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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Co-operatives National Law (South Australia)
Bill 2013
A BILL FOR
An Act to make provision for a national legislative scheme relating to the
formation, registration and management of co-operatives; to repeal the Co-operatives
Act 1997; and for related purposes.
Contents
Part 1—Preliminary
1Name of
Act
2Commencement
3Definitions
Part 2—Application of National Law and
Co-operatives National Regulations
4Application
of Co-operatives National Law
5Amendments to Schedule to maintain national
consistency
6Application of Co-operatives
National Regulations
7Meaning of certain terms in
Co-operatives National Law for purposes of this jurisdiction
8Exclusion of legislation of this
jurisdiction
Part 3—Some matters referred to in
Co-operatives National Law (South Australia)
9Designated authority,
designated instrument and designated tribunal (Co-operatives National Law
section 4)
10Disposal of consideration for shares
compulsorily acquired (Co-operatives National Law section 436)
11Deregistration (Co-operatives National Law
section 453)
12Costs of inquiry (Co-operatives National
Law section 530)
13Secrecy (Co-operatives National Law
section 537)
14Pecuniary penalty orders (Co-operatives
National Law section 556)
15Stamp duty (Co-operatives National
Law section 620)
16Registration fees
(Co-operatives National Law section 620)
Part 4—Regulations
17Local
regulations
Part 5—Miscellaneous
18Non-application of Co-operatives National
Law to housing co-operatives and other bodies
19Orders and other
instruments published in Gazette
20Proceedings for offences
21Proceedings for recovery of fines or penalties
under co-operative's rules
22Particular officials protected from
liability
23Registrar of
Co-operatives
24Repeal
Part 6—Savings and transitional
provisions
25Definition
26Local regulations for
savings or transitional matters
27General savings
28Registration of co-operatives
29Entitlements of former members of trading
co-operatives (Co-operatives National Law Schedule 3,
clause 1)
30Entitlement to distribution from business or
reserves of co-operative
31Minimum paid up amount of shares
(Co-operatives National Law section 78(4))
32Personal property
security interests
Schedule—Co-operatives National
Law
Chapter 1—Preliminary
Part 1—Introductory
1Citation
2Commencement
3Objects
Part 2—Interpretation
4Definitions
Schedule 4)
6References to regulations where
National Regulations are not applied
7Corresponding co-operatives
law
8Co-operatives National Law Act of this
jurisdiction
9Involvement in contraventions (cf
Corporations Act section 79)
Part 3—The
co-operative principles
10Co-operative
principles
11Interpretation to promote
co-operative principles
Part 4—The
Corporations legislation
Division 1—Exclusion
of matters from the Corporations legislation
12Excluded matter—co-operatives and
participating co-operatives
Division 2—Applied
matters (applied Corporations legislation matters)
13Applied Corporations legislation
matters under this Law
14Applied Corporations legislation
matters under the National Regulations
15Modifications to applied
provisions
Division 3—Prescription by National
Regulations of other matters dealt with by Corporations
legislation
16National Regulations
may provide for matters dealt with by Corporations legislation
Chapter 2—Formation,
powers and constitution of co-operatives
Division 1—Types of
co-operatives
17Types of
co-operatives
18Distributing
co-operatives
19Non-distributing
co-operatives
20Provisions regarding Registrar's
approvals about numbers
Division 2—Formation
meeting
21Formation
meeting
22Requirements
regarding formation meeting
Division 3—Initial
approval of rules and formation disclosure statement
23Submission of draft rules and
draft formation disclosure statement
24Provisions relating to and
approval of rules
25Provisions relating to and
approval of formation disclosure statement
Division 4—Registration of proposed
co-operative
26Application for registration of
proposed co-operative
27Registration of
proposed co-operative
28Incorporation and
certificate of registration
Division 5—Registration of existing
corporation
29Existing corporation
can be registered
30Formation meeting (existing
corporation)
31Application for
registration of existing corporation
32Requirements for
registration
33Certificate of
registration
34Effect of
registration
Division 6—Conversion of
co-operative
35Conversion of
co-operative
Division 7—General
36Acceptance of money by proposed
co-operative
37Issue of duplicate
certificate
Part 2—Legal capacity
and powers
Division 1—General
powers
38Effect of
incorporation
39Power to form companies
and enter into joint ventures
Division 2—Doctrine
of ultra vires not to apply
40Interpretation
41Doctrine of ultra vires not to apply
42Legal capacity
43Rules may limit powers and set out object (cf
Corporations Act section 125)
Division 3—Persons
having dealings with co-operatives
44Entitlement to make assumptions
45Assumptions (cf Corporations Act
section 129)
46Person who knows or
ought to know cannot make assumptions
47Filing of documents not to constitute constructive
knowledge
48Effect of fraud
Division 4—Execution of
documents
49Execution of documents
by co-operative (cf Corporations Act section 127)
50Agent exercising co-operative's power to make
contracts (cf Corporations Act section 126)
51Other requirements as to consent or sanction not
affected
Division 5—Pre-registration
contracts
52Contracts before
registration
53Person may be released from
liability but is not entitled to indemnity
54This Division replaces other rights and
liabilities
Division 1—Rules of a
co-operative
55Effect of
rules
56Content of
rules
57Purchase and inspection of copy of
rules
58False copies of
rules
59Rules can only be amended under
this Law
60Approval of
certain rule amendments
61Amendment by
special resolution
62Amendment by resolution of
board
63Amendment does not take effect
until registered
Division 2—Model
rules
64Model rules
65Adoption of model rules
Division 1
Division 1—Nature
of share
67Nature of share in
co-operative
Division 2—Disclosure
requirements for distributing co-operatives
68Registration of current
disclosure statement
69Restrictions on advertising and
publicity (cf Corporations Act section 734)
70Disclosure to intending
shareholders in distributing co-operative
71Exemptions from disclosure
statements
Division 3—Compensation for defective
disclosure
72Contravention leading to right to
recover for loss or damage (cf Corporations Act section 728)
73Right to recover for loss or damage resulting from
contravention (cf Corporations Act section 729)
74Due diligence defence (cf Corporations Act
section 731)
75General defences (cf
Corporations Act section 733)
Division 4—Issue of
shares
76Shares—general
77Minimum number of shares to be subscribed
for
78Minimum paid up
amount
79Shares not to be issued at a
discount
80Issue of
shares at a premium
81Joint ownership of
shares
82Members may be
required to take up additional shares
83Bonus share issues
84Restrictions on bonus shares
85Notice about bonus shares
Division 5—Provisions applying to
particular share subscriptions
86Definition
87Application of this Division
88Application money to be held on
trust (cf Corporations Act section 722)
89Minimum subscription condition must be fulfilled
before issue or transfer (cf Corporations Act section 723(2))
90Repayment of money if disclosure statement
condition not met (cf Corporations Act section 724(1)(a), (1A) and
(2)(a))
Division 6—Disclosure and registration of
interests in shares
91Direction to disclose (cf
Corporations Act section 672A(1))
92Disclosure by member of relevant
interests and instructions (cf Corporations Act section 672B)
93Registration as trustee, executor
or administrator on death of owner of shares
94Registration as administrator of
estate on incapacity of shareholder
95Registration as Official Trustee
in Bankruptcy
96Liabilities of person
registered as trustee or administrator
97Notice of trusts in register of members
98No notice of trust except as provided by this
Division
Division 7—Sale or
transfer of shares
99Sale or
transfer of shares
100Sale or transfer of shares to be
subject to rules
101Transfer not effective
until registered
Division 8—Transfer of
shares and other interests on death of member
102Meaning of interest
103Transfer of shares and other interests on death of
member
104Transfer of small shareholdings
and interests on death
105Value of shares
and interests
106Co-operative
protected
Division 9—Repurchase of
shares
107Purchase and repayment of
shares
108Deposits,
debentures or CCUs instead of payment when share repurchased
109Cancellation of shares
Division 1—General
110Becoming a member of co-operative
111Members of co-operative
group
112Qualification for
membership
113Membership may be
joint
114Minors
115Representatives of corporations
116Notification of shareholders and
shareholdings
117Circumstances in which
membership ceases—all co-operatives
118Additional circumstances in which membership
ceases—co-operatives with share capital
119Carrying on business with too
few members
Division 2—Rights
and liabilities of members
120Rights of membership not exercisable until
registered etc
121Liability of members to
co-operative
122Co-operative to give information
to person intending or applying to become a member
123False copy of documents
124Entry fees and regular subscriptions
125Members etc may be required to deal with
co-operative
126Fines payable by
members
127Lien and
set-off
128Repayment of
shares on expulsion or resignation
Division 3—Disputes
involving members
129Grievance procedure
130Application to designated tribunal
Division 4—Oppressive
conduct of affairs
131Interpretation—extended meaning of
member
132Application of
Division
133Application
for order
134Orders
135Basis on which orders made
136Winding up need not be ordered if members unfairly
prejudiced by order
137Application of
winding up provisions
138Changes to
rules
139Copy of order to be filed with
Registrar
Division 5—Inspection of
books
140Order
for inspection of books of co-operative (cf Corporations Act
section 247A)
141Ancillary orders (cf
Corporations Act section 247B)
142Disclosure of information acquired in inspection
(cf Corporations Act section 247C)
143Co-operative or directors may
allow member to inspect books (cf Corporations Act
section 247D)
Division 1—Definitions
144Meaning of primary
activity
145Meaning of
active member
146Meaning
of active membership provisions and resolutions
Division 2—Active
membership provisions
147Number of
primary activities required
148Rules to
contain active membership provisions
149Factors and considerations for deciding primary
activities and other matters
150Active
membership provisions—distributing co-operatives
151Active membership
provisions—non-distributing co-operatives—regular
subscriptions
Division 3—Active
membership resolutions
152Notice of
meeting
153Eligibility to vote on active
membership resolution
154Eligibility of
directors to vote on proposal at board meeting
155Other entitlements of members not
affected
Division 4—Cancellation of membership of
inactive members
156Cancellation of membership of
inactive member
157Shares to be forfeited
if membership cancelled
158Failure to
cancel membership—offence by director
159Deferral of cancellation by
board
160Cancellation of
membership prohibited in certain circumstances
161Notice of intention to cancel
membership
162Order
against cancellation
163Repayment of amounts owing
because of cancelled membership
164Interest on deposits, debentures
and CCUs
165Repayment of
deposits, debentures and CCUs
166Register
of cancelled memberships
Division 5—Entitlements
of former members of distributing co-operatives
167Application of Division
168Former shareholders to be taken
to be shareholders for certain purposes
169Entitlements of former
shareholders on mergers etc
170Set-off of
amounts repaid etc on forfeited shares
171Exemption of co-operatives from
provisions
Chapter 3—Management
and operation of co-operatives
Division 1—The
board
172Board of
directors
173Election of
directors
174Qualification of
directors
175Meeting of board of
directors
176Transaction of business
outside meetings
177Alternate
directors
178Delegation by
board
179Removal from and vacation of
office
180Removal from
office by resolution (cf Corporations Act section 203D)
Division 2—Disqualification
from managing co-operatives
181Offence for disqualified person
to manage co-operative
182Automatic
disqualification for offences
183Extension
of period of automatic disqualification (cf Corporations Act
section 206BA)
184Court's power of
disqualification—contravention of civil penalty provision (cf Corporations
Act section 206C)
185Court's power of
disqualification—insolvency and non-payment of debts (cf Corporations Act
section 206D)
186Court's power of
disqualification—repeated contraventions of Law (cf Corporations Act
section 206E)
187Registrar's power of
disqualification (cf Corporations Act section 206F(1)—4))
188Registrar's power to give
permission (cf Corporations Act section 206F(5))
189Court's power to grant leave (cf
Corporations Act section 206G)
Division 3—Secretary
190Secretary
191Responsibility of secretary (cf Corporations Act
section 188)
Division 4—Duties
and liabilities of directors, officers and employees
192Care and diligence—civil
obligation only (cf Corporations Act section 180)
193Good faith—civil
obligations (cf Corporations Act section 181)
194Use of position—civil
obligations(cf Corporations Act section 182)
195Use of information—civil
obligations (cf Corporations Act section 183)
196Good faith, use of position and
use of information—criminal offences (cf Corporations Act
section 184)
197Interaction of
preceding sections with other laws (cf Corporations Act
section 185)
198Indemnification and exemption of
officer or auditor
199Insurance premiums for certain
liabilities of director, secretary, other officer or auditor (cf Corporations
Act section 199B)
200Certain
indemnities, exemptions, payments and agreements not authorised and certain
documents void (cf Corporations Act section 199C)
201Application of Corporations
Act—offences by officers of co-operatives
202Application of Corporations
Act—employee entitlements
203Directors' remuneration
204Certain financial accommodation to officers
prohibited
205Financial accommodation to
directors and associates
206Restriction on
directors of certain co-operatives selling land to co-operative
207Management contracts
Division 5—Declaration of
interests
208Declaration of
interest
209Declarations to be recorded in
minutes
210Division does not affect other
laws or rules
211Certain
interests need not be declared
Division 6—Co-operative's registers, books
and returns
212Registers to be kept by
co-operatives
213Location of
registers
214Inspection
of co-operative's registers and other documents
215Use of information on registers
216Notice of appointment or cessation of appointment
of directors and officers to be lodged with Registrar
217List of members to be lodged with Registrar at
request of Registrar
218Reports to be
lodged with Registrar concerning prescribed particulars
219Special return to be lodged at request of
Registrar
Division 7—Name and
registered office
220Name to include certain
matter
221Exception to
requirement for using Limited in name
222Use of abbreviations
223Name to appear on seals, publications and business
documents
224Change of name of
co-operative
225Restriction on use of word
co-operative or similar words
226Registered office of
co-operative
Division 1—Voting
entitlements
227Application of Part
to voting
228Voting
229Voting by proxy
230Inactive members not entitled to vote
231Control of right to vote
232Effect of disposal of shares on voting
rights
233Effect of
relevant share and voting interests on voting rights
234Rights of representatives to vote
235Other rights and duties of members not affected by
ineligibility to vote
236Vote of
disentitled member to be disregarded
Division 2—Resolutions
237Decisions to be by ordinary resolution
238Ordinary resolutions
239Special resolutions
240How majority is ascertained
241Declaration of passing of special
resolution
242Effect of
special resolution
243Registration of special
resolution
244Decision
of Registrar on application to register special resolution
Division 3—Resolution by circulated
document
245Application of
Division
246Resolution by circulation of
document—fewer than 50 members
Division 4—Postal
ballots
247Postal
ballots
248Special
postal ballots
249When special postal
ballot is required
250Holding of postal ballot on
requisition
251Expenses involved in postal
ballots on requisition
Division 5—Meetings
252Annual general meetings (cf Corporations Act
section 250N)
253Special general
meetings
254Notice of meetings
255Quorum at meetings
256Decision at meetings
257Calling of general meeting on
requisition
258Minutes
259Auditor entitled to notice and other
communications (cf Corporations Act section 249K)
260Auditor's right to be heard at general meetings
(cf Corporations Act section 249V)
261Questions and comments by members on co-operative
management at annual general meeting (cf Corporations Act
section 250S)
262Questions by members
of auditors at annual general meeting (cf Corporations Act
section 250T)
Part 3—Financial reports
and audit
Division 1—Preliminary
263Interpretation
264General modifications to applied
provisions of Chapter 2M of Corporations Act
Division 2—Financial
records
265Obligation to keep financial
records (cf Corporations Act section 286)
266Language requirements (cf Corporations Act
section 287)
267Physical format (cf
Corporations Act section 288)
268Place where records are kept (cf Corporations Act
section 289)
269Director access (cf Corporations
Act section 290)
Division 3—Annual
financial reports and directors' reports generally
270Who has to prepare annual financial reports and
directors' reports
271Small
co-operative—direction by members (cf Corporations Act section 293
and section 315(2))
272Small
co-operative—direction by Registrar (cf Corporations Act
section 294)
Division 4—Annual
financial reports
273Contents of annual financial
report (cf Corporations Act section 295)
274Compliance with accounting
standards and regulations (cf Corporations Act section 296)
275True and fair view (cf
Corporations Act section 297)
276Audit of annual financial report
277Application of Corporations
Act—co-operatives with quoted securities—declaration about financial
statements by certain officers
Division 5—Annual
directors' reports
278Annual
directors' report (cf Corporations Act section 298)
279Annual directors'
report—general information (cf Corporations Act
section 299)
280Annual directors'
report—specific information
281Application of Corporations
Act—co-operatives with quoted securities—additional information to
be provided in directors' annual report
Division 6—Half-year
financial report and directors' report
282Application of Corporations
Act—co-operatives that are disclosing entities—half-year financial
reports and directors' reports
Division 7—Audit and
auditor's report
283Application of Corporations
Act—audit and auditor's report
Division 8—Annual
financial reporting to members
284Annual financial reporting to
members
285Deadline for
reporting to members
286Member's choices
for annual financial information
287Consideration of reports at annual general meeting
(cf Corporations Act section 317)
288Application of Corporations
Act—additional reporting by debenture issuers
Division 9—Lodging
reports and returns with Registrar
289Lodgment of annual reports by
large co-operatives with Registrar (cf Corporations Act
section 319)
290Lodgment of half-year reports
with Registrar (cf Corporations Act section 320)
291Registrar's power to require
lodgment (cf Corporations Act section 321)
292Relodgment if financial
statements or directors' reports amended after lodgment (cf Corporations Act
section 322)
293Lodgment by small co-operatives
of annual returns with Registrar
Division 10—Special
provisions about consolidated financial statements
294Application of Corporations
Act—special provisions about consolidated statements
Division 11—Financial
years and half-years
295Financial
year (cf Corporations Act section 323D)
296Half-year (cf Corporations Act
section 323D(5))
Subdivision 1—General provisions
relating to auditors
297Application of Corporations
Act—auditors
Subdivision 2—Appointment of
auditors
298Appointment of auditor of
small co-operative (cf Corporations Act section 325)
299Initial appointment of auditor of large
co-operative (cf Corporations Act section 327A)
300Annual appointment at annual general meeting of
auditor of large co-operative to fill vacancy
301Appointment by directors or annual general meeting
of auditor of large co-operative to fill casual vacancy (cf Corporations Act
section 327C)
302Appointment to replace auditor
removed from office (cf Corporations Act section 327D)
303Registrar to be notified of appointment of
auditor
304Registrar may
appoint auditor if auditor removed but not replaced (cf Corporations Act
section 327E)
305Registrar's general power to
appoint auditor of large co-operative (cf Corporations Act
section 327F)
306Restrictions on Registrar's
powers to appoint auditor of large co-operative (cf Corporations Act
section 327G)
307Remaining auditors
may act during vacancy (cf Corporations Act section 327I)
308Nomination of auditor (cf
Corporations Act section 328B)
309Auditor's consent to appointment (cf Corporations
Act section 328A)
Subdivision 3—Removal and
resignation of auditors
310Removal and resignation of
auditors (cf Corporations Act section 329)
311Effect of winding up on office of auditor (cf
Corporations Act section 330)
Subdivision 4—Auditors' fees and
expenses
312Fees and expenses of auditors
(cf Corporations Act section 331)
Subdivision 5—Protection of
auditors
313Protection of
auditors
Division 13—Accounting
and auditing standards
314Accounting and auditing
standards
315Interpretation of accounting
and auditing standards (cf Corporations Act section 337)
Division 14—Exemptions
and modifications
316Exemptions—individual
co-operatives (cf Corporations Act section 340)
317Exemptions—classes of
co-operatives (cf Corporations Act section 341)
318Exemptions—criteria for
exemptions for individual co-operatives or classes of co-operatives (cf
Corporations Act section 342)
319Exemptions—non-auditor
members and former members of audit firms, and former employees of audit
companies (cf Corporations Act section 342AA)
320Exemptions—classes of
non-auditor members etc (cf Corporations Act section 342AB)
321Exemptions—criteria for
exemptions for non-auditor members etc (cf Corporations Act
section 342AC)
322Exemptions from National
Regulations
323Registrar's power to modify the
operation of section 324DA of Corporations Act (cf Corporations Act
section 342A)
324Auditor to notify
co-operative of declaration (cf Corporations Act section 342B)
325Modification by National Regulations (cf
Corporations Act section 343)
326Amendment, suspension or revocation of
exemption
Division 15—Miscellaneous
327Disclosure by directors
328Contravention by directors of
provisions of this Part (cf Corporations Act section 344)
329Submission of financial reports to Financial
Reporting Panel
330Notification of ASIC by
Registrar of certain matters relating to auditor independence
Division 1—Power to
raise money
331Meaning of obtaining
of financial accommodation
332Fundraising
to be in accordance with National Regulations
333Limits on deposit
taking
334Members and other persons not
required to see to application of money
335Registrar's directions about obtaining financial
accommodation
336Subordinated
debt
337Application of
Corporations Act—issues of debentures
338Disclosure statement
339Restrictions on advertising and
publicity
340Application money to be held
on trust (cf Corporations Act section 722)
341Approval of board for transfer of
debentures
342Application of Corporations
Act—reissue of redeemed debentures
343Compulsory loan by member to
co-operative
344Interest payable on
compulsory loan
Division 2—Co-operative
capital units (CCUs)
345General nature of CCU
346Priority of CCUs on winding up
347Financial accommodation provisions apply to issue
of CCUs
348CCUs can be issued to
non-members
349Minimum requirements for
rules concerning CCUs
350CCUs not to be
issued unless terms of issue approved by Registrar
351Directors' duties concerning CCUs
352Redemption of CCUs
353Capital redemption reserve
354Issue of shares in substitution for
redemption
Division 3—Disposal
of surplus from activities
355Retention of surplus for benefit of
co-operative
356Application for charitable
purposes or approved activities
357Distribution of surplus or
reserves to members
358Application of
surplus to other persons
Division 4—Acquisition and disposal of
assets
359Acquisition and disposal of
assets
Part 5—Restrictions on
acquisition of interests in co-operatives
Division 1—Restrictions
on share and voting interests
360Notice required to be given of
voting interest
361Notice required to be given of
substantial share interest
362Requirements
for notices
363Maximum
permissible level of share interest
364Shares to be forfeited to remedy
contravention
365Powers of board in
response to suspected contravention
366Powers of Supreme Court about
contravention
367Co-operative to inform
Registrar of interest over 20%
368Co-operative to keep
register
369Unlisted companies to provide
list of shareholders etc
370Excess share
interest not to affect loan liability
371Extent of operation of this Division
372Exemptions
Division 2—Restrictions
on certain share offers
373Share offers to which this
Division applies
374Requirements to be satisfied
before offer can be made
375Some offers
totally prohibited if they discriminate
376Offers to be submitted to board first
377Announcements of proposed takeovers about proposed
company
378Additional disclosure
requirements for offers involving conversion to company
379Consequences of prohibited offer
380Exemptions
Chapter 4—Structural
and other events for co-operatives
Part 1—Appointment of
administrator
Division 1—Introductory
381Operation of this Part
Division 2—Administration
under Corporations Act
382Application of Corporations
Act—administration of co-operative
383Appointment of administrator by
Registrar in the case of insolvency
Division 3—Administration—alternative
procedure
384Operation of this
Division
385Appointment
of administrator by Registrar
386Effect of
appointment of administrator
387Revocation of
appointment
388Expenses of
administration
389Liabilities arising from
administration
390Additional powers of
Registrar
391Stay of
proceedings
392Administrator to report to
Registrar
Part 2—Receivers
and other controllers of property
393Application of Corporations
Act—receivers and other controllers of property of
co-operatives
Part 3—Mergers and
transfers of engagements
Division 1—Merger or
transfer of engagements
394Application of this Division
395Mergers and transfers of engagements of local
co-operatives
396Requirements before application
can be made
397Disclosure statement
required
398Making an
application
399Approval of
merger
400Approval of transfer of
engagements
401Transfer
of engagements by direction of Registrar
Division 2—Transfer of
incorporation
402Meaning of new
body and transfer
403Application for
transfer
404Requirements
before application can be made
405New body
ceases to be registered as co-operative
406Transfer not to impose greater liability
etc
407Effect of new
certificate
408Copy of new certificate to
be given to Registrar
409New body is a
continuation of the co-operative
Division 3—Effect of
merger or transfer on assets and liabilities
410How this Division applies to a merger
411How this Division applies to a transfer of
engagements
412How this
Division applies to a transfer of incorporation
413Effect of merger or transfer on
assets and liabilities
Part 4—Compromises and
arrangements
Division 1—General
requirements
414Requirements for binding
compromise or arrangement
415Court ordered
meeting of creditors
416Registrar to be
given notice and opportunity to make submissions
417Results of 2 or more meetings
418Persons disqualified from administering compromise
or arrangement
419Application of
Corporations Act to person appointed to administer compromise or
arrangement
420Application of Corporations
Act—person appointed to administer compromise or arrangement
421Copy of order to be attached to
rules
422Directors to arrange for
reports
423Power of Court to restrain
further proceedings
424Court need not
approve compromise or arrangement takeovers
425Provisions for facilitating
reconstructions and mergers
426Costs for
Registrar
Division 2—Explanatory
statements
427Explanatory statement
required to accompany notice of meeting etc
428Requirements for explanatory statement
429Contravention of this Division—offence by
co-operative
Division 3—Acquisition of shares of
dissenting shareholders
430Definitions
431Schemes and contracts to which this Division
applies
432Acquisition
of shares pursuant to notice to dissenting shareholder
433Restrictions when excluded shares are more than
10%
434Remaining shareholders may require
acquisition
435Transfer of shares pursuant
to compulsory acquisition
436Disposal of consideration for
shares compulsorily acquired
Division 4—Miscellaneous
437Notification of appointment of scheme
manager
438Power of Supreme Court to
require reports
439Effect of
out-of-jurisdiction compromise or arrangement
440Jurisdiction to be exercised in harmony with
Corporations Act jurisdiction
441Registrar
may appear and be heard
Part 5—Winding
up
442Methods of winding
up
443Winding up on
Registrar's certificate
444Application of Corporations
Act—voluntary winding up and court-ordered winding up
445Voluntary winding
up—restrictions
446Voluntary winding up—start
of members' voluntary winding up
447Voluntary winding up—liquidator vacancy may
be filled by Registrar
448Distribution of
surplus—non-distributing co-operatives
449Review of liquidator's
remuneration
450Liability of member to
contribute in a winding up if shares forfeited etc
Part 6—Insolvency
451Application of Corporations
Act—insolvent co-operatives
Part 7—Deregistration
452Method of deregistration
453Application of Corporations
Act—deregistration
454Deregistration of co-operative
ceasing to exist
Part 8—Grounds for
certain actions
455Grounds for appointment of
administrator, transfer of engagements or winding up of
co-operative
Chapter 5—Participating
co-operatives
Part 1—Introductory
456What constitutes carrying on
business
Part 2—Participating co-operatives
carrying on business in this jurisdiction
457Operation of participating co-operatives in this
jurisdiction
458Authorisation to carry on
business in this jurisdiction
459Authorisation to carry on business in this
jurisdiction is subject to conditions and restrictions of participating
jurisdiction
460Ceasing
to be authorised to carry on business in this jurisdiction
461Withdrawal of authorisation to
carry on business
462Name of participating
co-operative
463Application of Law and
National Regulations to participating co-operatives
Part 3—General
464False copies of rules
465False copy of documents
466Restrictions on advertising and
publicity—shares (cf Corporations Act section 734)
467Restrictions on advertising and
publicity—debentures or CCUs
468Registrar's directions about
obtaining financial accommodation
469Name
and place of origin to appear on business and other documents
Part 4—Winding up of
participating co-operatives in this jurisdiction
470Winding up to relate to activities in this
jurisdiction
471Supreme
Court may order winding up
472Application of Corporations
Act—winding up of participating co-operatives in this
jurisdiction
473Outstanding property of
participating co-operative
Part 5—Mergers and
transfers of engagements affecting participating co-operatives
474Definitions
475Authority for merger or transfer of
engagements
476Requirements before application
can be made
477Disclosure statement
required
478Making an
application
479Approval of
merger
480Approval of transfer of
engagements
481Effect of merger or
transfer of engagements
482Part applies
instead of certain other provisions of this Law
Chapter 6—Supervision
and protection of co-operatives
Part 1—Introductory
483Application of Chapter
Part 2—Prevention
of fraud and other activities
484Falsification of books
485Fraud or misappropriation
486Offering or paying commission
487Accepting commission
488False statements in loan application
etc
Part 3—Examining a
person about a co-operative
489Application of Corporations
Act—court-directed examinations
Part 4—Supervision and
inspection
490Definitions
491Co-operative includes subsidiaries, participating
co-operatives and co-operative ventures
492Appointment of
inspectors
493Registrar and investigators
have functions of inspectors
494Inspector's identity
card
495Production or display of
inspector's identity card
496Powers of
inspector
497Inspector's appointment
conditions
498Entry of place
499Consent to entry
500Inspectors may require certain
persons to appear, answer questions and produce documents
501Powers of inspectors at place entered
502Functions of inspectors in
relation to relevant documents
503Protection from incrimination
504Warrants
505Warrants—applications made
otherwise than in person
506Requirements
before executing warrant
507General powers
after entering places
508Power to seize
evidence
509Receipt for seized
things
510Return of seized
things
511Power to require name and
address
512False or misleading
statements
513Power to require production
of documents
514False or misleading
documents
515Obstruction of
inspectors
516Copies or extracts of
records to be admitted in evidence
517Privilege
518Machinery and other provisions for
warrants
Part 5—Inquiries
519Definitions
520Appointment of
investigators
521Powers of
investigators
522Examination of involved
person
523Privilege
524Offences by involved
person
525Offences relating to
documents
526Record of
examination
527Report of
investigator
528Proceedings following
inquiry
529Admission of investigator's
report as evidence
530Costs of inquiry
Part 6—Special
meetings and inquiries
531Application for special meeting or
inquiry
532Holding of
special meeting
533Expenses of special meeting or
inquiry
534Power to hold
special inquiry into co-operative
535Special meeting following inquiry
Chapter 7—Legal
proceedings and other matters
Part 1—Offences,
enforcement and remedies
536Notice
to be given of conviction for offence
537Secrecy
538False or misleading statements
539Further offence for failure to do required
act
540Civil remedies
541Order against person concerned with co-operative
(cf Corporations Act section 598)
542Injunctions
543Undertakings
544Offence for contravention of
undertaking
545Enforcement order on application
with consent of person giving undertaking
546Enforcement orders after
contravention of undertaking
547Copy of
undertaking
548Registration of
undertakings
549Double jeopardy
550Strict liability
551Time limit for starting proceedings for
offence
552Authorisation to start
proceedings for offence
Part 2—Civil
consequences of contravening civil penalty provisions
553Definitions (cf Corporations Act
section 1317DA)
554Declarations of contravention
(cf Corporations Act section 1317E)
555Declaration of contravention is conclusive
evidence (cf Corporations Act section 1317F)
556Pecuniary penalty orders (cf
Corporations Act section 1317G)
557Compensation orders (cf
Corporations Act section 1317H)
558Who may apply for a declaration or order (cf
Corporations Act section 1317J)
559Time limit for application for a declaration or
order (cf Corporations Act section 1317K)
560Civil evidence and procedure rules for
declarations of contravention and civil penalty orders (cf Corporations Act
section 1317L)
561Civil proceedings after criminal
proceedings (cf Corporations Act section 317M)
562Criminal proceedings during civil proceedings (cf
Corporations Act section 1317N)
563Criminal proceedings after civil proceedings (cf
Corporations Act section 1317P)
564Evidence given in proceedings for penalty not
admissible in criminal proceedings (cf Corporations Act
section 1317Q)
565Relief from
liability for contravention of civil penalty provision (cf Corporations Act
section 1317S)
566Power to grant relief (cf
Corporations Act section 1318)
567Irregularities (cf Corporations Act
section 1322)
568Civil proceedings
not to be stayed (cf Corporations Act section 1331)
569Standard of proof (cf Corporations Act
section 1332)
Part 3—Appeals and
review
570Operation of
Part—appeal includes review
571Appeal against refusal to approve draft
rules
572Appeal against refusal to
approve disclosure statement
573Appeal
against refusal to register co-operative
574Appeal against refusal to approve amendment of
rules
575Appeal against refusal to
register amendment
576Appeal against
decision of Registrar about remuneration of liquidator
577Appeal against notice that participating
co-operative not authorised to carry on business in this jurisdiction
578Provisions relating to appeals
Part 4—Proceedings in
relation to co-operatives
579Bringing, or intervening in,
proceedings on behalf of co-operative
580Applying for and granting
leave
581Substitution of another person
for the person granted leave
582Effect of
ratification by members (cf Corporations Act section 239)
583Leave to discontinue, compromise or settle
proceedings brought, or intervened in, with leave (cf Corporations Act
section 240)
584General powers of
Supreme Court
585Power of Supreme Court
to make costs orders (cf Corporations Act section 242)
586Power of Registrar to intervene in
proceedings
Part 5—Evidentiary
matters
587Certificate of
registration
588Certificate
evidence
589Records kept by
co-operatives
590Minutes
591Official certificates
592The Registrar and proceedings
593Rules
594Co-operative's registers
Chapter 8—General
Part 1—Administrative and other
matters
595Registrar of
Co-operatives and other officials
596Registrar's functions
597Functions conferred on Registrar under
corresponding co-operatives laws
598Delegation by Registrar
599Register of
co-operatives
600Keeping of register of
co-operatives
601Inspection of register of
co-operatives
602Retention of records by
Registrar
603Disposal of
records by Registrar
604Filing of documents
605Way of filing
606Power of Registrar to refuse to register or
reject documents
607Approvals by
Registrar
608Information and
evidence
609Extension or shortening of
time
Part 2—Service of
documents
610Service of documents
on co-operative or participating co-operative
611Service on member of co-operative
Part 3—Co-operatives National
Regulations
612Power to make Co-operatives
National Regulations
613National
Regulations for savings or transitional matters
614Publication and commencement of National
Regulations
Part 4—Miscellaneous
615Disclosure statements
616Supply of information between
jurisdictions
617Supply
of information under reciprocal arrangements
618Translations of documents
619Qualified privilege
620Stamp duty and registration
fees
621Procedures regarding giving of
exemptions
622Approval
of forms
623Exclusion of
bodies
624Savings and
transitional provisions
Schedule 1—Matters for
which rules of co-operative must make provision
1Requirements for all
co-operatives
2Additional
matters—co-operatives with share capital
3Additional matters—non-distributing
co-operatives
Schedule 2—Relevant
interests, associates, and related corporations
Part 1—Relevant
interests
1Terminology used in
this Part
2Basic rules—relevant
interests
3Control of corporation having
power in relation to a share
4Control of
20% of voting power in corporation having power in relation to a
share
5Deemed relevant
interest in advance of performance of agreement that will give rise to a
relevant interest
6Control of corporation
having a relevant interest by virtue of clause 5
7Matters not affecting application of
Part
8Corporation may have a relevant
interest in its own shares
9Exclusions—money-lenders
10Exclusions—certain trustees
11Exclusions—instructions to securities dealer
to dispose of share
12Exclusions—honorary proxies
13Exclusions—holders of prescribed
offices
14Prescribed
exclusions
15Effect of
Schedule
16Relevant
interest—corporation other than co-operative
Part 2—Associates
17Effect of Part
18Associates of a corporation
19Matters relating to voting
rights
20General
21Exclusions
Part 3—Related
corporations
22Related
corporations
Schedule 3—Savings and
transitional provisions
1Entitlements of former members of trading or
distributing co-operatives
2Application
of Chapter 5 to existing registered foreign co-operatives not incorporated under
corresponding law
3Maximum permissible
level of share interest
4Receivers of
property
Schedule 4—Miscellaneous
provisions relating to interpretation
Part 1—Preliminary
1Displacement of Schedule by contrary
intention
Part 2—General
2Law to be construed not to exceed legislative power
of Legislature
3Every section to be a
substantive enactment
4Material that is,
and is not, part of this Law
5References
to particular Acts and to enactments
6References taken to be included in Law or Act
citation etc
7Interpretation best
achieving Law's purpose or object
8Use of
extrinsic material in interpretation
9Effect of change of drafting practice
10Use of examples
11Compliance with forms
Part 3—Terms and
references
12Definitions
13Provisions relating to defined terms and gender
and number
14Meaning of may and must
etc
15Words and expressions used in
statutory instruments
16Effect of express
references to bodies corporate and individuals
17Production of records kept in computers
etc
18References to this jurisdiction to
be implied
19References to officers and
holders of offices
20Reference to certain
provisions of Law
21Reference to
provisions of this Law or an Act is inclusive
Part 4—Functions
22Exercise of statutory functions
23Power to make instrument or decision includes
power to amend or repeal
24Matters for
which statutory instruments may make provision
25Presumption of validity and power to make
statutory instrument
26Appointments may
be made by name or office
27Acting
appointments
28Powers of appointment
imply certain incidental powers
29Delegations
30Exercise of powers between enactment and
commencement
Part 5—Distance,
time and age
31Matters relating to
distance, time and age
Part 6—Effect of
repeal, amendment or expiration
32Time of Law ceasing to have effect
33Repealed Law provisions not revived
34Saving of operation of repealed Law
provisions
35Continuance of repealed
provisions
36Law and amending Acts to be
read as one
Part 7—Instruments
under this Law
37Schedule applies
to statutory instruments
Part 8—Application
to coastal sea
38Application
Part 9—Offences
under this Law
39Penalty at foot
of provision
40Penalty other than at foot
of provision
The Parliament of South Australia enacts as
follows:
This Act is the Co-operatives
National Law (South Australia) Act 2013.
