a particular State or Territory means:

(a) the old Corporations Law and old Corporations Regulations of that State or Territory, and any instruments made under that Law or those Regulations; and

(b) the old application Act for that State or Territory, and any instruments made under that Act; and

(i) when used in relation to a State or the Northern Territory—the laws of the Commonwealth as applying in relation to the old Corporations Law and the old Corporations Regulations of the State or Territory from time to time before the commencement as laws of, or for the government of, that State or Territory because of Part 8 of the old Application Act for that State or Territory, and any instruments made under those laws as so applying; or

(ii) when used in relation to the Australian Capital Territory—the laws of the Commonwealth referred to in subparagraph (i), but as applying of their own force in relation to the old Corporations Law and old Corporations Regulations of the Territory, and any instruments made under those laws as so applying.

old Corporations Regulations means:

(a) when used in relation to a particular State or Territory—the Corporations Regulations of that State or Territory, within the meaning of the old application Act for that State or Territory, as in force from time to time before the commencement; or

(b) when used in general terms—the regulations made under section 22 of the old Corporations Act as in force from time to time before the commencement.

order, in relation to a court, includes any judgment, conviction or sentence of the court.

pre‑commencement right or liability has the meaning given by subsection 1400(1) or 1401(1).

preserved instrument means an instrument that, because of section 1399, has effect after the commencement as if it were made under a provision of the new corporations legislation.

right includes an interest or status.

substituted right or liability has the meaning given by subsection 1400(2) or 1401(3).

this Part includes regulations made for the purposes of any of the provisions of this Part.

(2) Subject to subsection (4), for the purposes of this Part, a provision or part (the old provision or part) of the old corporations legislation of a State or Territory corresponds to a provision or part (the new provision or part) of the new corporations legislation (and vice versa) if:

(a) the old provision or part and the new provision or part are substantially the same, unless the regulations specify that the 2 provisions or parts do not correspond; or

(b) the regulations specify that the 2 provisions or parts correspond.

Note: The range of provisions of the new corporations legislation that may be corresponding provisions for the purposes of this Part is affected by sections 1401 and 1408, which take certain provisions of the old corporations legislation to be included in the new corporations legislation.

(3) For the purposes of paragraph (2)(a), differences of all or any of the following kinds are not sufficient to mean that 2 provisions or parts are not substantially the same:

(a) differences in the numbering of the provisions or parts;

(b) differences of a minor technical nature (for example, differences in punctuation, or differences that are attributable to the correction of incorrect cross references);

(d) that fact that:

(i) the old provision or part allowed a court to exercise powers on its own motion but the new provision or part does not; or

(ii) the old provision or part required a court to apply a criterion of public interest but the new provision or part requires a court to apply a criterion of justice and equity; or

(iii) the new provision or part requires ASIC to take account of public interest but the old provision or part did not;

(e) other differences that are attributable to the fact that the new corporations legislation applies as a Commonwealth law throughout this jurisdiction;

(f) other differences of a kind prescribed by the regulations for the purposes of this paragraph.

This subsection is not intended to otherwise limit the circumstances in which 2 provisions or parts are, for the purposes of paragraph (2)(a), substantially the same.

(4) The regulations may provide that a specified provision of the old corporations legislation of a State or Territory does, or does not, correspond to a specified provision of the new corporations legislation.

1372 Relationship of Part with State validation Acts

(1) This Part applies to an invalid administrative action of a Commonwealth authority or an officer of the Commonwealth (within the meaning of a State validation Act) as if the circumstances that made the authority’s or officer’s action an invalid administrative action had not made the action invalid.

Note 1: So, for example, in determining whether the purported registration of a company is an action to which this Part (in particular Division 2) applies, the circumstances that made the action an invalid administrative action for the purposes of a State validation Act are to be disregarded.

Note 2: For the status and effect of invalid administrative actions in relation to times before the commencement, see the State validation Acts.

(2) However, if there are other circumstances that affect or may affect the validity of the action, neither this section, nor anything else in this Part, is taken to negate the effect of those other circumstances.

(3) If:

(a) a person would have had a right or liability under a provision (the old provision) of the old corporations legislation of a State if the circumstances that made the authority’s or officer’s action an invalid administrative action (within the meaning of the State validation Act of that State) had not made the action invalid; and

(b) the effect of that State validation Act in relation to that action is to declare that the person has, and is taken always to have had, the same rights and liabilities as they would have had under the old provision if the invalid administrative action had been taken, or purportedly taken, at the relevant time by a duly authorised State authority or officer of the State (within the meaning of that Act);

this Part applies as if:

(c) a reference to a right or liability arising under the old corporations legislation included a reference to the right or liability that the person is declared to have by the State validation Act; and

(d) that right or liability arose under the old provision.

