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Leo Cussen Institute (Registration as a
Company) Bill 2011
Introduction Print
EXPLANATORY MEMORANDUM
General
The Leo Cussen Institute was established by the Leo Cussen Institute Act
1972. The Bill provides for the registration of the Leo Cussen Institute as a
company limited by guarantee under section 5H of the Corporations Act
2001 of the Commonwealth ("the Corporations Act"). It is proposed that the
Leo Cussen Institute will be a company limited by guarantee with charitable
purposes, providing education for legal practitioners, prospective legal
practitioners and others concerned with the application of the law.
Registration as a company will not create a new legal entity: the company
will be taken for all purposes to be a continuation of, and the same legal
entity as, the Leo Cussen Institute established by the Leo Cussen Institute
Act 1972. Following registration of the Leo Cussen Institute as a company,
the Leo Cussen Institute Act 1972 will no longer have effect. The Bill
therefore provides for the repeal of the Leo Cussen Institute Act 1972 after
registration occurs.
Clause Notes
Clause 1 sets out the purposes of the Bill. The main purposes of the Bill
are to provide for the registration of the Leo Cussen Institute, as
established by the Leo Cussen Institute Act 1972, as a company
limited by guarantee under the Corporations Act and for the
repeal of the Leo Cussen Institute Act 1972.
Clause 2 provides for the commencement of the Bill. With the exception
of clause 8, the Bill comes into operation on the day after the day
on which it receives the Royal Assent.
571099 1 BILL LC INTRODUCTION 25/10/2011
Clause 8, which provides for the repeal of the Leo Cussen
Institute Act 1972, comes into operation on a day to be
proclaimed. The proclamation of this clause must occur on or
after the day specified by the Attorney-General under clause 5 of
the Bill as the day on which the Leo Cussen Institute is taken to
be registered as a company limited by guarantee.
Clause 3 sets out the definitions of key terms used in the Bill.
The term registration day has the same meaning as in
section 5H(1)(b)(i) of the Corporations Act, which refers to the
day specified in State or Territory legislation as the day on which
a body is taken to be registered as a company under the
Corporations Act, or the manner specified in that legislation in
which that day is to be fixed.
The term specified day means the day specified by the Attorney-
General in an order made under clause 5 of the Bill as the day on
which the Leo Cussen Institute (as established by the Leo
Cussen Institute Act 1972) is taken to be registered as a
company limited by guarantee for the purposes of section 5H of
the Corporations Act.
Clause 3(2) provides that words and expressions used in the Bill
and in the Corporations Act have the same meaning except to the
extent that the context or subject matter requires a different
meaning. This includes the term company limited by guarantee,
which, under section 9 of the Corporations Act, means a
company formed on the principle of having the liability of its
members limited to the respective amounts that the members
undertake to contribute to the property of the company if it is
wound up.
Clause 4 sets out the information required by section 5H of the
Corporations Act for the registration of the Leo Cussen Institute
(as established by the Leo Cussen Institute Act 1972) as a
company on the basis of Victorian legislation.
Section 5H(1) of the Corporations Act provides that a body is
taken to be registered under that Act as a company of a particular
type if a State or Territory law--
· provides that the body is a deemed registration company
for the purposes of the section; and
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· specifies--
· the day on which the body is to be taken to be
registered (the registration day) or the manner in
which that day is to be fixed; and
· the type of company the body is to be registered
as under the Act; and
· the company's proposed name (unless the ACN
is to be used in its name)--
and if section 5H(2) and (3) of the Corporations Act, which relate
to the lodgement of certain notices and documents with the
Australian Securities and Investments Commission, are satisfied.
Clause 4 therefore provides that the Leo Cussen Institute
(as established by the Leo Cussen Institute Act 1972) is a
deemed registration company for the purposes of section 5H of
the Corporations Act and specifies that--
· the specified day is the registration day, meaning the
day specified by the Attorney-General in an order made
under clause 5 of the Bill as the day on which the Leo
Cussen Institute is taken to be registered as a company
limited by guarantee for the purposes of section 5H of
the Corporations Act;
· the Leo Cussen Institute is to be registered under the
Commonwealth Act as a company limited by guarantee;
· the company's proposed name is "Leo Cussen Institute".
Clause 5 allows the Attorney-General to specify the day on which the Leo
Cussen Institute (as established under the Leo Cussen Institute
Act 1972) is taken to be registered as a company limited by
guarantee for the purposes of section 5H of the Corporations Act.
The specified day is to be fixed in an order published in the
Government Gazette. The Attorney-General must not make an
order fixing the specified day unless satisfied that the Leo Cussen
Institute has complied with the requirements of section 5H(2)
and (3) of the Corporations Act, which require the lodgement of
certain notices and documents with the Australian Securities and
Investments Commission.
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Clause 6 provides for corporate continuity of the Leo Cussen Institute.
On and after the day specified by the Attorney-General as the day
on which the Leo Cussen Institute (as established under the Leo
Cussen Institute Act 1972) is taken to be registered as a
company under the Corporations Act, the deemed registration
company will be taken for all purposes to be a continuation of,
and the same legal entity as, the Leo Cussen Institute established
under the Leo Cussen Institute Act 1972.
Without limiting the effect of this corporate continuity,
clause 6(2) provides that registration is not taken to affect--
· the Leo Cussen Institute's existing rights, property and
assets, or debts, liabilities and obligations;
· any legal proceedings by or against the Leo Cussen
Institute;
· the employment or employment entitlements of a person
employed by the Leo Cussen Institute immediately
before the registration day;
· the enrolment, or the terms and conditions of enrolment,
of a person who was a student at the Leo Cussen
Institute immediately before the registration day.
Clause 6(3) provides that clauses 6(1) and (2) are declared to be
Corporations legislation displacement provisions for the purposes
of section 5G of the Corporations Act. This is to avoid any
inconsistency between the Bill and Commonwealth Corporations
legislation. In particular, this is to avoid inconsistency with
section 119 of the Corporations Act, which otherwise provides
that a company comes into existence as a body corporate at the
beginning of the day on which it is registered.
Clause 7 provides that on and after the day specified by the Attorney-
General as the day on which the Leo Cussen Institute
(as established under the Leo Cussen Institute Act 1972) is
taken to be registered as a company under the Corporations Act,
the Leo Cussen Institute Act 1972 does not have effect.
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Clause 8 provides for the repeal of the Leo Cussen Institute Act 1972.
In accordance with clause 2, clause 8 comes into operation on a
day to be proclaimed, which must be on or after the day specified
by the Attorney-General under clause 5 as the day on which the
Leo Cussen Institute (as established under the Leo Cussen
Institute Act 1972) is taken to be registered as a company under
the Corporations Act.
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