This Act will come into operation on a day to be fixed by
proclamation.
(1) For the purposes of this Act, the local application provisions
of this Act are the provisions of this Act other than the South
Australian Co-operatives National Law text.
(2) In the local application provisions of this Act—
Co-operatives National Law (South Australia) means the
provisions applying in relation to this jurisdiction because of
section 4;
Co-operatives National Regulations or National
Regulations means the Co-operatives National Regulations made
under the Co-operatives National Law;
Co-operatives National Regulations (South Australia) means
the provisions applying in relation to this jurisdiction because of
section 6;
instrument includes a document;
local regulations means regulations made under
section 16, but does
not include the Co-operatives National Regulations and the Co-operatives
National Regulations (South Australia);
South Australian Co-operatives National Law text means the
Co-operatives National Law set out in the Schedule (as in force for the
time being);
this jurisdiction means the State of South
Australia.
(3) Terms used in the local application provisions of this Act and also in
the South Australian Co-operatives National Law text have the same meanings in
those provisions as they have in that text.
Part 2—Application
of National Law and Co-operatives National Regulations
4—Application
of Co-operatives National Law
The South Australian Co-operatives National Law text—
(a) applies as a law of South Australia; and
(b) as so applying may be referred to as the Co-operatives
National Law (South Australia); and
(c) so applies as if it were an Act.
5—Amendments
to Schedule to maintain national consistency
(a) the Parliament of New South Wales enacts an amendment to the
Co-operatives National Law set out in the Appendix to the
Co-operatives (Adoption of National Law) Act 2012 of New South
Wales; and
(b) the Governor is satisfied that an amendment that corresponds, or
substantially corresponds, to the amendment made by the Parliament of New South
Wales should be made to the Co-operatives
National Law (South Australia),
the Governor may, by regulation, amend the South Australian Co-operatives
National Law text.
(2) The Governor may, as part of a regulation made under
subsection (1), make
any additional provisions (including so as to modify the terms of an amendment
that has been made to the Co-operatives National Law by the Parliament of
New South Wales or to provide for related or transitional matters) considered by
the Governor to be necessary to ensure that the amendment to the
Co-operatives National Law has proper effect in South
Australia.
(3) A regulation made under this section may, if the regulation so
provides, take effect from the day of the commencement of an amendment to the
Co-operatives National Law made by the Parliament of New South Wales
(including a day that is earlier than the day of the regulation's publication in
the Gazette).
6—Application
of Co-operatives National Regulations
(1) The
Co-operatives National Regulations, as in force from time to
time—
(a) apply as National Regulations in force for the purposes of the Co-operatives
National Law (South Australia), subject to modifications by the local
regulations; and
(b) as so applying may be referred to as the Co-operatives
National Regulations (South Australia).
(2) The Minister is to
make arrangements for the tabling of a regulation made under the
Co-operatives National Law in both Houses of Parliament.
(3) The Minister must, after a regulation is tabled in each House of
Parliament under
subsection (2),
forward a copy of the regulation to the Legislative Review Committee of the
Parliament for inquiry and report.
(4) A regulation made under the Co-operatives National Law may be
disallowed by a House of Parliament in the same way, and within the same period,
that a regulation made under an Act of this jurisdiction may be
disallowed.
(5) If a regulation is disallowed under this section, the disallowance
will have effect in this State despite any provision in the Co-operatives
National Law.
7—Meaning
of certain terms in Co-operatives National
Law for purposes of this jurisdiction
(1) In the Co-operatives
National Law (South Australia)—
police officer means a member of S.A. Police under the Police
Act 1998;
public sector official means a public sector employee under
the
Public
Sector Act 2009;
Registrar means the Corporate Affairs Commission, which is
designated by
section 23 as the
Registrar of Co-operatives;
this jurisdiction means the State of South
Australia.
(2) A reference in
section 537(4)(b) of
the Co-operatives
National Law (South Australia) to the Registrar will be taken to include
a reference to an officer of the Corporate Affairs Commission.
8—Exclusion
of legislation of this jurisdiction
The Acts
Interpretation Act 1915 does not apply to the Co-operatives
National Law (South Australia), the Co-operatives
National Regulations (South Australia), the Co-operatives National
Regulations or other instruments (excluding local regulations) made under
that Law.
Part 3—Some
matters referred to in Co-operatives National
Law (South Australia)
9—Designated
authority, designated instrument and designated tribunal
(Co-operatives National Law
section 4)
(1) With respect to the
definition of designated authority in the Co-operatives
National Law (South Australia)—
(a) the Registrar is specified for the purposes of
sections 15,
601 and
622 of that Law; and
(b) the Corporate Affairs Commission is specified for the purposes of
sections 492,
494 and
520 of that Law; and
(c) a magistrate is
specified for the purposes of
sections 504 and
505 of that Law.
(2) With respect to the definition of designated instrument
in the
Co-operatives
National Law (South Australia)—
(a) an order in writing in the approved form is specified for the purposes
of the provisions of that Law referred to in Column 2 of the table to this
subsection and for the person or class (if any) or in the circumstances (if any)
specified in that Column; and
(b) a Gazette notice in the approved form is specified for the purposes of
the provisions of that Law referred to in Column 3 of the table to this
subsection and for the person or class (if any) or in the circumstances (if any)
specified in that Column; and
(c) a written notice in the approved form is specified for the purposes of
section 443(5) of
that Law.
Table
Column 1 |
Column 2 |
Column 3 |
---|---|---|
Item |
Designated instrument is an order in writing |
Designated instrument is a Gazette notice |
1 |
|
Section 33(1)
(certificate of registration) |
2 |
Section 35(5)(a)
(exemption from special postal ballot for amendment of rules for
conversion)—for individual co-operative |
Section 35(5)(b)
(exemption from special postal ballot for amendment of rules for
conversion)—for class of co-operatives. |
3 |
|
Section 60(2) (specifying
rule amendments requiring prior approval by Registrar) |
4 |
Section 71(1) (exemption
from requirements of
Chapter 2 Part 4
Division 2)—for individual co-operative |
Section 71(1) (exemption
from requirements of
Chapter 2 Part 4
Division 2)—for class of co-operatives |
5 |
Section 92(6) (exemption
from complying with disclosure direction) |
|
6 |
Section 171(1) (exemption
from requirements of
Chapter 2 Part 6
Division 5)—for individual co-operative |
Section 171(1) (exemption
from requirements of
Chapter 2 Part 6
Division 5)—for class of co-operatives |
7 |
|
Section 221(1) (approval
of omission of "Limited" or "Ltd" from name) |
8 |
Section 226(6) (exemption
from requirement to display location notice)—for individual small
co-operative |
Section 226(6) (exemption
from requirement to display location notice)—for class of or all small
co-operatives) |
9 |
Section 316(1) (exemption
for individual co-operative from accounting and auditing provisions) |
|
10 |
|
Section 317(1) (exemption
for class of co-operatives from accounting and auditing provisions) |
11 |
|
Section 319(1) (exemption
for non-auditor members and former members of audit firms, and former employees
of audit companies from accounting and auditing provisions) |
12 |
|
Section 320(1) (exemption
for classes of non-auditor members etc from accounting and auditing
provisions) |
13 |
|
Section 322(1) (exemption
from National Regulations made under
Chapter 3
Part 3) |
14 |
Section 338(6) (exemption
from compliance with
section
338)—for individual co-operative |
Section 338(6) (exemption
from compliance with
section
338)—for class of co-operatives |
15 |
Section 343(10)
(exemption from compliance with
section 343)—for
individual co-operative |
Section 343(10)
(exemption from compliance with
section 343)—for class of
co-operatives |
16 |
Section 359(3) (exemption
from compliance with
section
359 or
248) |
|
17 |
Section 363(2) (stating
maximum greater than 20% of nominal value of issued share capital)—for
individual co-operative |
Section 363(2) (stating
maximum greater than 20% of nominal value of issued share capital)—for
class of co-operatives |
18 |
|
Section 372(1) (exemption
of person or class of persons from the operation of
Chapter 3 Part 5
Division 1) |
19 |
Section 380(1) (exemption
from compliance with
Chapter 3 Part 5
Division 2 or
section 248) |
|
20 |
Section 397(4) (exemption
from compliance with
section 397) |
|
21 |
|
Section 401(7)
(notification by Registrar of date of effect of transfer of engagements between
co-operatives) |
22 |
Section 404(4) (exemption
from compliance with
section 404 or
248) |
|
23 |
Section 445(3) (exemption
from compliance with
445 or
248)—for individual
co-operative |
Section 445(3) (exemption
from compliance with
445 or
248)—for class of
co-operatives |
24 |
Section 607(3)
(Registrar's approval)—for individual co-operative or person |
Section 607(3)
(Registrar's approval)—for class of co-operatives or persons |
(3) The following provisions have effect with respect to the definition of
designated tribunal in the Co-operatives
National Law (South Australia):
(a) the Supreme Court is specified for the purposes of the provisions of
that Law in which the term is used, except
Chapter 7 Part 3 of
that Law;
(b) the Administrative and Disciplinary Division of the District Court is
specified for the purposes of
Chapter 7 Part 3 of
that Law.
10—Disposal
of consideration for shares compulsorily acquired
(Co-operatives National Law
section 436)
For the purposes of
section 436(3)(b)(i)
of the Co-operatives
National Law (South Australia)—
(a) the applied provisions of the Corporations Act are to be read as if
the following provision were inserted in Part 9.7 before
section 1339:
1338D—Co-operatives Liquidation
Account
(1) The Co-operatives Liquidation Account established under
Division 3 of Part 6 of the
Co-operatives
Act 1983 of South Australia continues in existence under this
Part.
(2) The Account must continue to be kept in a separate account at the
Treasury.;
and
(b) references in section 1339 of the Corporations Act to crediting
an amount to the Companies and Unclaimed Moneys Special Account are to be read
as references to the Co-operatives Liquidation Account; and
(c) section 1339 of the Corporations Act applies as if the following
subsection were inserted after subsection (2);
(3) Money in the Co-operatives Liquidation Account that is not immediately
required for the payment of claims under section 1341 may be invested by
the Treasurer on such terms and conditions as the Treasurer thinks fit with a
prescribed person or body.
(4) The Treasurer must pay income derived from the investment of money in
the Co-operatives Liquidation Account into the Consolidated Account.;
and
(d) section 1341 of the Corporations Act applies as
if—
(i) a reference to the Consolidation Revenue Fund of the Commonwealth were
a reference to the Consolidated Account of the State; and
(ii) a reference to the Court were a reference to the District Court of
South Australia.
11—Deregistration
(Co-operatives National Law
section 453)
(1) For the purposes of section 453(d) of the Co-operatives
National Law (South Australia), references in
sections 601AD—601AF of the Corporations Act to the Commonwealth are
to be read as references to the State of South Australia.
(2) For the purposes of section 453(e) of the Co-operatives
National Law (South Australia), references in section 601AE of the
Corporations Act to crediting an amount to a Special Account (within the meaning
of the Financial Management and Accountability Act 1997 of the
Commonwealth) are to be read as references to crediting the amount to an account
established or approved by the Treasurer.
12—Costs
of inquiry (Co-operatives National Law
section 530)
For the purposes of section 530(3)(b) of the Co-operatives
National Law (South Australia), the prescribed entity is the Corporate
Affairs Commission.
13—Secrecy
(Co-operatives National Law
section 537)
(1) For the purposes of section 537(4)(c) of the Co-operatives
National Law (South Australia), information may be divulged
to—
(a) the Treasurer; or
(b) the Commissioner of State Taxation; or
(c) the Auditor-General; or
(d) a person prescribed by the local regulations.
(2) For the purposes of the definition of former Act in
section 537(6) of the
Co-operatives
National Law (South Australia), the Co-operatives
Act 1997 is specified.
14—Pecuniary
penalty orders (Co-operatives National Law
section 556)
(1) For the purposes of section 556(2) of the Co-operatives
National Law (South Australia), a pecuniary penalty ordered to be paid
in this jurisdiction is to be paid and treated in accordance with this
section.
(2) The penalty is a civil debt payable to the Corporate Affairs
Commission on behalf of the State.
(3) The Corporate Affairs Commission or the State may enforce the order as
if it were an order made in civil proceedings against the person to recover a
debt due by the person.
(4) The debt arising from the order is taken to be a judgment
debt.
15—Stamp
duty (Co-operatives National Law
section 620)
(1) No stamp duty is payable in respect of any of the following
instruments:
(a) in the case of a co-operative that—
(i) has as its primary activity the providing of any community service or
benefit; and
(ii) was, before it was incorporated under the Co-operatives
National Law (South Australia), an unincorporated club, association or
body operating to provide sporting or recreational facilities for its members
and not carried on for the pecuniary benefit of its members,
an instrument transferring to the co-operative any property that was,
immediately before the co-operative was so incorporated, held by or on behalf of
the unincorporated club, association or body;
(b) an instrument executed or registered for or with respect to a transfer
of any property to give effect to section 413 or 481 of the Co-operatives
National Law (South Australia) in respect of—
(i) a merger of co-operatives; or
(ii) a transfer of engagements;
(c) a share certificate or any other instrument issued or executed in
connection with the capital of a co-operative;
(d) a certificate of registration of a co-operative.
(a) a co-operative that transfers its incorporation under Division 2
of Part 4.3 of the Co-operatives
National Law (South Australia) was before its registration as a
co-operative under that Law a company under the Corporations Act; and
(b) stamp duty had been paid on its incorporation as such a company in
respect of the amount of the nominal capital of the company (or if subsequently
increased on the amount of its nominal capital as so increased),
any stamp duty so paid is to be taken into account and included in
assessing the stamp duty payable on its incorporation or registration pursuant
to the transfer.
(3) An instrument issued or executed in connection with a CCU of a
co-operative is not exempt under
subsection (2).
16—Registration
fees (Co-operatives National Law
section 620)
No fee is chargeable under any Act for registration of an instrument
executed or registered for or with respect to a transfer of any property to give
effect to section 413 or 481 of the Co-operatives
National Law (South Australia) in respect of—
(a) a merger of co-operatives; or
(b) a transfer of engagements; or
(c) a transfer of incorporation.
(1) The Governor may make regulations (the local
regulations) for or with respect to any matter—
(a) that by the local application provisions of this Act is required or
permitted to be prescribed by the local regulations or that is necessary or
convenient to be prescribed by the local regulations for carrying out or giving
effect to the local application provisions of this Act; or
(b) that by the Co-operatives
National Law (South Australia) is required or permitted to be prescribed
by the local regulations.
(2) Without limitation, the local regulations may make provision for or
with respect to—
(a) the administration
of the Co-operatives
National Law (South Australia); and
(b) procedural matters
relating to any aspects of the Co-operatives
National Law (South Australia); and
(c) without limiting
paragraphs (a)
and
(b)—
(i) the making of applications for the purposes of the Co-operatives
National Law (South Australia); and
(ii) the manner of lodgment of documents (including electronic lodgment);
and
(iii) administrative matters relating to the supervision and inspection of
co-operatives; and
(iv) fees to be paid in connection with the administration of the Co-operatives
National Law (South Australia) (including fees for lodgment of any
documents and additional fees for late lodgment); and
(d) the creation of offences and the imposition of penalties, not
exceeding $5 000, for breaches of the local regulations; and
(e) the fixing of expiration fees for—
(i) any alleged offence against the Co-operatives
National Law (South Australia) or this Act where the maximum penalty for
the offence does not exceed $2 500; or
(ii) any alleged offence against the Co-operatives
National Regulations (South Australia) or the local regulations where
the maximum penalty for the offence does not exceed $2 000.
(3) Regulations relating to fees—
(a) may prescribe different fees for different classes of cases;
and
(b) may authorise a prescribed entity to waive, reduce or refund fees in
particular cases or classes of cases.
(4) The local regulations may create offences and impose penalties for an
offence of not more than the amount specified in section 612(5) of the
Co-operatives
National Law (South Australia).
(5) Without limiting a preceding subsection, the Governor may, by
regulation, modify the operation of the Co-operatives
National Regulations (South Australia) (even if to do so is inconsistent
with the Co-operatives
National Law (South Australia)).
18—Non-application
of Co-operatives National Law to housing
co-operatives and other bodies
Section 220(4) of
the Co-operatives
National Law (South Australia) does not apply to—
(a) a housing co-operative within the meaning of the South
Australian Co-operative and Community Housing Act 1991;
or
(b) a building society or credit union; or
(c) an entity exempt from the operation of
section 220(4) by
the local regulations.
19—Orders
and other instruments published in Gazette
A copy of an order, notice, exemption or other instrument published in the
Gazette purporting to have been given or issued under this Act, the Co-operatives
National Law (South Australia), the Co-operatives
National Regulations (South Australia) or the local regulations is
evidence of the giving or issuing of the order, notice, exemption or other
instrument of which it purports to be a copy.
(1) In this section—
offence means an offence under the local application
provisions of this Act, the local regulations, the
Co-operatives
National Law (South Australia) or the Co-operatives
National Regulations (South Australia).
(2) Proceedings for an offence under the local application provisions of
this Act or the local regulations may be—
(a) started no later than 5 years after the alleged commission of the
offence; and
(b) started only by the Registrar or a person authorised in writing by the
Registrar to start the proceedings.
Note—
See sections 551 and 552 of the Co-operatives National Law
about starting proceedings for an offence under that Law or the National
Regulations.
21—Proceedings
for recovery of fines or penalties under co-operative's
rules
Proceedings for the recovery of a fine or penalty imposed by the rules of a
co-operative may be instituted only by the co-operative.
22—Particular
officials protected from liability
(1) In this section—
official means—
(a) the Minister; or
(b) the Registrar; or
(c) a public sector official (within the meaning of
section 7) engaged
in the administration of the local application provisions of this Act or the
Co-operatives
National Law (South Australia).
(2) An official does
not incur civil liability for an act done, or omission made, honestly and
without negligence under the local application provisions of this Act, the local
regulations, the Co-operatives
National Law (South Australia) or the Co-operatives
National Regulations (South Australia).
(3) If
subsection (2)
prevents a civil liability attaching to an official, the liability attaches
instead to the State.
(1) The Corporate Affairs Commission is designated as the Registrar of
Co-operatives and may exercise the functions of the Registrar of Co-operatives
expressed to be conferred or imposed on the Registrar by or under the local
application provisions of this Act, the local regulations, the Co-operatives
National Law (South Australia) or the Co-operatives
National Regulations (South Australia).
(2) For that purpose, a reference in the local application provisions of
this Act, the local regulations, the Co-operatives
National Law (South Australia) or the Co-operatives
National Regulations (South Australia) to the Registrar is to be read as
a reference to the Corporate Affairs Commission, but those functions are to be
exercised under the title of the Registrar of Co-operatives.
The Co-operatives
Act 1997 is repealed.
Part 6—Savings
and transitional provisions
In this Part—
repealed Act means the Co-operatives
Act 1997.
26—Local
regulations for savings or transitional matters
(1) The local regulations may contain provisions of a savings or
transitional nature consequent on the enactment of this Act.
(2) Any such provision may, if the local regulations so provide, take
effect from the date of assent for this Act or a later date.
(3) To the extent to which any such provision takes effect from a date
that is earlier than the date of its publication in the Gazette, the provision
does not operate so as—
(a) to affect, in a manner prejudicial to any person (other than the State
or an authority of the State), the rights of that person existing before the
date of its publication; or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted to be done before
the date of its publication.
Subject to the local application provisions of this Act and the Co-operatives
National Law (South Australia), each person, thing and circumstance
appointed or created under the repealed Act or existing or continuing under that
Act immediately before the commencement of relevant provisions of the Co-operatives
National Law (South Australia) continues to have the same status,
operation and effect as it would have had if this Act had not been
enacted.
28—Registration
of co-operatives
(1) A co-operative
whose registration under the repealed Act is in force immediately before the
commencement of this section is taken to be registered under the Co-operatives
National Law (South Australia).
(2) A co-operative referred to in
subsection (1)
that was a trading co-operative immediately before the commencement of this
section is taken to be a distributing co-operative.
(3) A co-operative referred to in
subsection (1)
that was a non-trading co-operative immediately before the commencement of this
section is taken to be a non-distributing co-operative.
29—Entitlements
of former members of trading co-operatives
(Co-operatives National Law Schedule 3,
clause 1)
A reference in Division 5 of Part 2.6 of the Co-operatives
National Law (South Australia) to the period of 2 years is taken to
be a reference to a period of 5 years in a case where the cancellation of
membership occurred before the commencement of that Division.
30—Entitlement
to distribution from business or reserves of co-operative
Any entitlement that a member or former member of a co-operative had
immediately before the commencement of this section in relation to a surplus
arising from the business of the co-operative or a part of the reserves of the
co-operative continues in force until satisfied.
31—Minimum
paid up amount of shares (Co-operatives National
Law section 78(4))
Section 78 of the Co-operatives
National Law (South Australia) does not affect shares issued before the
commencement of that section.
32—Personal
property security interests
The repeal of the Co-operatives
Act 1997 does not affect the operation of Parts 4 and 5 of
Schedule 3 of that Act on and after the date of the repeal, and that Part
so operates as if that Act had not been repealed.
Schedule—Co-operatives
National Law
Part 1—Introductory
1—Citation
This Law may be cited as the Co-operatives National Law.
2—Commencement
This Law commences in a jurisdiction as provided by the Co-operatives
National Law Act of that jurisdiction.
3—Objects
The objects of this Law are—
(a) to enable the formation, registration and operation of co-operatives;
and
(b) to promote co-operative philosophy, principles, practices and
objectives; and
(c) to protect the interests of co-operatives, their members and the
public in the operations and activities of co-operatives; and
(d) to ensure directors of co-operatives are accountable for their actions
and decisions to the members of co-operatives; and
(e) to encourage and facilitate self-management by co-operatives at all
levels; and
(f) to encourage the development, integration and strengthening of
co-operatives at local, regional, national and international levels by
supporting and fostering State, Territory and national peak organisations and
co-operative instrumentalities.
Part 2—Interpretation
4—Definitions
In this Law—
active member—see
section 145;
active membership provisions—see
section 146(1);
active membership resolution—see
section 146(2);
agreement means an agreement, arrangement or
understanding—
(a) whether formal or informal or partly formal and partly informal;
or
(b) whether written or oral or partly written and partly oral;
or
(c) whether or not having legal or equitable force and whether or not
based on legal or equitable rights;
another jurisdiction means a State or Territory other than
this jurisdiction;
approved form means a form approved under
section 622;
ASIC means the Australian Securities and Investments
Commission;
ASIC Act means the Australian Securities and Investments
Commission Act 2001 of the Commonwealth;
Australian legal practitioner means a person
who—
(a) is admitted to the legal profession under the law of a jurisdiction;
and
(b) holds a current practising certificate under a law of a jurisdiction
authorising the person to engage in legal practice;
authorised deposit-taking institution means an authorised
deposit-taking institution within the meaning of the Banking Act 1959 of
the Commonwealth;
board means the board of directors of a co-operative, and
includes a person or committee exercising a power of the board delegated to the
person or committee under the rules of the co-operative;
books includes—
(a) a register; and
(b) minutes; and
(c) any other record of information; and
(d) financial reports or financial records, however compiled, recorded or
stored; and
(e) a document;
carry on business has the same meaning in relation to a
co-operative or participating co-operative as it has under the Corporations Act
in relation to a company;
Note—
Division 3 of Part 1.2 of the Corporations Act contains provisions relating
to carrying on business.
CCU means a co-operative capital unit, as provided for by
Chapter 3 Part 4
Division 2 (see
section 345);
chief executive officer of a co-operative or a subsidiary of
a co-operative means the chief executive officer of the co-operative or
subsidiary for the time being (by whatever name called), and whether or not the
officer is a director or the secretary;
civil penalty provision—see
section 553;
compensation order—see
section 553;
constituent documents of a corporation means the constitution
of the corporation or any rules or other document constituting the corporation
or governing its activities, and includes a memorandum or articles of
association and replaceable rules or other rules;
co-operative means a body registered under this Law as
applying under the Co-operatives National Law Act of this jurisdiction as a
co-operative (including a co-operative group);
co-operative group means a co-operative that has a membership
as described in
section 111;
co-operative principles—see
section 10;
Co-operatives National Law Act of a jurisdiction means the
Act of that jurisdiction that applies this Law (whether with or without
modification) as a law of that jurisdiction;
corporation includes—
(a) a company; and
(b) any body corporate (whether incorporated in this jurisdiction or
elsewhere); and
(c) an unincorporated body that, under the law of its place of origin,
may—
(i) sue or be sued; or
(ii) hold property in the name of its secretary or of an office holder of
the body duly appointed for that purpose,
but does not include—
(d) an exempt public authority (within the meaning of the Corporations
Act); or
(e) a corporation sole;
Note—
A co-operative is a corporation within this definition.
Corporations Act means the Corporations Act 2001 of
the Commonwealth or, where appropriate, that Act as applying under this Law as a
law of this jurisdiction;
Corporations application legislation means—
(a) for a State—Part 3 of the Corporations (Ancillary Provisions)
Act 2001 of that State; or
(b) for the Northern Territory—Part 4 of the Corporations Reform
(Northern Territory) Act of that Territory; or
(c) for the Australian Capital Territory—the provisions of a law of
that Territory that are declared by the Co-operatives National Law Act of that
Territory to be the Corporations application legislation of that
Territory,
unless a law of the State or Territory concerned provides
otherwise;
Corporations legislation means the Corporations legislation
to which Part 1.1A of the Corporations Act applies;
corresponding co-operatives law of another
jurisdiction—see
section 7;
de facto partner has the meaning given by the Acts
Interpretation Act 1901 of the Commonwealth in relation to an Act of the
Commonwealth;
debenture of a co-operative means a chose in action that
includes an undertaking by the co-operative to repay as a debt money deposited
with or lent to the co-operative. The chose in action may (but need not) include
a security interest in property of the co-operative to secure repayment of the
money. However, a debenture does not include—
(a) an undertaking to repay money deposited with or lent to the
co-operative by a person if—
(i) the person deposits or lends the money in the ordinary course of a
business carried on by the person; and
(ii) the co-operative receives the money in the ordinary course of
carrying on a business that neither comprises nor forms part of a business of
borrowing money and providing finance; or
(b) an undertaking by an Australian authorised deposit-taking institution
to repay money deposited with it, or lent to it, in the ordinary course of its
banking business; or
(c) an undertaking to pay money under—
(i) a cheque; or
(ii) an order for the payment of money; or
(iii) a bill of exchange; or
(d) an undertaking by a co-operative to pay money to a related
corporation; or
(e) an undertaking to repay money that is prescribed by the regulations
under the Corporations Act; or
(f) another document of a class prescribed by the National Regulations as
exempt from this definition.
For the purposes of this definition, if a chose in action that includes an
undertaking by a co-operative to pay money as a debt is offered as consideration
for the acquisition of securities under an off-market takeover bid, or is issued
under a compromise or arrangement under
Chapter 4 Part 4, the
undertaking is taken to be an undertaking to repay as a debt money deposited
with or lent to the co-operative;
deed of arrangement means a deed of arrangement executed by a
co-operative under Part 5.3A of the Corporations Act as applying under this
Law (see
section 382 of
this Law) or a deed of that type as varied and in force from time to
time;
deposit-taking co-operative means a co-operative permitted
under
section 333 to
accept money on deposit;
designated authority means (except in
section 612) the person or
body specified or described in the Co-operatives National Law Act of this
jurisdiction for the purposes of the provision in which the term is
used;
designated instrument means an instrument or
document—
(a) of the kind; and
(b) made, served or published in the manner (if any),
specified or described in the Co-operatives National Law Act of this
jurisdiction for the purposes of the provision in which the term is
used;
Note—
Examples are an order in writing served on a person and a notice published
in the Gazette.
designated tribunal means the court or tribunal specified or
described in the Co-operatives National Law Act of this jurisdiction for the
purposes of the provision in which the term is used;
director of a co-operative includes—
(a) a person who occupies or acts in the position of a director or member
of the board of a co-operative, whether or not the person is called a director
and whether or not the person is validly appointed or properly authorised to act
in the position; and
(b) a person under whose directions or instructions the directors or
members of the board of directors of the co-operative are accustomed to
act;
distributing co-operative—see
section 18;
entity includes a person and an unincorporated
body;
evidential burden, in relation to a matter, means the burden
of adducing or pointing to evidence that suggests a reasonable possibility that
the matter exists or does not exist;
file includes lodge;
financial records includes—
(a) invoices, receipts, orders for the payment of money, bills of
exchange, cheques, promissory notes and vouchers; and
(b) documents of prime entry; and
(c) working papers and other documents needed to explain—
(i) the methods by which financial statements are made up; and
(ii) adjustments to be made in preparing financial statements;
half-year—see
section 296;
inactive member of a co-operative is a member of the
co-operative who is not an active member of the co-operative;
inspector means a person appointed as an inspector under
Chapter 6
Part 4;
investigator means a person appointed under
section 520 to hold an
inquiry into the affairs of a co-operative;
involved in a contravention—see
section 9;
jurisdiction means a State or Territory;
large co-operative means a co-operative that is not a small
co-operative;
local Registrar means the Registrar for this
jurisdiction;
local regulations means regulations made under the
Co-operatives National Law Act of this jurisdiction, but does not include the
National Regulations;
Ministerial Council means the MCCA as defined in the
Australian Uniform Co-operative Laws Agreement, the parties to which are the
States and Territories, and which came into force on 21 January 2012
(being the date when it has been executed by all the parties);
Note—
The Agreement includes the following definition:
MCCA means the Ministerial Council on Consumer Affairs which
for the purposes of this Agreement comprises the members in accordance with Part
VIII of this Agreement or such body as succeeds it or for the time being
performs the functions carried out by the Ministerial Council on Consumer
Affairs as set out in this Agreement.
model rules means model rules under
Chapter 2 Part 3
Division 2;
modification, in relation to an applied Corporations
legislation matter, means a modification or change (as the case may be) within
the meaning of the Corporations application legislation of this
jurisdiction;
mortgage includes a lien, charge or other security over
property;
National Regulations means the Co-operatives National
Regulations made under this Law, as referred to in
section 612;
Note—
Jurisdictional legislation may provide for the application of the National
Regulations in individual jurisdictions.
Section 6 of this Law deals
with the case where the National Regulations are not applied in a jurisdiction
in that manner but are separately made for that jurisdiction.
non-distributing co-operative—see
section 19;
NSW legislation website means the website with the URL of
www.legislation.nsw.gov.au, or any other website, used by the Parliamentary
Counsel of New South Wales to provide public access to the legislation of New
South Wales;
officer of a co-operative or participating co-operative
means—
(a) a director or secretary of the co-operative; or
(b) a person—
(i) who makes, or participates in making, decisions that affect the whole,
or a substantial part, of the business of the co-operative; or
(ii) who has the capacity to affect significantly the co-operative's
financial standing; or
(iii) in accordance with whose instructions or wishes the directors of the
co-operative are accustomed to act (excluding advice given by the person in the
proper performance of functions attaching to the person's professional capacity
or their business relationship with the directors or the co-operative);
or
(c) a receiver, or receiver and manager, of property of the co-operative;
or
(d) an administrator of the co-operative; or
(e) an administrator of a deed of arrangement executed by the
co-operative; or
(f) a liquidator of the co-operative; or
(g) a trustee or other person administering a compromise or arrangement
made between the co-operative and someone else;
ordinary resolution—see
section 238;
participating co-operative means a body that is registered
and incorporated under, and is subject to, a corresponding co-operatives law of
another jurisdiction;
participating jurisdiction means a jurisdiction in which a
corresponding co-operatives law is in force;
participating Registrar means a person exercising the
functions of a Registrar under a corresponding co-operatives law of another
jurisdiction;
pecuniary penalty order—see
section 553;
PPSA security interest (short for Personal Property
Securities Act security interest) means a security interest within the meaning
of the Personal Property Securities Act 2009 of the Commonwealth and to
which that Act applies, other than a transitional security interest within the
meaning of that Act;
Note 1—
The Personal Property Securities Act 2009 of the Commonwealth
applies to certain security interests in personal property. See the following
provisions of that Act—
(a) section 8 (Interests to which this Act does not apply);
(b) section 12 (Meaning of security interest);
(c) Chapter 9 (Transitional provisions).
Note 2—
For the meaning of transitional security interest, see
section 308 of the Personal Property Securities Act 2009 of the
Commonwealth.
primary activity—see
section 144;
prison includes a correctional centre or correctional
complex;
public sector official has the meaning given by the
Co-operatives National Law Act of this jurisdiction;
quoted security means a security that is quoted on a
prescribed financial market (within the meaning of the Corporations
Act);
receiver includes a receiver and manager;
Registrar for this jurisdiction has the meaning given by the
Co-operatives National Law Act of this jurisdiction;
related (in the context of related corporations)—see
Schedule 2
Part 3;
relevant interest—see
Schedule 2
Part 1;
rules of a co-operative (otherwise than in the context of
proposed rules or model rules) means the registered rules of the co-operative in
force for the time being;
secretary of a co-operative means the person appointed under
section 190 to be, or
to act as, the secretary of the co-operative;
security interest means—
(a) a PPSA security interest; or
(b) a charge, lien or pledge;
serve includes give, send and similar terms;
small co-operative means a co-operative of a class or
description prescribed by the National Regulations;
special postal ballot—see
section 248;
special resolution—see
section 239;
strict liability—see
section 550;
subsidiary has the same meaning as it has in the Corporations
Act;
Supreme Court means the Supreme Court of this
jurisdiction;
surplus, in relation to a co-operative, means the excess of
income over expenditure after making adequate allowance for taxation expense,
for depreciation in value of the property of the co-operative and for future
contingencies;
the Minister means—
(a) the Minister administering the Co-operatives National Law Act of this
jurisdiction; or
(b) if different
Ministers are administering that Act in different respects—the Minister
administering the Act in the relevant respect; or
(c) if different
Ministers are administering different portions of that Act—the Minister
administering the relevant portion of the Act; or
(d) if
paragraphs (b) and
(c) do not apply and 2 or
more Ministers are administering that Act or a portion of that Act—any one
of the Ministers administering the Act or portion of the Act;
this jurisdiction—see the definition of that term in
the Co-operatives National Law Act of each jurisdiction that adopts this
Law.
5—Miscellaneous provisions relating to the
interpretation of this Law (
Schedule 4)
Schedule 4
contains miscellaneous provisions relating to the interpretation of this
Law.
6—References to regulations where National
Regulations are not applied
(1) This section applies where the Co-operatives National Law Act of a
jurisdiction does not provide that the National Regulations apply as regulations
for the purposes of this Law as applying in that jurisdiction.
(2) A reference in this Law as applying in that jurisdiction to National
Regulations is taken to be a reference to regulations made under that Act that
are the same or substantially the same as the National Regulations.
7—Corresponding co-operatives
law
(1) This section determines what (if any) law of another jurisdiction is a
corresponding co-operatives law for the purposes of this
Law.
(2) If this Law applies as a law of the other jurisdiction (whether with
or without modification), this Law as so applying is a corresponding
co-operatives law for the purposes of this Law.