(4) In this section:

State validation Act means an Act of a State in this jurisdiction under which certain administrative actions (within the meaning of that Act) taken, or purportedly taken, at or before the commencement by Commonwealth authorities or officers of the Commonwealth (within the meaning of that Act) pursuant to functions or powers (the relevant functions or powers) conferred, or purportedly conferred, by or under laws that include the old application Act for that State have, and are deemed always to have had, the same force and effect for all purposes as they would have had if:

(a) they had been taken, or purportedly taken by a State authority or officer of the State (within the meaning of that Act); and

(b) the relevant functions or powers had been duly conferred on those authorities or officers.

1373 References to things taken or deemed to be the case etc.

If:

(a) a law of a State or Territory in this jurisdiction had effect before the commencement:

(i) to take or deem something to have happened or to be the case, or to have a particular effect, under or for the purposes of the old corporations legislation of that State or Territory (or a provision of that legislation); or

(ii) to give something an effect for the purposes of the old corporations legislation of that State or Territory (or a provision of that legislation) that it would not otherwise have had; and

(b) that effect was continuing immediately before the commencement;

this Part applies as if that thing had actually happened or were actually the case, or as if that thing actually had that other effect.

Note: So, for example, if a provision of the old corporations legislation, or another law, of a State or Territory in this jurisdiction took a company to be registered under Part 2A.2 of the old Corporations Law of the State or Territory, this Part applies as if the company were actually registered under that Part.

1374 Existence of several versions of old corporations legislation does not result in this Part operating to take same thing to be done several times under new corporations legislation etc.

If, apart from this section, a provision of this Part (the transitional provision) would, because each State or Territory in this jurisdiction had its own old corporations legislation (containing parallel provisions) before the commencement, operate so that:

(a) a particular thing done before the commencement would be taken to be done, or have effect, 2 or more times by, under or for the purposes of, a provision of this Act; or

(b) a right or liability would be created 2 or more times in respect of a particular event, circumstance or thing that happened before the commencement; or

(c) a particular result or effect would be produced 2 or more times for the purposes of the new corporations legislation in relation to the same matter;

the transitional provision is taken to operate so that:

(d) if paragraph (a) applies—the thing is taken to be done or have effect only once by, under, or for the purposes of, the provision of the new corporations legislation; or

(e) if paragraph (b) applies—the right or liability is created only once in respect of the event, circumstance or thing; or

(f) if paragraph (c) applies—the result or effect is produced only once in relation to the matter.

Note: So, for example, if a body (because of the operation of section 102A of the old Corporations Law) was registered under section 601CB of the old Corporations Law of several States and Territories and those registrations were still in force immediately before the commencement, section 1399 does not apply separately to each of those registrations.

1375 Penalty units in respect of pre‑commencement conduct remain at $100

(1) If, because of this Part, an offence can be prosecuted after the commencement in respect of conduct that occurred solely before the commencement, the amount of a penalty unit in respect of that offence is $100.

(2) If, because of this Part, section 1314 of this Act applies to conduct that started before the commencement and that continued after the commencement, then, for the purposes of the application of that section to that conduct (including the post‑commencement conduct), the amount of a penalty unit is $100.

(3) This section has effect despite section 4AA of the Crimes Act 1914.

1376 Ceasing to be a referring State does not affect previous operation of this Part

If, after the commencement, a State ceases to be a referring State, that does not undo or affect:

(a) the effects that this Part has already had in relation to matters connected with that State; or

(b) the ongoing effect of this Act as it operates because of the effects referred to in paragraph (a).

Division 2—Carrying over registration of companies

1377 Division has effect subject to Division 7 regulations

This Division has effect subject to regulations made for the purposes of Division 7.

1378 Existing registered companies continue to be registered

(1) If:

(a) before the commencement, a company was registered under Part 2A.2 of the old Corporations Law of a State or Territory in this jurisdiction; and

(b) that registration was still in force immediately before the commencement;

the registration of the company has effect (and may be dealt with) after the commencement as if it were a registration of the company under Part 2A.2 of this Act as a company of whichever of the company types listed in subsection (2) corresponds to its previous class and type.

Note: The carrying over of other matters (for example, the registration of registered schemes and of registered bodies) is covered by the more general transitional provisions in Division 6.

(2) The company types are as follows:

(a) a proprietary company limited by shares;

(b) an unlimited proprietary company;

(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.

(3) The application of subsection (1) in relation to the registration of a company does not have the effect of creating that company as a new legal entity. Rather, it has the effect of continuing the existence of the legal entity that is that company with the same characteristics and attributes as it had immediately before the commencement. The date of the company’s first registration remains the same (see subsection 1402(2)), and a new certificate of registration does not need to be issued.

Note: The company will, for example, retain the same name, ACN, constitution and registered office as it had immediately before the commencement. Its certificate of registration will (because of section 1399) have effect as if it were issued under section 118 of this Act.

