Corporations (Ancillary Provisions) Act 2001 (SA)

South Australia Corporations (Ancillary Provisions) Act 2001 An Act to enact ancillary provisions, including transitional provisions, relating to the enactment by the Parliament of the Commonwealth of new corporations legislation and new ASIC legislation under its legislative powers, including powers with respect to matters referred to that Parliament for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth.

Contents Part 1—Preliminary 1 Short title 3 Definitions 4 Corresponding provision 5 Operation of Act Part 2—Transitional provisions 6 National scheme laws 7 Effect of section 6 8 Certain provisions of State law taken to operate despite national scheme law 9 Court proceedings and orders 10 Existing rules of court continue to have effect 11 References to old/new corporations legislation or old/new ASIC legislation 12 References to companies incorporated in a State or Territory Part 3—Application of Commonwealth Corporations legislation to State matters 13 Definitions 14 State provisions to which this Part applies 15 Effect of declaratory provisions 16 Modifications to applied law 17 Conferral of functions on ASIC 18 Conferral of functions or duties on State Courts 19 Implied application of regulations and other provisions of Corporations legislation 20 Proceedings for offences 21 Application of Corporations legislation by other means Part 4—General 22 Power to amend certain statutory instruments 22A Power to make interim regulations construing certain references in Acts 23 Rules of the Supreme Court 24 ASIC has certain functions and powers 25 Outstanding property held by CAC 25A Validation—FSR Amendments 26 Regulations Schedule—Table Legislative history