(3) If this Law does not apply as a law of the other jurisdiction, a law
of the other jurisdiction is a corresponding co-operatives law for the purposes
of this Law if the National Regulations declare that the law substantially
corresponds to the provisions of this Law.
8—Co-operatives National Law Act of this
jurisdiction
(1) It is intended that this Law will or may be supplemented by provisions
of the Co-operatives National Law Act of this jurisdiction where an intention of
supplementation (however expressed) is indicated in this Law, including
provisions designating—
(a) a person or body to be a designated authority; or
(b) an instrument or document to be a designated instrument; or
(c) a court or tribunal to be a designated tribunal,
for the purposes of particular provisions of this Law.
Note—
Other provisions of this Law express the intention that the Co-operatives
National Law Act of this jurisdiction will or may provide for particular
matters.
(2) It is also intended that the National Regulations will or may be
supplemented by provisions of the local regulations where an intention of
supplementation is indicated in the National Regulations.
9—Involvement in contraventions (cf Corporations
Act section 79)
A person is involved in a contravention if, and only if, the
person—
(a) has aided, abetted, counselled or procured the contravention;
or
(b) has induced, whether by threats or promises or otherwise, the
contravention; or
(c) has been in any way, by act or omission, directly or indirectly,
knowingly concerned in, or party to, the contravention; or
(d) has conspired with others to effect the contravention.
Part 3—The co-operative
principles
10—Co-operative principles
The co-operative principles are the following principles:
1 Voluntary and open membership
Co-operatives are voluntary organisations, open to all persons able to use
their services and willing to accept the responsibilities of membership, without
gender, social, racial, political or religious discrimination.
2 Democratic member control
Co-operatives are democratic organisations controlled by their members, who
actively participate in setting their policies and making decisions. Men and
women serving as elected representatives are accountable to the membership. In
primary co-operatives members have equal voting rights (1 member,
1 vote) and co-operatives at other levels are organised in a democratic
way.
3 Member economic participation
Members contribute equitably to, and democratically control, the capital of
their co-operative. At least part of the capital is usually the common property
of the co-operative. They usually receive limited compensation (if any) on
capital subscribed as a condition of membership. Members allocate surpluses for
any or all of the following purposes:
(a) developing the co-operative, possibly by setting up reserves, part of
which at least would be indivisible;
(b) benefiting members in proportion to their transactions with the
co-operative;
(c) supporting other activities approved by the membership.
4 Autonomy and independence
Co-operatives are autonomous, self-help organisations controlled by their
members. If they enter into agreements with other organisations, including
governments, or raise capital from external sources, they do so on terms that
ensure democratic control by their members and maintain their co-operative
autonomy.
5 Education, training and information
Co-operatives provide education and training for their members, elected
representatives, managers and employees so they can contribute effectively to
the development of their co-operatives. They inform the general public,
particularly young people and opinion leaders, about the nature and benefits of
co-operation.
6 Co-operation among co-operatives
Co-operatives serve their members most effectively and strengthen the
co-operative movement by working together through local, national, regional and
international structures.
7 Concern for the community
While focusing on member needs, co-operatives work for the sustainable
development of their communities through policies accepted by their
members.
Note—
The co-operative principles are those adopted by the International
Co-operative Alliance.
11—Interpretation to promote co-operative
principles
In the interpretation of a provision of this Law, a construction that would
promote the co-operative principles is to be preferred to a construction that
would not promote the co-operative principles.
Part 4—The Corporations
legislation
Division 1—Exclusion of matters from the
Corporations legislation
12—Excluded matter—co-operatives and
participating co-operatives
(1) A co-operative and
a participating co-operative are each declared to be an excluded matter for the
purposes of section 5F of the Corporations Act in relation to the whole of
the Corporations legislation other than to the extent specified in this
section.
Note—
This section ensures that neither the Corporations Act nor Part 3 of
the ASIC Act will apply in relation to a co-operative or participating
co-operative, other than to the extent specified in this section.
Section 5F of the Corporations Act provides that if a State or Territory
law declares a matter to be an excluded matter in relation to the whole of the
Corporations legislation other than to a specified extent, then that legislation
will not apply, except to the specified extent, in relation to that matter in
the State or Territory concerned. However, other provisions of this Part provide
for the application of provisions of the Corporations legislation to
co-operatives or participating co-operatives as laws of this
jurisdiction.
(2)
Subsection (1) does not
exclude the application of the following provisions of the Corporations
legislation to co-operatives or participating co-operatives to the extent that
the provisions would otherwise be applicable to them:
(a) provisions relating to a matter that the National Regulations provide
is not to be excluded from the operation of the Corporations
legislation;
(b) provisions relating to the role of a co-operative or participating
co-operative in the formation of a company;
(c) provisions relating to the registration of a co-operative as a company
under Chapter 5B of the Corporations Act;
(d) provisions relating to substantial shareholdings, by or involving a
co-operative or participating co-operative, in a company;
(e) provisions conferring or imposing functions on a co-operative or
participating co-operative as a member, or former member, of a
corporation;
(f) provisions relating to dealings by a co-operative or participating
co-operative in financial products of a corporation, other than financial
products of the co-operative or participating co-operative itself;
(g) provisions conferring or imposing functions on a co-operative or
participating co-operative in its dealings with a corporation, not being
dealings in financial products of the co-operative or participating
co-operative;
(h) provisions relating to financial products of a co-operative, other
than shares in, CCUs of, debentures of, or deposits with, a co-operative or
participating co-operative;
(i) provisions relating to financial markets and participants in financial
markets;
(j) provisions relating to financial services licensees whose licence
covers dealing in, or providing advice about, financial products;
(k) provisions relating to carrying on a financial services
business;
(l) provisions relating to financial statements, and audits of financial
statements, of financial services licensees whose licence covers dealing in, or
providing advice about, financial products;
(m) provisions relating to clients of financial services licensees whose
licence covers dealing in, or providing advice about, financial
products;
(n) provisions relating to registers of interests in financial
products;
(o) provisions relating to powers of a court to cure procedural
irregularities and to make other orders.
(3) To avoid doubt, it is declared that
subsection (1) does
not operate so as to exclude the operation of the following provisions of the
Corporations Act, except in relation to shares in, CCUs issued by, debentures
of, or deposits with, a co-operative or participating co-operative:
(a) Part 1.2A;
(b) Chapter 2L;
(c) Chapter 6CA;
(d) Chapter 6D;
(e) Part 7.10.
Division 2—Applied matters (applied
Corporations legislation matters)
13—Applied Corporations legislation matters under
this Law
(1) Other provisions of this Law declare matters to be applied
Corporations legislation matters for the purposes of the Corporations
application legislation of this jurisdiction in relation to provisions of the
Corporations Act specified in those provisions.
(2) A declaration is made subject to any modifications specified in or in
connection with the provision in which the declaration is made.
(3) Additionally, a
declaration is also made subject to—
(a) any modifications applying under
section 15; and
(b) any modifications prescribed by the National Regulations;
and
(c) any necessary modifications.
Note 1—
The Corporations application legislation of this jurisdiction provides for
the application of provisions of the Corporations Act and Part 3 of the
ASIC Act as laws of this jurisdiction in respect of any matter declared by a law
of this jurisdiction (whether with or without modification) to be an applied
Corporations legislation matter for the purposes of the Corporations application
legislation in relation to those Commonwealth provisions. The Corporations
application legislation ensures that a declaration made for the purposes of that
legislation only operates so as to apply a provision of the Corporations
legislation to a matter as a law of this jurisdiction if that provision does not
already apply to the matter as a law of the Commonwealth. If a provision
referred to in a declaration already applies as a law of the Commonwealth,
nothing in the declaration will affect its continued operation as a law of the
Commonwealth.
Note 2—
The following Table indicates the location and subject matter of
declarations made under other provisions of this Law.
Table
Applied provisions of Corporations Act |
Location of applied provisions in Corporations Act |
Matter to which applied provision applies |
Provision of this Law that makes the declaration |
---|---|---|---|
Sections 111AA–111AX |
Part 1.2A (Disclosing entities) |
Debentures (and CCUs) of a co-operative |
|
Sections 283AA–283HB |
Chapter 2L (Debentures) |
Debentures (and CCUs) of a co-operative |
|
Section 295A |
Part 2M.3, Division 1 (Annual financial reports and directors’
reports) |
A co-operative with quoted securities |
|
Sections 299A–300A |
Part 2M.3, Division 1 (Annual financial reports and directors’
reports) |
A co-operative with quoted securities |
|
Sections 302–306 |
Part 2M.3, Division 2 (Half-year financial report and directors’
report) |
A co-operative that is a disclosing entity |
|
Sections 307–313 |
Part 2M.3, Division 3 (Audit and auditor’s report) |
A co-operative |
|
Section 315(1) |
Part 2M.3, Division 4 (Annual financial reporting to
members) |
A co-operative that is a disclosing entity |
|
Section 318 |
Part 2M.3, Division 4 (Annual financial reporting to
members) |
A co-operative |
|
Sections 323–323C |
Part 2M.3, Division 6 (Special provisions about consolidated financial
statements) |
A co-operative |
|
Sections 324AA–324DD (except section 324BD) |
Part 2M.4 (Appointment and removal of auditors),
Divisions 1–5 |
A co-operative |
|
Sections 416–434G |
Part 5.2 (Receivers, and other controllers, of property of
corporations) |
A co-operative |
|
Sections 435A–451D (except section 446B) |
Part 5.3A (Administration of a company’s affairs with a view to
executing a deed of company arrangement) |
A co-operative |
|
Sections 459A–581 |
Part 5.4 (Winding up in insolvency) |
The winding up of a co-operative |
|
Sections 465–489E |
Part 5.4B (Winding up in insolvency or by the court) |
The winding up or deregistration of participating co-operatives |
|
Sections 513–581 |
Part 5.6 (Winding up generally) |
The winding up or deregistration of participating co-operatives |
|
Section 536 |
Part 5.6, Division 3 (Liquidators) |
A person appointed to administer a compromise or arrangement |
|
Section 563AAA |
Part 5.6, Division 6 (Proof and ranking of claims) |
Debentures (and CCUs) issued by a co-operative to any of its members or
employees |
|
Sections 588C–588Z |
Part 5.7B (Recovering property or compensation for the benefit of creditors
of insolvent company) |
A co-operative |
|
Sections 589–596 |
Part 5.8 (Offences) |
A co-operative |
|
Sections 596AA–596AI |
Part 5.8A (Employee entitlements) |
A co-operative |
|
Sections 596A–597B |
Part 5.9, Division 1 (Examining a person about a
corporation) |
A co-operative |
|
Sections 600A–600H |
Part 5.9, Division 3 (Provisions applying to various kinds of external
administration) |
A co-operative |
|
Sections 601AA–601AH |
Part 5A.1 (Deregistration) |
The deregistration of a co-operative and a deregistered
co-operative |
|
Sections 674–678 |
Chapter 6CA (Continuous disclosure) |
Debentures (and CCUs) of a co-operative |
|
Sections 700–742 |
Chapter 6D (Fundraising) |
Debentures (and CCUs) of a co-operative |
|
Sections 1040A–1045A |
Part 7.10 (Market misconduct and other prohibited conduct relating to
financial products and financial services) |
Debentures (and CCUs) of a co-operative |
|
Sections 1339–1343A |
Part 9.7 (Unclaimed property) |
Anything paid or transferred to the Registrar under
section 436(2) |
Section 436(3) |
14—Applied Corporations legislation matters under
the National Regulations
(1) The National Regulations may declare any matter relating to
co-operatives or participating co-operatives to be an applied Corporations
legislation matter for the purposes of the Corporations application legislation
of this jurisdiction in relation to any provision of the Corporations
legislation that does not apply of its own force to co-operatives or
participating co-operatives (as the case may be).
(2) The declaration is made subject to any modifications specified in the
provision in which the declaration is made.
(3) Additionally, the declaration is also made subject to—
(a) any modifications applying under
section 15; and
(b) any modifications prescribed by the National Regulations;
and
(c) any necessary modifications.
(4) The National Regulations may also provide that a specified provision
of the Corporations legislation (with any applicable modifications) that is the
subject of the declaration—
(a) operates to the exclusion of a specified provision of this Law;
or
(b) prevails over a specified provision of this Law to the extent of any
inconsistency.
15—Modifications to applied
provisions
(1) This section applies in relation to any provisions of the Corporations
legislation (the applied provisions) that are the subject
of—
(a) a declaration under this Law, as referred to in
section 13; or
(b) a declaration under the National Regulations, as referred to in
section 14.
(2) For the purposes of
sections 13 and
14, the following modifications
apply:
(a) a reference in the applied provisions to a corporation, company or
public company is to be read as a reference to a co-operative;
(b) a reference in the applied provisions to ASIC is to be read as a
reference to the Registrar;
(c) a reference in the applied provisions to the court is to be read as a
reference to the Supreme Court;
(d) a reference in the applied provisions to the Commonwealth is to be
read as a reference to this jurisdiction;
(e) a reference in the applied provisions to articles or memorandum of
association or constitution or replaceable rules is to be read as a reference to
rules;
(f) a reference in the applied provisions to the Gazette is to be read as
a reference to the Government Gazette of this jurisdiction;
(g) a reference in the applied provisions to prescribed is
to be read as a reference to approved by the designated authority,
and (without limitation) a reference to a prescribed form is to be read as a
reference to an approved form within the meaning of this Law;
(h) a reference in the applied provisions to a special resolution is to be
read as a reference to a special resolution referred to in
section 239 of this
Law;
(i) a cross-reference in the applied provisions to another provision of
the Corporations Act is, if that cross-reference is not appropriate (because,
for example, the provision cross-referred to is not among the applied
provisions), to be read as a cross-reference to the equivalent provision of this
Law;
(j) a reference in the applied provisions (including section 311 of the
Corporations Act) to a contravention of this Act is to be read as
including a reference to a contravention of this Law;
(k) a reference in the applied provisions to the regulations is to be read
as a reference to the National Regulations or local regulations, as the case
requires;
(l) all notes in the applied provisions are to be ignored;
(m) any of the applied provisions that are not relevant to co-operatives
or that are incapable of application to co-operatives or participating
co-operatives are to be ignored.
(3)
Subsection (2) does not
apply to the extent to which this Law or the National Regulations provide
otherwise, whether expressly or by implication.
Division 3—Prescription by National
Regulations of other matters dealt with by Corporations
legislation
16—National Regulations may provide for matters
dealt with by Corporations legislation
(1) The National
Regulations may make provision, in relation to co-operatives, participating
co-operatives or associated matters, for or with respect to any matter for which
a provision of the Corporations legislation has effect in relation to companies
or associated matters.
(2) A National
Regulation made under
subsection (1) may
deal with a matter in a similar way as, or in a different way from, that in
which the provision of the Corporations legislation has effect.
(3)
Subsection (1) does
not apply in relation to a provision of the Corporations legislation that
applies of its own force or by operation of other provisions of this
Law.
(4) Without limiting
subsection (1) or
(2), the National
Regulations may confer jurisdiction on a court or tribunal to exercise any
function conferred by the National Regulations made under
subsection (1).
Note—
This section authorises the National Regulations to deal with a matter
dealt with by Corporations legislation (with certain limitations) in a manner
that does not involve the declaration of the matter to be an applied
Corporations legislation matter. This procedure is contemplated by the
Corporations application legislation of the various jurisdictions.
Chapter 2—Formation,
powers and constitution of co-operatives
Part 1—Formation
Division 1—Types of
co-operatives
17—Types of co-operatives
(1) A body may be registered under this Law as a co-operative.
(2) A co-operative may be either—
(a) a distributing co-operative; or
(b) a non-distributing co-operative.
18—Distributing co-operatives
(1) A distributing co-operative is a co-operative that is
not prohibited from giving returns or distributions on surplus or share
capital.
(2) A distributing co-operative must have share capital.
(3) A distributing
co-operative must have a membership of—
(a) in the case of a co-operative group—2 or more co-operatives;
or
(b) in the case of any other distributing co-operative—
(i) if a lesser number than 5 is approved by the Registrar—at least
that number of active members; or
(ii) otherwise—5 or more active members.
(4) An approval under
subsection (3) may
be given in relation to a particular co-operative or class of
co-operatives.
19—Non-distributing
co-operatives
(1) A non-distributing co-operative is a co-operative that
is prohibited from giving returns or distributions on surplus or share capital
to members, other than the nominal value of shares (if any) at winding
up.
(2) A non-distributing co-operative may or may not have share
capital.
(3) A non-distributing
co-operative must have a membership of—
(a) in the case of a co-operative group—2 or more co-operatives;
or
(b) in the case of any other non-distributing
co-operative—
(i) if a lesser number than 5 is approved by the Registrar—at least
that number of active members; or
(ii) otherwise—5 or more active members.
(4) An approval under
subsection (3) may
be given in relation to a particular co-operative or class of
co-operatives.
20—Provisions regarding Registrar's approvals about
numbers
(1) The Registrar may give one composite approval that operates as more
than one of the following:
(a) an approval concerning the number of active members of a co-operative
required under
section 18(3) or
19(3);
(b) an approval concerning the number of persons required to hold the
formation meeting of a co-operative under
section 22(2);
(c) an approval concerning the number of members required to sign the
application for registration of a proposed co-operative under
section 26(1);
(d) an approval concerning the minimum number of members for a
co-operative to continue to carry on business under
section 119.
(2) A composite approval may be given in relation to—
(a) a particular co-operative or proposed co-operative; or
(b) a particular class of co-operatives or proposed co-operatives;
or
(c) all co-operatives or proposed co-operatives.
(3) This section does not limit the power of the Registrar to give
separate approvals under any of the relevant sections.
Division 2—Formation
meeting
21—Formation meeting
(1) Before a proposed co-operative (other than an existing corporation)
can be registered, a formation meeting must be held under this
Division.
(2) Before a formation meeting can be held for a proposed co-operative, a
draft of the proposed rules and a draft of the proposed formation disclosure
statement must be approved by the Registrar in accordance with
Division 3.
22—Requirements regarding formation
meeting
(1) At the formation meeting for a proposed co-operative—
(a) the proposed rules of the co-operative approved under
section 24 for the
proposed co-operative, including active membership provisions, must be passed by
two-thirds of the proposed members of the proposed co-operative attending the
meeting; and
(b) in the case of—
(i) a proposed distributing co-operative; or
(ii) a proposed non-distributing co-operative that is the subject of a
direction under
section 23(2)(a),
a formation disclosure statement approved under
section 25 must be
presented to the meeting; and
(c) the proposed members of the proposed co-operative must sign the
application for membership; and
(d) the proposed members must elect the first directors of the proposed
co-operative under the proposed rules; and
(e) the proposed members must authorise a person—
(i) to apply to the Registrar for registration of the proposed
co-operative; and
(ii) to do anything necessary to have the proposed co-operative
registered.
(2) The formation
meeting must be held by—
(a) in the case of a co-operative group—not less than 2
co-operatives suitably qualified to be members of the proposed co-operative
group; or
(b) in the case of any other co-operative—not less than 5 persons,
or if a lesser number than 5 is approved by the Registrar not less than the
approved number of persons, suitably qualified to be members of the proposed
co-operative.
(3) For the purposes of
subsection (2), a
person (including a co-operative) is suitably qualified to be a member
if—
(a) there are reasonable grounds to believe the person will be an active
member of the proposed co-operative; and
(b) in the case of an individual—the person is an adult;
and
(c) the person satisfies any other requirements for membership in the
proposed rules.
(4) Each co-operative forming a proposed co-operative group may be
represented at the formation meeting by one person.
(5) An approval under
subsection (2) may
be given in relation to a particular co-operative or class of co-operatives or
to all co-operatives.
Division 3—Initial approval of rules and
formation disclosure statement
23—Submission of draft rules and draft formation
disclosure statement
(1) The following documents must be submitted to the Registrar before the
formation meeting:
(a) a draft of the rules proposed for the co-operative (including active
membership provisions);
(b) in the case of—
(i) a distributing co-operative—a draft formation disclosure
statement for the co-operative; or
(ii) a non-distributing co-operative—a draft formation disclosure
statement for the co-operative if the Registrar so directs under
subsection (2)(a);
(c) a written notice of intention to apply for registration as a
co-operative.
(2) The Registrar may
by written notice direct that—
(a) a draft formation
disclosure statement for a proposed non-distributing co-operative must be
submitted to the Registrar; and
(b) a formation disclosure statement approved under
section 25 must be
presented to the formation meeting for the co-operative.
(3) The notice under
subsection (2) is to
be given to the person who submitted notice of intention to apply for
registration as a co-operative and must specify the time by which the draft
formation disclosure statement must be submitted to the Registrar.
24—Provisions relating to and approval of
rules
(1) This section applies to draft rules for a co-operative required to be
submitted to the Registrar under
section 23.
(2) The rules must—
(a) be in accordance with
section 56; and
(b) be in a form that may reasonably be approved.
(3) If the rules do not make provision for any matter required by
Schedule 1, the Registrar
may approve the relevant provisions of the model rules as rules of the
co-operative.
(4) The Registrar may—
(a) approve the rules
as submitted; or
(b) approve different
rules to those submitted; or
(c) refuse to approve
the rules; or
(d) require the person submitting the draft rules to give the Registrar
any additional information the Registrar reasonably requires, and then act under
paragraph (a),
(b) or
(c).
(5) Subject to
subsection (6), the
Registrar approves of the rules by giving written notice of the approval of the
rules to the person who submitted the draft rules to the Registrar.
(6) The Registrar is
taken to have approved the proposed rules (as submitted to the Registrar) at the
end of the period of 28 days after they were submitted, unless before the
end of that period the Registrar gives written notice to the person who
submitted them that the Registrar—
(a) has approved
different rules to those submitted; or
(b) is still considering the matter; or
(c) refuses to approve
the proposed rules.
(7) The Registrar must give the person who submitted the proposed rules to
the Registrar written notice of the reasons for acting under
subsection (6)(a) or
(c).
25—Provisions relating to and approval of formation
disclosure statement
(1) This section
applies to a draft formation disclosure statement for a co-operative required to
be submitted to the Registrar under
section 23.
(2) The draft formation
disclosure statement for a distributing co-operative must contain the
information necessary to ensure prospective members are adequately informed of
the nature and extent of a person's financial involvement or liability as a
member of the co-operative including so far as applicable—
(a) the estimated costs of formation; and
(b) the active membership provisions of the proposed co-operative;
and
(c) the rights and liabilities attaching to shares in the proposed
co-operative; and
(d) the capital required for the co-operative at the time of formation;
and
(e) the projected income and expenditure of the co-operative for its first
year of operation; and
(f) information about any contracts required to be entered into by the
co-operative; and
(g) any other information that the Registrar directs to be
included.
(3) The draft formation
disclosure statement for a non-distributing co-operative must contain the
information that the Registrar directs to be included.
(4) The Registrar may—
(a) approve the draft
statement as submitted; or
(b) amend the draft, or
require a specified amendment of the draft, and then approve the amended
statement; or
(c) approve a different
statement to that submitted; or
(d) refuse to approve
the draft statement; or
(e) require the person submitting the draft statement to give the
Registrar any additional information the Registrar reasonably requires, and then
act under
paragraph (a),
(b),
(c) or
(d).
(5) Approval may be given at any time before the formation meeting is
held.
(6) Approval may be given with or without conditions.
(7) Subject to
subsection (8), the
Registrar approves of a formation disclosure statement by giving written notice
of the approval of the statement to the person who submitted the draft statement
to the Registrar.
(8) The Registrar is
taken to have approved the formation disclosure statement (as submitted to the
Registrar) at the end of the period of 28 days after the day it was
submitted to the Registrar, unless before the end of that period the Registrar
gives written notice to the person who submitted the draft statement that the
Registrar—
(a) has approved a
different formation disclosure statement to that submitted; or
(b) is still considering the matter; or
(c) refuses to approve
the formation disclosure statement.
(9) The Registrar must give the person who submitted the draft statement
to the Registrar written notice of the reasons for acting under
subsection (8)(a) or
(c).
Note—
Section 69 contains
restrictions on advertising or publishing statements about an offer, or intended
offer, of shares in a distributing co-operative unless a current formation
disclosure statement relating to the shares is registered with or approved by
the Registrar.
Division 4—Registration of proposed
co-operative
26—Application for registration of proposed
co-operative
(1) An application for
registration of a proposed co-operative (other than an existing corporation)
must—
(a) be made in the approved form; and
(b) be accompanied by the fee—
(i) prescribed by the National Regulations, unless
subparagraph (ii)
applies; or
(ii) prescribed by the
local regulations; and
(c) be signed by—
(i) in the case of a co-operative group—at least 2 directors;
and
(ii) in the case of any other proposed co-operative—at least 5, or
if a lesser number than 5 is approved by the Registrar at least the approved
number of, suitably qualified members, including 2 directors elected at the
formation meeting; and
(d) be accompanied by—
(i) 2 copies of the proposed rules signed and certified by the persons who
acted as chairperson and secretary at the formation meeting; and
(ii) in the case of—
(A) a proposed distributing co-operative; or
(B) a proposed non-distributing co-operative that is subject to a
direction under
section 23(2),
a copy of the formation disclosure statement presented to the formation
meeting signed and certified by the persons who acted as chairperson and
secretary at the formation meeting; and
(iii) a statement listing the name, address, occupation and place and date
of birth of each director; and
(iv) a statement of the address (located in this jurisdiction) of the
co-operative's registered office or proposed registered office; and
(v) any other particulars the Registrar may require in a particular
case.
(2) The application must be filed with the Registrar within 2 months
after closure of the formation meeting for the proposed co-operative or within
the extended period that the Registrar may allow.
27—Registration of proposed
co-operative
(1) If an application is made under this Division for registration of a
proposed co-operative, the Registrar must register the co-operative and its
rules if the Registrar is satisfied that the requirements for registration of
the co-operative have been met.
(2) The requirements for registration of a co-operative under this
Division are as follows:
(a) the proposed rules of the proposed co-operative must be the rules
approved by the Registrar under
section 24;
(b) the requirements of this Law must have been complied with in relation
to the proposed co-operative;
(c) the proposed co-operative must be designed to function under the
co-operative principles or, if it is not designed to function entirely under the
co-operative principles, the Registrar must be satisfied there are special
reasons why the co-operative should be registered under this Law;
(d) there must be no reasonable cause for refusing registration of the
proposed co-operative.
(3) If the Registrar is not satisfied that the requirements for
registration of the co-operative have been met, the Registrar may refuse to
register the co-operative and its rules.
(4) The Registrar must give to the applicant written notice of the refusal
and the reasons for the refusal.
28—Incorporation and certificate of
registration
(1) A co-operative becomes a corporation on being registered.
(2) On the registration of the co-operative, the Registrar must issue a
certificate of registration.
Division 5—Registration of existing
corporation
29—Existing corporation can be
registered
A corporation (other than a co-operative taken to be registered under this
Law) may apply to the Registrar to be registered as a co-operative under this
Law.
30—Formation meeting (existing
corporation)
(1) Before applying for registration as a co-operative, the corporation
must, at the formation meeting, by a resolution approve of—
(a) the proposed registration; and
(b) any amendment of its existing constituent documents necessary to
enable the corporation to comply with this Law; and
(c) the proposed rules of the proposed co-operative approved under
section 24, including
active membership provisions.
(2) The formation disclosure statement approved under
section 25 must be
presented to the formation meeting, in the case of—
(a) a proposed distributing co-operative; or
(b) a proposed non-distributing co-operative that is the subject of a
direction under
section 23(2).
(3) A resolution under this section must have been passed by a two-thirds
majority of eligible members present at the formation meeting.
Note—
Section 32(5) provides
that, despite anything to the contrary in this Division, the registration of a
corporation as a co-operative does not take effect until the corporation ceases
to be registered under the law under which it was previously
registered.
31—Application for registration of existing
corporation
An application for the registration of an existing corporation
must—
(a) be in the approved form; and
(b) be accompanied by the fee—
(i) prescribed by the National Regulations, unless
subparagraph (ii)
applies; or
(ii) prescribed by the
local regulations; and
(c) be accompanied by—
(i) a written declaration, signed no more than 28 days before the
application for registration by the directors or committee of management of the
corporation, stating that at a meeting of the directors or committee they formed
the opinion that the corporation will be able to pay its debts as they fall due;
and
(ii) a report in the approved form as to the affairs of the corporation
and showing its assets and liabilities, made up to the latest practicable date
before the application; and
(iii) a copy of the constituent documents of the corporation in force at
the date of the application; and
(iv) 2 copies of the proposed rules of the co-operative, as provided for
by the special resolution; and
(v) in the case of a proposed distributing co-operative or in the case of
a proposed non-distributing co-operative that is subject to a direction under
section 23(2)—a
copy of the formation disclosure statement presented to the meeting held under
section 30, certified
by the directors or committee of management of the corporation; and
(vi) a list containing the name, address, occupation and place and date of
birth of each director; and
(vii) evidence to the satisfaction of the Registrar of the incorporation
of the corporation; and
(viii) a statement setting out the connection that the proposed
co-operative would have to this jurisdiction; and
(ix) a statement of the address (located in this jurisdiction) of the
co-operative's registered office or proposed registered office; and
(x) any other particulars the Registrar may require in a particular
case.
32—Requirements for
registration
(1) When an application is made for the registration of a corporation as a
co-operative under this Division, the Registrar must register the corporation as
a co-operative under this Law and register its rules under this Law if the
Registrar is satisfied the requirements for the registration of the corporation
as a co-operative have been met.
(2) The requirements for the registration of a corporation as a
co-operative under this Division are as follows:
(a) the proposed rules of the proposed co-operative must be the rules
approved by the Registrar under
section 24;
(b) the requirements of this Law must have been complied with in relation
to the proposed co-operative;
(c) there must be no reasonable cause for refusing registration of the
proposed co-operative;
(d) the proposed co-operative must have a sufficient connection with this
jurisdiction.
(3) If the Registrar is not satisfied the requirements for registration of
the corporation as a co-operative have been met, the Registrar may refuse to
register the proposed co-operative and its rules and must give to the applicant
written notice of the refusal and the reasons for the refusal.
(4) If the Registrar has decided under this section to register a
corporation under this Law, the corporation must notify the authority
responsible for registering the corporation under the law under which it was
previously registered of that decision.
(5) Despite anything to
the contrary in this Division, the registration of a corporation as a
co-operative does not take effect until the corporation ceases to be registered
under the law under which it was previously registered.
(6) The corporation must notify the Registrar in writing within
7 days after ceasing to be registered under that other law.
33—Certificate of registration
(1) On the registration
of the corporation as a co-operative, the Registrar must—
(a) issue a certificate of registration; and
(b) publish notice of the issue of the certificate by designated
instrument.
(2) The corporate name of a corporation registered as a co-operative is
the name approved by the Registrar, as stated in the certificate of registration
issued by the Registrar.
34—Effect of registration
(1) The corporation is to be taken to be incorporated under this Law on
its registration.
(2) Except as expressly provided in this Law, the registration and
incorporation of the corporation as a co-operative does not prejudice any right
of a member in relation to any shares held at the time of registration and
incorporation.
(3) The change of registration and incorporation does not affect the
identity of the corporation and it is taken to be the same body after
registration as a co-operative as it was before and no act, matter or thing is
affected by the change.
Division 6—Conversion of
co-operative
35—Conversion of co-operative
(1) A co-operative may, by amendment of its rules, convert
from—
(a) a co-operative with share capital to a co-operative without share
capital, or vice versa; or
(b) a distributing co-operative to a non-distributing co-operative, or
vice versa.
(2) An amendment of the rules for the conversion of a co-operative with
share capital to a co-operative without share capital cannot be passed until at
least 2 weeks after a notice has been published in a newspaper circulating
generally in the district in which the registered office of the co-operative is
situated advising of the proposal to submit the proposed amendment to members of
the co-operative.
(3) An amendment of the
rules for the conversion of a non-distributing co-operative to a distributing
co-operative does not have effect without the prior approval of the Registrar
under
section 60.
(4) An amendment of the
rules for the conversion of a co-operative must be approved by special
resolution passed by a special postal ballot.
(a) a co-operative from
subsection (4) by
designated instrument; or
(b) a class of
co-operatives from
subsection (4) by
designated instrument.
(6) An exemption may be given unconditionally or subject to
conditions.
Division 7—General
36—Acceptance of money by proposed
co-operative
(1) A proposed
co-operative or any person on its behalf or otherwise who accepts money for the
proposed co-operative before the proposed co-operative is registered must hold
that money on trust until the co-operative is registered.
(2) If a co-operative is not registered within 3 months after the
acceptance of money under
subsection (1), the
proposed co-operative or the person who accepted the money on its behalf must
refund the money to the person who paid it.
Maximum penalty: $6 000.
37—Issue of duplicate
certificate
The Registrar must issue a duplicate certificate of
registration—
(a) if the Registrar is satisfied the original certificate is lost or
destroyed; and
(b) on payment of the fee—
(i) prescribed by the National Regulations, unless
subparagraph (ii)
applies; or
(ii) prescribed by the
local regulations.
Part 2—Legal capacity and
powers
Division 1—General powers
38—Effect of incorporation
As a corporation, a co-operative—
(a) has perpetual succession; and
(b) may have a common seal; and
(c) may sue and be sued in its corporate name; and
(d) subject to this Law, is capable of taking, purchasing, leasing,
holding, selling and disposing of real and personal property; and
(e) may do and suffer all acts and things that corporations may by law do
and suffer and that are necessary or expedient.
39—Power to form companies and enter into joint
ventures
Without limiting any other provision of this Law, a co-operative has
power—
(a) to form or participate in the formation of a corporation or unit
trust; and
(b) to acquire interests in and sell or otherwise dispose of interests in
corporations, unit trusts and joint ventures; and
(c) to form or enter into a partnership, joint venture or other
association with other persons or bodies.
Division 2—Doctrine of ultra vires not to
apply
40—Interpretation
In this Division—
(a) a reference to the doing of an act by a co-operative includes a
reference to the making of an agreement by the co-operative and a reference to a
transfer of property to or by the co-operative; and
(b) a reference to legal capacity includes a reference to
powers.
41—Doctrine of ultra vires not to
apply
(1) The objects of this
Division are—
(a) to provide that the doctrine of ultra vires does not apply to
co-operatives; and
(b) without affecting the validity of a co-operative's dealings with
others—to ensure the co-operative's officers and members give effect to
the provisions of the rules of the co-operative relating to the primary
activities or powers of the co-operative.
(2) This Division is to be construed and to have effect in accordance with
subsection (1).
42—Legal capacity
(1) A co-operative has,
both within and outside this jurisdiction, the legal capacity of an
individual.
(2) Without limiting
subsection (1), a
co-operative has, both within and outside this jurisdiction,
power—
(a) to issue and allot fully or partly paid shares in the co-operative;
and
(b) to issue debentures and CCUs of the co-operative; and
(c) to distribute any of the property of the co-operative among the
members, in kind or otherwise; and
(d) to give security by charging uncalled capital; and
(e) to grant a security interest in property of the co-operative;
and
(f) to procure the co-operative to be registered or recognised as a
corporation in any place outside this jurisdiction; and
(g) to do any other act it is authorised to do by any other law (including
a law of a place outside this jurisdiction).
(3) The fact that the doing of an act by a co-operative would not be, or
is not, in its best interests does not affect its legal capacity to do the
act.
(4) To avoid doubt, this section does not—
(a) authorise a co-operative to do an act that is prohibited by a law of
this jurisdiction; or
(b) give a co-operative a right that a law of this jurisdiction denies the
co-operative.
43—Rules may limit powers and set out object (cf
Corporations Act section 125)
(1) The rules of a co-operative may contain an express restriction on, or
a prohibition of, the co-operative's exercise of any of its powers, but the
exercise of a power by the co-operative is not invalid merely because it is
contrary to an express restriction or prohibition in the rules of the
co-operative.
(2) The rules of a co-operative may set out the co-operative's objects,
but an act of the co-operative is not invalid merely because it is contrary to
or beyond any objects in the rules of the co-operative.
Division 3—Persons having dealings with
co-operatives
44—Entitlement to make
assumptions
(1) A person may make
the assumptions in
section 45 in relation
to—
(a) dealings with a co-operative; or
(b) dealings with a
person who has, or purports to have, directly or indirectly acquired title to
property from a co-operative.
(2) If a person may assume a matter, the co-operative or anyone referred
to in
subsection (1)(b)
cannot assert in proceedings in relation to the dealings that the matter is
incorrect.