(4) The State or Territory in which the company is taken to be registered is the State or Territory under whose old Corporations Law the company was registered immediately before commencement. This subsection has effect subject to subsection 119A(3).

Note: For the general provisions about jurisdiction of incorporation and jurisdiction of registration, see section 119A.

Division 3—Carrying over the old Corporations Regulations

1379 Division has effect subject to Division 7 regulations

This Division has effect subject to regulations made for the purposes of Division 7.

1380 Old Corporations Regulations continue to have effect

The old Corporations Regulations that were made for the purposes of provisions of the old Corporations Law that correspond to provisions of this Act and that were in force immediately before the commencement continue to have effect (and may be dealt with) after the commencement as if:

(a) they were regulations in force under section 1364 of this Act; and

(b) they were made for the purposes of the corresponding provisions of this Act.

Division 4—Court proceedings and orders

1381 Division has effect subject to Division 7 regulations

This Division has effect subject to regulations made for the purposes of Division 7.

1382 Definitions

(1) In this Division:

appeal or review proceeding, in relation to an order of a court, means a proceeding by way of appeal, or otherwise seeking review, of the order.

enforcement proceeding, in relation to an order made by a court, means:

(a) a proceeding to enforce the order; or

(b) any other proceeding in respect of a breach of the order.

federal corporations proceeding means a proceeding of any of the following kinds that, immediately before the commencement, was before a court:

(a) a proceeding in respect of a matter arising under the Administrative Decisions (Judicial Review) Act 1977 involving or related to a decision made under a provision of the old corporations legislation of a State or Territory in this jurisdiction;

(b) a proceeding for a writ of mandamus or prohibition, or an injunction, against an officer or officers of the Commonwealth (within the meaning of section 75 of the Constitution) in relation to a matter to which a provision of the old corporations legislation of a State or Territory in this jurisdiction applied;

(ba) a proceeding that relates to a matter to which a provision of the Corporations Act 1989 applied (other than a proceeding that relates to a matter to which a provision of the Corporations Law of the Australian Capital Territory applied);

(bb) a proceeding in relation to a matter to which a provision of the old corporations legislation of a State or Territory in this jurisdiction applied:

(i) in which the Commonwealth was seeking an injunction or a declaration; or

(ii) to which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, was a party;

(bc) any other proceeding in relation to a matter to which a provision of the old corporations legislation of a State in this jurisdiction applied that was in the exercise of federal jurisdiction;

(bd) any other proceeding in relation to a matter to which a provision of the old corporations legislation of a Territory in this jurisdiction applied that would be covered by paragraph (bc) if the Territory had been a State;

(c) a proceeding in the court’s accrued federal jurisdiction in relation to a matter to which a provision of the old corporations legislation of a State or Territory in this jurisdiction applied.

interlocutory application means an application that:

(a) is made during the course of a proceeding; and

(b) is for an order that is incidental to the principal object of that proceeding, including, for example:

(i) an order about the conduct of that proceeding; or

(ii) an order assisting a party to that proceeding to present their case in that proceeding; or

(iii) an order protecting or otherwise dealing with property that is the subject matter of that proceeding;

but not including an order making a final determination of existing rights or liabilities.

interlocutory order means:

(a) an order made in relation to an interlocutory application; or

(b) an order or direction about the conduct of a proceeding.

interlocutory proceeding means a proceeding:

(a) dealing only with; or

(b) to the extent it deals with;

an interlocutory application.

primary proceeding means a proceeding other than an interlocutory proceeding.

proceeding means a proceeding, whether criminal or civil, before a court.

(2) For the purposes of this Part, if an interlocutory proceeding relates to a proceeding that is itself an interlocutory proceeding, the first‑mentioned proceeding is taken to relate also to the primary proceeding to which the second‑mentioned proceeding relates.

1383 Treatment of court proceedings under or related to the old corporations legislation—proceedings other than federal corporations proceedings

(1) This section applies to a proceeding, other than a federal corporations proceeding, in relation to which the following paragraphs are satisfied:

(a) the proceeding was started in a court before the commencement; and

(b) the proceeding was:

(i) under a provision of the old corporations legislation of a State or Territory in this jurisdiction; or

(ii) brought as, or connected with, a prosecution for an offence against a provision of the old corporations legislation of a State or Territory in this jurisdiction; and

(c) the proceeding was not an enforcement proceeding, or an appeal or review proceeding, in relation to an order of a court; and

(d) the proceeding had not been concluded or terminated before the commencement; and

(e) either:

(i) if the proceeding is a primary proceeding—no final determination of any of the existing rights or liabilities at issue in the proceeding had been made before the commencement; or

(ii) if the proceeding is an interlocutory proceeding—this section applies to the primary proceeding to which the interlocutory proceeding relates.

