In Short:
- The Corporations Act sets the legal framework for company formation, governance, and insolvency in Australia.
- It regulates company responsibilities, including shareholder rights and directors’ duties.
- The Act ensures a uniform approach to corporate law across all Australian states and territories.
Tips for Businesses
Ensure your company complies with the Corporations Act by understanding its key provisions, such as shareholder rights, directors’ duties, and corporate governance rules. Regularly review these areas to avoid penalties and maintain good standing with regulatory authorities.
Australian company law used to be a complex and arduous landscape. Historically, individual States and Territories had their own corporate lawmaking powers, creating divergent approaches, unnecessary expenses and complications for companies that traded across borders. The only way forward was a national approach. Yet, the High Court decided (New South Wales v Commonwealth (1990) 169 CLR 482) that the Commonwealth did not have the power to make laws for companies’ formation only for those which had commenced trading. Luckily, the current Corporations Act 2001 (Cth) (the Act) sets a uniform approach to corporate law in Australia. Now, more than 20 years since its inception, this article will discuss how the Act came into force and outline key areas of importance for corporations.
The Corporations Act
Each State and Territory has adopted the Corporations Act. As a result, there is now a single, federal piece of legislation that sets out the laws dealing with companies (as well as other types of entities, such as partnerships and managed investment schemes). No longer can the States and Territories meddle with their local laws. Likewise, the Ministerial Council must approve each amendment to the Corporations Act. Ultimately, this ensures uniformity across Australia regarding corporations law.
The Corporations Act brought the Australian company law landscape to a new age.
What Does the Corporations Act Govern?
At a whopping length of over 3,700 pages, the Act is quite far-reaching regarding the areas of corporations law it governs. The following sections discuss the key components of the Act and how they regulate what Australian companies can and cannot do.
Continue reading this article below the formCompany Formation
The Act outlines what type of companies you can register with the Australian Securities and Investments Commission (ASIC). When setting up your company, you must decide whether the company will be a proprietary (private) or public company. Likewise, you must also nominate the liability of your shareholders as one of:
- unlimited with share capital;
- limited by shares;
- limited by guarantee; or
- no liability.
The Act contains the laws that govern each of these entities. Therefore, it is essential to familiarise yourself with the sections applicable to the company you want to run.
Shares and Voting
Additionally, the Act dictates that all Australian companies must have a share capital. Likewise, the minimum number of shareholders for both public and proprietary companies limited by shares is one. The Act also regulates the number of shareholders that companies can have. For example, a proprietary company can have a maximum of 50. No such limit exists for public companies.
There are also various rules regarding shareholder voting rights. For example:
- by default, shareholders have one vote per share. However, you can amend this if the company decides;
- directors must convene a meeting if shareholders with over 5% of voting rights request that they do so;
- most decisions require the passing of an ‘ordinary resolution’. This is when over 50% of shareholders who are present and entitled to vote approve; or
- some instances (like, amending the company constitution) require the passing of a ‘special resolution’. This is when 75% of the shareholders who are present and entitled to vote approve.
Corporate Governance
The Act flooded the corporate governance space with changes. For example, previously, a company was required to have a memorandum and articles of association to establish the company’s operation. Now, a single (and optional) document – the company constitution – is all that is needed to document a company’s corporate governance framework.
Additionally, the Act’s replaceable rules can govern companies that choose not to adopt a constitution. Moreover, these rules automatically apply if a company’s constitution is silent about a particular issue covered by one of the 39 replaceable rules. Therefore, it is now possible to govern your company through a combination of the replaceable rules and your company constitution.
Directors’ Duties
Under the Act, a proprietary company must have at least one director, of which at least one must be resident in Australia. Likewise, it is not necessary to have a secretary.
Additionally, a public company must have at least three directors, whereby two must be residents in Australia. They must also have at least one secretary, who must be resident in Australia. Further, every director must comply with the directors’ duties found in the Act, which operate to ensure a director is acting in the company’s best interests. Some examples are the duty to:
- act in good faith;
- avoid and disclose conflicts of interest; and
- avoid insolvent trading.
If you are a company director, complying with directors’ duties are core to adhering to corporate governance laws.
This guide will help you understand the directors’ duties that apply to you within the Australian corporate law framework.
Takeovers
The Act directly regulates takeovers. These rules are detailed and technical and operate to ensure:
- the takeover occurs in an informed, efficient and competitive market;
- shareholders subject to a takeover proposal have adequate time to consider their options; and
- target shareholders are treated equally under any takeover proposal.
Insolvency
If a company is in financial distress and is approaching a position where it cannot pay its debts when they fall due, it may be approaching insolvency. Luckily, the Act contains the insolvency framework in Australia, governing how the company will proceed. Some of the most critical aspects of insolvency law include:
- the different types of liquidation, including how to commence winding up;
- restructuring options, such as voluntary administration; and
- directors’ duties and liabilities during insolvency.
Key Takeaways
The Corporations Act is a comprehensive and multifaceted piece of legislation with a long history. It is ultimately the primary document for governing corporations in Australia. Whilst being an extremely hefty document, it solves the tension between individual State and Territory governments who previously had vastly different approaches to company law. Today, the Act sets and regulates a uniform approach to corporations law, regarding company formation, governance and directors duties.
For more information on your corporate governance obligations under the Corporations Act, contact LegalVision’s business lawyers on 1300 544 755 or fill out the form on this page.
Frequently Asked Questions
The Act is a piece of federal legislation which governs company law in Australia. It applies equally in all Australian States and Territories.
To name a few, the Act governs company formation, shareholding and voting rights, directors duties, takeovers and corporate insolvency. It is the primary document that controls how companies run.
Yes and no. Previously each State and Territory had its own framework. However, as of 2001, the Corporations Act is the primary legislation for company law in Australia. However, other acts contain relevant laws that continue to apply to companies, such as tax law.
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