45—Assumptions (cf Corporations Act
section 129)
(1) A person may assume that the rules of a co-operative have been
complied with.
(2) A person may assume that anyone who appears, from information provided
by the co-operative that is available to the public from the Registrar, to be a
director or secretary of the co-operative—
(a) has been duly appointed; and
(b) has authority to exercise the powers and perform the duties
customarily exercised or performed by a director or secretary of a similar
co-operative.
(3) A person may assume that anyone who is held out by the co-operative to
be an officer or agent of the co-operative—
(a) has been duly appointed; and
(b) has authority to exercise the powers and perform the duties
customarily exercised or performed by that kind of officer or agent of a similar
co-operative.
(4) A person may assume that the officers and agents of the co-operative
properly perform their duties to the co-operative.
(5) A person may assume that a document has been properly executed by the
co-operative if it is signed by 2 people, one of whom is, or may be assumed
to be, a director of the co-operative, and the other is, or may be assumed to
be, a director or secretary of the co-operative.
(6) A person may assume that a document has been sealed by the
co-operative if it bears what appears to be an impression of the co-operative's
common seal and the sealing of the document appears to be witnessed by
2 people, one of whom is, or may be assumed to be, a director of the
co-operative, and the other is, or may be assumed to be, a director or secretary
of the co-operative.
(7) A person may assume that anyone who is, or may be assumed to be, an
officer or agent of the co-operative who has authority to issue a document or a
certified copy of a document on its behalf also has authority to warrant that
the document is genuine or is a true copy.
46—Person who knows or ought to know cannot make
assumptions
This Division does not entitle a person to make an assumption, and does not
prevent an assertion being made in relation to an assumption,
if—
(a) the person has actual knowledge that the assumption is not correct;
or
(b) the person ought to know that the assumption is not correct because of
the nature of the person's connection or relationship with the
co-operative.
47—Filing of documents not to constitute
constructive knowledge
(1) A person is not
considered to have knowledge of the rules of a co-operative, any of the contents
of the rules of a co-operative, a document, the contents of a document, or any
particulars, merely because of either or both of the following:
(a) the rules, the document or the particulars have been filed with the
Registrar;
(b) the rules, the document or the particulars are mentioned in any other
document that has been filed with the Registrar, or filed with a person under a
previous law corresponding to a provision of this Law.
(2) Despite
subsection (1), a
member of a co-operative is taken to have knowledge of the rules of the
co-operative.
48—Effect of fraud
(1) A person's
entitlement under this Division to make an assumption is not affected merely by
the fact that any person—
(a) has acted or is acting fraudulently in relation to the dealing,
acquisition or purported acquisition of title to property to which the
assumption relates; or
(b) has forged a document that appears to have been sealed on behalf of a
co-operative.
(2) A person may not make an assumption if the person has actual knowledge
of the fraudulent action or forgery referred to in
subsection (1).
Division 4—Execution of
documents
49—Execution of documents by co-operative (cf
Corporations Act section 127)
(1) A co-operative may
execute a document without using a common seal if the document is signed
by—
(a) 2 directors of the co-operative; or
(b) a director and the secretary of the co-operative.
(2) A co-operative with
a common seal may execute a document if the seal is fixed to the document and
the fixing of the seal is witnessed by—
(a) 2 directors of the co-operative; or
(b) a director and the secretary of the co-operative.
(3) A co-operative may execute a document as a deed if the document is
expressed to be executed as a deed and is executed in accordance with
subsection (1) or
(2).
(4) This section does not limit the ways in which a co-operative may
execute a document (including a deed).
50—Agent exercising co-operative's power to make
contracts (cf Corporations Act section 126)
(1) A co-operative's power to make, vary, ratify or discharge a contract
may be exercised by an individual acting with the co-operative's express or
implied authority and on behalf of the co-operative.
(2) The power may be exercised without using a common seal.
(3) This section does not affect the operation of a law that requires a
particular procedure to be complied with in relation to the contract.
51—Other requirements as to consent or sanction not
affected
This Division does not affect the operation of a law that requires some
consent or sanction to be obtained, or some procedure to be complied with, in
relation to the making, varying or discharging of a contract.
Division 5—Pre-registration
contracts
52—Contracts before
registration
(1) If a person enters into, or purports to enter into, a contract on
behalf of, or for the benefit of, a proposed co-operative
(pre-registration contract), the co-operative becomes bound by the
contract and entitled to its benefit if the co-operative, or a co-operative that
is reasonably identifiable with it, is registered and ratifies the
contract—
(a) within a reasonable period after the contract is entered into;
or
(b) within any period agreed to by the parties to the contract.
(2) The person is released from any liability under the pre-registration
contract if the co-operative enters into another contract in substitution for
it—
(a) within a reasonable period after the pre-registration contract is
entered into; or
(b) within any period agreed to by the parties to the pre-registration
contract.
(3) The person is
liable to pay damages to each other party to the pre-registration contract if a
co-operative is not registered, or a co-operative is registered but does not
ratify the contract or enter into a substitute for it—
(a) within a reasonable period after the contract is entered into;
or
(b) within the period agreed to by the parties to the contract.
(4) The maximum amount of damages the person is liable to pay to a party
is the amount the co-operative would be liable to pay to the party if the
co-operative had been registered and had ratified the contract and then
completely failed to perform it.
(5) If proceedings are brought to recover damages under
subsection (3)
because the co-operative is registered but does not ratify the pre-registration
contract or enter into a substitute for it, the court may do anything it thinks
just in the circumstances, including ordering the co-operative—
(a) to pay all or part of the damages the person is liable to pay;
or
(b) to transfer property the co-operative received because of the contract
to a party to the contract; or
(c) to pay an amount to a party to the contract.
(6) If the co-operative ratifies the pre-registration contract but fails
to perform all or part of it, the court may order the person to pay all or part
of the damages that the co-operative is ordered to pay.
53—Person may be released from liability but is not
entitled to indemnity
(1) Any of the parties to the pre-registration contract may release the
person who entered into, or purported to enter into, the contract from any
liability in relation to that contract.
(2) The release must be in writing.
(3) The party giving the release cannot recover damages under
section 52 from the
person.
(4) Despite any rule of law or equity, the person does not have a right of
indemnity against the co-operative in relation to the person's liability under
this Division even if the person was acting, or purporting to act, as trustee
for the co-operative.
54—This Division replaces other rights and
liabilities
This Division replaces any rights or liabilities anyone would otherwise
have in relation to the pre-registration contract.
Part 3—Rules
Division 1—Rules of a
co-operative
55—Effect of rules
(1) The rules of a co-operative have the effect of a contract under
seal—
(a) between the co-operative and each member; and
(b) between the co-operative and each director, the chief executive
officer and the secretary of the co-operative; and
(c) between a member and each other member.
(2) Under the contract, each of those persons agrees to observe and
perform the provisions of the rules as in force for the time being so far as
those provisions apply to the person.
56—Content of rules
(1) The rules of a co-operative must state or otherwise make provision for
the matters included in
Schedule 1.
(2) The rules must be divided into consecutively numbered
paragraphs.
(3) The rules may state the objects of the co-operative.
(4) The rules may adopt by reference all or any of the provisions of the
model rules, as provided in
Division 2.
(5) The rules may provide for the imposition of a fine on a member for an
infringement of the rules.
(6) If the rules provide for the imposition of a fine, the rules must
state the maximum fine that may be imposed on a member.
(7) The maximum fine fixed by the rules must not be more than any amount
prescribed by the National Regulations as the maximum fine.
(8) The rules may contain other provisions not inconsistent with this
Law.
57—Purchase and inspection of copy of
rules
(1) Any member is entitled to obtain from a co-operative a copy of its
rules on payment of the amount required by the rules of the co-operative or, if
the rules do not prescribe an amount, on payment of $5.
(2) The amount required by the rules must not be more than the
fee—
(a) prescribed by the National Regulations, unless
paragraph (b)
applies; or
(b) prescribed by the
local regulations;
for obtaining a copy of the rules from the Registrar.
(3) Any person is entitled to obtain from the Registrar a copy of the
rules of a co-operative on payment of the fee—
(a) prescribed by the National Regulations, unless
paragraph (b)
applies; or
(b) prescribed by the
local regulations.
58—False copies of rules
(1) A person must not give to a member of a co-operative or to a person
intending or applying to become a member of a co-operative a copy of any rules
or any amendments of rules, other than those that have been registered,
representing that they are binding on the members of the co-operative.
(2) A person must not amend any of the rules of a co-operative after they
have been registered and circulate the amended rules representing that they have
been registered when they have not been.
Maximum penalty: $1 000.
59—Rules can only be amended under this
Law
The rules of a co-operative cannot be amended except under this
Law.
60—Approval of certain rule
amendments
(1) This section applies to—
(a) an amendment of rules that is referred to in
subsection (2);
and
(b) an amendment of rules that are referred to in
section 35(3)
relating to the conversion of a non-distributing co-operative to a distributing
co-operative.
(2) The Registrar may,
by designated instrument, specify for the purposes of this section classes of
amendments that must not be made to the rules of a co-operative without the
prior approval of the Registrar, and without limitation may do so by reference
to classes or subclasses of matters referred to in
Schedule 1.
(3) A proposed amendment to which this section applies must be approved by
the Registrar before the resolution amending the rules is passed by a
co-operative or the board of a co-operative.
(4) A draft of the proposed amendment must be submitted to the Registrar
before—
(a) the notice of the proposed special resolution amending the rules is
given to the members by the co-operative; or
(b) the resolution is passed by the board of the co-operative.
(5) The proposed amendment must—
(a) be in accordance with
section 56; and
(b) be in a form that may reasonably be approved; and
(c) be accompanied by a statement stating the reasons for the
amendment.
(6) The Registrar may—
(a) approve the
amendment as submitted; or
(b) approve a different
amendment to that submitted; or
(c) refuse to approve
the amendment; or
(d) require the person submitting the draft amendment to give the
Registrar any additional information the Registrar reasonably requires, and then
act under
paragraph (a),
(b) or
(c).
(7) Subject to
subsection (8), the
Registrar approves of the amendment by giving written notice of the approval of
the amendment to the person who submitted the draft amendment to the
Registrar.
(8) The Registrar is
taken to have approved the proposed amendment (as submitted to the Registrar) at
the end of the period of 28 days after it was submitted, unless before the
end of that period the Registrar gives written notice to the person who
submitted it that the Registrar—
(a) has approved a
different amendment to that submitted; or
(b) is still considering the matter; or
(c) refuses to approve
the proposed amendment.
(9) The Registrar must give the person who submitted the draft amendment
to the Registrar written notice of the reasons for acting under
subsection (8)(a) or
(c).
61—Amendment by special
resolution
The rules of a co-operative may only be amended by special resolution
unless this Law otherwise provides.
62—Amendment by resolution of
board
(1) The rules of a
co-operative may be amended by a resolution passed by the board if the amendment
does no more than give effect to a requirement, direction, restriction or
prohibition imposed or given under the authority of this Law.
(2) If the rules of a co-operative are amended under this section, the
co-operative must cause the amendment to be notified in writing to its members
as soon as practicable after the amendment takes effect and in any event no
later than the day when notice of the next annual general meeting of the
co-operative after the amendment takes effect is given to the members.
63—Amendment does not take effect until
registered
(1) An amendment of the rules of a co-operative does not take effect
unless and until it is registered by the Registrar.
(2) An application for registration of an amendment must—
(a) be made in the approved form; and
(b) be made within 28 days, or a shorter or longer time prescribed by the
National Regulations, after the amendment is made; and
(c) be accompanied by a consolidated copy of the rules of the
co-operative, including the amendment.
(3) The Registrar must register the amendment unless—
(a) the Registrar is satisfied the amendment is contrary to this Law;
or
(b) the Registrar has other reasonable cause to refuse to register the
amendment.
(4) A certificate of registration of an amendment of the rules of a
co-operative given by the Registrar is, in favour of any person advancing money
to the co-operative on the faith of the certificate or a guarantor of that
advance, evidence that the amendment in the rules was properly made.
Division 2—Model rules
64—Model rules
(1) The National Regulations may prescribe model rules.
(2) The model rules may make provision for anything for which the rules of
a co-operative may make provision.
(3) A model rule commences on—
(a) the day occurring 28 days after the date of publication of the
National Regulations containing the model rule; or
(b) a later day specified in, or ascertained in accordance with, the model
rule or the National Regulations.
(4) A model rule may apply generally or be limited in its application to a
specified class of co-operatives.
65—Adoption of model rules
The rules of a co-operative may adopt by reference all or any of the
provisions of the model rules—
(a) as in force from time to time, unless
paragraph (b)
applies; or
(b) as in force at a
particular time, if the rules so provide.
66—Relationship of this Division to
Division 1
If the rules of a co-operative adopt a model rule as in force from time to
time and the model rule is amended,
Division 1 does not
require the amendment (so far as it affects the rules of the co-operative) to be
approved or registered before the amendment takes effect in relation to the
co-operative.
Part 4—Shares
Division 1—Nature of
share
67—Nature of share in
co-operative
(1) A share or other
interest in a co-operative—
(a) is personal property; and
(b) is transferable or transmissible as provided by this Law and the rules
of the co-operative; and
(c) is, subject to the rules of the co-operative, capable of devolution by
will or by operation of law.
(2) Subject to
subsection (1)—
(a) the laws applying to ownership of and dealing with personal property
apply to a share or other interest of a member in a co-operative as they apply
to other property; and
(b) equitable interests in a share or other interest of a member in a
co-operative may be created, dealt with and enforced as in the case of other
personal property.
Division 2—Disclosure requirements for
distributing co-operatives
68—Registration of current disclosure
statement
(1) A distributing co-operative must take all reasonable steps to ensure
that it has a current disclosure statement registered with the
Registrar.
(2) The disclosure statement must contain the information necessary to
ensure prospective members are adequately informed of the nature and extent of a
person's financial involvement or liability as a member of the co-operative
including so far as applicable—
(a) the active membership provisions of the co-operative; and
(b) the rights and liabilities attaching to shares in the co-operative;
and
(c) any other information that the Registrar directs to be
included.
(3) A formation disclosure statement approved by the Registrar under
section 25 is taken to be
registered with the Registrar for the purposes of this section until it stops
being current under
subsection (4).
(4) A disclosure
statement stops being current when—
(a) a change occurs in the rights or liabilities attaching to any class of
share in the co-operative; or
(b) a significant change occurs in the financial position or prospects of
the co-operative.
(5) The co-operative must register a new disclosure statement with the
Registrar when the currently registered disclosure statement stops being
current, and must do so within 14 days (or a longer period approved by the
Registrar) after it stops being current.
Maximum penalty: $1 000.
69—Restrictions on advertising and publicity (cf
Corporations Act section 734)
(a) advertise; or
(b) publish a statement that directly or indirectly refers to,
an offer, or intended offer, of shares in a distributing co-operative
unless a current disclosure statement relating to the shares is—
(c) registered with the Registrar under
section 68; or
(d) lodged with the Registrar for registration under
section 68.
Maximum penalty: $1 000.
(2)
Subsection (1)
applies in relation to shares in a distributing co-operative only
if—
(a) the shares are offered to persons who are not shareholders in the
co-operative; or
(b) the invitation is made to persons who are not shareholders in the
co-operative.
(3) A person does not contravene
subsection (1)
by publishing an advertisement or statement if they publish it in the ordinary
course of a business of—
(a) publishing a newspaper or magazine; or
(b) broadcasting by radio or television,
and the person did not know and had no reason to suspect that its
publication would amount to a contravention of a provision of that
subsection.
(4) An offence based on
subsection (1) is an
offence of strict liability.
70—Disclosure to intending shareholders in
distributing co-operative
(1) The board of a
distributing co-operative must give a person who intends to acquire shares in
the co-operative and is not already a shareholder in the
co-operative—
(a) a current disclosure statement; and
(b) any other information the Registrar directs.
(2) The disclosure statement and any other information required under
subsection (1) and
Chapter 2 Part 5
must be given before the person becomes bound to acquire the shares.
71—Exemptions from disclosure
statements
(1) The Registrar may,
by designated instrument, exempt a co-operative or class of co-operatives from
any or all of the provisions of this Division.
(2) An exemption under
subsection (1) may
be given only if the Registrar is satisfied that compliance with the requirement
would be inappropriate in the circumstances or would impose an unreasonable
burden.
(3) An exemption may be given unconditionally or subject to
conditions.
Division 3—Compensation for defective
disclosure
72—Contravention leading to right to recover for
loss or damage (cf Corporations Act section 728)
A co-operative contravenes this section if a disclosure statement is given
to a person under
section 70
and—
(a) there is—
(i) a misleading or deceptive statement in the disclosure statement or in
any application form or document that accompanies the disclosure statement;
or
(ii) an omission from the disclosure statement of material or information
required to be contained in the statement by or under this Law,
and the misleading or deceptive statement or the omission is materially
adverse from the point of view of the person to whom it is given; or
(b) the disclosure statement is not current (as referred to in
section 70(1)).
73—Right to recover for loss or damage resulting
from contravention (cf Corporations Act section 729)
(1) A person who
suffers loss or damage because of a contravention of
section 72 in relation to
a co-operative may recover the amount of the loss or damage from a person
referred to in a following paragraph if the loss or damage is one that the
paragraph makes the person liable for, even if the person did not commit, and
was not involved in, the contravention—
(a) the co-operative is liable for loss or damage caused by any
contravention of
section 72 in relation to
the disclosure statement;
(b) each director of the co-operative is liable for loss or damage caused
by any contravention of
section 72 in relation to
the disclosure statement;
(c) a person named in the disclosure statement with their consent as
having made a statement (see
section 615)—
(i) that is included in the disclosure statement; or
(ii) on which a statement made in the disclosure statement is
based,
is liable for loss or damage caused by the inclusion of the statement in
the disclosure statement;
(d) a person who is involved in the contravention of
section 72 is liable for
loss or damage caused by that contravention.
(2) An action under
subsection (1) may
begin at any time within 6 years after the day on which the cause of action
arose.
(3) This Division does not affect any liability that a person has under
any other law.
Note—
Section 9 defines involved in a contravention.
74—Due diligence defence (cf Corporations Act
section 731)
(1) A person is not liable under this Division in relation to a
contravention of
section 72 because of a
misleading or deceptive statement if the person proves they—
(a) made all inquiries (if any) that were reasonable in the circumstances;
and
(b) after doing so, believed on reasonable grounds that the statement was
not misleading or deceptive.
(2) A person is not liable under this Division in relation to a
contravention of
section 72 because of an
omission from a disclosure statement in relation to a particular matter or
particular information if the person proves they—
(a) made all inquiries (if any) that were reasonable in the circumstances;
and
(b) after doing so, believed on reasonable grounds that there was no
omission from the statement in relation to that matter or information.
(3) A person is not liable under this Division in relation to a
contravention of
section 72 because a
disclosure statement is not current if the person proves they—
(a) made all inquiries (if any) that were reasonable in the circumstances;
and
(b) after doing so, believed on reasonable grounds that the statement was
current.
75—General defences (cf Corporations Act
section 733)
(1) A person is not
liable under this Division in relation to a contravention of s
section 72 because of a
misleading or deceptive statement in, or an omission from, a disclosure
statement if the person proves that they placed reasonable reliance on
information given to them by—
(a) if the person is a body—someone other than a director, employee
or agent of the body; or
(b) if the person is an individual—someone other than an employee or
agent of the individual.
(2) For the purposes of
subsection (1), a
person is not the agent of a body or individual merely because they perform a
particular professional or advisory function for the body or
individual.
(3) A person is not liable under this Division in relation to a
contravention of
section 72 because a
disclosure statement is not current if the person proves that they were not
aware of the circumstance or event that caused the statement to cease to be
current.
Division 4—Issue of
shares
76—Shares—general
(1) The share capital of a co-operative varies in amount according to the
nominal value of shares from time to time subscribed.
(2) Shares are to be of a fixed amount that must be specified in the rules
of the co-operative.
(3) A co-operative may have more than one class of shares if the
shareholding and the rights of shareholders comply with the co-operative
principles.
(4) Subject to this Part and
Chapter 2 Part 5,
shares must not be issued to a non-member.
77—Minimum number of shares to be subscribed
for
(1) A member of a co-operative with share capital must subscribe for such
minimum number of shares (if any) as may be required by the rules of the
co-operative.
(2) The minimum number may be determined by reference to the use made by
the member of the co-operative or in any other manner specified in the rules of
the co-operative.
(3) An amendment of the rules of the co-operative as to the minimum number
of shares to be subscribed for does not operate to require an existing member of
the co-operative to subscribe for additional shares, but an existing member is
not prevented from agreeing to subscribe for additional shares.
(4) This section does not affect
section 82.
78—Minimum paid up amount
(1) A share must not be allotted unless at least 10% of the nominal value
of the share has been paid.
(2) Any balance unpaid for shares at the time of allotment must be paid in
a way specified in the rules of the co-operative or permitted by this
Law.
(3) This section does not apply to a bonus share issued under
section 83 or
357.
(4) This section does
not affect shares issued before the commencement of this section in this
jurisdiction if the Co-operatives National Law Act of this jurisdiction so
provides.
79—Shares not to be issued at a
discount
A co-operative must not issue shares at a discount.
80—Issue of shares at a
premium
(1) A distributing co-operative may issue shares at a premium.
(2) A premium may be in the form of cash or other valuable
consideration.
(3) If a distributing co-operative issues shares for which it receives a
premium, an amount equal to the total amount or value of the premiums on the
shares must be transferred to a share premium account.
(4) The share premium
account is to be treated as paid-up share capital of the distributing
co-operative and may be applied in one or more of the following ways:
(a) in paying up
unissued shares to be issued to members of the co-operative as fully paid bonus
shares;
(b) in paying up, in whole or in part, the balance unpaid on shares
previously issued to members of the co-operative;
(c) in the payment of dividends, if the dividends are satisfied by the
issue of shares to members of the co-operative;
(d) in writing off the preliminary expenses of the co-operative;
(e) in providing for the premium payable on redemption of shares,
debentures or CCUs.
81—Joint ownership of shares
A share may be held by 2 or more persons jointly, unless the rules of the
co-operative otherwise provide.
82—Members may be required to take up additional
shares
(1) The board of a distributing co-operative may require a member to take
up or subscribe for additional shares under a proposal approved by a special
resolution of the co-operative passed by a special postal ballot.
(2) The board of a distributing co-operative may deduct amounts in payment
for additional shares from money payable to members for dealings with the
co-operative, under a proposal approved by a special resolution of the
co-operative passed by a special postal ballot.
(3) A proposal to
require a member to take up or subscribe for additional shares
must—
(a) be accompanied by a disclosure statement, registered by the Registrar,
that explains the purpose for which the funds raised by the issue of the
additional shares are to be used; and
(b) clearly show the total number of additional shares to be issued and
the basis on which the shares are to be apportioned among members; and
(c) be accompanied by a
statement informing the member that the member may inform the board by notice on
or before the date stated in the statement (being a date before the passing of
the special resolution) that the member resigns on the passing of the special
resolution.
(4) A proposal to deduct amounts in payment for additional shares from
amounts payable to members for their dealings with the distributing co-operative
must clearly show—
(a) the basis on which the deductions are to be made; and
(b) the time and way of making those deductions.
(5) A proposal approved under this section is binding on—
(a) all members of the distributing co-operative at the date of the
passing of the special resolution, other than a member who has given a notice of
resignation under
subsection (3)(c);
and
(b) all persons who become members of the distributing co-operative after
that date and before the total number of shares to be issued under the proposal
has been issued.
(6) The requirements in respect of a proposal to take up additional shares
under
subsection (3) do
not apply to the issue of bonus shares under
section 80(4)(a),
section 83 or
357.
83—Bonus share issues
(1) A distributing co-operative may issue bonus shares to members of the
co-operative if the assets of the co-operative—
(a) have been sold at a profit; or
(b) have been revalued at a greater value than that disclosed before the
revaluation in the books of the co-operative.
(2) This section does not apply if the assets were acquired for resale at
a profit.
84—Restrictions on bonus
shares
Bonus shares may be issued under
section 83 subject to the
following restrictions:
(a) each issue must have been approved by a special resolution of the
co-operative;
(b) they are to be issued as fully paid-up shares with no payment required
to be made by a member of the co-operative to whom they are issued;
(c) they are to be issued only for shares of the same class of shares that
are fully paid-up as at the date of issue of the bonus shares;
(d) the total nominal value of bonus shares issued by a co-operative in
any period of 12 months must not be more than 20%, or another percentage
prescribed under the National Regulations, of the nominal value of the issued
share capital of the co-operative immediately before the date of issue of the
bonus shares.
85—Notice about bonus shares
Notice of the meeting or postal ballot at which a resolution is to be
proposed as a special resolution to approve a bonus share issue under
section 83 must be
accompanied by—
(a) a statement of the value of the assets concerned as disclosed in the
books of the co-operative before the sale or revaluation; and
(b) if the issue arises from, or partly from, a sale of assets—a
statement of the price for which the assets were sold; and
(c) if the issue arises from, or partly from, a revaluation of
assets—a certificate of value of the assets, being a certificate given in
relation to a valuation made not more than one year before the date of the
notice by—
(i) a person prescribed by the National Regulations; or
(ii) a person having qualifications prescribed by the National
Regulations; and
(d) particulars of acquisitions of shares in the co-operative made within
the 3 years immediately preceding the date of the notice by or on behalf of
each of its directors and his or her spouse or de facto partner and the father,
mother, children, brothers and sisters of each director and each spouse or de
facto partner; and
(e) a certificate signed by 2 directors of the co-operative stating that
to the best of their knowledge and belief the issue of bonus shares would not be
imprudent and no circumstances are known to them as to why the issue should not
take place.
Division 5—Provisions applying to particular
share subscriptions
86—Definition
In this Division—
disclosure statement means a disclosure statement, of any
type, under this Law.
87—Application of this
Division
This Division applies in relation to shares in a co-operative only
if—
(a) the shares are offered to persons who are not shareholders in the
co-operative; or
(b) the invitation is made to persons who are not shareholders in the
co-operative.
88—Application money to be held on trust (cf
Corporations Act section 722)
(1) If a person offers
shares for issue or sale under a disclosure statement, the person must
hold—
(a) all application money received from people applying for shares under
the disclosure statement; and
(b) all other money paid by them on account of the shares before they are
issued or transferred,
in trust under this section for the applicants until—
(c) the shares are issued or transferred; or
(d) the money is returned to the applicants.
Maximum penalty: $2 500 or imprisonment for 6 months, or
both.
(2) If the application
money needs to be returned to an applicant, the person must return the money as
soon as practicable.
Maximum penalty: $2 500 or imprisonment for 6 months, or
both.
(3) An offence based on
subsection (1) or
(2) is an offence of
strict liability.
89—Minimum subscription condition must be fulfilled
before issue or transfer (cf Corporations Act
section 723(2))
If a disclosure statement for an offer of shares states that the shares
will not be issued or transferred unless—
(a) applications for a minimum number of the shares are received;
or
(b) a minimum amount is raised,
the person making the offer must not issue or transfer any of the shares
until that condition is satisfied. For the purpose of working out whether the
condition has been satisfied, a person who has agreed to take securities as
underwriter is taken to have applied for those shares.
Note 1—
Under
section 88,
the application money must be held in trust until the issue or transfer of the
shares.
Note 2—
This section prevents the issue or transfer of the shares not only to those
who apply for them in response to the disclosure statement but also to those who
do not need to apply for them (for example, because they are to take the
securities under an underwriting agreement).
90—Repayment of money if disclosure statement
condition not met (cf Corporations Act section 724(1)(a), (1A) and
(2)(a))
(a) a person offers shares under a disclosure statement; and
(b) the disclosure statement states (expressly or impliedly) that it is a
condition that the shares will not be issued or transferred
unless—
(i) applications for a minimum number of the shares are received;
or
(ii) a minimum amount is raised; and
(c) that condition is not satisfied within 4 months after the date of
the disclosure statement,
the person must repay the money received by the person in respect of any
applications for the shares made under the disclosure statement that have not
resulted in an issue or transfer of the shares.
Maximum penalty: $2 500 or imprisonment for 6 months, or
both.
(2) For the purpose of working out whether a condition referred to in
subsection (1) has
been satisfied, a person who has agreed to take shares as underwriter is taken
to have applied for those shares.
(3) An offence based on
subsection (1) is an
offence of strict liability.
Division 6—Disclosure and registration of
interests in shares
91—Direction to disclose (cf Corporations Act
section 672A(1))
The board of a co-operative may direct—
(a) a member of the co-operative; or
(b) a person named in a previous disclosure under
section 92 as having a
relevant interest in, or having given instructions about, shares in the
co-operative,
to make the disclosure required by
section 92.
92—Disclosure by member of relevant interests and
instructions (cf Corporations Act section 672B)
(1) A person given a
direction under
section 91 must disclose
in writing to the board of the co-operative giving the
direction—
(a) full details of their own relevant interest in the shares and of the
circumstances that give rise to that interest; and
(b) the name and
address of each other person who has a relevant interest in any of the shares
together with full details of—
(i) the nature and extent of the interest; and
(ii) the circumstances that give rise to the other person's interest;
and
(c) the name and
address of each person who has given the person instructions
about—
(i) the acquisition or disposal of the shares; or
(ii) the exercise of any voting or other rights attached to the shares;
or
(iii) any other matter relating to the shares or interests,
together with full details of those instructions (including the date or
dates on which they were given).
Maximum penalty: $1 000 or imprisonment for 3 months, or
both.
(2) However, a matter
referred to in
subsection (1)(b) or
(c) need be disclosed
only to the extent to which it is known to the person required to make the
disclosure.
(3) An offence based on
subsection (1) is an
offence of strict liability.
(4) A defendant bears an evidential burden in relation to the matter in
subsection (2).
(5) The disclosure must be made within 5 business days
after—
(a) the person is given the direction; or
(b) if the person applies for an exemption under
subsection (6) from
complying with the direction and the Registrar refuses to grant the
exemption—the Registrar notifies the person of the Registrar's decision on
the application.
(6) The Registrar may,
by designated instrument, exempt a person from complying with a direction if the
Registrar believes the direction is unjustified.
(7) The person does not have to comply with a direction given by the
co-operative if the person proves that the giving of the direction is
vexatious.
(8) A board that receives information from a person acting on a direction
given to the person by the board must pay to the person the fee (if
any)—
(a) prescribed by the National Regulations, except to the extent
paragraph (b)
applies; or
(b) prescribed by the
local regulations.
93—Registration as trustee, executor or
administrator on death of owner of shares
(1) A trustee, executor or administrator of the estate of a dead person
who was the registered holder of a share in a co-operative may be registered as
the holder of the share as trustee, executor or administrator of the
estate.
(2) A trustee, executor or administrator of the estate of a dead person
who was entitled in equity to a share in a co-operative may, with the consent of
the co-operative and of the registered holder of the share, be registered as the
holder of the share as trustee, executor or administrator of the
estate.
94—Registration as administrator of estate on
incapacity of shareholder
(1) This section applies to a person (the appointed person)
who is appointed under a law of a jurisdiction relating to the administration of
the estates of persons who, through mental or physical infirmity, are incapable
of managing their affairs, to administer the estate of another person (the
incapable person).
(2) If the incapable person is the registered holder of a share in a
co-operative, the appointed person may be registered as the holder of the share
as administrator of the estate of the incapable person.
(3) If the incapable person is entitled in equity to a share in a
co-operative, the appointed person may, with the consent of the co-operative and
of the registered holder of the share, be registered as the holder of the share
as administrator of the estate of the incapable person.
95—Registration as Official Trustee in
Bankruptcy
(1) This section applies when a share in a co-operative that is the
property of a bankrupt vests by force of the Bankruptcy Act 1966 of the
Commonwealth in the Official Trustee in Bankruptcy.
(2) If the bankrupt is the registered holder of the share, the official
trustee may be registered as the holder of the share as the Official Trustee in
Bankruptcy.
(3) If the bankrupt is entitled in equity to the share, the official
trustee may, with the consent of the co-operative and of the registered holder
of the share, be registered as the holder of the share as the Official Trustee
in Bankruptcy.
96—Liabilities of person registered as trustee or
administrator
(1) A person registered under
section 93,
94 or
95 is, while so registered,
subject to the same liabilities in relation to the share as the liabilities to
which the person would have been subject if the share had remained, or had been,
registered in the name of the dead person, the incapable person or the
bankrupt.
(2) The person registered is subject to no other liabilities in relation
to the share.
97—Notice of trusts in register of
members
Shares held by a trustee under a particular trust may, with the consent of
the co-operative, be marked in the register of members in a way that identifies
the shares as being held under the trust.
98—No notice of trust except as provided by this
Division
Except as provided in this Division—
(a) no notice of a trust, whether express, implied or constructive, is to
be entered on a register or be receivable by the Registrar; and
(b) no liabilities are affected by anything done under this Division;
and
(c) nothing done under this Division affects a co-operative with notice of
a trust.
Division 7—Sale or transfer of
shares
99—Sale or transfer of shares
A share in a co-operative cannot be sold or transferred
except—
(a) on the death of a member—under
Division 8; or
(b) to a person appointed to administer the estate of a shareholder under
a law relating to the administration of the estates of persons who, through
mental or physical infirmity, are incapable of managing their affairs;
or
(c) with the consent of the board—to any person, if there are
reasonable grounds for believing the person will be an active member of the
co-operative.
100—Sale or transfer of shares to be subject to
rules
(1) A share in a
co-operative cannot be sold or transferred except under the rules of the
co-operative.
(2) Without limiting
subsection (1), a
share in a co-operative cannot be sold or transferred to 2 or more persons
jointly if the rules of the co-operative do not (either generally or in the
circumstances of the particular case) allow the share to be held
jointly.
101—Transfer not effective until
registered
The transfer (by sale or otherwise) of a share in a co-operative is not
effective until the transfer is registered and the name of the transferee is
entered in the register of members in respect of the share.
Division 8—Transfer of shares and other
interests on death of member
102—Meaning of interest
In this Division—
interest, of a deceased member, in a co-operative,
includes—
(a) the member's membership; and
(b) any credit balance payable to the member; and
(c) any loan from or to, or deposit with, the co-operative; and
(d) any surplus arising on the sale by the co-operative as mortgagee of
any property mortgaged by the deceased to the co-operative.
103—Transfer of shares and other interests on death
of member
(1) On the death of a
member of a co-operative, the board must transfer the deceased member's share or
interest in the co-operative to—
(a) the personal representative of the deceased member; or
(b) one or more persons
that the deceased's personal representative specifies in an application for
transfer made to the co-operative within 3 months after the death of the
member.
(2) On the death of a
member of a co-operative, the member's share or interest in the co-operative
cannot be transferred to a person other than the personal representative of the
deceased member except with the consent of the board of the
co-operative.
(3) The board—
(a) in the case of an application referred to in
subsection (1)(b)—must
give its consent under
subsection (2) to
the transfer of the deceased member's share or interest in the co-operative,
unless the board reasonably believes the only transferee or each transferee will
not be an active member of the co-operative; or
(b) in any other case—may give its consent under
subsection (2) only
if the board reasonably believes the only transferee or each transferee will be
an active member of the co-operative.
(4) The board must not give its consent under
subsection (2) to
the transfer of a share if, because of the transfer, the nominal value of the
shares held by the transferee would be more than—
(a) 20% of the nominal value of the share capital of the co-operative;
or
(b) if a lower percentage is specified in the rules of the
co-operative—that lower percentage of the nominal value of the share
capital of the co-operative.
(5) This section has effect subject to
section 100.
104—Transfer of small shareholdings and interests
on death
(1) If the total value of a deceased member's shares or interest in a
co-operative is less than $10 000 (or a higher amount prescribed by the
National Regulations), the board may, on the basis of evidence that it considers
sufficient, transfer the shares or interest under whichever of the following
paragraphs is appropriate:
(a) if the member dies testate—to the person who appears to the
board to be entitled to the shares or interest under the will of the deceased
member;
(b) if the member dies intestate—to any person who appears to the
board to be entitled to obtain a grant of administration of the estate of the
deceased, and that person must then hold the shares or interest on the same
trusts as if he or she had obtained the grant.
(2) A transfer must not be made under this section after evidence has been
produced to the co-operative of the grant of letters of administration of the
estate, or probate of the will, of the deceased member.