(2) In this section:

(a) the proceeding to which this section applies is called the old proceeding; and

(b) the provision of the old corporations legislation referred to in whichever of subparagraphs (1)(b)(i) and (ii) applies is called the relevant old provision.

(3) A proceeding (the new proceeding) equivalent to the old proceeding is, on the commencement, taken to have been brought in the same court, exercising federal jurisdiction:

(a) if subparagraph (1)(b)(i) applies—under the provision of the new corporations legislation that corresponds to the relevant old provision; or

(b) if subparagraph (1)(b)(ii) applies—as, or connected with, a prosecution for an offence against the provision of the new corporations legislation that corresponds to the relevant old provision.

To the extent that the old proceeding, before the commencement, related to pre‑commencement rights or liabilities, the new proceeding relates to the substituted rights and liabilities in relation to those pre‑commencement rights or liabilities

Note 1: See sections 1400 and 1401 for the creation of substituted rights and liabilities.

Note 2: In all cases, there will be a provision of the new corporations legislation that corresponds to the relevant old provision, either because:

(a) the new corporations legislation actually contains a provision that corresponds to the relevant old provision; or

(b) the new corporations legislation, because of section 1401 or 1408, is taken to include the relevant old provision (whether with or without modifications), in which case the provision so taken to be included will be the corresponding provision.

(4) The following provisions apply in relation to the new proceeding:

(a) the parties to the new proceeding are the same as the parties to the old proceeding;

(b) subject to subsections (5) and (6), and to any order to the contrary made by the court, the court must deal with the new proceeding as if the steps that had been taken for the purposes of the old proceeding before the commencement had been taken for the purposes of the new proceeding.

(5) If:

(a) an interlocutory order was made before the commencement for the purpose of, or in relation to, the old proceeding; and

(b) that interlocutory order was in force immediately before the commencement;

the rights and liabilities of all persons (including rights and liabilities arising wholly or partly because of conduct occurring before the commencement) are declared to be, for all purposes, the same as if the interlocutory order had instead been made by the same court, in the exercise of federal jurisdiction, for the purpose of, or in relation to, the new proceeding.

(6) The court may make orders doing all or any of the following:

(a) cancelling or varying rights or liabilities that a person has because of subsection (5);

(b) substituting other rights or liabilities for rights or liabilities a person has because of subsection (5);

(d) enforcing, or otherwise dealing with conduct contrary to, a right or liability a person has because of subsection (5) in the same way as it could enforce, or deal with, the right, liability or conduct if the right or liability had arisen under or because of an order made by the court in the exercise of federal jurisdiction under the new corporations legislation.

1384 Treatment of court proceedings under or related to the old corporations legislation—federal corporations proceedings

(1) This section applies to a proceeding in relation to which the following paragraphs are satisfied:

(a) the proceeding was started in a court before the commencement; and

(b) the proceeding was a federal corporations proceeding that related to a matter to which a provision of the old corporations legislation of a State or Territory in this jurisdiction applied; and

(2) In this section:

(a) the proceeding to which this section applies is called the continued proceeding; and

(b) the provision of the old corporations legislation referred to in paragraph (1)(b) is called the relevant old provision.

(3) Subject to subsection (4):

(a) the continued proceeding continues after the commencement in the same court as if it were, and always had been, a proceeding in relation to a matter to which the provision of the new corporations legislation that corresponds to the relevant old provision applies; and

(b) to the extent that the proceeding, before the commencement, related to pre‑commencement rights or liabilities, the proceeding, as continued, relates, and as so continuing is taken always to have related, to the substituted rights and liabilities in relation to those pre‑commencement rights or liabilities.

Note 1: See sections 1400 and 1401 for the creation of substituted rights and liabilities.

Note 2: In all cases, there will be a provision of the new corporations legislation that corresponds to the relevant old provision, either because:

(a) the new corporations legislation actually contains a provision that corresponds to the relevant old provision; or

(4) Subject to any order to the contrary made by the court, the court must deal with the continued proceeding as if:

(a) the steps that had been taken for the purposes of the proceeding before the commencement had been taken for the purpose of the proceeding as continued by this section; and

(b) any orders made in relation to the proceeding before the commencement had been made in relation to the proceeding as continued by this section.

1384A Appeals etc. in relation to some former federal corporations proceedings

(1) This section applies to a proceeding in relation to which all of the following paragraphs are satisfied:

(a) the proceeding was started in a court before the commencement;

(b) the proceeding was a federal corporations proceeding that related to a matter to which a provision of the old corporations legislation of a State or Territory in this jurisdiction applied; and

(2) A decision or order made in the proceeding may be appealed against, or otherwise reviewed, as if it had been made in a proceeding that related to a matter to which a provision of this Act applied.

