Corporations Act. Australia
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:
Conditions to be met before section applies
[operative]
Item
Kind of provision
Conditions to be met
1
a pre‑commencement (commenced) provision
(a) the State provision operated, immediately before this Act commenced, despite the provision of:
(i) the Corporations Law of the State or Territory (as in force at that time); or
(ii) the ASC or ASIC Law of the State or Territory (as in force at that time);
that corresponds to the Commonwealth provision; and
(b) the State provision is not declared to be one that this section does not apply to (either generally or specifically in relation to the Commonwealth provision) by:
(i) regulations made under this Act; or
(ii) a law of the State or Territory.
2
a pre‑commencement (enacted) provision
(a) the State provision would have operated, immediately before this Act commenced, despite the provision of:
(i) the Corporations Law of the State or Territory (as in force at that time); or
(ii) the ASC or ASIC Law of the State or Territory (as in force at that time);
that corresponds to the Commonwealth provision if the State provision had commenced before the commencement of this Act; and
(b) the State provision is not declared to be one that this section does not apply to (either generally or specifically in relation to the Commonwealth provision) by:
(i) regulations made under this Act; or
(ii) a law of the State or Territory.
3
a post‑commencement provision the State provision is declared by a law of the State or Territory to be a Corporations legislation displacement provision for the purposes of this section (either generally or specifically in relation to the Commonwealth provision)
4
a provision that is materially amended on or after this Act commenced if the amendment was enacted before this Act commenced
(a) the State provision as amended would have operated, immediately before this Act commenced, despite the provision of:
(i) the Corporations Law of the State or Territory (as in force at that time); or
(ii) the ASC or ASIC Law of the State or Territory (as in force at that time);
that corresponds to the Commonwealth provision if the amendment had commenced before the commencement of this Act; and
(b) the State provision is not declared to be one that this section does not apply to (either generally or specifically in relation to the Commonwealth provision) by:
(i) regulations made under this Act; or
(ii) a law of the State or Territory.
5
a provision that is materially amended on or after this Act commenced if the amendment is enacted on or after this Act commenced the State provision as amended is declared by a law of the State or Territory to be a Corporations legislation displacement provision for the purposes of this section (either generally or specifically in relation to the Commonwealth provision)
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