(3) This section has effect subject to
section 100.
(4) In this section—
transfer of an interest includes the payment of
money.
105—Value of shares and
interests
The value of the shares or interest of a deceased member must be decided,
for the purposes of this Division, under the rules of the
co-operative.
106—Co-operative protected
Any transfer of property made by the board of a co-operative under this
Division is valid and effectual against any demand made on the co-operative by
any other person.
Division 9—Repurchase of
shares
107—Purchase and repayment of
shares
(1) The rules of a co-operative may authorise the
co-operative—
(a) to purchase any share of a member in the co-operative at the request
of the member; and
(b) to repay to a member, with the member's consent, all or any part of
the amount paid up on any share held by the member when the amount repaid is not
required for the activities of the co-operative.
(2) The amount paid by
a co-operative under this section in purchasing shares or repaying any amount
paid up on shares, or both, in any financial year of the co-operative must not
be more than the total of—
(a) 5% of the nominal value of the issued share capital of the
co-operative immediately before the start of the financial year; and
(b) the amount of any additional share capital of the co-operative
subscribed for within that year.
(3) The members of a co-operative may, by special resolution, exempt a
co-operative from the operation of
subsection (2) in
relation to a particular financial year, either unconditionally or subject to
conditions.
(4) The amount paid for a share when it is repurchased may be an amount
decided by the board that is less than the nominal value of the share but
only—
(a) if the books of the co-operative disclose that the amount paid is the
net shareholder's equity per share in the business of the co-operative;
or
(b) under the rules of the co-operative.
(5) A co-operative must not purchase shares or repay amounts paid up on
shares if—
(a) the co-operative is likely to become insolvent because of the
repurchase of the shares or because of the repayment of amounts paid up on the
shares; or
(b) the co-operative is insolvent.
(6) This section does not apply if the member has been expelled or has
resigned from the co-operative or the member's membership has been otherwise
cancelled under
Chapter 2
Part 6.
108—Deposits, debentures or CCUs instead of payment
when share repurchased
(1) If a co-operative
repurchases a share of a member, the co-operative may instead of paying the
purchase price to the member—
(a) for a deposit-taking co-operative—apply the amount as an
interest-bearing deposit by the member with the co-operative; or
(b) allot or issue debentures or CCUs of the co-operative to the member in
satisfaction of the amount.
(2)
Subsection (1) applies
only if—
(a) the board considers payment of the repurchase price would adversely
affect the financial position of the co-operative; or
(b) the board and the member so agree.
(3) The deposit, debenture or CCU bears interest during any
period—
(a) for a co-operative
with share capital—
(i) at the rate (or, if there is more than one rate, at the higher or
highest rate) of dividend payable for that period on the share capital of the
co-operative; or
(ii) if the rate of dividend payable for that period has not been
decided—at the rate (or the higher or highest rate) payable for the
immediately preceding period for which a rate has been decided; or
(iii) if a rate of dividend has never been decided for the share capital
of the co-operative—at the rate the board of the co-operative considers
reasonable; or
(b) for a co-operative
without share capital—at the rate the board of the co-operative considers
reasonable; or
(c) if the rules of the co-operative provide for a rate to be payable that
is higher than the rate applicable under
paragraph (a)
or
(b)—at the higher
rate.
(4) The deposit, debenture or CCU must be repaid to the member as soon as
repayment would not, in the opinion of the board, adversely affect the financial
position of the co-operative.
(5) The deposit, debenture or CCU must in any case be repaid within
10 years (or within any shorter period the rules of the co-operative
require) after the repurchase of the shares concerned.
109—Cancellation of shares
A co-operative must cancel any share purchased by or forfeited to the
co-operative under this Law or the rules of the co-operative.
Part 5—Membership
Division 1—General
110—Becoming a member of
co-operative
(1) On the registration of a co-operative, the persons who signed the
application for registration become members of the co-operative.
(2) Other persons may be admitted as members of the co-operative as
provided by its rules.
(3) A minor may be admitted as a member of the co-operative unless the
rules of the co-operative otherwise provide.
(4) A corporation is not (merely because it is a corporation) disqualified
from being a member of a co-operative unless the rules of the co-operative
provide that corporations are disqualified from being members.
(5) If 2 or more co-operatives merge, the members of the merged
co-operative are—
(a) the members of the merging co-operatives; and
(b) other persons admitted as members of the merged co-operative under its
rules.
111—Members of co-operative
group
(1) The members of a co-operative group are—
(a) the co-operatives by which the co-operative group is formed;
and
(b) any other co-operative, admitted to membership in accordance with the
rules of the co-operative group; and
(c) any other corporation or other body admitted to membership in
accordance with
subsection (2).
(2) A corporation or
other body, not being a co-operative, may be admitted to membership of the
co-operative group if—
(a) it is incorporated or registered under any other law, whether or not a
law of this jurisdiction; and
(b) in the opinion of the board of the co-operative group, it is designed
to function in accordance with co-operative principles; and
(c) it is eligible to be admitted to membership in accordance with the
rules of the co-operative group.
112—Qualification for
membership
(1) A person is not qualified to be admitted to membership of a
co-operative unless—
(a) there are reasonable grounds for believing the person will be an
active member of the co-operative; and
(b) the person is otherwise eligible under the rules of the
co-operative.
(2) The rules of a co-operative must contain provisions
that—
(a) impose a duty on all persons who become members to be active members;
and
(b) set out the consequences of failing to be, or ceasing to be, an active
member.
113—Membership may be joint
Membership of a co-operative may be individual and, unless the rules of the
co-operative provide otherwise, may be joint.
114—Minors
(1) A member of a co-operative is not entitled to avoid any obligation or
liability as a member under a contract, deed or other document entered into as a
member on any ground relating to minority.
(2) A minor is not competent to hold any office in a
co-operative.
(3) A member of a co-operative who is a minor is not entitled to vote, but
this does not apply to joint membership of a co-operative except where all the
joint members are minors.
(4) This section applies only to individuals.
115—Representatives of
corporations
(1) If a corporation is a member of a co-operative, it may by instrument
served on the co-operative appoint a person to represent it in relation to its
membership.
(2) A corporation must not appoint a person to represent the corporation
as a member of a co-operative if the person is currently a member of the
co-operative or a representative of another corporation member.
Maximum penalty: $1 000.
(3) The power to appoint a representative is subject to any restriction
imposed by the rules of the co-operative as to the entitlement of a person to
represent a corporation.
(4) A person is not qualified to be appointed the representative of a
company that is not a listed corporation (within the meaning of the Corporations
Act) unless the person is an officer, member or employee of the
company.
116—Notification of shareholders and
shareholdings
On the request of the board of a co-operative, a corporation that is a
member of the co-operative must provide the board of the co-operative
with—
(a) a list of the names of all the shareholders of the corporation and the
number of shares held by each shareholder; or
(b) in the case of a corporation without share capital—a list of the
members of the corporation,
within 7 days of the request.
Maximum penalty: $2 000.
117—Circumstances in which membership
ceases—all co-operatives
(1) A person ceases to be a member of a co-operative in each of the
following circumstances and as otherwise provided by this Law:
(a) if the member's membership is cancelled under
Chapter 2
Part 6;
(b) if the member is expelled or resigns under the rules of the
co-operative;
(c) if—
(i) the individual member becomes bankrupt or the corporate member becomes
insolvent; or
(ii) the member's property becomes subject to control under the law
relating to bankruptcy,
unless provision is made to the contrary in the rules of the
co-operative;
(d) on the death of the member;
(e) if the contract of membership is rescinded on the ground of
misrepresentation or mistake;
(f) for a member that is a corporation—if the corporation is
deregistered.
(2) On the death of a member, the member's estate remains liable as the
member until the member's personal representative or some other person is
registered in the member's place.
118—Additional circumstances in which membership
ceases—co-operatives with share capital
In the case of a co-operative that has share capital, in addition to the
circumstances in
section 117, a member
ceases to be a member if—
(a) the member's total shareholding is transferred to another person under
the rules of the co-operative and the name of the transferee is entered in the
register of members in respect of the shareholding; or
(b) the member's total shareholding is forfeited under this Law or the
rules of the co-operative; or
(c) the member's total shareholding is sold by the co-operative under a
power conferred by the rules of the co-operative, and the name of the purchaser
is entered in the register of members in respect of the shareholding;
or
(d) the member's total shareholding is purchased by the co-operative under
this Law; or
(e) the amount paid up on the member's shares is repaid to the member
under the rules of the co-operative.
119—Carrying on business with too few
members
(1) A person who is a
director of a co-operative must not knowingly allow the co-operative to continue
to carry on business with fewer than the minimum number of members allowed
(under
subsection (3)) for
more than 28 days after the number of members falls below that minimum
number.
Maximum penalty: $2 000.
(2) Each person who is found guilty of an offence under
subsection (1) is
also liable to satisfy all obligations of the co-operative incurred after the 28
days referred to in
subsection (1), and
may be sued without any other member being joined in the action.
(3) The minimum number
of members allowed is—
(a) in the case of a co-operative group—2 co-operatives;
or
(b) in the case of any other co-operative—
(i) if a lesser number than 5 is approved by the Registrar—that
number of active members; or
(ii) otherwise—5 active members.
Note—
See
section 20 for
composite approvals.
(4) The Registrar may, by written notice, extend and further extend in a
particular case the period of 28 days referred to in
subsection (1).
(5) An application for an extension must be made in the approved form
before the period to be extended ends.
Division 2—Rights and liabilities of
members
120—Rights of membership not exercisable until
registered etc
(1) A member of a co-operative is not entitled to exercise any rights of
membership until—
(a) the member's name appears in the register of members; and
(b) the member has made any payment to the co-operative for membership or
acquired any share or interest that is provided for in the rules of the
co-operative.
(2) A co-operative must
ensure the name of a person admitted to membership is recorded in the register
of members within 28 days after the person is admitted to
membership.
Maximum penalty (for
subsection (2)): $2
000.
121—Liability of members to
co-operative
(1) A member of a co-operative is not, as a member, under any personal
liability to the co-operative, except as provided by this section.
(2) A member of a co-operative with share capital is liable to the
co-operative for the amount (if any) unpaid on the shares held by the member
together with any charges payable by the member to the co-operative as required
by the rules of the co-operative.
(3) A member of a co-operative without share capital is liable to the
co-operative for any charges payable by the member to the co-operative as
required by the rules of the co-operative.
(4) This section does not affect a liability that a member of a
co-operative may have to the co-operative in respect of—
(a) any trade or other business conducted by the member with the
co-operative; or
(b) any fines imposed on the member by the co-operative.
122—Co-operative to give information to person
intending or applying to become a member
(1) The board of a
co-operative must give each person intending or applying to become a member of
the co-operative—
(a) a consolidated copy of the rules of the co-operative; and
(b) a copy of all special resolutions that would apply to the prospective
member passed by the members of the co-operative, except special resolutions
providing for an amendment of the rules of the co-operative; and
(c) a copy of the most recent financial information reported to members of
the co-operative under
Chapter 3
Part 3.
(2) The board of a co-operative may comply with
subsection (1)—
(a) by—
(i) giving the person notice that the documents referred to in
subsection (1) may
be inspected by the person at the registered office of the co-operative and at
each other office of the co-operative in or outside this jurisdiction, including
outside Australia; and
(ii) making the documents available for inspection in person; or
(b) if the person has elected to receive the documents as an electronic
copy—by sending the person an electronic copy of the documents;
or
(c) if the person did not make the election—by directly notifying,
in writing, that the documents are accessible on the website and specifying the
direct address on the website where the documents may be accessed.
Note—
A direct address may be specified, for example, by specifying the URL of
the documents.
123—False copy of documents
(1) A person who, in purported compliance with
section 122—
(a) gives a person intending or applying to become a member of a
co-operative a document as a copy of—
(i) a special resolution of the co-operative; or
(ii) the last annual report of the co-operative; and
(b) knows or ought to know that, in a material respect, it is not a true
copy of the resolution or report; and
(c) does not indicate to that person that it is not a true copy,
is guilty of an offence.
Note—
Section 58 deals with
false copies of rules.
(2) A person who, in purported compliance with
section 122—
(a) makes available for inspection by a person intending or applying to
become a member of a co-operative a document as a copy of—
(i) a special resolution of the co-operative; or
(ii) the last annual report of the co-operative; and
(b) knows or ought to know that, in a material respect, it is not a true
copy of the resolution or report; and
(c) does not indicate to that person that it is not a true copy,
is guilty of an offence.
Maximum penalty: $1 000.
124—Entry fees and regular
subscriptions
(1) The rules of a co-operative may—
(a) require the payment by members of entry fees and regular
subscriptions; and
(b) provide for the repayment of the fees and subscriptions on a person's
ceasing to be a member.
(2) The calculation of the amount of a particular member's regular
subscription may be based on the value of business the member does with the
co-operative or on profits earned by the co-operative on business done by the
member with the co-operative.
(3) A co-operative must give to any person intending or applying to become
a member written notice of entry fees or regular subscriptions payable by a
member to the co-operative.
(4) A person who becomes a member of the co-operative is not liable to pay
entry fees or regular subscriptions except—
(a) the fees or subscriptions of which the person was given written notice
before becoming a member; and
(b) any regular subscriptions that are imposed in accordance with the
rules of the co-operative and of which the member has been given
notice.
125—Members etc may be required to deal with
co-operative
(1) The rules of a co-operative may contain provisions that require a
member to have stated dealings with the co-operative for a fixed period and to
enter into a contract for that purpose.
(2) A co-operative may, if authorised by its rules, make a contract with a
member containing provisions that require the member to have stated dealings
with the co-operative for a fixed period.
(3) In particular, the provisions of the rules of the co-operative or a
contract may require a member—
(a) to sell products through or to the co-operative; or
(b) to obtain supplies or services through or from the co-operative;
or
(c) to pay to the co-operative a stated amount as liquidated damages for
any failure to comply with a requirement authorised by this section.
(4) Any amount required to be paid to the co-operative as liquidated
damages is, for the purposes of
section 127, a debt
payable by the member to the co-operative and is accordingly subject to that
section.
(5) A contract authorised by this section is binding on the co-operative
and all other parties even though, apart from this Law, the contract would be
invalid as being in restraint of trade.
(6) Rules authorised by this section are authorised even though, apart
from this section, the rules might be invalid as being in restraint of
trade.
126—Fines payable by members
(1) A co-operative may
impose a fine on a member for an infringement of the rules of the co-operative
if the rules so provide.
(2) A fine imposed under
subsection (1) must
not be more than the maximum fine fixed by the rules of the
co-operative.
(3) A fine must not be imposed unless—
(a) notice of intention to impose the fine and the reason for it has been
given to the member; and
(b) the member has been given a reasonable opportunity to appear before
the board in person (with or without witnesses), or to send to the board a
written statement, to show cause why the fine should not be imposed.
(4) The co-operative may set-off the whole or any part of the fine against
an amount payable to the member for produce delivered by the member to the
co-operative, but no part of the fine is to be set-off against any advance
payable to the member from the co-operative under the rules of the co-operative
against produce so delivered.
127—Lien and set-off
(1) A co-operative has, in relation to any debt payable by a member or
former member to the co-operative, a lien on each of the following:
(a) the share or interest in the capital and the credit balance and
deposits of the member or former member;
(b) any rebate, bonus, dividend or interest payable to the member or
former member;
(c) any entry fees and regular subscriptions required to be repaid to a
member when the member ceases to be a member.
(2) The co-operative may set-off any amount paid on account of that share
or other thing, or any amount credited or payable to the member or former
member, in or towards payment of the debt.
(3) The lien created by this section may be enforced by the appropriation
by the co-operative of the thing that is subject to the lien, but only after at
least 7 days notice has been given to the member or former
member.
(4) Any share in relation to which capital has been so appropriated must
be cancelled.
128—Repayment of shares on expulsion or
resignation
(1) When a member is expelled or resigns from a co-operative under its
rules, the co-operative must, within one year after the day of expulsion or
resignation—
(a) repay to the former member an amount (the repayable
amount) made up of the amount paid up on the shares held by the member
at the day of expulsion or resignation, less any amount owed by the member to
the co-operative at the day of expulsion or resignation under the rules of the
co-operative or any contract or otherwise; or
(b) apply the repayable amount under
subsection (2)
if—
(i) the board considers repayment would adversely affect the financial
position of the co-operative; or
(ii) the board and the former member agree.
(2) The repayable
amount may be applied in one or more of the following ways:
(a) the co-operative may appropriate the amount as a donation to the
co-operative, but only if the former member consents in writing to the
donation;
(b) if the co-operative is a deposit-taking co-operative—the
co-operative may apply the amount as a deposit by the former member with the
co-operative;
(c) the co-operative may allot or issue debentures or CCUs of the
co-operative to the former member in satisfaction of the amount.
(3) If the balance sheet of the co-operative last issued before the
expulsion or resignation of a member of the co-operative disclosed a loss or
deficiency, there must be a proportionate reduction in the capital to be repaid
to the member.
(4) That reduction must be by an amount that bears to the amount of the
loss or deficiency so disclosed the same proportion as the number of shares held
by the member bore to the total number of shares held by all members of the
co-operative as at the date of expulsion or resignation of the member.
(5) Shares for which capital has been repaid must be cancelled.
Note—
Section 163deals with
repayment of amounts owing because of cancelled membership.
Section 164 and
165 deal with interest on, and
repayment of, deposits, debentures and CCUs referred to in this
section.
Division 3—Disputes involving
members
129—Grievance procedure
(1) The rules of a co-operative must set out a grievance procedure for
dealing with any dispute under the rules between—
(a) a member and another member; or
(b) a member and the co-operative.
(2) A member may appoint any person to act on behalf of the member in the
grievance procedure.
(3) The grievance procedure must allow for natural justice to be
applied.
(4) In this Division—
member includes any person who was a member not more than
6 months before the dispute occurred.
130—Application to designated
tribunal
(1) The designated tribunal may, on the application of a member or the
co-operative, make an order declaring and enforcing—
(a) the rights or obligations of members of the co-operative between
themselves; or
(b) the rights or obligations of the co-operative and any member between
themselves.
(2) An order may be made under this section whether or not a right of a
proprietary nature is involved and whether or not the applicant has an interest
in the property of the co-operative.
(3) The designated tribunal may refuse to make an order on the application
or may make an order for costs against a party, whether successful or not, if it
considers that—
(a) the issue raised in the application is trivial; or
(b) having regard to the importance of the issue, the nature of the
co-operative, any other available method of resolving the issue, the costs
involved, lapse of time, acquiescence or any other relevant circumstance, it was
unreasonable to make the application; or
(c) the unreasonable or improper conduct of a party—
(i) has been responsible for the making of the application; or
(ii) has added to the cost of the proceedings.
Division 4—Oppressive conduct of
affairs
131—Interpretation—extended meaning of
member
In this Division—
member, in relation to a co-operative that has share capital,
includes a person to whom a share in the co-operative has been transmitted by
will or by operation of law.
132—Application of Division
This Division does not apply to anything done under
Chapter 2
Part 6.
133—Application for order
The following persons may apply to the Supreme Court for an order under
this Division:
(a) the Registrar;
(b) a member who believes the affairs of the co-operative are being
conducted in a way that is—
(i) oppressive or unfairly prejudicial to, or unfairly discriminatory
against, a member; or
(ii) contrary to the interests of the members as a whole;
(c) a member who believes an act or omission, or a proposed act or
omission, by or on behalf of the co-operative, or a resolution, or a proposed
resolution, of members, was or would be—
(i) oppressive or unfairly prejudicial to, or unfairly discriminatory
against, a member; or
(ii) contrary to the interests of the members as a whole.
134—Orders
On application under this Division, the Supreme Court may make any order it
considers appropriate including (without being limited to) one or more of the
following orders:
(a) an order that the Registrar appoint an administrator of the
co-operative;
(b) an order that the co-operative be wound up;
(c) an order for regulating the conduct of affairs of the co-operative in
the future;
(d) an order for the repayment of the member's shares under the provisions
of this Law for repayment of share capital;
(e) an order for the purchase of the shares of any member by the
co-operative and for the reduction accordingly of the co-operative's
capital;
(f) an order directing the co-operative to institute, prosecute, defend or
discontinue stated proceedings, or authorising a member or members of the
co-operative to institute, prosecute, defend or discontinue stated proceedings
in the name and on behalf of the co-operative;
(g) an order appointing a receiver or a receiver and manager of property
of the co-operative;
(h) an order restraining a person from engaging in stated conduct or from
doing a stated act or thing;
(i) an order directing a co-operative to become registered as a company
under the Corporations Act;
(j) an order requiring a person to do a stated act or thing;
(k) an order as to costs;
(l) an order making amendments to the rules of the co-operative.
135—Basis on which orders made
The Supreme Court may make an order under this Division if it considers
that—
(a) the affairs of a co-operative are being conducted in a way that
is—
(i) oppressive or unfairly prejudicial to, or unfairly discriminatory
against, a member (an oppressed member), whether or not in the
capacity of a member; or
(ii) contrary to the interests of the members as a whole; or
(b) an act or omission, or a proposed act or omission, by or on behalf of
a co-operative, or a resolution, or a proposed resolution, of members, was or
would be—
(i) oppressive or unfairly prejudicial to, or unfairly discriminatory
against, a member (an oppressed member), whether or not in the
capacity of a member; or
(ii) contrary to the interests of the members as a whole.
136—Winding up need not be ordered if members
unfairly prejudiced by order
The Supreme Court need not make an order under this Division for the
winding up of a co-operative if it considers the winding up of the co-operative
would unfairly prejudice an oppressed member or unfairly prejudice the members
as a whole.
137—Application of winding up
provisions
If an order that a co-operative be wound up is made under this Division,
the provisions of this Law relating to the winding up of co-operatives apply,
with any modifications that are necessary, as if the order had been made on an
application filed in the Supreme Court by the co-operative.
138—Changes to rules
(1) If an order under this Division makes any amendment of the rules of a
co-operative—
(a) the amendment has effect as if it had been properly made by special
resolution of the co-operative; and
(b) the co-operative must not (despite any other provisions of this Law),
without the leave of the Supreme Court, make any further amendment of the rules
inconsistent with the provisions of the order.
(2) On receiving a copy of an order amending the rules of a co-operative
the Registrar must register the amendment.
139—Copy of order to be filed with
Registrar
An applicant for an order under this Division must file an office copy of
the order with the Registrar within 14 days after it is made.
Maximum penalty: $1 000.
Division 5—Inspection of
books
140—Order for inspection of books of co-operative
(cf Corporations Act section 247A)
(1) On application by a member of a co-operative, the Supreme Court may
make an order—
(a) authorising the applicant to inspect books of the co-operative;
or
(b) authorising another person (whether a member or not) to inspect books
of the co-operative on the applicant's behalf.
(2) A person authorised
to inspect books may make copies of the books unless the Supreme Court orders
otherwise.
(3) A person who—
(a) is granted leave under
section 580; or
(b) applies for leave under that section; or
(c) is eligible to apply for leave under that section,
may apply to the Supreme Court for an order under this section.
(4) On application, the Supreme Court may make an order
authorising—
(a) the applicant to inspect books of the co-operative; or
(b) another person to inspect books of the co-operative on the applicant's
behalf.
(5) The Supreme Court may make the order only if it is satisfied
that—
(a) the applicant is acting in good faith; and
(b) the inspection is to be made for a purpose connected
with—
(i) applying for leave under
section 580; or
(ii) bringing or intervening in proceedings with leave under that
section.
(6) A person authorised to inspect books may make copies of the books
unless the Supreme Court orders otherwise.
141—Ancillary orders (cf Corporations Act
section 247B)
If the Supreme Court makes an order under
section 140, the court may
make any other orders it considers appropriate, including either or both of the
following:
(a) an order limiting the use that a person who inspects books may make of
information obtained during the inspection;
(b) an order limiting the right of a person who inspects books to make
copies in accordance with
section 140(2).
142—Disclosure of information acquired in
inspection (cf Corporations Act section 247C)
(1) A person who
inspects books on behalf of an applicant under
section 140 must not
disclose information obtained during the inspection.
Maximum penalty: $500.
(2)
Subsection (1) does
not apply to the extent that the disclosure is to—
(a) the Registrar; or
(b) the applicant.
(3) An offence based on
subsection (1) is an
offence of strict liability.
(4) A defendant bears an evidential burden in relation to the matter in
subsection (2).
143—Co-operative or directors may allow member to
inspect books (cf Corporations Act section 247D)
The board of a co-operative, or the co-operative by a resolution passed at
a general meeting, may authorise a member to inspect books of the
co-operative.
Part 6—Active membership
Division 1—Definitions
144—Meaning of primary
activity
A primary activity of a co-operative is an activity specified
in the rules of the co-operative as a primary activity of the
co-operative.
145—Meaning of active
member
A member of a co-operative is an active member of the
co-operative if the member—
(a) uses or supports an activity of, or maintains a relationship or an
arrangement with, the co-operative, for carrying on a primary activity of the
co-operative, in the way and to the extent the rules of the co-operative
provide; or
(b) maintains any other relationship or arrangement with the co-operative
for carrying on a primary activity of the co-operative that the National
Regulations provide.
146—Meaning of active membership provisions and
resolutions
(1) Active
membership provisions in the rules of a co-operative are provisions in
the rules that state—
(a) which of the activities of the co-operative are the primary activities
of the co-operative; and
(b) the way in which, and the extent to which, a member of the
co-operative must use or support an activity of, or maintain a relationship or
arrangement with, the co-operative, for carrying on a primary activity of the
co-operative, to establish active membership of the co-operative.
(2) An active
membership resolution is a resolution that would, if given effect to,
make or amend active membership provisions in the rules of a
co-operative.
Division 2—Active membership
provisions
147—Number of primary activities
required
A co-operative must have at least one primary activity.
148—Rules to contain active membership
provisions
The board of a co-operative must ensure the rules of the co-operative
contain active membership provisions under this Part.
149—Factors and considerations for deciding primary
activities and other matters
(1) The board of a co-operative must ensure the relevant factors and
considerations are taken into account in deciding—
(a) which of the activities of a co-operative are its primary activities;
and
(b) the way and extent to which a member is required to use or support an
activity of, or maintain a relationship or arrangement with, a co-operative, for
carrying on a primary activity of the co-operative, to establish active
membership of the co-operative.
(2) The relevant factors and considerations
are—
(a) the primary activity or (if more than one) the primary activities
taken together must form the basic purpose for which the co-operative exists and
a significant contribution to the business of the co-operative; and
(b) the way and extent of required utilisation, support, relationship or
arrangement should be reasonable when considered in relation to the activities
of the co-operative as a whole; and
(c) any other factors and considerations prescribed by the National
Regulations.
(3) The National Regulations may—
(a) provide for the things to be taken into account in deciding whether an
activity makes a significant contribution to the business of the co-operative;
and
(b) state minimum percentages of turnover, minimum amounts of income or
minimum amounts of business necessary to constitute that significant
contribution.
(4) Factors and considerations may be prescribed by the National
Regulations so as to apply to co-operatives generally or to a specified class of
co-operatives.
(5) Nothing in this section limits the right of active members other than
the board of the co-operative to propose an active membership
resolution.
150—Active membership provisions—distributing
co-operatives
The only active membership provisions that may be contained in the rules of
a distributing co-operative are—
(a) provisions requiring a member to use an activity of the co-operative
for carrying on a primary activity stated in the provisions to establish active
membership; and
(b) any other active membership provisions the Registrar may
approve.
151—Active membership
provisions—non-distributing co-operatives—regular
subscriptions
(1) Active membership provisions for a non-distributing co-operative may
include a provision to the effect that the payment of a regular subscription by
a member of the co-operative, to be applied to a primary activity of the
co-operative, is sufficient to establish active membership of the
co-operative.
(2) A member of a non-distributing co-operative who would, on payment of
the subscription, be an active member of the co-operative is taken to be an
active member until the subscription is payable.
Division 3—Active membership
resolutions
152—Notice of meeting
(1) At least 21 days notice must be given to members of a co-operative of
a meeting at which an active membership resolution is to be proposed.
(2) The notice must, in addition to the other matters required to be
stated—
(a) state whether the member is eligible to vote on the resolution;
and
(b) state the full text of the proposed resolution; and
(c) contain a copy of
section 156.
(3) If the notice to a member states that he or she is not eligible to
vote on a resolution, the member may, after endeavouring to settle the matter
with the co-operative, apply to the Registrar for a decision as to the member's
eligibility.
(4) The Registrar may decide the matter, on the information available to
the Registrar, by direction in writing to the co-operative and the
member.
(5) The Registrar's decision as to eligibility has effect but only if
given before the meeting concerned is due to be held.
153—Eligibility to vote on active membership
resolution
The only members of a co-operative who are eligible to vote on an active
membership resolution when the rules of the co-operative do not contain active
membership provisions are the members who would be active members if the
resolution had already taken effect.
154—Eligibility of directors to vote on proposal at
board meeting
If the board of a co-operative is meeting to consider a proposal to submit
an active membership resolution to a meeting of the co-operative, all the
directors are eligible to vote on that proposal at the meeting of the board of
directors.
155—Other entitlements of members not
affected
A provision of this Division that renders a member of a co-operative
ineligible to vote on a resolution does not affect any other right, entitlement,
obligation or duty of the member as a member.
Division 4—Cancellation of membership of
inactive members
156—Cancellation of membership of inactive
member
(1) Subject to
section 159 and
160, the board of a
co-operative must declare the membership of a member cancelled
if—
(a) the whereabouts of the member are not presently known to the
co-operative and have not been known to the co-operative for at least the
required period before that time; or
(b) the member is not presently an active member of the co-operative and
has not been an active member of the co-operative at any time during the
required period immediately before that time.
(2) This section applies to a member only if he or she was a member of the
co-operative throughout the required period.
(3) The question of whether a member was an active member at a particular
time in the past is to be decided as if the active membership provisions
concerned had been in force at that time.
(4) The board's declaration under this section has the effect of
cancelling the membership concerned.
(5) A person may apply for an order under
section 162 in relation to
the cancellation of the person's membership under this section.
(6) In this section—
the required period, in relation to a co-operative,
means—
(a) 3 years; or
(b) if a shorter period is stated in the rules of the
co-operative—that period.
157—Shares to be forfeited if membership
cancelled
(1) If a co-operative has share capital, the board of the co-operative
must declare the shares of a member to be forfeited at the same time as the
member's membership is cancelled under
section 156.
(2) The board's declaration has the effect of forfeiting the shares
concerned.
(3) Nothing in this section affects the operation of
section 163.
158—Failure to cancel membership—offence by
director
If the board of a co-operative fails to cancel the membership of a member
as required by this Part, a director of the co-operative who did not use all due
diligence to prevent the failure commits an offence.
Maximum penalty: $2 000.
159—Deferral of cancellation by
board
(1) The board of a
co-operative may by resolution defer cancellation of a member's membership for
up to one year—
(a) if the board has reasonable grounds to believe a member has ceased to
be an active member because of unusual circumstances that prevent the member
fulfilling his or her active membership obligations; or
(b) if—
(i) the board thinks that during the deferral period an active membership
resolution may be put to the members of the co-operative; and
(ii) the effect of the resolution would be relevant to the question of
whether the member is an active member.
(2) The board of the co-operative must review the resolution to defer
within the deferral period to decide if a further resolution should be made
under
subsection (1).
160—Cancellation of membership prohibited in
certain circumstances
(1) Unless the National Regulations otherwise provide, the board of a
co-operative must not declare the membership of a member to be cancelled under
this Part—
(a) if the co-operative is insolvent; or
(b) if the co-operative is under administration under Part 5.3A of
the Corporations Act as applying under this Law; or
(c) if a compromise or an arrangement is being administered in relation to
the co-operative; or
(d) if the co-operative is in the course of being wound up; or
(e) if an appointment of a receiver (whether or not a receiver and
manager) of any property of the co-operative is in force; or
(f) if the co-operative has, for the purpose of being registered as a
company under the Corporations Act, filed with the Registrar a copy of the entry
made in the minutes of the co-operative.
(2) The National Regulations may provide that the board of a co-operative
must not declare the membership of a member to be cancelled under this Part in
other circumstances that may be prescribed.
161—Notice of intention to cancel
membership
(1) The board of a
co-operative must ensure that not less than 28 days notice of its intention
to declare the membership of a member to be cancelled is given to the
member.
(2) Notice is not
required to be given under this section if—
(a) the member's whereabouts are unknown to the co-operative;
and
(b) the amount required
to be repaid to the member in relation to the cancelled membership (whether
because of the cancellation of shares or otherwise) is not more than $100 (or
any other amount prescribed by the National Regulations).
(3) Notice may be given
by publication of a notice in a newspaper in the district in which the
registered office of the co-operative is situated if—
(a) the member's whereabouts are unknown to the co-operative;
and
(b) the amount required to be repaid to the member in relation to the
cancelled membership (whether because of the cancellation of shares or
otherwise) is more than the applicable amount under
subsection (2)(b).
162—Order against cancellation
(1) If the designated tribunal is satisfied the cancellation of a member's
membership under
section 156 was or would
be unreasonable, the tribunal may, on application by the member or former
member, direct that the membership should not have been cancelled or should not
be cancelled.
(2) An application for an order may be made only within 6 months
after—
(a) notice of the board's intention to declare the membership to be
cancelled is given to the member under
section 161(1)
or is first published under
section 161(3);
or
(b) if notice was not required as referred to in
section 161(2)—the
cancellation takes effect.
(3) While an order is in force under this section—
(a) the membership concerned is not required to be cancelled and any
shareholding of the member is not required to be forfeited; and
(b) the person whose membership was cancelled is entitled to be reinstated
as a member of the co-operative with all the rights and entitlements (including
any shareholding) attaching to or arising from the former membership.
(4) Reinstatement of a member under this section is to be effected under
the directions of the designated tribunal.
163—Repayment of amounts owing because of cancelled
membership
(1) If the membership of a member of a co-operative is cancelled under
this Part, the co-operative must, within one year after the date of
cancellation—
(a) repay to the former member the amount owing to the member because of
the cancellation; or
(b) apply the amount under
subsection (2)
if—
(i) the board considers repayment would adversely affect the financial
position of the co-operative; or
(ii) the board and the former member so agree.
(2) The amount payable
may be applied as follows:
(a) if the co-operative is a deposit-taking co-operative—the
co-operative may apply the amount as a deposit by the former member with the
co-operative (subject to the requirements of
section 164 as to interest
on the deposit);
(b) the co-operative may allot or issue debentures or CCUs of the
co-operative to the former member in satisfaction of the amount;
(c) the co-operative may appropriate the amount as a donation to the
co-operative, but only if the former member consents in writing to the
donation.
(3) The amount payable to a former member because of the cancellation of
membership includes any amount paid up for shares forfeited because of the
cancellation of membership.
(4) If the former member is subsequently readmitted to membership, any
amount held by the co-operative under this section must, if the member asks, be
applied towards the cost of readmission to membership (including any
subscription for share capital).
(5) The co-operative may retain the amount otherwise payable to a former
member under this section, if—
(a) the former member cannot be found by the co-operative, after
reasonable efforts by the co-operative to find the former member; and
(b) the amount is less than $100 (or any other amount prescribed by the
National Regulations).
164—Interest on deposits, debentures and
CCUs
(1) This section applies when the amount payable to a former member under
section 128 or
163 is applied as a deposit
with the co-operative or the co-operative allots or issues debentures or CCUs to
the former member in satisfaction of the amount.
(2) The deposit, debenture or CCU bears interest during any
period—
(a) for a co-operative
with share capital—
(i) at the rate (or, if there is more than one rate, at the higher or
highest rate) of dividend payable for that period on the share capital of the
co-operative; or
(ii) if the rate of dividend payable for that period has not been
decided—at the rate (or the higher or highest rate) payable for the
immediately preceding period for which a rate has been decided; or
(iii) if a rate of dividend has never been decided for the share capital
of the co-operative—at the rate the board of the co-operative considers
reasonable; or
(b) for a co-operative without share capital—at the rate the board
of the co-operative considers reasonable; or
(c) if the rules of the co-operative provide for a rate to be payable that
is higher than the rate applicable under
paragraph (a)
or (b)—at the higher rate.
(3) A former member may agree to the rate of interest being lower than
that which would otherwise be payable under this section and may agree to no
interest being paid.