(3) An order made in the proceeding may be enforced as if it had been made in a proceeding that related to a matter to which a provision of this Act applied.

1384B Effect of decisions and orders made in federal corporations proceedings before commencement

(1) For the avoidance of doubt, if:

(a) a proceeding was started in a court before the commencement; and

(b) the proceeding was a federal corporations proceeding that related to a matter to which a provision of the old corporations legislation of a State or Territory in this jurisdiction applied; and

the decision or order continues to have effect after the commencement despite the provision of the old corporations legislation ceasing to have effect.

(2) This section does not limit the operation of section 1384 in relation to the decision or order.

1385 References to proceedings and orders in the new corporations legislation

(1) Subject to subsection (5), a reference in the new corporations legislation to the taking of a proceeding, or a step in a proceeding, in a court under or in relation to a part or provision of the new corporations legislation includes a reference to the taking of a proceeding, or the equivalent step in a proceeding:

(a) before the commencement under or in relation to the corresponding part or provision of the old corporations legislation of a State or Territory; or

(b) after the commencement under or in relation to the corresponding part or provision of the old corporations legislation of a State or Territory in this jurisdiction, as that legislation continues to have effect after the commencement.

(2) Subject to subsections (3), (4) and (5), a reference in the new corporations legislation to an order made by a court under or in relation to a part or provision of the new corporations legislation includes a reference to an order made:

(a) before the commencement under or in relation to the corresponding part or provision of the old corporations legislation of a State or Territory; or

(3) Nothing in subsection (2) is taken to produce a result that would:

(a) make a person liable, under the new corporations legislation, to any penalty (whether civil or criminal) provided for in an order referred to in paragraph (2)(a) or (b); or

(b) enable an enforcement proceeding, or an appeal or review proceeding, in relation to such an order to be taken in a court under the new corporations legislation; or

(c) enable proceedings by way of appeal, or other review, of such an order to be taken in a court under the new corporations legislation.

(4) If, after the commencement, an order referred to in paragraph (2)(a) or (b) is varied or set aside on appeal or review, subsection (2) applies, or is taken to have applied, from the time from which the variation or setting aside takes or took effect, as if:

(a) if the order is varied—the order had been made as so varied; or

(b) if the order is set aside—the order had not been made.

(5) The regulations may provide that subsection (1) or (2) does not apply in relation to a particular reference or class of references in the new corporations legislation.

Division 5—Other specific transitional provisions

1386 Division has effect subject to Division 7 regulations

This Division has effect subject to regulations made for the purposes of Division 7.

1387 Certain applications lapse on the commencement

(1) An application:

(a) under section 117 for the registration of a company; or

(b) under section 601BC for the registration of a body as a company;

that was made by a person before the commencement, but that had not been dealt with by the commencement, lapses on the commencement.

(2) Any fee that was paid in respect of the application must be returned to the person, unless it is, with the person’s permission, credited against the fee payable in respect of another application the person makes under this Act after the commencement.

1388 Carrying over the Partnerships and Associations Application Order

The application order in force immediately before the commencement for paragraph 115(b) of the old Corporations Law of each State and Territory in this jurisdiction continues to have effect (and may be dealt with) after the commencement as if it were a regulation in force under section 1364 of this Act made for the purposes of subsection 115(2) of this Act.

1389 Evidentiary certificates

(1) A certificate by ASIC (whether issued before or after the commencement) stating that a company was registered under the old Corporations Law of a State or Territory in this jurisdiction is conclusive evidence that:

(a) all requirements of that Law for the company’s registration were complied with; and

(b) the company was duly registered as a company under that Law on the date (if any) specified in the certificate.

(2) A certificate issued before the commencement under pre‑Corporations Law legislation (see subsection (3)) by the authority responsible for administering that legislation stating that a body was registered as a company under that legislation or other pre‑Corporations Law legislation is conclusive evidence that:

(a) all requirements of that legislation for the company’s registration were complied with; and

(b) the company was duly registered as a company under that legislation on the date (if any) specified in the certificate.

(3) In subsection (2):

pre‑Corporations Law legislation means legislation that was, for the purposes of the old Corporations Law of a State or Territory in this jurisdiction, a corresponding previous law in relation to that old Corporations Law.

1390 Preservation of nomination of body corporate as SEGC

The nomination in force immediately before the commencement under section 67 of the old Corporations Act continues to have effect (and may be dealt with) after the commencement as if it were a nomination under section 890A of this Act.

1391 Preservation of identification of satisfactory records

A notice in force immediately before the commencement under section 70 of the old Corporations Act continues to have effect (and may be dealt with) after the commencement as if it were a notice under subsection 147(5) of this Act.

1392 Retention of information obtained under old corporations legislation of non‑referring State

If a particular State is not a referring State on the commencement, that does not mean that ASIC must then remove from, or cease to retain in, a database or register it maintains information that ASIC obtained before the commencement under or because of (whether in whole or in part) the operation of the old corporations legislation of that State.