The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Corporations (Ancillary Provisions) Act 2001. 3—Definitions (1) In this Act— ASIC means the Australian Securities and Investments Commission; carried over provision— (a) of the old corporations legislation means a provision of that legislation that— (i) was in force immediately before the relevant time; and (ii) corresponds to a provision of the new corporations legislation; and (b) of the old ASIC legislation means a provision of that legislation that— (i) was in force immediately before the relevant time; and (ii) corresponds to a provision of the new ASIC legislation; co-operative scheme laws has the meaning given by section 84 of the Corporations (South Australia) Act 1990; corresponds has a meaning affected by section 4; law of the State includes an instrument of a legislative character made under an Act; liability includes a duty or obligation; made includes issued, given or published; national scheme law of this jurisdiction has the same meaning as in the Corporations (South Australia) Act 1990; new ASIC Act means the Australian Securities and Investments Commission Act 2001 of the Commonwealth; new ASIC legislation means— (a) the new ASIC Act; and (b) the new ASIC Regulations (as amended and in force from time to time) and any other regulations made under the new ASIC Act; and (c) the laws of the Commonwealth referred to in paragraph (a)(ii) and (in relation to the State) paragraph (b)(iii) of the definition of old ASIC legislation in section 254(1) of the new ASIC Act, being those laws as they apply after the relevant time; and (d) the preserved instruments; new ASIC Regulations means the old ASIC Regulations that, because of section 264 of the new ASIC Act, have effect as if they were made under section 251 of that Act; new Corporations Act means the Corporations Act 2001 of the Commonwealth; new corporations legislation means— (a) the new Corporations Act; and (b) the new Corporations Regulations (as amended and in force from time to time) and any other regulations made under the new Corporations Act; and (c) the laws of the Commonwealth referred to (in relation to the State) in paragraph (c) of the definition of old corporations legislation in section 1371(1) of the new Corporations Act, being those laws as they apply after the relevant time; and (d) the preserved instruments; new Corporations Regulations means the old Corporations Regulations that, because of section 1380 of the new Corporations Act, have effect as if they were made under section 1364 of that Act; old application Act means the Corporations (South Australia) Act 1990 as in force from time to time before the relevant time; old ASIC Act means the Australian Securities and Investments Commission Act 1989 of the Commonwealth as in force from time to time before the relevant time; old ASIC law means the ASIC Law of South Australia (within the meaning of the old application Act) as in force from time to time before the relevant time; old ASIC legislation means— (a) the old ASIC Law and the old ASIC Regulations, and any instruments made under that Law or those Regulations; and (b) the old application Act, and any instruments made under that Act, as applying in relation to the old ASIC Law and the old ASIC Regulations from time to time before the relevant time; and (c) the laws of the Commonwealth as applying in relation to the old ASIC Law and the old ASIC Regulations from time to time before the relevant time as laws of, or for the government of, the State because of Part 8 of the old application Act, and any instruments made under those laws as so applying; old ASIC Regulations means the ASIC Regulations of South Australia (within the meaning of the old application Act) as in force from time to time before the relevant time; old Corporations Law means the Corporations Law of South Australia, within the meaning of the old application Act, as in force from time to time before the relevant time; old corporations legislation means— (a) the old Corporations Law and the old Corporations Regulations, and any instruments made under that Law or those Regulations; and (b) the old application Act, and any instruments made under that Act, as applying in relation to the old Corporations Law and the old Corporations Regulations from time to time before the relevant time; and (c) the laws of the Commonwealth as applying in relation to the old Corporations Law and the old Corporations Regulations from time to time before the relevant time as laws of, or for the government of, the State because of Part 8 of the old application Act, and any instruments made under those laws as so applying; old Corporations Regulations means the Corporations Regulations of South Australia, within the meaning of the old application Act, as in force from time to time before the relevant time; order, in relation to a court, includes any judgment, conviction or sentence of the court; preserved instrument means— (a) in relation to the new corporations legislation, an instrument that, because of section 1399 of the new Corporations Act, has effect after the relevant time as if it were made under a provision of the new corporations legislation; and (b) in relation to the new ASIC legislation, an instrument that, because of section 275 of the new ASIC Act, has effect after the relevant time as if it were made under a provision of the new ASIC legislation; previous State corporations law means— (a) the Companies Act 1962; or (b) the Marketable Securities Act 1971; or (c) the Securities Industry Act 1979; or (d) a co-operative scheme law; or (e) any other Act, or provision of an Act, specified by the regulations under subsection (2); provision of a law includes any portion of the law; referring State has the meaning given by section 4 of the new Corporations Act; relevant time means the time when the new Corporations Act, as originally enacted, comes into operation; right includes an interest or status; State includes the Northern Territory; Territory means the Australian Capital Territory or the Jervis Bay Territory. (2) The regulations may provide that a specified Act, or a specified provision of an Act, is a previous State corporations law for the purposes of this Act. 4—Corresponding provision (1) For the purposes of this Act, a provision (the old provision) of the old corporations legislation or the old ASIC legislation corresponds to a provision (the new provision) of the new corporations legislation or the new ASIC legislation (and vice versa) if— (a) the old provision and the new provision are substantially the same, unless the regulations specify that the two provisions do not correspond; or (b) the regulations specify that the two provisions correspond. (2) For the purposes of this Act, a provision (the old provision) of a previous State corporations law corresponds to a provision (the new provision) of a national scheme law of this jurisdiction (and vice versa) if— (a) the old provision and the new provision are substantially the same, unless the regulations specify that the two provisions do not correspond; or (b) the regulations specify that the two provisions correspond. (3) For the purposes of subsection (1)(a) or (2)(a), differences of all or any of the following kinds are not sufficient to mean that two provisions are not substantially the same: (a) differences in the numbering of the provisions; (b) differences of a minor technical nature (for example, differences in punctuation, or differences that are attributable to the correction of incorrect cross references); (c) the fact that one of the provisions refers to a corresponding previous law and the other does not; (d) for the purposes of subsection (1)(a), the fact that— (i) the old provision allowed a court to exercise powers on its own motion but the new provision does not; or (ii) the old provision required a court to apply a criterion of public interest but the new provision requires a court to apply a criterion of justice and equity; or (iii) the new provision requires ASIC to take account of public interest but the old provision did not; (e) for the purposes of subsection (1)(a), other differences that are attributable to the fact that the new corporations legislation and the new ASIC legislation apply as Commonwealth laws in this and other States and in the internal Territories; (f) other differences of a kind prescribed by the regulations for the purposes of this paragraph. (4) Subsection (3) is not intended to otherwise limit the circumstances in which two provisions are, for the purposes of subsection (1)(a) or (2)(a), substantially the same. (5) The regulations may provide that— (a) a specified provision of the old corporations legislation does, or does not, correspond to a specified provision of the new corporations legislation; or (b) a specified provision of the old ASIC legislation does, or does not, correspond to a specified provision of the new ASIC legislation; (c) a specified provision of a previous State corporations law does, or does not, correspond to a specified provision of a national scheme law of this jurisdiction. 5—Operation of Act This Act has effect despite any provision of the old application Act or of the applicable provisions (as defined in that Act) of the State.