(4) The following provisions of the Corporations Act, as applying under
section 337 of this Law,
do not apply to an allotment or issue of debentures or CCUs under this
section:
(a) Chapter 2L;
(b) Chapter 6D.
165—Repayment of deposits, debentures and
CCUs
(1) A deposit, debenture or CCU to which an amount payable to a former
member is transferred under this Division or
section 128(2) is to
be repaid to the former member as soon as repayment would not, in the opinion of
the board, adversely affect the financial position of the
co-operative.
(2) The deposit, debenture or CCU must in any case be repaid within
10 years (or within any shorter period the rules of the co-operative may
require) after cancellation of the member's membership.
166—Register of cancelled
memberships
A co-operative must keep a register stating the particulars prescribed by
the National Regulations of persons whose membership has been cancelled under
this Part.
Division 5—Entitlements of former members of
distributing co-operatives
167—Application of Division
This Division applies only to distributing co-operatives.
168—Former shareholders to be taken to be
shareholders for certain purposes
(1) Even though a
person's shares in a co-operative have been forfeited under this Part, the
person is to be taken to be the holder of shares in the co-operative (the same
in all respects as those that were forfeited) for the following
purposes—
(a) the entitlement of
a shareholder in relation to the purchase of shares in the co-operative under an
offer described in
section 373(1)(a),
(b) or
(c)or the purchase of all
the shares in the co-operative, if the offer or purchase occurs within
2 years after the person's shares were forfeited;
(b) the entitlement of a shareholder when the co-operative becomes
registered as a company if the relevant special resolution under
section 404 is passed
within 2 years after the person's shares were forfeited;
(c) the entitlement of
a shareholder to a distribution of surplus in a winding up of the co-operative
that starts within 2 years after the person's shares were
forfeited.
(2)
Subsection (1)(a)
does not apply to—
(a) an offer described in
section 373(1)(a) or
(c) that is made by
another co-operative; or
(b) the purchase of all the shares in the co-operative by another
co-operative.
(3)
Subsection (1)(c)
does not apply if the winding up is for a merger under
Chapter 4
Part 3.
(4) The entitlement under
subsection (1)(a) of
a person whose shares have been forfeited does not include an entitlement to
vote on any matter.
(5) This section does not apply to a forfeited shareholding in a
co-operative if
section 169 operates so as
to require the forfeited shareholding to be regarded as a forfeited shareholding
in another co-operative.
169—Entitlements of former shareholders on mergers
etc
(1) This section
applies when a person's shares in a co-operative (the original
co-operative) are forfeited under this Part and within 2 years
after the forfeiture—
(a) another co-operative (the new co-operative) is created
because of a merger under
Chapter 4 Part 3
involving the original co-operative; or
(b) the engagements of the original co-operative are transferred to
another co-operative (the new co-operative) under
Chapter 4
Part 3.
(2) A person referred to in
subsection (1) is,
for the purposes of
section 168 (and the
further operation of this section), taken to have held shares in the new
co-operative and as having had those shares in the new co-operative forfeited
under this Part when the person's shares in the original co-operative were
forfeited.
(3) The extent of the
forfeited shareholding in the new co-operative is decided as follows:
(a) if the entitlement
of active members of the original co-operative in the circumstances concerned is
solely an entitlement to be allotted shares in the new co-operative—the
forfeited shareholding in the new co-operative is the shareholding to which the
person would have been entitled had the person's shares in the original
co-operative not been forfeited;
(b) in any other case—the forfeited shareholding in the new
co-operative is the shareholding that is the same in all respects as the
forfeited shareholding in the original co-operative.
(4) The decision under
subsection (3)(a) of
the person's shareholding in the new co-operative must be made—
(a) solely on the basis of the person's shareholding in the original
co-operative when the shares were forfeited or (in a further operation of this
section to the person) when the person was first taken to have a forfeited
shareholding in the original co-operative; and
(b) without regard to any additional shareholding in the original
co-operative to which the person would have become entitled had the shares not
been forfeited (whether because of any bonus share issue or
otherwise).
170—Set-off of amounts repaid etc on forfeited
shares
(1) If a person has an entitlement because of
section 169, the
entitlement operates to end any liability of the co-operative—
(a) to repay to the person under
section 163 any amount for
the forfeited shares concerned; or
(b) for a deposit held by the co-operative, or debentures or CCUs allotted
or issued to the person, under
section 163 for the
forfeited shares concerned (except a liability to pay interest that is payable
but unpaid).
(2) If an amount has been repaid to a person under
section 163 or
165, the amount repaid is to be
set-off against any entitlement of the person under
section 168 for the
forfeited shares concerned.
(3) If the amount
repaid cannot be set-off against the entitlement because the entitlement is not,
or is only partly, an entitlement to money, the entitlement is lost unless the
person pays to the co-operative the amount repaid to the person and does so
within the period required under
subsection (4).
(4) If the
circumstances referred to in
subsection (3)
arise, the co-operative concerned must—
(a) give written notice of the matter by post to the person concerned at
the person's address last known to the co-operative, stating a period of not
less than 28 days after the notice is given within which any amount repaid
must be paid to the co-operative; and
(b) publish a general notice to that effect in a newspaper circulating
generally in the district in which the registered office of the co-operative is
situated.
171—Exemption of co-operatives from
provisions
(1) The Registrar may,
by designated instrument, exempt a co-operative or class of co-operatives from
any or all of the provisions of this Division.
(2) An exemption may be given unconditionally or subject to
conditions.
Chapter 3—Management
and operation of co-operatives
Part 1—Management
Division 1—The board
172—Board of directors
(1) Subject to this Law and the rules of the co-operative, the business of
a co-operative is to be managed by a board of directors.
(2) The board must consist of at least 3 directors (not counting
alternates of directors) and at least 2 of the directors must be ordinarily
resident in Australia.
(3) The board of directors may exercise all the powers of the co-operative
that are not, by this Law or the rules of the co-operative, required to be
exercised by the co-operative in general meeting.
(4) The acts of a director are valid despite any defect that may
afterwards be discovered in his or her appointment or qualification.
173—Election of directors
(1) Except as provided in
subsections (2)—
(4), the directors of a
co-operative are to be elected in the way specified in the rules of the
co-operative.
(a) a co-operative formed under this Law are to be elected at its
formation meeting; or
(b) a co-operative that was a corporation incorporated under another law
are to be the directors in office at the date of registration under this
Law.
(3) If authorised by the rules of the co-operative, a board of directors
may appoint a person to fill a casual vacancy in the office of a director until
the next annual general meeting.
(4) A motion approving
or nominating 2 or more persons for election as directors by a single resolution
must not be made at a meeting of a co-operative unless a resolution that it be
made has first been agreed to by the meeting without any vote being given
against it.
(5) If a resolution is passed following a motion in contravention of
subsection (4):
(a) the resolution is void; and
(b) there is no provision for the automatic re-election of retiring
directors in default of another election.
(6) This section does not apply to a resolution amending the rules of a
co-operative to prevent the election of 2 or more directors by ballot.
(7) A nomination for election or appointment to the office of a director
must give details of the qualifications and experience of the person
nominated.
(8) Unless this Law or the rules of a co-operative otherwise provide, a
director is eligible for re-election at the end of his or her term of
office.
174—Qualification of directors
(1) A person is not qualified to be a director of a co-operative unless he
or she is—
(a) a person who is an active member of the co-operative or a
representative of a corporation that is an active member of the co-operative (a
member director); or
(b) a person who is qualified as provided by the rules of the co-operative
(a non-member director) and who is not an active member of the
co-operative.
Note—
A non-member director either is not a member of the co-operative or is an
inactive member of the co-operative.
(2) The majority of
directors must be member directors.
(3)
Subsection (2) does
not prevent the rules of a co-operative requiring that a greater number of
directors than a majority must be member directors.
(4) An employee of a co-operative is not precluded from being a member
director or non-member director of the co-operative if he or she is otherwise
qualified.
175—Meeting of board of
directors
(1) Meetings of the board of directors must be held at least once every
3 months and may be held as often as may be necessary.
(2) A meeting of the board of directors may be called by a director giving
notice individually to every other director.
(3) A meeting of the board of directors may be called or held using any
technology consented to by the board, and the consent may be a standing
one.
(4) A quorum of a meeting of the board of directors is 50% of the number
of directors, or a greater number of directors specified in the rules of the
co-operative.
(5) However, for a quorum, the member directors must outnumber the
non-member directors by at least one or, if a greater number is stated in the
rules of the co-operative, by that greater number.
(6) The chairperson of the board may be elected either by the board or at
a general meeting of the co-operative, and is to be elected, hold office, and
retire, and may be removed from office, as provided by the rules of the
co-operative.
176—Transaction of business outside
meetings
(1) The board of a co-operative may, if it considers appropriate, transact
any of its business by the circulation of papers among all of the directors of
the board.
(2) A resolution in writing approved in writing by a majority of the
directors of the board is to be taken to be a decision of the board.
(3) Separate copies of a resolution may be distributed for signing by the
directors if the wording of the resolution and approval is identical in each
copy.
(4) For the purpose of the approval of a resolution under this section,
the chairperson of the board and each director of the board have the same voting
rights as they have at an ordinary meeting of the board.
(5) The resolution is approved when the last director required for the
majority signs.
(6) A resolution approved under this section must be recorded in the
minutes of the meetings of the board within 28 days after the resolution is
approved under this section.
(7) Papers may be circulated among directors of the board for the purposes
of this section by fax or other transmission of the information in the papers
concerned.
177—Alternate directors
(1) In the absence of a director from a meeting of the board, a person
appointed by the board under the rules of the co-operative concerned to act as
an alternate for the director (an alternate director) may act in
the place of the director.
(2) The rules of the co-operative may include provisions regulating the
term of office, vacation of or removal from office, and remuneration of an
alternate director.
178—Delegation by board
If authorised by the rules of the co-operative, the board may, by
resolution, delegate the board's functions (other than this power of delegation)
stated in the resolution—
(a) to a director; or
(b) to a committee of 2 or more directors; or
(c) to a committee of members of the co-operative; or
(d) to a committee of members of the co-operative and other persons if
members form the majority of persons on the committee.
179—Removal from and vacation of
office
(1) The directors hold office, must retire, and may be removed from
office, as provided by the rules of the co-operative.
(2) A director vacates office in the circumstances (if any) provided in
the rules of the co-operative and in any of the following cases:
(a) if the director is a disqualified person under
section 181;
(b) if the director absents himself or herself from 3 consecutive
ordinary meetings of the board without its leave;
(c) if the director resigns the office of director by written notice given
by the director to the co-operative;
(d) if the person ceases to hold the qualification because of which the
person was qualified to be a director;
(e) if an administrator of the co-operative's affairs is appointed under
Chapter 4
Part 1;
(f) if the director is removed from office under
section 180.
180—Removal from office by resolution (cf
Corporations Act section 203D)
(1) A co-operative may by ordinary resolution remove a director from
office despite anything in—
(a) the rules of the co-operative; or
(b) an agreement between the co-operative and the director; or
(c) an agreement between any or all members of the co-operative and the
director.
(2) Notice of intention to move the resolution must be given to the
co-operative at least 2 months before the meeting is to be held. However,
subject to
subsection (3), if
the co-operative calls a meeting after the notice of intention is given under
this subsection, the meeting may pass the resolution even though the meeting is
held less than 2 months after the notice of intention is given.
(3) At least 21 days
notice must be given of a meeting of the members of the co-operative at which a
resolution will be moved—
(a) to remove a director from office; or
(b) to appoint a director in place of a director removed from
office.
(4) The co-operative
must give the director a copy of the notice as soon as practicable after it is
received.
Maximum penalty: $500.
(5) The director is entitled to put his or her case to members
by—
(a) giving the co-operative a written statement for circulation to members
(see
subsections (6) and
(7)); and
(b) speaking to the motion at the meeting.
(6) The written
statement is to be circulated by the co-operative to members by—
(a) sending a copy to
everyone to whom notice of the meeting is sent if there is time to do so;
or
(b) if there is not time to comply with
paragraph (a)—having
the statement distributed to members attending the meeting and read out at the
meeting before the resolution is voted on.
The co-operative contravenes this subsection if it does not comply with
this subsection.
Maximum penalty: $500.
(7) The director's
statement does not have to be circulated to members if it is more than
1 000 words long or defamatory.
(8) If a person is appointed to replace a director removed under this
section, the time at which—
(a) the replacement director; or
(b) any other director,
is to retire is to be worked out as if the replacement director had become
director on the day on which the replaced director was last appointed a
director.
(9) An offence based on
subsection (4) or
(6) is an offence of
strict liability.
Division 2—Disqualification from managing
co-operatives
181—Offence for disqualified person to manage
co-operative
(1) A person is a
disqualified person in relation to a co-operative if the
person—
(a) is disqualified
from managing corporations under Part 2D.6 of the Corporations Act;
or
(b) is disqualified from managing co-operatives under this Division;
or
(c) is disqualified from managing co-operatives under a corresponding
co-operatives law; or
(d) is the auditor of
the co-operative or a business partner, employee or employer of the
auditor.
(2) A person must not act as a director or directly or indirectly take
part in, or be concerned with the management of, a co-operative if the person is
a disqualified person in relation to the co-operative.
Maximum penalty: $24 000 or imprisonment for 2 years, or both.
(3) It is a defence to an offence arising under this section if the person
had permission or leave—
(a) in the case of an offence arising in relation to
subsection (1)(a)—to
manage corporations granted under section 206G of the Corporations Act and
as referred to in section 206G(1)(a) of that Act; or
(b) in any case—to manage co-operatives given or granted under
either
section 188 or
189,
and their conduct was within the terms of that permission or
leave.
182—Automatic disqualification for
offences
(1) A person who has been convicted of an offence under this Law or a
corresponding co-operatives law is disqualified from managing co-operatives
during the period of 5 years after the conviction or, if sentenced to
imprisonment, after his or her release from prison.
(2) A person who has, whether before or after the commencement of this
section in this jurisdiction, been convicted of an offence under a previous law
of this or any other jurisdiction relating to co-operatives is disqualified from
managing co-operatives during the period of 5 years after the conviction
or, if sentenced to imprisonment, after his or her release from
prison.
(3) In proceedings for an offence arising under this Division in relation
to this section, a certificate by an authority prescribed by the National
Regulations for the purposes of this subsection stating that a person has been
convicted of an offence under a stated law on a stated date is evidence the
person was convicted of that offence on that date.
(4) In proceedings for an offence arising under this Division in relation
to this section, a certificate by an authority prescribed by the National
Regulations for the purposes of this subsection stating that a person was
released from prison on a stated date is evidence the person was released from
prison on that date.
183—Extension of period of automatic
disqualification (cf Corporations Act section 206BA)
(1) This section applies if a person is disqualified from managing
co-operatives on being convicted of an offence under the Corporations Act, this
Law, a corresponding co-operatives law, or a previous law of this or any other
jurisdiction relating to co-operatives.
(2) On application by the Registrar, the Supreme Court may extend the
period of disqualification by up to an additional 15 years.
(3) The Registrar must apply—
(a) before the period of disqualification begins; or
(b) before the end of the first year of the disqualification.
(4) The Registrar may apply only once in relation to the
disqualification.
(5) In determining whether an extension is justified (and if so, for how
long), the Supreme Court may have regard to any matters that the court considers
appropriate.
184—Court's power of
disqualification—contravention of civil penalty provision (cf Corporations
Act section 206C)
(1) On application by the Registrar, the Supreme Court may disqualify a
person from managing co-operatives for a period that the court considers
appropriate if—
(a) a declaration is made under
section 554 that the
person has contravened a civil penalty provision; and
(b) the court is satisfied that the disqualification is
justified.
(2) In determining whether the disqualification is justified, the court
may have regard to—
(a) the person's conduct in relation to the management, business or
property of any corporation; and
(b) any other matters that the court considers appropriate.
185—Court's power of
disqualification—insolvency and non-payment of debts (cf Corporations Act
section 206D)
(1) On application by
the Registrar, the Supreme Court may disqualify a person from managing
co-operatives for up to 20 years if—
(a) within the last 7 years, the person has been an officer of 2 or
more entities (being co-operatives or other corporations) when they have failed;
and
(b) the court is satisfied that—
(i) the manner in which the entity was managed was wholly or partly
responsible for the entity failing; and
(ii) the disqualification is justified.
(2) For the purposes of
subsection (1), an
entity fails if—
(a) a court orders the entity to be wound up because the court is
satisfied that it is insolvent; or
(b) the entity enters into voluntary liquidation and creditors are not
fully paid or are unlikely to be fully paid; or
(c) the entity executes a deed of arrangement and creditors are not fully
paid or are unlikely to be fully paid; or
(d) the entity ceases to carry on business and creditors are not fully
paid or are unlikely to be fully paid; or
(e) a levy of execution against the entity is not satisfied; or
(f) a receiver, receiver and manager, or provisional liquidator is
appointed in relation to the entity; or
(g) the entity enters into a compromise or arrangement with its creditors;
or
(h) the entity is wound up and a liquidator lodges a report about the
entity's inability to pay its debts.
(3) In determining whether the disqualification is justified, the Supreme
Court may have regard to—
(a) the person's conduct in relation to the management, business or
property of any entity; and
(b) any other matters that the court considers appropriate.
Note—
Action may be able to be taken under section 206D of the Corporations
Act in the circumstances to which this section applies, whether or not action is
taken under this section.
186—Court's power of
disqualification—repeated contraventions of Law (cf Corporations Act
section 206E)
(1) On application by the Registrar, the Supreme Court may disqualify a
person from managing co-operatives for the period that the court considers
appropriate if—
(a) the person—
(i) has at least twice been an officer of a co-operative that has
contravened co-operatives legislation while they were an officer of the
co-operative and each time the person has failed to take reasonable steps to
prevent the contravention; or
(ii) has at least twice contravened co-operatives legislation while they
were an officer of a co-operative; or
(iii) has been an officer of a body corporate and has done something that
would have contravened
section 192 or
193 if the body corporate had
been a co-operative; and
(b) the court is satisfied that the disqualification is
justified.
(2) In determining whether the disqualification is justified, the Supreme
Court may have regard to—
(a) the person's conduct in relation to the management, business or
property of any corporation; and
(b) any other matters that the court considers appropriate.
(3) In this section—
co-operatives legislation means this Law or a corresponding
co-operatives law.
187—Registrar's power of disqualification (cf
Corporations Act section 206F(1)—4))
(1) The Registrar may disqualify a person from managing co-operatives for
up to 5 years if—
(a) within 7 years immediately before the Registrar gives a notice under
paragraph (b)(i)—
(i) the person has been an officer of 2 or more co-operatives;
and
(ii) while the person was an officer, or within 12 months after the
person ceased to be an officer of those co-operatives, each of the co-operatives
was wound up and a liquidator lodged a report about the co-operative's inability
to pay its debts; and
(b) the Registrar has
given the person—
(i) a notice in the
approved form requiring them to demonstrate why they should not be disqualified;
and
(ii) an opportunity to be heard on the question; and
(c) the Registrar is satisfied that the disqualification is
justified.
(2) If the Registrar
disqualifies a person from managing co-operatives under this section, the
Registrar must serve a notice on the person advising them of the
disqualification.
(3) The notice must be in the approved form.
(4) The disqualification takes effect from the time when a notice referred
to in
subsection (2) is
served on the person.
188—Registrar's power to give permission (cf
Corporations Act section 206F(5))
(1) The Registrar may give a person whom the Registrar has disqualified
from managing co-operatives under this Division written permission to manage a
particular co-operative or co-operatives.
(2) The permission may be expressed to be subject to conditions and
limitations determined by the Registrar.
(3) A person must comply with any condition or limitation subject to which
permission is given.
Maximum penalty: $24 000 or imprisonment for 2 years, or
both.
189—Court's power to grant leave (cf Corporations
Act section 206G)
(1) A person who is disqualified from managing co-operatives may apply to
the Supreme Court for leave to manage—
(a) co-operatives; or
(b) a particular class of co-operatives; or
(c) a particular co-operative;
except where the person was disqualified by the Registrar under
section 187.
(2) The person must lodge a notice with the Registrar at least
21 days before commencing the proceedings.
(3) The notice must be in the approved form.
(4) The order granting leave may be expressed to be subject to conditions
or limitations determined by the Supreme Court.
(5) The person must lodge with the Registrar a copy of any order granting
leave within 14 days after the order is made.
(6) On application by the Registrar, the Supreme Court may revoke the
leave. The order revoking leave does not take effect until it is served on the
person.
(7) A person must comply with any condition or limitation subject to which
leave is granted.
Maximum penalty: $24 000 or imprisonment for 2 years, or
both.
(8) This section does not apply to a person who is disqualified from
managing co-operatives because of
section 181(1)(d).
Division 3—Secretary
190—Secretary
(1) A co-operative must have a secretary.
(2) The board of the co-operative is to appoint the secretary.
(3) The board may appoint a person to act as the secretary during the
absence or incapacity of the secretary.
(4) A person is not qualified to be appointed as, or to act as, the
secretary unless the person is an adult who ordinarily resides in
Australia.
191—Responsibility of secretary (cf Corporations
Act section 188)
(1) The secretary of a
co-operative contravenes this subsection if the co-operative contravenes a
provision of this Law specified in the National Regulations.
Maximum penalty: $500.
(2) An offence based on
subsection (1) is an
offence of strict liability.
(3) A person does not contravene
subsection (1)
if they show that they took all reasonable steps to ensure that the co-operative
complied with the section.
Division 4—Duties and liabilities of
directors, officers and employees
192—Care and diligence—civil obligation only
(cf Corporations Act section 180)
(1) Care and
diligence—directors and other officers
A director or other officer of a co-operative must exercise their powers
and discharge their duties with the degree of care and diligence that a
reasonable person would exercise if they—
(a) were a director or officer of a co-operative in the co-operative's
circumstances; and
(b) occupied the office held by, and had the same responsibilities within
the co-operative as, the director or officer.
Note—
This subsection is a civil penalty provision (see
section 554).
A director or other officer of a co-operative who makes a business judgment
is taken to meet the requirements of
subsection (1), and
their equivalent duties at common law and in equity in respect of the judgment,
if they—
(a) make the judgment in good faith for a proper purpose (taking into
account the co-operative principles where relevant and other relevant matters);
and
(b) do not have a material personal interest in the subject matter of the
judgment; and
(c) inform themselves about the subject matter of the judgment to the
extent they reasonably believe to be appropriate; and
(d) rationally believe that the judgment is in the best interests of the
co-operative.
The director's or officer's belief that the judgment is in the best
interests of the co-operative is a rational one unless the belief is one that no
reasonable person in their position would hold.
Note—
This subsection only operates in relation to duties under this section and
their equivalent duties at common law or in equity (including the duty of care
that arises under the common law principles governing liability for
negligence)—it does not operate in relation to duties under any other
provision of this Law or under any other laws.
business judgment means any decision to take or not take
action in respect of a matter relevant to the business operations of the
co-operative.
193—Good faith—civil obligations (cf
Corporations Act section 181)
(1) Good
faith—directors and other officers
A director or other officer of a co-operative must exercise their powers
and discharge their duties—
(a) in good faith in the best interests of the co-operative; and
(b) for a proper purpose.
Note—
This subsection is a civil penalty provision (see
section 554).
(2) A person who is
involved in a contravention of
subsection (1)
contravenes this subsection.
Note 1—
This subsection is a civil penalty provision (see
section 554).
Note 2—
Section 9 defines
involved in a contravention.
194—Use of position—civil obligations(cf
Corporations Act section 182)
(1) Use of
position—directors, other officers and employees
A director, secretary, other officer or employee of a co-operative must not
improperly use their position to—
(a) gain an advantage for themselves or someone else; or
(b) cause detriment to the co-operative.
Note—
This subsection is a civil penalty provision (see
section 554).
(2) A person who is
involved in a contravention of
subsection (1)
contravenes this subsection.
Note 1—
This subsection is a civil penalty provision (see
section 554).
Note 2—
Section 9 defines
involved in a contravention.
195—Use of information—civil obligations (cf
Corporations Act section 183)
(1) Use of
information—directors, other officers and employees
A person who obtains information because they are, or have been, a director
or other officer or employee of a co-operative must not improperly use the
information to—
(a) gain an advantage for themselves or someone else; or
(b) cause detriment to the co-operative.
Note—
This subsection is a civil penalty provision (see
section 554).
(2) The duty under
subsection (1)
continues after the person stops being a director or other officer or employee
of the co-operative.
(3) A person who is
involved in a contravention of
subsection (1)
contravenes this subsection.
Note 1—
This subsection is a civil penalty provision (see
section 554).
Note 2—
Section 9 defines
involved in a contravention.
196—Good faith, use of position and use of
information—criminal offences (cf Corporations Act
section 184)
(1) Good faith—directors and other officer
A director or other officer of a co-operative commits an offence if
they—
(a) are reckless; or
(b) are intentionally dishonest,
and fail to exercise their powers and discharge their
duties—
(c) in good faith in the best interests of the co-operative; or
(d) for a proper purpose.
(2) Use of position—directors, other officers and
employees
A director, other officer or employee of a co-operative commits an offence
if they use their position dishonestly—
(a) with the intention of directly or indirectly gaining an advantage for
themselves, or someone else, or causing detriment to the co-operative;
or
(b) recklessly as to whether the use may result in themselves or someone
else directly or indirectly gaining an advantage, or in causing detriment to the
co-operative.
(3) Use of information—directors, other officers and
employees
A person who obtains information because they are, or have been, a director
or other officer or employee of a co-operative commits an offence if they use
the information dishonestly—
(a) with the intention of directly or indirectly gaining an advantage for
themselves, or someone else, or causing detriment to the co-operative;
or
(b) recklessly as to whether the use may result in themselves or someone
else directly or indirectly gaining an advantage, or in causing detriment to the
co-operative.
Maximum penalty: $200 000 or imprisonment for 5 years, or both.
197—Interaction of preceding sections with other
laws (cf Corporations Act section 185)
(a) have effect in
addition to, and not in derogation of, any rule of law relating to the duty or
liability of a person because of their office or employment in relation to a
co-operative; and
(b) do not prevent the commencement of civil proceedings for a breach of a
duty or in respect of a liability referred to in
paragraph (a).
This section does not apply to
section 192(2) and
(3) to the extent to
which they operate on the duties at common law and in equity that are equivalent
to the requirements of
section 192(1).
198—Indemnification and exemption of officer or
auditor
(1) Exemptions not allowed (cf Corporations Act
section 199A(1))
A co-operative or a related corporation must not exempt a person (whether
directly or through an interposed entity) from a liability to the co-operative
incurred as an officer or auditor of the co-operative.
(2) When indemnity
for liability (other than for legal costs) not allowed (cf Corporations Act
section 199A(2))
A co-operative or a related corporation must not indemnify a person
(whether by agreement or by making a payment and whether directly or through an
interposed entity) against any of the following liabilities incurred as an
officer or auditor of the co-operative—
(a) a liability owed to the co-operative or a related
corporation;
(b) a liability that is owed to someone other than the co-operative or a
related corporation and did not arise out of conduct in good faith.
This subsection does not apply to a liability for legal costs.
(3) When indemnity
for legal costs not allowed (cf Corporations Act
section 199A(3))
A co-operative or related corporation must not indemnify a person (whether
by agreement or by making a payment and whether directly or through an
interposed entity) against legal costs incurred in defending an action for a
liability incurred as an officer or auditor of the co-operative if the costs are
incurred—
(a) in defending or resisting proceedings in which the person is found to
have a liability for which they could not be indemnified under
subsection (2);
or
(b) in defending or resisting criminal proceedings in which the person is
found guilty; or
(c) in defending or
resisting proceedings brought by the Registrar or a liquidator for a court order
if the grounds for making the order are found by the court to have been
established; or
(d) in connection with proceedings for relief to the person under this Law
in which the court denies the relief.
Paragraph (c) does not
apply to costs incurred in responding to actions taken by the Registrar or a
liquidator as part of an investigation before commencing proceedings for the
court order.
(4) Meaning of outcome of proceedings (cf Corporations Act
section 199A(4))
For the purposes of
subsection (3), the
outcome of proceedings is the outcome of the proceedings and any appeal in
relation to the proceedings.
199—Insurance premiums for certain liabilities of
director, secretary, other officer or auditor (cf Corporations Act
section 199B)
(1) A co-operative or a
related corporation must not pay, or agree to pay, a premium for a contract
insuring a person who is, or has been, an officer or auditor of the co-operative
against a liability (other than one for legal costs) arising out of conduct
involving a wilful breach of duty in relation to the co-operative.
Maximum penalty: $500.
(2) This section applies to a premium whether it is paid directly or
through an interposed entity.
(3) An offence based on
subsection (1) is an
offence of strict liability.
200—Certain indemnities, exemptions, payments and
agreements not authorised and certain documents void (cf Corporations Act
section 199C)
(1)
Sections 198 and
199 do not authorise
anything that would otherwise be unlawful.
(2) Anything that purports to indemnify or insure a person against a
liability, or exempt them from a liability, is void to the extent that it
contravenes
section 198 or
199.
201—Application of Corporations Act—offences
by officers of co-operatives
A co-operative is declared to be an applied Corporations legislation matter
for the purposes of the Corporations application legislation of this
jurisdiction in relation to Part 5.8 of the Corporations Act, subject to the
following modifications:
(a) section 589(2) and (3) of the Corporations Act are taken to be
omitted;
(b) the reference in section 592(1)(a) of the Corporations Act to
23 June 1993 is, if the Co-operatives National Law Act of this
jurisdiction so provides, to be read as a reference to a date specified in that
Act of this jurisdiction for the purposes of this paragraph;
(c) the modifications referred to in
section 13(3) of
this Law so far as they are relevant.
Note—
See
section 13,
including Note 1 to that section.
202—Application of Corporations Act—employee
entitlements
A co-operative is declared to be an applied Corporations legislation matter
for the purposes of the Corporations application legislation of this
jurisdiction in relation to Part 5.8A of the Corporations Act, subject to
the modifications referred to in
section 13(3) of
this Law so far as they are relevant.
Note—
See
section 13,
including Note 1 to that section.
203—Directors' remuneration
A director of a co-operative must not receive remuneration for services as
a director other than—
(a) fees, concessions and other benefits approved at a general meeting of
the co-operative; and
(b) director's travelling and other expenses that the director properly
incurs—
(i) in attending meetings of the board of directors of the co-operative or
any meetings of committees of directors of the co-operative; and
(ii) in attending any general meetings of the co-operative.
Maximum penalty: $24 000 or imprisonment for 2 years, or both.
204—Certain financial accommodation to officers
prohibited
(1) An officer of a co-operative who is not a director of the co-operative
must not obtain financial accommodation from the co-operative other
than—
(a) with the approval of a majority of the directors; or
(b) under a scheme about providing financial accommodation to officers
that has been approved by a majority of the directors.
Maximum penalty: $24 000 or imprisonment for 2 years, or both.
(2) For the purposes of this section, financial accommodation is taken to
be obtained by an officer of a co-operative if it is obtained
by—
(a) a proprietary company in which the officer is a shareholder or
director; or
(b) a trust of which the officer is a trustee or beneficiary; or
(c) a trust of which a corporation is trustee if the officer is a director
or other officer of the corporation.
(3) A co-operative must
not give financial accommodation to an officer of the co-operative
if—
(a) by giving the financial accommodation, the officer would contravene
this section; and
(b) the co-operative knows or should reasonably know of the
contravention.
Maximum penalty (for
subsection (3)): $50
000.
205—Financial accommodation to directors and
associates
(1) A co-operative must
not provide financial accommodation to a director, or to a person the
co-operative knows or should reasonably know is an associate of a director,
unless—
(i) approved under
subsection (2);
or
(ii) given under a
scheme approved under
subsection (2);
or
(iii) provided on terms no more favourable to the director or associate
than the terms on which it is reasonable to expect the co-operative would give
if dealing with the director or associate at arm's length in the same
circumstances; and
(b) the directors have approved the accommodation, at a meeting of the
board at which a quorum was present, by a majority of at least two-thirds of the
directors present and voting on the matter.
Maximum penalty: $50 000.
(2) For the purposes of
subsection (1)(a)(i)
and
(ii), financial
accommodation or a scheme is approved if—
(a) it is approved by a resolution passed at a general meeting;
and
(b) the full details of the accommodation or scheme were made available to
members at least 21 days before the meeting.
(3) A director or an associate of a director must not obtain financial
accommodation given in contravention of
subsection (1).
Maximum penalty: $24 000 or imprisonment for 2 years, or both.
(4) For the purposes of this section, a concessional rate of interest for
a borrower from a co-operative is a normal term only if the borrower is entitled
to the concession by being a member of a class of borrowers from the
co-operative specified in its rules as being entitled to the
concession.
(5) If a director of a co-operative or an associate of a director accepts,
in payment of a debt owed by a member of the co-operative to the director or
associate, any proceeds of financial accommodation provided to the member by the
co-operative, this section has effect as if the financial accommodation has been
provided to the director or associate.
(6) In this section, a reference to—
(a) the provision of financial accommodation to a director or an associate
of a director; or
(b) the obtaining of financial accommodation by a director or an associate
of a director; or
(c) a debt owed to a director or an associate of a director,
includes a reference to a provision of financial accommodation to, or an
obtaining of financial accommodation by, the director or associate, or a debt
owed to the director or associate, jointly with another person.
(7) In this section—
associate of a director means—
(a) the director's spouse or de facto partner; or
(b) a person when acting in the capacity of trustee of a trust under
which—
(i) the director or director's spouse or de facto partner has a beneficial
interest; or
(ii) a corporation referred to in
paragraph (c)
has a beneficial interest; or
(i) the director or director's spouse or de facto partner has a material
interest in shares in the corporation; and
(ii) the nominal value of the shares is not less than 10% of the nominal
value of the issued share capital of the corporation.
(8) For the purposes of this section, a person has a material
interest in a share in a corporation if—
(a) the person has power to withdraw the share capital subscribed for the
share or to exercise control over the withdrawal of the share capital;
or
(b) the person has power to dispose of the share or to exercise control
over the disposal of the share; or
(c) the person has power to exercise or to control the exercise of any
right to vote conferred on the holder of the share.
206—Restriction on directors of certain
co-operatives selling land to co-operative
A director of a co-operative, the primary activity of which is or includes
the acquisition of land to settle or retain people on the land and of providing
any community service or benefit, must not sell land to the co-operative except
under a special resolution of the co-operative.
Maximum penalty: $24 000 or imprisonment for 2 years, or both.
207—Management contracts
(1) A co-operative must
not enter into a management contract unless the contract has first been approved
by special resolution.
(2) A management contract entered into in contravention of
subsection (1) is
void.
(3) In this section—
management contract means a contract or other arrangement
under which—
(a) a person who is not an officer of the co-operative agrees to perform
the whole, or a substantial part, of the functions of the co-operative, whether
under the control of the co-operative or not; or
(b) a co-operative agrees to perform the whole or a substantial part of
its functions—
(i) in a particular way; or
(ii) in accordance with the directions of any person; or
(iii) subject to stated restrictions or conditions.
Division 5—Declaration of
interests
208—Declaration of interest
(1) A director of a co-operative who is or becomes in any way, whether
directly or indirectly, interested in a contract or proposed contract with the
co-operative must declare the nature and extent of the interest to the board of
directors under this section.
Maximum penalty: $24 000 or imprisonment for 2 years, or both.
(2) In the case of a proposed contract, the declaration must be
made—
(a) at the meeting of the board at which the question of entering into the
contract is first considered; or
(b) if the director was not at that time interested in the proposed
contract—at the next meeting of the board held after the director becomes
interested in the proposed contract.
(3) If a director becomes interested in a contract with the co-operative
after it is made, the declaration must be made at the next meeting of the board
held after the director becomes interested in the contract.
(4) For the purposes of this section, a general written notice given to
the board by a director to the effect that the director—
(a) is a member of a stated entity; and
(b) is to be regarded as interested in any contract that may, after the
giving of the notice, be made with the entity,
is a sufficient declaration.
(5) A director of a
co-operative who holds an office or has an interest in property whereby, whether
directly or indirectly, duties or interests might be created that could conflict
with the director's duties or interests as director must, under
subsection (6),
declare at a meeting of the board of directors the fact and the nature,
character and extent of the conflict.
Maximum penalty: $24 000 or imprisonment for 2 years, or both.