1393 Transitional provisions relating to section 1351 fees

(1) If:

(a) either:

(i) before the commencement, a person paid an amount as required by section 1351 of the old Corporations Law of a State or Territory in respect of a particular matter; or

(ii) after the commencement, a person pays an amount as required by subsection 9(2) of the Corporations (Fees) Act 2001 in respect of a particular matter; and

(b) a fee is also payable under section 1351 of this Act in respect of the same matter;

the payment they made or make as mentioned in subparagraph (a)(i) or (ii) is taken to satisfy their liability to pay the fee referred to in paragraph (b).

(2) If:

(a) before the commencement, a person paid a deposit as required by section 1357 of the old Corporations Law of a State or Territory in respect of a particular matter; and

(b) a fee is payable under section 1351 of this Act in respect of the same matter;

the deposit must be applied against the liability to pay the fee.

1394 Transitional provisions relating to securities exchange fidelity fund levies

(1) If:

(a) before the commencement, a person paid an amount as required by subsection 902(1) of the old Corporations Law of a State or Territory in order to be admitted to:

(i) membership of a securities exchange; or

(ii) membership of a partnership in a member firm recognised by a securities exchange; and

(b) that person had not been so admitted by the commencement of this Act;

the payment they made before the commencement is taken to satisfy their liability to pay the levy referred to in subsection 902(1) of this Act in respect of their admission after the commencement to that securities exchange or firm.

(2) If:

(a) either:

(i) before the commencement, a person paid an amount as required by subsection 902(2) of the old Corporations Law of a State or Territory to a securities exchange in respect of a year some or all of which occurs after the commencement of this Act; or

(ii) after the commencement, a person pays an amount as required by subsection 8(3) of the Corporations (Securities Exchanges Levies) Act 2001 in respect of a year some or all of which occurs after the commencement of this Act; and

(b) a levy is also payable under subsection 902(2) of this Act in respect of the securities exchange and the year;

the payment they made or make as mentioned in subparagraph (a)(i) or (ii) is taken to satisfy their liability to pay the levy referred to in paragraph (b).

(3) If, before the commencement, a person paid an amount to a securities exchange as required by subsection 902(2) of the old Corporations Law of a State or Territory, that payment is to be counted, for the purposes of:

(a) the reference in paragraph (a) of the definition of relevant person in subsection 903(1) of this Act; and

(b) subsection 903(5) of this Act;

as if it were a payment of a kind referred to in that paragraph or that subsection, as the case requires.

1395 Transitional provisions relating to National Guarantee Fund levies

(1) If:

(a) either:

(i) before the commencement, a person paid an amount as required by section 938 of the old Corporations Law of a State or Territory in respect of a particular transaction; or

(ii) after the commencement, a person pays an amount of levy imposed by subsection 6(1) of the Corporations (National Guarantee Fund Levies) Act 2001 in respect of a particular transaction; and

(b) a levy is also payable under section 938 of this Act in respect of the same transaction;

the payment they made or make as mentioned in subparagraph (a)(i) or (ii) is taken to satisfy their liability to pay the levy referred to in paragraph (b).

(2) Subject to subsection (3), a determination of a matter (other than a rate or rates, or an amount) in force immediately before the commencement for the purposes of section 938, 940 or 941 of the old Corporations Law of a State or Territory in this jurisdiction continues to have effect (and may be dealt with) after the commencement of this Act as if it were:

(a) in the case of a determination for the purposes of section 938—a determination for the purposes of section 938 of this Act; or

(b) in the case of a determination for the purposes of section 940—a determination for the purposes of section 940 of this Act; or

(c) in the case of a determination for the purposes of section 941—a determination for the purposes of section 941 of this Act.

(3) Nothing in subsection (2) is taken to produce a result that a levy is payable by a person in respect of the same matter in respect of which levy is imposed on the person by subsection 6(1), (2) or (3) of the Corporations (National Guarantee Fund Levies) Act 2001.

1396 Transitional provisions relating to futures organisation fidelity fund levies

(1) If:

(a) before the commencement, a person paid an amount as required by subsection 1234(1) of the old Corporations Law of a State or Territory in order to be admitted to membership of a futures organisation; and

(b) that person had not been so admitted by the commencement of this Act;

the payment they made before the commencement is taken to satisfy their liability to pay the levy referred to in subsection 1234(1) of this Act in respect of their admission after the commencement to that futures organisation.