(6) A declaration
required by
subsection (5) in
relation to holding an office or having an interest must be made by a
person—
(a) if the person holds the office or has the interest when he or she
becomes a director—at the first meeting of the board held after whichever
is the later of the following:
(i) the person becomes a director;
(ii) the relevant facts as to holding the office or having the interest
come to the person's knowledge; or
(b) if the person starts to hold the office or acquires the interest after
the person becomes a director—at the first meeting of the board held after
the relevant facts as to holding the office or having the interest come to the
person's knowledge.
(7) If a director has
made a declaration under this section, then, unless the board otherwise decides,
the director must not—
(a) be present during any deliberation of the board in relation to the
matter; or
(b) take part in any decision of the board in relation to the
matter.
(8) For the purpose of the making of a decision of the board under
subsection (7) in
relation to a director who has made a declaration under this section, the
director must not—
(a) be present during any deliberation of the board for the purpose of
making the decision; or
(b) take part in the making by the board of the decision.
(9) Any vote cast in contravention of this section is not to be
counted.
209—Declarations to be recorded in
minutes
Every declaration under this Division is to be recorded in the minutes of
the meeting at which it was made.
210—Division does not affect other laws or
rules
Except as provided in
section 211, this Division
is in addition to, and does not limit, the operation of a rule of law or a
provision in the rules of a co-operative restricting a director from having an
interest in contracts with the co-operative or from holding offices or
possessing properties involving duties or interests in conflict with his or her
duties or interests as director.
211—Certain interests need not be
declared
The interest in a contract or proposed contract that a director is required
by this Division to declare does not include an interest in—
(a) a contract or proposed contract for a purchase of goods and services
by the director from the co-operative; or
(b) a lease of land to the director by the co-operative; or
(c) a contract or proposed contract for the sale of agricultural products
or livestock by the director to the co-operative; or
(d) a contract or proposed contract that, under the rules of the
co-operative, may be made between the co-operative and a member; or
(e) a contract or proposed contract of a class of contracts prescribed by
the National Regulations for the purposes of this section,
but only if the contract is made in good faith, in the ordinary course of
the business of the co-operative, and on the terms that are usual and proper in
similar dealings between the co-operative and its members.
Division 6—Co-operative's registers, books and
returns
212—Registers to be kept by
co-operatives
(1) A co-operative must
keep the following registers under this section:
(a) a register of directors;
(b) a register of members (including their shareholding, if
any);
(c) a register of—
(i) loans to, securities given by, debentures issued by, and deposits
received by the co-operative; and
(ii) names of persons who have given loans or deposits to the co-operative
or hold securities or debentures given or issued by the co-operative;
(d) a register of loans made by or guaranteed by the co-operative, and of
securities taken by the co-operative;
(e) a register of CCUs
issued by the co-operative and their holders;
(f) a register of memberships cancelled under
Chapter 2
Part 6;
(g) a register of notifiable interests under
section 368;
(h) other registers required by the National Regulations.
Maximum penalty: $2 000.
(2) Registers kept by a co-operative under this Law must be kept in the
way, and contain the particulars, prescribed by this Law or the National
Regulations.
(3) An offence based on
subsection (1) is an
offence of strict liability.
Note—
Other provisions of this Law require a co-operative to keep other
registers.
213—Location of registers
(1) A register kept by a co-operative under this Law must be kept
at—
(a) the co-operative's registered office; or
(b) an office at the co-operative's principal place of business;
or
(c) an office (whether of the co-operative or of someone else) where the
work involved in maintaining the register is done; or
(d) another office approved by the Registrar.
(2) The office must be in this jurisdiction.
(3) The co-operative must file with the Registrar a notice of the address
at which the register is kept within 28 days after the register
is—
(a) established at an office that is not the co-operative's registered
office; or
(b) moved from one office to another.
214—Inspection of co-operative's registers and
other documents
(1) A co-operative must
have at the office where the registers are kept and available during all
reasonable hours for inspection by a member free of charge the
following:
(a) a copy of—
(i) this Law; and
(ii) the Co-operatives National Law Act of this jurisdiction;
and
(iii) the National Regulations; and
(iv) the local regulations;
(b) a copy of the rules of the co-operative and attachments to the rules
required under
section 421;
(c) a copy of the minutes of each general meeting of the
co-operative;
(d) a copy of the last annual report of the co-operative;
(e) the register of directors;
(f) the register of members;
(g) the register of names of persons who have given loans or deposits to
the co-operative or hold securities or debentures given or issued by the
co-operative;
(h) the register of CCUs issued by the co-operative and their
holders;
(i) other registers that the National Regulations may provide are to be
open for inspection under this section.
(2) If a register is not kept on a computer, the member may inspect the
register itself.
(3) If the register is kept on a computer, the member may inspect a hard
copy of the information on the register unless the person and the co-operative
agree the person can access the information by computer.
(4) A member is entitled to make a copy of entries in a register specified
in
subsection (1) free
of charge unless the rules of the co-operative require a fee to be paid, in
which case the copy may be made on payment of the required fee.
(5) The fee required by the rules of the co-operative must not be more
than the fee (for a copy of any entry in the register)—
(a) prescribed by the National Regulations, except to the extent
paragraph (b)
applies; or
(b) prescribed by the
local regulations.
(6) A co-operative must—
(a) permit a member to inspect a document or make a copy of a document the
member may inspect or make under this section; and
(b) give the member all reasonable help to inspect the document or make
the copy.
Maximum penalty: $2 000.
(7) The rules of a
co-operative may provide for the availability or non-availability of minutes of
board meetings and subcommittee meetings for inspection by members.
(8) A co-operative must have, at the place where the registers are kept
and available during all reasonable hours for inspection by any person, the
documents in relation to the co-operative prescribed by the National
Regulations.
Maximum penalty: $2 000.
(9) Neither
subsection (7) nor a
rule referred to in that subsection affects access to minutes being obtained
under
section 143 or
any other provision of this Law.
215—Use of information on
registers
(a) use information
about a person obtained from a register kept by a co-operative under this Law to
contact or send material to the person; or
(b) disclose
information of that kind knowing the information is likely to be used to contact
or send material to the person,
unless the use or disclosure of the information is—
(c) relevant to the
holding of the directorship, membership, shares, CCUs, loans, securities,
debentures or deposits concerned or the exercise of the rights attaching to
them; or
(e) necessary to comply
with a requirement of this Law.
(2) A person who contravenes
subsection (1) is
liable to compensate anyone else who suffers loss or damage because of the
contravention.
(3) A person who makes a profit from a contravention of
subsection (1) owes
a debt to the co-operative.
(4) The amount of the debt is the amount of the profit.
(5) The use or
disclosure of information referred to in
subsection (1)(a) or
(b) in the circumstances
referred to in
subsection (1)(c),
(d) or
(e) is authorised by this
Law.
Note—
Regarding
subsection (5),
item 2.1 of National Privacy Principle 2 in Schedule 3 to the
Privacy Act 1988 of the Commonwealth provides: "An organisation must not
use or disclose personal information about an individual for a purpose (the
secondary purpose) other than the primary purpose of collection
unless:
...
(g) the use or disclosure is required or authorised by or under
law".
216—Notice of appointment or cessation of
appointment of directors and officers to be lodged with
Registrar
(1) A co-operative must give notice to the Registrar under this section of
the appointment of a person as a director, chief executive officer or secretary
of the co-operative or a subsidiary of the co-operative, and of the cessation of
the appointment.
(a) be in the approved form; and
(b) be given within 28 days after the appointment or cessation of
appointment; and
(c) state the particulars prescribed by the National Regulations of the
appointment or cessation of appointment.
(3) An offence based on
subsection (2) is an
offence of strict liability.
Maximum penalty: $2 000.
217—List of members to be lodged with Registrar at
request of Registrar
(1) A co-operative
must, at the written request of the Registrar, lodge with the Registrar, within
the time and in the way the Registrar states, a full list of the members of the
co-operative and of each subsidiary of the co-operative, together with the
particulars about the members the Registrar states in the request.
Maximum penalty: $2 000.
(2) An offence based on
subsection (1) is an
offence of strict liability.
218—Reports to be lodged with Registrar concerning
prescribed particulars
(1) A co-operative must
lodge with the Registrar, within the period or periods prescribed by, or
determined in accordance with, the National Regulations, a report on any
particulars prescribed by the National Regulations.
Maximum penalty: $2 000.
(2) An offence based on
subsection (1) is an
offence of strict liability.
219—Special return to be lodged at request of
Registrar
(1) The Registrar may,
by written direction, require a co-operative to lodge with the Registrar a
special return in the form, within the time, and relating to the subject matter,
stated by the Registrar.
(2) The co-operative
must comply with a direction under
subsection (1).
Maximum penalty: $2 000.
(3) An offence based on
subsection (2) is an
offence of strict liability.
Note—
Chapter 3
Part 3 also requires reports to be lodged with the Registrar.
Division 7—Name and registered
office
220—Name to include certain
matter
(1) The name of a co-operative may consist of words, numbers or a
combination of both.
(2) The name of the
co-operative must include the word Co-operative or
Cooperative or the abbreviation Co-op or
Coop.
(3) The word
Limited or the abbreviation Ltd must be the last
word of the name.
(4) A corporation that
is formed or incorporated under an Act of this jurisdiction (but not this Law)
must not register under that Act by a name including the word
Co-operative or Cooperative or the abbreviation
Co-op or Coop.
Maximum penalty: $2 000.
(5) The Registrar must not register as the name of a co-operative a name
that contains anything the National Regulations declare is an unsuitable
name.
(6) However, the Registrar may register a name that contains a thing
declared to be an unsuitable name, if the Registrar is satisfied the name is
suitable for registration in the particular circumstances.
(7) The local regulations may exempt or provide for the exemption of
specified entities or kinds of entities from
subsection (4).
221—Exception to requirement for using
Limited in name
(1) The Registrar may,
by designated instrument, approve of the omission of the word
Limited or the abbreviation Ltd from the name of a
co-operative, if its rules—
(a) prohibit the co-operative making distributions to its members and
paying fees to its directors; and
(b) require the directors to approve all other payments the co-operative
makes to directors.
(2) The co-operative must notify the Registrar as soon as practicable if
any of those requirements or prohibitions in its rules are not complied with or
if its rules are modified to remove any of those requirements or
prohibitions.
Maximum penalty: $2 000.
(3) An approval may be granted subject to conditions and the conditions to
which an approval is subject may be varied from time to time by the Registrar by
notice in writing to the co-operative.
(4) Any conditions to which the Registrar's approval is subject are
binding on the co-operative and must, if the Registrar so directs, be inserted
in the rules of the co-operative.
Note—
See
section 62(1), which
provides that rules may be amended by resolution passed by the board if the
amendment does no more than give effect to a requirement, direction, restriction
or prohibition imposed or given under the authority of this Law.
(5) The Registrar may at any time by notice in writing to the co-operative
revoke an approval under this section but only after giving the co-operative an
opportunity to make submissions to the Registrar on the matter.
(6) An approval under this section operates to exempt the co-operative
from the requirement that the word Limited or the abbreviation
Ltd form part of its name.
222—Use of abbreviations
A description of a co-operative is not inadequate or incorrect merely
because of one or more of the following:
(a) the use of the abbreviation Co-op or Coop
instead of the word Co-operative or Cooperative in
the co-operative's name (see
section 220(2));
(b) the use of the abbreviation Ltd instead of the word
Limited in the co-operative's name (see
section 220(3));
(c) the use of the symbol & instead of the word
and in the co-operative's name;
(d) the use of any of the words instead of the corresponding abbreviation
or symbol in the co-operative's name;
(e) the use of any abbreviation or elaboration of the name of the
co-operative that is approved in a particular case or for a particular purpose
by the Registrar in writing.
223—Name to appear on seals, publications and
business documents
(1) A co-operative must
ensure its name appears in legible characters—
(a) on each seal of the co-operative; and
(b) in all notices, advertisements and other official publications of the
co-operative; and
(c) in all its business documents.
Maximum penalty: $2 000.
(2) An officer of a co-operative or a person on its behalf must
not—
(a) use any seal of the co-operative; or
(b) issue or authorise the issue of a notice, advertisement or other
official publication of the co-operative; or
(c) sign or authorise to be signed on behalf of the co-operative a
business document of the co-operative,
in or on which the co-operative's name does not appear in legible
characters.
Maximum penalty: $2 000.
(3) A director of a co-operative must not knowingly authorise or permit a
contravention of this section.
Maximum penalty: $2 000.
(4) An offence based on
subsection (1) is an
offence of strict liability.
(5) In this section—
business document of a co-operative means a document that is
issued, signed or endorsed by or on behalf of the co-operative and
is—
(a) a business letter, statement of account, invoice or order for goods or
services; or
(b) a bill of exchange, promissory note, cheque or other negotiable
instrument; or
(c) a receipt or letter of credit issued by the co-operative; or
(d) a document of a class prescribed by the National Regulations as a
class of business documents.
224—Change of name of
co-operative
(1) A co-operative may by special resolution change its name to a name
approved by the Registrar.
(2) A change of name must be advertised as prescribed by the National
Regulations.
(3) A change of name does not take effect until—
(a) the Registrar has noted the change on the certificate of registration
of the co-operative; or
(b) the certificate of registration is surrendered to the Registrar and a
replacement certificate of registration is issued in the new name.
(4) A change of name by a co-operative does not affect—
(a) the identity of the co-operative; or
(b) the exercise of a right, or the enforcement of an obligation, by or
against the co-operative or a person; or
(c) the continuation of legal proceedings by or against the
co-operative.
(5) Legal proceedings that might have been continued or started by or
against the co-operative in its former name may be continued or started by or
against the co-operative in its new name.
(6) The Registrar may refuse to approve a change of name if the Registrar
thinks the new name is unsuitable.
(7) The Registrar may
direct a co-operative to change its name if the Registrar considers the name is
likely to be confused with the name of a corporation or a registered business
name. The co-operative must comply with the direction.
Maximum penalty: $500.
(8) An offence based on
subsection (7) is an
offence of strict liability.
225—Restriction on use of word co-operative or
similar words
(1) A person other than
a co-operative must not trade, or carry on business, under a name or title
containing the word Co-operative or Cooperative, the
abbreviation Co-op or Coop, or words importing a
similar meaning.
Maximum penalty: $2 000.
(2) The local regulations may exempt or provide for the exemption of
specified entities or kinds of entities from
subsection (1).
226—Registered office of
co-operative
(1) A co-operative must
have a registered office.
Maximum penalty: $2 000.
(2) A co-operative is
guilty of an offence if its registered office is not located in this
jurisdiction.
Maximum penalty: $2 000.
(3) A co-operative
must, at the premises of its registered office, publicly and conspicuously
display a notice stating the name of the co-operative and identifying the
premises as its registered office.
Maximum penalty: $2 000.
(4) Within 28 days
after changing the address of its registered office, a co-operative must give
the Registrar written notice of the new address of its registered
office.
Maximum penalty: $2 000.
(5) A co-operative's office is registered as the co-operative's registered
office while the address of the office is recorded in the register of
co-operatives by the Registrar and there specified as its registered
office.
(6) The Registrar may,
by designated instrument, exempt a small co-operative, a class of small
co-operatives or all small co-operatives from
subsection (3).
(7) An exemption may be given unconditionally or subject to
conditions.
(8) An offence based on
subsection (1),
(2),
(3) or
(4) is an offence of
strict liability.
Part 2—Voting and
meetings
Division 1—Voting
entitlements
227—Application of Part to
voting
The provisions of this Part apply to voting on all resolutions.
228—Voting
(1) The right to vote attaches to membership and not
shareholding.
(2) Except as provided in
subsections (3) and
(4), each member has only
one vote at a meeting of the co-operative.
(3) If its rules so
provide, a member of a co-operative group may have the number of votes (up to 5)
at a general meeting that is stated in the rules.
(4) If the rules so
provide, the chairperson has a second vote at a board meeting or general
meeting.
(5) In the case of
joint membership—
(a) the joint members have only one vote between them; and
(b) that vote may be exercised (subject to the grant of a proxy or power
of attorney) only by the joint member decided under the rules.
(6) In the case of
shares held jointly by 2 or more members otherwise than by virtue of joint
membership, each member holding the shares is entitled to vote in accordance
with this section.
Note—
See
section 233
for the effect on a member's right to vote where a non-member has a relevant
interest in a share held by the member or in the member's right to
vote.
229—Voting by proxy
(1) If the rules of the co-operative so provide, voting may be by proxy at
a general meeting.
(2) The instrument of
proxy may state the way in which a proxy is to vote on a particular
resolution.
(3) The proxy must vote in the way authorised by an instrument of proxy
referred to in
subsection (2).
(4) A person must not act as a proxy unless he or she—
(a) is an active member of the co-operative; or
(b) in the case of a co-operative group—is entitled to represent a
member of the group.
(5) The rules of the co-operative may limit the number of persons for whom
a person may act as a proxy on the same question.
230—Inactive members not entitled to
vote
A member cannot vote if the member is not an active member of the
co-operative.
231—Control of right to vote
(1) A person must not directly or indirectly control the exercise of the
right to vote of a member.
Maximum penalty: $6 000 or imprisonment for 6 months, or
both.
(2) If a person controls the exercise of the right of a member to vote at
a meeting of a co-operative—
(a) the vote of the member is invalid; and
(b) if the person is a member—the vote of the person is
invalid.
(3) Nothing in this section prevents—
(a) the exercise of a vote by means of a proxy or power of attorney;
or
(b) a director controlling the vote of a corporate member; or
(c) an agreed purchaser controlling a member's vote pending
settlement.
232—Effect of disposal of shares on voting
rights
A member of a co-operative cannot vote if the member has sold or
transferred, or disposed of the beneficial interest in, all the member's shares,
or agreed to do so.
233—Effect of relevant share and voting interests
on voting rights
(1) Subject to
subsection (3) and
section 228(5) and
(6), a member of a
co-operative cannot vote if another person (whether or not a member of the
co-operative) has a relevant interest in any share held by the member or in the
member's right to vote.
(2) A member who cannot vote because of this section may apply to the
Registrar to review the matter.
(3) The Registrar may
order that the member may vote if the Registrar is satisfied in the
circumstances of the case that loss of the right to vote would be unjust or
unreasonable, and the order of the Registrar has effect accordingly.
234—Rights of representatives to
vote
A person appointed under this Law to represent a member of a co-operative
or co-operative group—
(a) is entitled to receive notice of all meetings in the same way as the
member represented; and
(b) is entitled to exercise the same rights to vote as the member
represented.
235—Other rights and duties of members not affected
by ineligibility to vote
A provision of this Law that disentitles a member of a co-operative to vote
(either generally or in relation to a particular matter) does not affect any
other right, entitlement, obligation or duty of the member as a
member.
236—Vote of disentitled member to be
disregarded
A vote cast by or on behalf of a member of a co-operative when not entitled
to vote under this Division or any other provision of this Law must be
disregarded.
Division 2—Resolutions
237—Decisions to be by ordinary
resolution
Unless this Law or the rules of the co-operative otherwise provide, every
question for decision by a co-operative must be decided by ordinary
resolution.
238—Ordinary resolutions
An ordinary resolution is a resolution of a co-operative that
is passed by a simple majority at a general meeting of the co-operative or in a
postal ballot of members.
239—Special resolutions
(1) A special resolution is a resolution of a co-operative
that is passed—
(a) by a two-thirds majority at a general meeting of the co-operative;
or
(b) by a two-thirds majority in a postal ballot (other than a special
postal ballot) of members; or
(c) by a three-quarters majority in a special postal ballot of
members.
Note 1—
A co-operative may by its rules require a higher majority voting percentage
on any matter or that specified matters must be passed by postal or special
postal ballot.
Note 2—
Section 250 enables 20%
of members (or a lesser percentage specified in the rules) to require a postal
ballot for a special resolution.
(2) A special resolution may be passed by a postal ballot only if the
rules of the co-operative so permit or this Law requires the special resolution
to be passed by postal ballot (including a special postal ballot).
(3) A resolution must not be considered to have been passed as a special
resolution unless not less than 21 days notice has been given to the
members of the co-operative stating—
(a) the intention to propose the special resolution; and
(b) the reasons for proposing the special resolution; and
(c) the effect of the special resolution being passed.
240—How majority is
ascertained
(1) A resolution is passed by a particular majority at a meeting if that
majority of the members of the co-operative who, being entitled to do so, vote
in person or (if proxies are allowed) by proxy at the meeting vote in favour of
the resolution.
(2) A resolution is passed by a particular majority in a postal ballot if
that majority of the members of the co-operative who, being entitled to do so,
cast formal votes in the postal ballot vote in favour of the
resolution.
241—Declaration of passing of special
resolution
(1) At a meeting of a
co-operative for the purpose of passing a special resolution, a declaration by
the chairperson of the meeting that the resolution has been passed as a special
resolution is evidence of that fact.
(2) A declaration by the returning officer for a postal ballot to pass a
special resolution that the resolution has been passed as a special resolution
is evidence of that fact.
(3)
Subsection (1) does not
apply if a poll is taken at the meeting of the co-operative.
242—Effect of special
resolution
(1) A special resolution has effect from the date it is passed.
(2) However, a special
resolution relating to anything for which a special resolution is required to be
passed by special postal ballot has no effect until it is registered.
Note—
Section 446 provides
that a members' voluntary winding up of a co-operative starts when the result of
the special postal ballot is noted in the minutes by the secretary of the
co-operative.
(3)
Subsection (2) and
sections 243 and
244 do not apply to a special
resolution amending the rules of a co-operative.
Note—
Chapter 2
Part 3 deals with amendments to rules and when amendments take
effect.
243—Registration of special
resolution
(1) A co-operative
must, in accordance with
subsection (2), file
2 copies of each special resolution passed by the co-operative with the
Registrar for registration.
Maximum penalty: $2 000.
(a) be filed within 28 days after the passing of a special resolution or
the further period the Registrar allows; and
(b) be signed by a director, the secretary of the co-operative or another
authorised representative of the co-operative; and
(c) be accompanied by the filing fee prescribed by—
(i) the National Regulations, unless
subparagraph (ii)
applies; or
Note—
See
section 444(4)(a)
regarding the period within which a special resolution must be filed with the
Registrar in connection with the voluntary winding up of a
co-operative.
(3) A co-operative or an officer of the co-operative must not knowingly
fail to file the required copies under this section.
Maximum penalty: $2 000.
(4) An offence based on
subsection (1) is an
offence of strict liability.
244—Decision of Registrar on application to
register special resolution
(1) If the Registrar is satisfied the co-operative has complied with this
Law and the special resolution is not contrary to this Law, the Registrar must
register the special resolution and may issue a certificate of
registration.
(2) If the Registrar considers the effect of a special resolution filed
for registration would be in contravention of this Law or any other law, the
Registrar—
(a) may refuse to register the special resolution; and
(b) must give written notice to the co-operative that the special
resolution—
(i) for a special resolution referred to in
section 242(2)—has
no effect; and
(ii) in any other case—has no effect as from the date it was
passed.
(3) A certificate of registration of a special resolution issued by the
Registrar is, in favour of any person advancing money to the co-operative on the
faith of the certificate or in favour of any guarantor of that advance, evidence
that the resolution was properly passed.
Division 3—Resolution by circulated
document
245—Application of Division
This Division applies to a resolution of a co-operative, including a
resolution appointing an officer or auditor or approving of or agreeing to any
act, matter or thing, if—
(a) the co-operative has fewer than 50 members; and
(b) the resolution is required or permitted under this Law or the rules of
the co-operative to be passed at a general meeting of the
co-operative.
246—Resolution by circulation of
document—fewer than 50 members
(1) If all the members of a co-operative have signed a document that sets
out the terms of a resolution and contains a statement that they are in favour
of the resolution, the resolution is taken to have been passed at a general
meeting of the co-operative.
(2) The meeting is taken to have been held—
(a) if all the members signed the document on the one day—on the day
the document was signed, at the time the document was signed by the last member
to sign; or
(b) if the members signed the document on different days—on the day,
and at the time, the document was signed by the last member to sign.
(3) The document need not exist as a single document, but may exist in the
form of 2 or more documents in identical terms.
(4) The document is taken to constitute a minute of the general
meeting.
(5) Anything attached to the document and signed by the members signing
the document is taken to have been laid before the co-operative at the general
meeting.
(6) The document is signed by all members of a co-operative
only if the document is signed by each person who was a member of the
co-operative at the time the document was signed by the last member to
sign.
(7) Nothing in this section affects or limits any rule of law about the
effectiveness of the assent of members of a co-operative given to a document, or
to an act, matter or thing, otherwise than at a general meeting of the
co-operative.
Division 4—Postal ballots
247—Postal ballots
(1) A postal ballot may be held as provided by the rules of a co-operative
and must be conducted in the way prescribed by the National
Regulations.
(2) On the declaration by the returning officer of the result of the
ballot, the secretary of the co-operative must make an entry in the minutes of
the co-operative showing—
(a) the number of formal votes cast in favour of the proposal concerned;
and
(b) the number of formal votes cast against the proposal; and
(c) the number of informal votes cast.
248—Special postal ballots
(1) A special postal ballot is a postal ballot that is
conducted in accordance with this section.
(2) The ballot must not be held less than 28 days after notice of the
ballot is given to members.
Note—
This period is intended to enable sufficient time for a meeting to be
called (whether by the board or on the requisition of members) and held to
discuss the proposal the subject of the ballot.
(3) The co-operative must send to each member (along with any other
material required to be sent in relation to the postal ballot) a disclosure
statement approved by the Registrar and containing information
about—
(a) the financial position of the co-operative; and
(b) the interests of the directors of the co-operative in the proposal
with which the ballot is concerned, including any interests of the directors in
another organisation concerned in the proposal; and
(c) any compensation or consideration to be paid to officers or members of
the co-operative in connection with the proposal; and
(d) any other matters the Registrar directs.
(4) If the Registrar so requires, the disclosure statement is to be
accompanied by a report made by an independent person approved by the Registrar
about any matters the Registrar directs.
(5) A draft disclosure statement must be submitted to the Registrar at
least 28 days (or the shorter period the Registrar may allow in a
particular case) before the notice of the special postal ballot is to be given
to members.
(6)
Section 25 (except
subsections (1),
(2) and
(3)) applies to a
disclosure statement under this section with any necessary modifications, and in
particular as if a reference in that section to a formation meeting were a
reference to the notice of the special postal ballot.
Note—
Sections 380 and
445 provide for exemptions from
this section in certain circumstances.
249—When special postal ballot is
required
The board of a co-operative must conduct a special postal ballot when
required by a provision of this Law.
Note—
Voting by special postal ballot is provided for by this Law as
follows:
(a) conversion of—
(i) a co-operative with share capital to a co-operative without share
capital, or vice versa; or
(ii) a distributing co-operative to a non-distributing co-operative, or
vice versa;
(see
section 35);
(b) a special resolution to require members to take up or subscribe for
additional shares and a special resolution to deduct amounts for additional
shares (see
section 82);
(c) a special resolution on the requisition of members (see
section 250);
(d) a special resolution to require members to lend money to the
co-operative (see
section 343);
(e) an acquisition or disposal of certain assets (see
section 359);
(f) the maximum permissible level of share interest in a co-operative (see
section 363);
(g) certain share offers (see
section 374);
(h) a merger (see
sections
396 and
476);
(i) a transfer of engagements (see
sections 396 and
476);
(j) a transfer of incorporation (see
section 404);
(k) a compromise or arrangement between a co-operative and its members
(see
section 414);
(l) a members' voluntary winding up (see
section 445).
250—Holding of postal ballot on
requisition
(1) The board of a co-operative must conduct a postal ballot (including a
special postal ballot) for the passing of a special resolution on the written
requisition of the number of members who together are able to cast at least 20%
(or a lesser percentage specified in the rules of the co-operative) of the total
number of votes able to be cast at a meeting of the co-operative.
(2) A member cannot be a requisitioning member unless the member is an
active member.
(3) The following provisions apply to a requisition for a postal
ballot:
(a) it must state—
(i) the proposed special resolution to be voted on; and
(ii) the reasons for the making of the special resolution; and
(iii) the effect of the special resolution being passed;
(b) it must be signed by the requisitioning members (and may consist of
several documents in like form each signed by one or more of the requisitioning
members);
(c) it must be served on the co-operative by being filed at the registered
office of the co-operative.
(4) The postal ballot must be conducted as soon as practicable and in any
case must be conducted within 2 months after the requisition is
served.
(5) If the special resolution for which the requisitioned postal ballot is
conducted is not passed, the co-operative may recover the expenses of the postal
ballot from the members who requisitioned the postal ballot as a debt payable to
the co-operative.
251—Expenses involved in postal ballots on
requisition
(1) All reasonable expenses incurred by a co-operative in preparing for
and holding a special postal ballot are taken to form the expenses of the postal
ballot conducted for the purposes of
section 250.
(2) Those expenses include (but are not limited to) the following
expenses:
(a) the cost of obtaining expert advice (including legal and financial
advice) and of commissioning expert reports;
(b) costs attributable to the use of staff of the co-operative in
preparing for and holding the ballot;
(c) the cost of producing, printing and posting the ballot papers and
other material associated with the ballot.
Division 5—Meetings
252—Annual general meetings (cf Corporations Act
section 250N)
(1) A co-operative must
hold its initial annual general meeting within 18 months after its
registration.
Maximum penalty: $1 000 or imprisonment for 3 months, or
both.
(2) A co-operative must
hold an annual general meeting at least once in each calendar year after its
initial annual general meeting and within 5 months after the end of its
financial year.
Maximum penalty: $1 000 or imprisonment for 3 months, or
both.
(3) An offence based on
subsection (1) or
(2) is an offence of
strict liability.
(4) An annual general meeting is to be held in addition to any other
meetings held by a co-operative in the year.
253—Special general meetings
A special general meeting of a co-operative may be called at any time by
the board.
254—Notice of meetings
The board must give each member at least 14 days notice of each
general meeting.
Note—
Section 239 requires 21
days notice of each special resolution to be considered at a general
meeting.
255—Quorum at meetings
(1) The quorum for a meeting of a co-operative must be stated in the rules
of the co-operative.
(2) An item of business must not be transacted at a meeting of a
co-operative unless a quorum of members entitled to vote is present during the
transaction of that item.
256—Decision at meetings
(1) A question for decision at a general meeting of a co-operative is to
be decided by a show of hands, unless a poll is required (see
subsection (2)).
(2) The question is to
be decided by a poll if a poll is required by the chairperson of the meeting or
by any 5 members present at the meeting or represented at the meeting by
proxy.
(3) A person who is a proxy for one or more members may cast only one vote
on a question for decision by a show of hands.
(4) A person who is a proxy for one or more members may cast more than one
vote on a question for decision by a poll, unless the rules of the co-operative
restrict the number of votes that a proxy may cast.
(5) In the case of an equality of votes, the chairperson of the meeting at
which the show of hands takes place or at which the poll is demanded may cast a
second vote if the rules of the co-operative so provide.
(6) This section has effect subject to
section 229.
Note—
Section 229 deals
with voting by proxy.
257—Calling of general meeting on
requisition
(1) The board of a co-operative must call a general meeting of the
co-operative on the written requisition of the number of members who together
are able to cast at least 20% (or a lesser percentage specified in the rules of
the co-operative) of the total number of votes able to be cast at a meeting of
the co-operative.
(2) A member cannot be a requisitioning member unless the member is an
active member.
(3) The following provisions apply to a requisition for a general
meeting:
(a) it must state the objects of the meeting;
(b) it must be signed by the requisitioning members (and may consist of
several documents in like form each signed by one or more of the requisitioning
members);
(c) it must be served on the co-operative by being filed at the registered
office of the co-operative.
(4) The meeting must be called and held as soon as practicable and in any
case must be held within 63 days after the requisition is served.
(5) If the board does not call the meeting within 21 days after the
requisition is served, the following provisions apply:
(a) the requisitioning members (or any of them representing at least half
their total voting rights) may call the meeting in the same way as nearly as
possible as meetings are called by the board;
(b) for that purpose, they may ask the co-operative to supply a written
statement setting out the names and addresses of the persons entitled when the
requisition was served to receive notice of general meetings of the
co-operative;
(c) the board must send the requested statement to the requisitioning
members within 7 days after the request for the statement is
made;
(d) the meeting called by the requisitioning members must be held within
91 days after the requisition is served;
(e) any reasonable
expenses incurred by the requisitioning members because of the board's failure
to call the meeting must be paid by the co-operative;
(f) any amount required to be paid by the co-operative under
paragraph (e) must
be retained by the co-operative out of any money due from the co-operative by
way of fees or other remuneration for their services to any of the directors
that were in default.
258—Minutes
(1) Minutes of each general meeting, board meeting and committee meeting
must be entered in the appropriate books within 28 days after the
meeting.
(2) A co-operative must ensure that minutes of a meeting are signed within
a reasonable time after the meeting by one of the following:
(a) the chairperson of the meeting;
(b) the chairperson of the next meeting.
(3) Minutes must be kept in the English language.
Note—
Section 214 makes
provision regarding the availability of minutes for inspection.
259—Auditor entitled to notice and other
communications (cf Corporations Act section 249K)
(1) A co-operative must
give its auditor—
(a) notice of a general meeting in the same way that a member of the
co-operative is entitled to receive notice; and
(b) any other communications relating to the general meeting that a member
of the co-operative is entitled to receive.
Maximum penalty: $500.
(2) An offence based on
subsection (1) is an
offence of strict liability.
260—Auditor's right to be heard at general meetings
(cf Corporations Act section 249V)
(1) A co-operative's auditor is entitled to attend any general meeting of
the co-operative.
(2) The auditor is entitled to be heard at the meeting on any part of the
business of the meeting that concerns the auditor in the capacity of
auditor.
(3) The auditor is entitled to be heard even if—
(a) the auditor retires at the meeting; or
(b) the meeting passes a resolution to remove the auditor from
office.
(4) The auditor may authorise a person in writing as the auditor's
representative for the purpose of attending and speaking at any general
meeting.
261—Questions and comments by members on
co-operative management at annual general meeting (cf Corporations Act
section 250S)
(1) The chairperson of
an annual general meeting of a co-operative must allow a reasonable opportunity
for the members as a whole at the meeting to ask questions about or make
comments on the management of the co-operative.
Maximum penalty: $500.
(2) An offence based on
subsection (1) is an
offence of strict liability.
262—Questions by members of auditors at annual
general meeting (cf Corporations Act section 250T)
(1) If a co-operative's
auditor or their representative is at the meeting, the chairperson of an annual
general meeting of the co-operative must—
(a) allow a reasonable opportunity for the members as a whole at the
meeting to ask the auditor or the auditor's representative questions relevant
to—
(i) the conduct of the audit; and
(ii) the preparation and content of the auditor's report; and
(iii) the accounting policies adopted by the co-operative in relation to
the preparation of the financial statements; and
(iv) the independence of the auditor in relation to the conduct of the
audit; and
(b) allow a reasonable opportunity for the auditor or their representative
to answer written questions submitted to the auditor.
Maximum penalty: $500.
(2) An offence based on
subsection (1) is an
offence of strict liability.
(a) the co-operative's auditor or their representative is at the meeting;
and
(b) the auditor has prepared a written answer to a written question
submitted to the auditor,
the chairperson of the annual general meeting may permit the auditor or
their representative to table the written answer to the written
question.
(4) The co-operative
must make the written answer tabled under
subsection (3)
reasonably available to members as soon as practicable after the annual general
meeting.
Maximum penalty (for
subsection (4)):
$500.
Part 3—Financial reports and
audit
Note—
Columns 1 and 2 of the following Table set out the Division numbers and
Division headings of this Part, and Columns 3 and 4 indicate (where
relevant) provisions of Chapter 2M of the Corporations Act that generally
correspond to each Division of this Part.