(2) If:

(a) either:

(i) before the commencement, a contributing member of a futures organisation paid an amount as required by subsection 1234(2) of the old Corporations Law of a State or Territory to a futures organisation in respect of a year some or all of which occurs after the commencement of this Act; or

(ii) after the commencement, a person pays an amount as required by subsection 6(1) of the Corporations (Futures Organisations Levies) Act 2001 in respect of a year some or all of which occurs after the commencement of this Act; and

(b) a levy is also payable under subsection 1234(2) of this Act in respect of the futures organisation and the year;

the payment they made or make as mentioned in subparagraph (a)(i) or (ii) is taken to satisfy their liability to pay the levy referred to in paragraph (b).

Division 6—General transitional provisions relating to other things done etc. under the old corporations legislation

1397 Limitations on scope of this Division

(1) This Division has effect subject to:

(a) the provisions of Divisions 2, 3, 4 and 5 (which deal with matters in more specific terms); and

(b) regulations made for the purposes of Division 7.

(2) Nothing in this Division applies to:

(a) an order made by a court before the commencement; or

(b) a right or liability under an order made by a court before the commencement; or

(i) appeal to a court against an order made by a court before the commencement;

(ii) apply to a court for review of such an order; or

(iii) bring an appeal or review proceeding, or an enforcement proceeding, within the meaning of section 1382, in respect of such an order; or

(d) subject to subsection (3)—a proceeding taken (including an appeal, review or enforcement proceeding) in a court before the commencement, or a step in such a proceeding.

Note: Division 4 deals with court orders and proceedings made or begun before the commencement, and with related matters.

(3) Despite paragraph (2)(d), sections 1400 and 1401 apply to any right or liability to which a proceeding to which section 1383 or 1384 applies relates.

(4) Nothing in this Division applies to a liability under section 902, 904, 938, 940, 941, 1234, 1235 or 1351 of the old Corporations Law of a State or Territory in this jurisdiction to pay a contribution, levy or fee.

Note: These liabilities are preserved as taxes by provisions of the following Acts:

(a) the Corporations (Securities Exchanges Levies) Act 2001;

(b) the Corporations (National Guarantee Fund Levies) Act 2001;

(d) the Corporations (Fees) Act 2001.

(5) Except as mentioned in subsections (1) to (4), nothing in Division 2, 3, 4 or 5, or in regulations made for the purposes of Division 7, is intended to limit the generality of the provisions in this Division.

1398 Provisions of this Division may have an overlapping effect

The provisions of this Division deal at a broad level with concepts and matters in a way that is intended to achieve the object of this Part as set out in section 1370. Some of the provisions of this Division will (depending on the situation) have an effect that overlaps or interacts to some extent with the effect of other provisions of this Division. This is intended, and the provisions of this Division should be not be regarded as dealing with mutually exclusive situations.

1399 Things done by etc. carried over provisions continue to have effect

(1) Subject to this section, a thing that:

(a) was done before the commencement by, under, or for the purposes of, a carried over provision of the old corporations legislation of a State or Territory in this jurisdiction; and

(b) had an ongoing significance (see subsections (4) and (5)) immediately before the commencement for the purposes of that legislation;

has effect (and may be dealt with) after the commencement, for the purposes of the new corporations legislation, as if it were done by, under, or for the purposes of, the corresponding provision of the new corporations legislation.

Note: This section covers all kinds of things done, including things of a coercive nature or done for coercive purposes.

(2) Examples of things done include:

(a) the making of an instrument or order (but not including the making of an order by a court); and

(b) the making of an application or claim (but not including the making of an application or claim to a court); and

(d) the making of an appointment or delegation; and

(e) the commencement of a procedure or the taking of a step in a procedure (but not including the commencement of a proceeding in a court); and

(f) the establishment of a register or fund; and

(g) requiring a person to do, or not to do, something (but not including a requirement contained in an order made by a court); and

(h) the giving of a notice or document.

(3) The examples in subsection (2) are not intended to limit the generality of the language of subsection (1).

(4) Subject to subsection (5), for the purposes of this section, a thing done by, under, or for the purposes of, a carried over provision of the old corporations legislation of a State or Territory had an ongoing significance immediately before the commencement for the purposes of that legislation if:

(a) if the thing done was the making of an instrument or order—the instrument or order was still in force immediately before the commencement; or

(b) if the thing done was the making of an application or claim—the application or claim had not been decided, and had not otherwise ceased to have effect, before the commencement; or

(c) if the thing done was the granting of an application or claim—the thing granted had not been revoked, and had not otherwise ceased to have effect, before the commencement; or

(d) if the thing done was the making of an appointment or delegation—the appointment or delegation had not been revoked, and had not otherwise ceased to have effect, before the commencement; or

(e) if the thing done was the commencement of a procedure or the taking of a step in a procedure—the procedure was still in progress immediately before the commencement or was otherwise still having an effect; or

(f) if the thing done was the establishment of a register or fund—the register or fund was still in existence immediately before the commencement; or

(g) if the thing done was requiring a person to do, or not to do something—the requirement was still in force immediately before the commencement; or

(h) if the thing done was the giving of a notice or document, or the doing of some other thing—the notice or document (or the giving of the notice or document), or the thing (or the doing of the thing), had an ongoing effect or significance immediately before the commencement for the purposes of the old corporations legislation of the State or Territory.

(5) The regulations may provide that a specified thing done under, or for the purposes of, a carried over provision of the old corporations legislation of a State or Territory did, or did not, have an ongoing significance immediately before the commencement for the purposes of that legislation.

1400 Creation of equivalent rights and liabilities to those that existed before the commencement under carried over provisions of the old corporations legislation

(1) Subject to subsection (4), this section applies in relation to a right or liability (the pre‑commencement right or liability), whether civil or criminal, that:

(a) was:

(i) acquired, accrued or incurred under a carried over provision of the old corporations legislation of a State or Territory in this jurisdiction; and

(ii) in existence immediately before the commencement; or

(b) would have been:

(i) acquired, accrued or incurred under such a provision; and

(ii) in existence immediately before the commencement;

if every agreement that was valid only because of section 249 of the ASIC Act had been a valid agreement without the application of that section.

However, this section does not apply to a right or liability under an order made by a court before the commencement.

(2) On the commencement, the person acquires, accrues or incurs a right or liability (the substituted right or liability), equivalent to the pre‑commencement right or liability, under the corresponding provision of the new corporations legislation (as if that provision applied to the conduct or circumstances that gave rise to the pre‑commencement right or liability).

Note: If a time limit applied in relation to the pre‑commencement right or liability under the old corporations legislation, that same time limit (calculated from the same starting point) will apply under the new corporations legislation to the substituted right or liability—see subsection 1402(3).

(3) A procedure, proceeding or remedy in respect of the substituted right or liability may be instituted after the commencement under the new corporations legislation (as if that provision applied to the conduct or circumstances that gave rise to the pre‑commencement right or liability).

Note: For pre‑commencement proceedings in respect of substituted rights and liabilities, see sections 1383 and 1384.

(4) If, immediately before the commencement, a person had an accrued right to make a claim under a provision of Part 7.10 of the old Corporations Law of a State that is not a referring State (and so is not in this jurisdiction), this section applies in relation to that right in the same way as it would have applied if the State had been a referring State.

Note: Except to the extent provided in this subsection, this Part does not create rights and liabilities that are equivalent to those that existed under the old corporations legislation of a non‑referring State.

(5) This section does not apply to a pre‑commencement right or liability that:

(a) existed under a law of the Commonwealth or of a State or Territory; and

(b) would not have existed if any agreement that is valid only because of section 249 of the ASIC Act had been a valid agreement without the application of that section.

(6) Paragraph (1)(b) and subsection (5) have effect in relation to:

(a) proceedings (whether original or appellate) that begin on or after the day the Treasury Laws Amendment (2017 Measures No. 3) Act 2017 receives the Royal Assent; and

(b) proceedings that began before that day, if the proceedings (including any appeals) had not been finally determined as at that day.

(7) Nothing in paragraph (1)(b) or subsection (5) or (6) limits the operation of section 249 of the ASIC Act.

1401 Creation of equivalent rights and liabilities to those that existed before the commencement under repealed provisions of the old corporations legislation

(1) This section applies in relation to a right or liability (the pre‑commencement right or liability), whether civil or criminal, that:

(a) was:

(i) acquired, accrued or incurred under a provision of the old corporations legislation of a State or Territory in this jurisdiction that was no longer in force immediately before the commencement; and

(ii) in existence immediately before the commencement; or

(b) would have been:

(i) acquired, accrued or incurred under such a provision; and

(ii) in existence immediately before the commencement;

if every agreement that was valid only because of section 249 of the ASIC Act had been a valid agreement without the application of that section.

However, this section does not apply to a right or liability under an order made by a court before the commencement.

(2) For the purposes of subsections (3) and (4), the new corporations legislation is taken to include:

(a) the provision of the old corporations legislation (with such modifications (if any) as are necessary) under which the pre‑commencement right or liability was acquired, accrued or incurred; and

(b) the other provisions of the old corporations legislation (with such modifications (if any) as are necessary) that applied in relation to the pre‑commencement right or liability.

(3) On the commencement, the person acquires, accrues or incurs a right or liability (the substituted right or liability), equivalent to the pre‑commencement right or liability, under the provision taken to be included in the new corporations legislation by paragraph (2)(a) (as if that provision applied to the conduct or circumstances that gave rise to the pre‑commencement right or liability).

(4) A procedure, proceeding or remedy in respect of the substituted right or liability may be instituted after the commencement under the provisions taken to be included in the new corporations legislation by subsection (2) (as if those provisions applied to the conduct or circumstances that gave rise to the pre‑commencement right or liability).