Table
Column 1 |
Column 2 |
Column 3 |
Column 4 |
---|---|---|---|
Division of this Part |
Heading to Division |
Provisions of Chapter 2M of Corporations Act to which Division
generally corresponds |
Location of provisions in Chapter 2M of Corporations
Act |
Preliminary |
— |
— |
|
Financial records |
ss 286—290 |
Part 2M.2 |
|
Annual financial reports and directors' reports generally |
ss 292—294 (also s 315(2)) |
Part 2M.3, Div 1 (also Div 4) |
|
Annual financial reports |
ss 295—297, 301 |
Part 2M.3, Div 1 |
|
Annual directors' reports |
ss 298—300A |
Part 2M.3, Div 1 |
|
Half-year financial report and directors' report |
ss 302—306 |
Part 2M.3, Div 2 |
|
Audit and auditor's report |
ss 307—313 |
Part 2M.3, Div 3 |
|
Annual financial reporting to members |
ss 314—318 |
Part 2M.3, Div 4 |
|
Lodging reports and returns with Registrar |
ss 319—322 |
Part 2M.3, Div 5 |
|
Special provisions about consolidated financial statements |
ss 323—323C |
Part 2M.3, Div 6 |
|
Financial years and half-years |
s 323D |
Part 2M.3, Div 7 |
|
Auditors |
ss 324AA—331 (except s 327H) |
Part 2M.4, Divs 1—6 |
|
Accounting and auditing standards |
ss 337, 338 |
Part 2M.5 |
|
Exemptions and modifications |
ss 340—343 |
Part 2M.6 |
|
Miscellaneous |
s 344 |
Part 2M.7 |
Division 1—Preliminary
263—Interpretation
(1) In this Part—
accounting standard—see
section 314;
audit means—
(a) an audit conducted for the purposes of this Law; or
(b) a review of a financial report conducted for the purposes of this
Law.
auditing standard—see
section 314;
consolidated entity means a co-operative together with all
the entities it is required by the accounting standards to include in
consolidated financial statements;
directors' declaration—see
section 273;
financial report means an annual financial report or a
half-year financial report prepared by a co-operative under this Part (and see
section 273);
financial statements—see
section 273;
notes to the financial statements—see
section 273.
(2) Terms used in this
Part have the same meanings as they have in the Corporations Act, and in
particular in Chapter 2M of the Corporations Act.
Note—
Examples of terms covered by
subsection (2) are
authorised audit company, entity,
control and registered company auditor.
(3) Without limiting
subsection (2), the
term controlled entity used in this Part has a meaning affected by
section 50AA of the Corporations Act.
264—General modifications to applied provisions of
Chapter 2M of Corporations Act
(1) This section applies to the provisions of Chapter 2M of the
Corporations Act as they apply under this Part.
(a) a reference to a company that is an auditor of a co-operative is to be
read as a reference to a company and not a co-operative; and
(b) a reference to a small proprietary company is to be read as a
reference to a small co-operative (which is defined in
section 4 as a
co-operative of a class or description prescribed by the National Regulations);
and
(c) a reference to an order of exemption is to be read as a reference to
an exemption under
Division 14 of this
Part.
(3)
Subsection (2) does not
apply to the extent to which this Law or the National Regulations provide
otherwise, whether expressly or by implication.
Division 2—Financial
records
265—Obligation to keep financial records (cf
Corporations Act section 286)
(1) A co-operative must
keep written financial records that—
(a) correctly record and explain its transactions and financial position
and performance; and
(b) would enable true and fair financial statements to be prepared and
audited.
The obligation to keep financial records of transactions extends to
transactions undertaken as trustee.
Maximum penalty: $2 500.
(2) The co-operative
must retain the financial records for 7 years after the transactions
covered by the records are completed.
Maximum penalty: $2 500.
(3) An offence based on
subsection (1) or
(2) is an offence of
strict liability.
266—Language requirements (cf Corporations Act
section 287)
(1) The financial records may be kept in any language.
(2) A co-operative must
ensure that an English translation of financial records not kept in English is
made available within a reasonable time to a person who—
(a) is entitled to inspect the records; and
(b) asks for the English translation.
Maximum penalty: $2 500.
(3) An offence based on
subsection (2) is an
offence of strict liability.
267—Physical format (cf Corporations Act
section 288)
(1) A co-operative must
ensure that, if financial records are kept in electronic form, they are to be
convertible into hard copy.
(2) If financial
records are kept in electronic form, the co-operative must ensure that a hard
copy is made available within a reasonable time to a person who is entitled to
inspect the records.
(3) An offence based on
subsection (1) or
(2) is an offence of
strict liability.
Maximum penalty: $2 500.
268—Place where records are kept (cf Corporations
Act section 289)
(1) A co-operative may decide where to keep the financial
records.
(2) If financial
records about particular matters are kept outside this jurisdiction, the
co-operative must ensure that sufficient written information about those matters
are kept in this jurisdiction to enable true and fair financial statements to be
prepared.
Maximum penalty: $2 500.
(3) If financial
records about particular matters are kept outside this jurisdiction, the
co-operative must give the Registrar written notice in the approved form of the
place where the information is kept.
Maximum penalty: $2 500.
(4) The Registrar may
direct a co-operative to produce specified financial records that are kept
outside this jurisdiction. The co-operative must comply with the
direction.
Maximum penalty: $2 000.
(5) The direction must—
(a) be in writing; and
(b) specify a place in this jurisdiction where the records are to be
produced (the place must be reasonable in the circumstances); and
(c) specify a day (at least 14 days after the direction is given) by which
the records are to be produced.
(6) An offence based on
subsection (2),
(3) or
(4) is an offence of
strict liability.
269—Director access (cf Corporations Act
section 290)
(1) A director of a co-operative has a right of access to the financial
records at all reasonable times.
(2) On application by a director, the Supreme Court may authorise a person
to inspect the financial records on the director's behalf.
(3) A person authorised
to inspect records may make copies of the records unless the Supreme Court
orders otherwise.
(4) The Supreme Court may make any other orders it considers appropriate,
including either or both of the following:
(a) an order limiting the use that a person who inspects the records may
make of information obtained during the inspection;
(b) an order limiting the right of a person who inspects the records to
make copies in accordance with
subsection (3).
Division 3—Annual financial reports and
directors' reports generally
270—Who has to prepare annual financial reports and
directors' reports
(1) Large co-operatives—requirement to prepare reports in
accordance with this Part (cf Corporations Act
section 292(1))
A large co-operative must prepare a financial report and a directors'
report in accordance with this Part for each financial year.
(2) Small co-operatives—requirement to prepare reports if
directed to do so (cf Corporations Act section 292(2))
A small co-operative must prepare a financial report and a directors'
report if and as directed under
section 271 or
272.
(3) Small co-operatives—where no direction
A small co-operative that is not the subject of a direction under either
section 271 or
272—
(a) is not required to prepare reports in accordance with this Part;
and
(b) must comply with the requirements (if any) of the National Regulations
regarding the preparation and provision of reports to members.
Note—
The rules of a co-operative may provide for the preparation of financial
reports that would be additional to those required by the National
Regulations.
271—Small co-operative—direction by members
(cf Corporations Act section 293 and
section 315(2))
(1) Direction to prepare reports (cf Corporations Act
section 293(1))
Members with at least 5% of the votes in a small co-operative may give the
co-operative a direction to—
(a) prepare a financial report or directors' report or both for a
financial year in accordance with all or with specified requirements of this
Part; and
(b) send them to all members.
(2) Manner of giving direction (cf Corporations Act
section 293(2))
The direction must be—
(a) signed by the members giving the direction; and
(b) made no later than 12 months after the end of the financial year
concerned.
(3) Matters that may
be included in direction (cf Corporations Act section 293(3))
The direction may specify all or any of the following:
(a) that the financial report does not have to comply with some or all of
the accounting standards;
(b) that a directors' report or a part of that report need not be prepared
in accordance with this Part;
(c) that the financial report is to be audited or reviewed.
(4) Direction regarding auditing or review
If the direction specifies that the financial report is to be audited or
reviewed, the direction may specify that the audit or review is to be
conducted—
(a) in accordance with Division 3 of Part 2M.3 of the Corporations
Act (as applying under
section 283); or
(b) in accordance with requirements prescribed by the National
Regulations.
(5) Direction given during financial year
If a direction is given to a small co-operative under this section before
the end of the financial year, the direction must specify the date by which the
documents have to be prepared, sent or lodged. The date must be a reasonable one
in view of the nature of the direction.
(6) Direction given after end of financial year (cf Corporations Act
section 315(2))
If a direction is given to a small co-operative under this section after
the end of the financial year, the co-operative must report to members under
section 284 by the later
of—
(a) 2 months after the date on which the direction is given; and
(b) 5 months after the end of the financial year.
272—Small co-operative—direction by Registrar
(cf Corporations Act section 294)
(1) The Registrar may give a small co-operative a direction to comply with
all or specified requirements of this Division and
Division 4, 5, 7, 8, 9 and
10 for a financial year.
(2) The small
co-operative must comply with the direction.
Maximum penalty: $1 000.
(3) An offence based on
subsection (2) is an
offence of strict liability.
(4) The direction may
specify any or all of the matters referred to in
section 271(3) and
(4).
(5) The direction may be general or may specify the particular
requirements that the co-operative is to comply with.
(6) The direction must specify the date by which the documents have to be
prepared, sent or lodged. The date must be a reasonable one in view of the
nature of the direction.
(7) The direction must—
(a) be made in writing; and
(b) specify the financial year concerned; and
(c) be made no later than 6 years after the end of that financial
year.
Division 4—Annual financial
reports
273—Contents of annual financial report (cf
Corporations Act section 295)
(1) Basic contents
The financial report for a financial year consists
of—
(a) the financial statements for the year; and
(b) the notes to the financial statements; and
(c) the directors' declaration about the statements and notes.
(2) Financial statements
The financial statements for the year are—
(a) the financial statements in relation to the entity reported on that
are required by the accounting standards; and
(b) if the accounting standards require financial statements in relation
to a consolidated entity—the financial statements in relation to the
consolidated entity that are required by the accounting standards.
(3) Notes to
financial statements
The notes to the financial statements are—
(a) disclosures required by the National Regulations; and
(b) notes required by the accounting standards; and
(c) any other
information necessary to give a true and fair view (see
section 275).
(4) Directors' declaration
The directors' declaration is a declaration by the
directors—
(a) whether, in the directors' opinion, there are reasonable grounds to
believe that the co-operative will be able to pay its debts as and when they
become due and payable; and
(b) whether, in the directors' opinion, the financial statements and notes
are in accordance with this Law, including—
(i)
section 274;
and
(ii)
section 275;
and
(c) if the co-operative has quoted securities—that the directors
have been given the declarations required by section 295A of the
Corporations Act (as applying under
section 277).
Note—
Section 295A of the Corporations Act (as applying under
section 277) requires the
chief executive officer and chief financial officer of a co-operative with
quoted securities to make an additional declaration described in that
section.
(5) Directors' declaration—particular requirements
The directors' declaration must—
(a) be made in accordance with a resolution of the directors;
and
(b) specify the date on which the declaration is made; and
(c) be signed by a director.
274—Compliance with accounting standards and
regulations (cf Corporations Act section 296)
(1) The financial report for a financial year must comply with the
accounting standards.
(2) However, a small co-operative's financial report does not have to
comply with particular accounting standards if—
(a) the report is prepared in response to a direction under
section 271 or
272; and
(b) the direction specifies that the report does not have to comply with
those accounting standards.
(3) The financial report must comply with any further requirements in the
National Regulations.
275—True and fair view (cf Corporations Act
section 297)
(1) The financial statements and notes for a financial year must give a
true and fair view of—
(a) the financial position and performance of the co-operative;
and
(b) if consolidated financial statements are required—the financial
position and performance of the consolidated entity.
(2) This section does not affect the obligation under
section 274 for a
financial report to comply with accounting standards.
Note—
If the financial statements and notes prepared in compliance with the
accounting standards would not give a true and fair view, additional information
must be included in the notes to the financial statements under
section 273(3)(c).
276—Audit of annual financial
report
(1) Large co-operative—audit to be conducted in accordance with
applied provisions of Corporations Act (cf Corporations Act
section 301(1))
A large co-operative must have the financial report for a financial year
audited in accordance with Division 3 of Part 2M.3 of the Corporations Act
(as applying under
section 283) and obtain an
auditor's report.
(2) Small co-operative—where audit not required (cf Corporations
Act section 301(2))
A small co-operative's financial report for a financial year does not have
to be audited if—
(a) the report is prepared in response to a direction under
section 271 or
272; and
(b) the direction did not ask for the financial report to be
audited.
(3) Small co-operative—where manner of required audit is
specified in direction
If a small co-operative's financial report for a financial year is prepared
in response to a direction under
section 271 or
272 and the direction asked for
the financial report to be audited—
(a) in accordance with Division 3 of Part 2M.3 of the Corporations
Act (as applying under
section 283); or
(b) in some other specified manner,
the co-operative must have the financial reported audited as directed and
obtain an auditor's report.
(4) Small co-operative—where manner of required audit is not
specified in direction
If a small co-operative's financial report for a financial year is prepared
in response to a direction under
section 271 or
272 and the direction asked for
the financial report to be audited without specifying the manner in which the
audit is to be conducted, the co-operative must have the financial report
audited in accordance with Division 3 of Part 2M.3 of the Corporations
Act (as applying under
section 283) and obtain an
auditor's report.
277—Application of Corporations
Act—co-operatives with quoted securities—declaration about financial
statements by certain officers
A co-operative with quoted securities is declared to be an applied
Corporations legislation matter for the purposes of the Corporations application
legislation of this jurisdiction in relation to section 295A of the
Corporations Act, subject to the modifications referred to in
sections 13(3) and
264 of this Law so far as
they are relevant.
Note—
See
section 13,
including Note 1 to that section.
Division 5—Annual directors'
reports
278—Annual directors' report (cf Corporations Act
section 298)
(1) A co-operative must
prepare a directors' report for each financial year.
(2) The directors' report must include—
(a) the general information required by—
(i)
section 279
of this Law (all co-operatives); and
(ii) section 299A of the Corporations Act (as applying under
section 281)
(co-operatives with quoted securities); and
(b) the specific information required by—
(i)
section 280
of this Law (all co-operatives); and
(ii) sections 300 and 300A of the Corporations Act (as applying under
section 281)
(co-operatives with quoted securities); and
(c) a copy of the auditor's declaration under section 307C of the
Corporations Act (as applying under
section 283) in relation
to the audit for the financial year.
(3) If the financial report for a financial year includes additional
information under
section 273(3)(c)
(information included to give a true and fair view of financial position and
performance), the directors' report for the financial year must
also—
(a) set out the directors' reasons for forming the opinion that the
inclusion of that additional information was necessary to give the true and fair
view required by
section 275; and
(b) specify where that additional information can be found in the
financial report.
(4) The directors' report must—
(a) be made in accordance with a resolution of the directors;
and
(b) specify the date on which the report is made; and
(c) be signed by a director.
(5) A small co-operative does not have to comply with
subsection (1) for a
financial year if—
(a) it is preparing financial statements for that year in response to a
direction under
section 271 or
272; and
(b) the direction specified that a directors' report need not be
prepared.
279—Annual directors' report—general
information (cf Corporations Act section 299)
(1) General
information about operations and activities
The directors' report for a financial year must—
(a) contain a review of operations during the year of the entity reported
on and the results of those operations; and
(b) give details of any significant changes in the entity's state of
affairs during the year; and
(c) state the entity's principal activities during the year and any
significant changes in the nature of those activities during the year;
and
(d) give details of any matter or circumstance that has arisen since the
end of the year that has significantly affected, or may significantly
affect—
(i) the entity's operations in future financial years; or
(ii) the results of those operations in future financial years;
or
(iii) the entity's state of affairs in future financial years;
and
(e) refer to likely
developments in the entity's operations in future financial years and the
expected results of those operations; and
(f) if the entity's operations are subject to any particular and
significant environmental regulation under a law of the Commonwealth or of a
State or Territory—give details of the entity's performance in relation to
environmental regulation.
(2) The entity reported on is—
(a) the co-operative (if consolidated financial statements are not
required); or
(b) the consolidated entity (if consolidated financial statements are
required).
(3) Prejudicial information need not be disclosed
The directors' report may omit material that would otherwise be included
under
subsection (1)(e) if
it is likely to result in unreasonable prejudice to—
(a) the co-operative; or
(b) if consolidated financial statements are required—the
consolidated entity or any entity (including the co-operative) that is part of
the consolidated entity.
(4) Statement of omission of material
If material is omitted, the directors' report must say so.
280—Annual directors' report—specific
information
(1) Details to be
included (cf Corporations Act section 300(1))
The directors' report for a financial year must include details
of—
(a) dividends or distributions paid to members during the year;
and
(b) dividends or distributions recommended or declared for payment to
members, but not paid, during the year; and
(c) the name of each person who has been a director of the co-operative at
any time during or since the end of the year and the period for which they were
a director; and
(d) the name of each person who—
(i) is an officer of the co-operative at any time during the year;
and
(ii) was a partner in an audit firm, or a director of an audit company,
that is an auditor of the co-operative for the year; and
(iii) was such a partner or director at a time when the audit firm or the
audit company undertook an audit of the co-operative; and
(i) granted over unissued shares or unissued interests during or since the
end of the year; and
(ii) granted to any of the directors or any of the 5 most highly
remunerated officers of the co-operative (other than the directors);
and
(iii) granted to them as part of their remuneration (see
subsections (4)—
(6)); and
(f) unissued shares or interests under option as at the day the report is
made (see
subsections (4) and
(6)); and
(g) shares or interests
issued during or since the end of the year as a result of the exercise of an
option over unissued shares or interests (see
subsections
(4) and
(7)); and
(h) indemnities given and insurance premiums paid during or since the end
of the year for a person who is or has been an officer or auditor (see
subsections (8) and
(9)).
(2) Details included
in financial report (cf Corporations Act section 300(2))
Details do not have to be included in the directors' report under this
section if they are included in the co-operative's financial report for the
financial year.
(3) Details included in financial report—to be identified as
Non-audit service (cf Corporations Act
section 300(2A))
If
subsection (2) is
relied on to not include in the directors' report for a financial year details
that would otherwise be required to be included in that report under
section 300(11B)(a) or (11C)(b) of the Corporations Act (as applying under
section 281), that
report must specify, in the section headed Non-audit services,
where those details may be found in the co-operative's financial report for that
financial year.
(4) Options (cf
Corporations Act section 300(3))
Subsection (1)(e)—
(g)
cover—
(a) options over unissued shares and interests of the co-operative;
and
(b) if consolidated financial statements are required—options over
unissued shares and interests of any entity forming part of the consolidated
entity.
(5) Options details (cf Corporations Act
section 300(5))
The details of an option granted are—
(a) the entity granting the option; and
(b) the name of the person to whom the option is granted; and
(c) the number and class of shares or interests over which the option is
granted.
(6) Option
details—unissued shares or interests (cf Corporations Act
section 300(6))
The details of unissued shares or interests under option
are—
(a) the entity that will issue shares or interests when the options are
exercised; and
(b) the number and classes of those shares or interests; and
(c) the issue price, or the method of determining the issue price, of
those shares or interests; and
(d) the expiry date of the options; and
(e) any rights that option holders have under the options to participate
in any share issue or interest issue of the co-operative or any other
entity.
(7) Shares or
interests issued as a result of exercise of option (cf Corporations Act
section 300(7))
The details of shares or interests issued as a result of the exercise of an
option are—
(a) the entity issuing the shares or interests; and
(b) the number of shares or interests issued; and
(c) if the entity has different classes of shares or interests—the
class to which each of those shares or interests belongs; and
(d) the amount unpaid on each of those shares or interests; and
(e) the amount paid, or agreed to be considered as paid, on each of those
shares or interests.
(8) Indemnities and
insurance premiums for officers or auditors (cf Corporations Act
section 300(8))
The directors' report for a co-operative must include details
of—
(a) any indemnity that is given to a current or former officer or auditor
against a liability, or any relevant agreement under which an officer or auditor
may be given an indemnity of that kind; and
(b) any premium that is paid, or agreed to be paid, for insurance against
a current or former officer's or auditor's liability for legal costs.
(9) Indemnities and
insurance premiums—details required (cf Corporations Act
section 300(9))
The details required under
subsection (8)
are—
(a) for an officer—their name or the class of officer to which they
belong or belonged; and
(b) for an auditor—their name; and
(c) the nature of the liability; and
(d) for an indemnity given—the amount the co-operative paid and any
other action the co-operative took to indemnify the officer or auditor;
and
(e) for an agreement to indemnify—the amount that the relevant
agreement requires the co-operative to pay and any other action the relevant
agreement requires the co-operative to take to indemnify the officer or auditor;
and
(f) for an insurance premium—the amount of the premium.
The directors' report need not give details of the nature of the liability
covered by, or the amount of the premium payable under, a contract of insurance
to the extent that disclosure of those details is prohibited by the insurance
contract.
(10) Details relating to directors and secretary (cf Corporations Act
section 300(10))
The report for a co-operative must also include details of—
(a) each director's qualifications, experience and special
responsibilities; and
(b) the number of meetings of the board of directors held during the year
and each director's attendance at those meetings; and
(c) the number of meetings of each board committee held during the year
and each director's attendance at those meetings; and
(d) the qualifications and experience of each person who is the secretary
of the co-operative as at the end of the year.
(11) Proceedings on behalf of a co-operative—application for
leave (cf Corporations Act section 300(14))
The report for a co-operative must also include the following details of
any application for leave under
Chapter 7 Part 4 made
in respect of the co-operative:
(a) the applicant's name;
(b) a statement as to whether leave was granted.
(12) Proceedings on behalf of a co-operative—with leave granted
(cf Corporations Act section 300(15))
The report for a co-operative must also include the following details of
any proceedings that a person has brought or intervened in on behalf of the
co-operative with leave under
Chapter 7
Part 4:
(a) the person's name;
(b) the names of the parties to the proceedings;
(c) sufficient information to enable members to understand the nature and
status of the proceedings (including the cause of action and any orders made by
the court).
281—Application of Corporations
Act—co-operatives with quoted securities—additional information to
be provided in directors' annual report
A co-operative with quoted securities is declared to be an applied
Corporations legislation matter for the purposes of the Corporations application
legislation of this jurisdiction in relation to sections 299A,
300(11)—(11E) and 300A of the Corporations Act, subject to the
modifications referred to in
sections 13(3) and
264 of this Law so far as they
are relevant.
Note—
See
section 13,
including Note 1 to that section.
Division 6—Half-year financial report and
directors' report
282—Application of Corporations
Act—co-operatives that are disclosing entities—half-year financial
reports and directors' reports
A co-operative that is a disclosing entity within the meaning of the
Corporations Act is declared to be an applied Corporations legislation matter
for the purposes of the Corporations application legislation of this
jurisdiction in relation to Division 2 of Part 2M.3 of the
Corporations Act, subject to the modifications referred to in
sections 13(3) and
264 of this Law so far as they
are relevant.
Note—
See
section 13,
including Note 1 to that section.
Division 7—Audit and auditor's
report
283—Application of Corporations Act—audit and
auditor's report
A co-operative is declared to be an applied Corporations legislation matter
for the purposes of the Corporations application legislation of this
jurisdiction in relation to Division 3 of Part 2M.3 of the
Corporations Act, subject to the following modifications:
(a) section 308(3AA) of the applied provisions is to be read as if the
words company limited by guarantee were omitted and the words
small co-operative were substituted;
(b) section 311(5) of the applied provisions is to be read as if the
reference to section 344 of the Corporations Act were a reference to
section 328 of this
Law;
(c) the modifications referred to in
sections
13(3) and
264 of this
Law so far as they are relevant.
Note—
See
section 13,
including Note 1 to that section.
Division 8—Annual financial reporting to
members
284—Annual financial reporting to
members
(1) Annual reports
for members of large co-operatives (cf Corporations Act
section 314(1))
A large co-operative must report to members for a financial year by
providing either of the following in accordance with
subsection (5) or
(9):
(a) all of the following reports:
(i) the financial report for the year;
(ii) the directors' report for the year;
(iii) the auditor's report on the financial report;
(b) a concise report for the year that complies with
subsection (3).
Maximum penalty: $1 000.
(2) Annual reports
for members of small co-operatives (cf Corporations Act
section 314(1))
Subject to any direction under
section 271 or
272, a small co-operative must
provide financial reports to members for a financial year that comply with any
requirements prescribed by the National Regulations.
Maximum penalty: $1 000.
(3) Concise report
(cf Corporations Act section 314(2))
A concise report of a large co-operative for a financial year consists
of—
(a) a concise financial
report for the year drawn up in accordance with accounting standards applying
for the purposes of this paragraph; and
(b) the directors' report for the year; and
(c) a statement by the auditor—
(i) that the financial report has been audited; and
(ii) whether, in the auditor's opinion, the concise financial report
complies with the accounting standards applying for the purposes of
paragraph (a);
and
(d) a copy of any qualification in, and of any statements included in the
emphasis of matter section of, the auditor's report on the financial report;
and
(e) a statement that the report is a concise report and that the full
financial report and auditor's report will be sent to the member free of charge
if the member asks for them.
(4) Where accounting standards require discussion and analysis for
concise financial report (cf Corporations Act section 314(3))
If the accounting standards applying for the purposes of
subsection (3)(a)
require a discussion and analysis to be included in a concise financial
report—
(a) the auditor must report on whether the discussion and analysis
complies with the requirements that the accounting standards lay down for the
discussion and analysis; and
(b) the auditor does not otherwise need to audit the statements made in
the discussion and analysis.
(5) Manner of
providing reports (cf Corporations Act section 314(1AA))
A co-operative may provide the reports, or the concise report, for a
financial year by doing all of the following:
(a) sending, to each
member who has made the election referred to in
subsection (6)(a)—
(i) a hard copy of the reports, or the concise report; or
(ii) if the member has elected to receive the reports, or the concise
report, as an electronic copy in accordance with
subsection (6)(c)—an
electronic copy of the reports, or the concise report;
(b) making a copy of the reports, or the concise report, readily
accessible on a website;
(c) directly notifying,
in writing, all members who did not make the election referred to in
subsection (6)(a)
that the copy is accessible on the website, and specifying the direct address on
the website where the reports, or the concise report, may be accessed.
Note—
A direct address may be specified, for example, by specifying the URL of
the reports or the concise report.
(6) Election by
members as to how reports are to be provided (cf Corporations Act
section 314(1AB))
For the purposes of
subsection (5)(a), a
co-operative must, on at least one occasion, directly notify in writing each
member that—
(a) the member may
elect to receive, free of charge, a copy of the reports for each financial year,
or a copy of the concise report for each financial year; and
(b) if the member does not so elect—the member may access the
reports, or the concise report, on a specified website; and
(c) if the member does
so elect and the co-operative offers to send the report either as a hard copy or
an electronic copy—the member may elect to receive the copy as either a
hard copy or an electronic copy.
Maximum penalty: $1 000.
(7) Election continues until changed (cf Corporations Act
section 314(1AC))
An election made under
subsection (6) is a
standing election for each later financial year until the member changes his,
her or its election.
Note—
The member may request the co-operative not to send them material under
this section—see section 316 of the Corporations Act as applying
under this Part.
(8) Restriction on electronic notification of members (cf Corporations
Act section 314(1AD))
A member may, for the purposes of
subsection (5)(c) or
subsection (6), be
notified by electronic means only if the member has previously nominated that
means as one by which the member may be notified.
(9) Providing
reports (cf Corporations Act section 314(1AE))
A co-operative may provide the reports, or the concise report, by sending
each member—
(a) a hard copy of the reports, or the concise report; or
(b) an electronic copy of the reports, or the concise report, if the
member has nominated that means as one by which the member may be sent the
reports or the concise report.
(10) Strict liability (cf Corporations Act
section 314(1A))
An offence based on
subsection (1),
(2) or
(6) is an offence of
strict liability.
285—Deadline for reporting to
members
(1) General rule (cf Corporations Act
section 315(4))
A co-operative must report to members under
section 284 within
5 months after the end of the financial year, except where
section 315(1) of the Corporations Act as applying under
subsection (2)
applies to the co-operative.
(2) Application of
Corporations Act—rule for co-operatives that are disclosing
entities
A co-operative that is a disclosing entity within the meaning of the
Corporations Act is declared to be an applied Corporations legislation matter
for the purposes of the Corporations application legislation of this
jurisdiction in relation to section 315(1) of the Corporations Act, subject
to the following modifications:
(a) the applied provision is to be read as if the words four
months were omitted and the words 5 months were
substituted;
(b) the modifications referred to in
section 13(3) and
264 of this Law so far as they
are relevant.
Note—
See
section 13,
including Note 1 to that section.
286—Member's choices for annual financial
information
(1) Member's request
(cf Corporations Act section 316(1))
A member may request the co-operative—
(a) not to send them the material required by
section 284; or
(b) to send them a full
financial report and the directors' report and auditor's report.
A request may be a standing request or for a particular financial year. The
member is not entitled to a report for a financial year earlier than the one
before the financial year in which the request is made.
(2) Time for
complying with request (cf Corporations Act section 316(2))
The co-operative must comply with a request under
subsection (1)(b)—
(a) within 7 days after the request is received; or
(b) by the deadline for reporting under
section 285,
whichever is later.
(3) Reports to be
sent free of charge (cf Corporations Act section 316(3))
When sending a full financial report, directors' report and auditor's
report, the co-operative must do so free of charge unless the member has already
received a copy of them free of charge.
(4) Strict liability (cf Corporations Act
section 316(4))
An offence based on
subsection (2) or
(3) is an offence of
strict liability.
Maximum penalty: $1 000 penalty units or imprisonment for 3 months, or
both.
287—Consideration of reports at annual general
meeting (cf Corporations Act section 317)
(1) The directors of a
co-operative that is required to hold an annual general meeting must lay before
the annual general meeting—
(a) in the case of a large co-operative—
(i) the financial report; and
(ii) the directors' report; and
(iii) the auditor's report; or
(b) in the case of a small co-operative—the financial reports
required under
section 284,
for the last financial year that ended before the annual general
meeting.
Note—
If the co-operative's first annual general meeting is held before the end
of its first financial year, there will be no reports to lay before the
meeting.
Maximum penalty: $1 000 or imprisonment for 3 months, or
both.
(2) An offence based on
subsection (1) is an
offence of strict liability.
288—Application of Corporations
Act—additional reporting by debenture issuers
A co-operative is declared to be an applied Corporations legislation matter
for the purposes of the Corporations application legislation of this
jurisdiction in relation to section 318 of the Corporations Act, subject to
the modifications referred to in
section 13(3) and
264 of this Law so far as they
are relevant.
Note—
See
section 13,
including Note 1 to that section.
Division 9—Lodging reports and returns with
Registrar
289—Lodgment of annual reports by large
co-operatives with Registrar (cf Corporations Act
section 319)
(1) A large
co-operative that has to prepare or obtain a report for a financial year under
Divisions 3—5 must lodge the report with the Registrar. This obligation
extends to a concise report provided to members under
section 284.
Maximum penalty: $2 500.
(2) An offence based on
subsection (1) is an
offence of strict liability.
(3) The time for lodgment is—
(a) within 3 months after the end of the financial year for a co-operative
that is a disclosing entity within the meaning of the Corporations Act;
and
(b) within 5 months after the end of the financial year for any other
co-operative.
290—Lodgment of half-year reports with Registrar
(cf Corporations Act section 320)
(1) A co-operative that
has to prepare or obtain a report for a half-year under
Division 6 must lodge the
report with the Registrar within 75 days after the end of the
half-year.
Maximum penalty: $2 500.
(2) An offence based on
subsection (1) is an
offence of strict liability.
291—Registrar's power to require lodgment (cf
Corporations Act section 321)
(1) The Registrar may
give a co-operative a direction to lodge with the Registrar a copy of reports
prepared or obtained by it under Divisions 3—6, and the co-operative must
comply with the direction.
Maximum penalty: $1 000.
(2) An offence based on
subsection (1) is an
offence of strict liability.
(a) be made in writing; and
(b) specify the period or periods concerned; and
(c) be made no later than 6 years after the end of the period or periods;
and
(d) specify the date by
which the documents have to be lodged.
(4) The date specified under
subsection (3)(d)
must be at least 14 days after the date on which the direction is
given.
292—Relodgment if financial statements or
directors' reports amended after lodgment (cf Corporations Act
section 322)
(1) If a financial
report or directors' report is amended after it is lodged with the Registrar,
the co-operative must—
(a) lodge the amended report with the Registrar within 14 days after
the amendment; and
(b) give a copy of the amended report free of charge to any member who
asks for it.
Maximum penalty: $1 000.
(2) If the amendment is
a material one, the co-operative must also notify members as soon as practicable
of—
(a) the nature of the amendment; and
(b) their right to obtain a copy of the amended report under
subsection (1).
Maximum penalty: $1 000.
(3) An offence based on
subsection (1) or
(2) is an offence of
strict liability.
293—Lodgment by small co-operatives of annual
returns with Registrar
(1) A small
co-operative must lodge an annual return with the Registrar for each financial
year.
Maximum penalty: $1 000.
(2) An offence based on
subsection (1) is an
offence of strict liability.
(3) The contents of an annual return are to be as prescribed by the
National Regulations.
(4) The time for lodgment is within 5 months after the end of the
financial year.
Division 10—Special provisions about
consolidated financial statements
294—Application of Corporations Act—special
provisions about consolidated statements
A co-operative is declared to be an applied Corporations legislation matter
for the purposes of the Corporations application legislation of this
jurisdiction in relation to Division 6 of Part 2M.3 of the
Corporations Act, subject to the modifications referred to in
section 13(3) and
264 of this Law so far as they
are relevant.
Note—
See
section 13,
including Note 1 to that section.
Division 11—Financial years and
half-years
295—Financial year (cf Corporations Act
section 323D)
(1) The financial year of a co-operative ends on the day in each year that
is provided for by the rules of the co-operative.
(2) The first financial year of a co-operative may extend from the date of
its registration to a date not more than 18 months after its
registration.
(3) On an amendment of the rules of a co-operative amending its financial
year, the amendment may provide either—
(a) that the current financial year (as at the date of the amendment) is
to be extended for not more than 6 months; or
(b) that the next financial year is to be a period of more than one year
but not more than 18 months.
(4) Without limitation, the National Regulations may make provision for or
with respect to requiring the adoption by a co-operative of the same financial
year for each entity that the co-operative controls.
296—Half-year (cf Corporations Act
section 323D(5))
A half-year for a co-operative is the first 6 months of
a financial year, but the directors may determine that the half-year is to be
shorter or longer (but not by more than 7 days).
Division 12—Auditors
Subdivision 1—General provisions relating to
auditors
297—Application of Corporations
Act—auditors
(1) A co-operative is declared to be an applied Corporations legislation
matter for the purposes of the Corporations application legislation of this
jurisdiction in relation to Divisions 1—5 of Part 2M.4 of the
Corporations Act, subject to the following modifications:
(a) section 324BA in Division 2 of Part 2M.4 is to be read as if
the words Subject to section 324BD, were omitted;
(b) section 324BD in Division 2 of Part 2M.4 is taken to be
omitted;
(c) the modifications referred to in
section 13(3) and
264 of this Law so far as they
are relevant.
Note—
See
section 13,
including Note 1 to that section.
(2) A reference in the provisions of the Corporations Act as applying
under this section to a registered company auditor is taken to be a reference to
a registered company auditor within the meaning of the Corporations Act (and
accordingly a reference in that term to a company is not a reference to a
co-operative).
Subdivision 2—Appointment of
auditors
298—Appointment of auditor of small co-operative
(cf Corporations Act section 325)
(1) The directors of a
small co-operative may appoint an auditor for the co-operative if an auditor has
not been appointed by the co-operative in general meeting.
(2) An auditor appointed under
subsection (1) holds
office, subject to this Part, until the co-operative's next annual general
meeting.
299—Initial appointment of auditor of large
co-operative (cf Corporations Act section 327A)
(1) The directors of a
large co-operative must appoint an auditor of the co-operative within one month
after the day on which it is registered as a co-operative unless the
co-operative at a general meeting has appointed an auditor.
(2) Subject to this Part, an auditor appointed under
subsection (1) holds
office until the co-operative's first annual general meeting.
(3) A director of a co-operative must take all reasonable steps to comply
with, or to secure compliance with,
subsection (1).
Maximum penalty: $2 500 or imprisonment for 6 months, or
both.
300—Annual appointment at annual general meeting of
auditor of large co-operative to fill vacancy
(1) Large
co-operative required to appoint auditor (cf Corporations Act
section 327B(1))
A large co-operative must—
(a) appoint an auditor of the co-operative at its first annual general
meeting; and
(b) appoint an auditor of the co-operative to fill any vacancy in the
office of auditor at each subsequent annual general meeting.
Maximum penalty: $2 500.
(2) Tenure of
auditor (cf Corporations Act section 327B(2))
An auditor appointed under
subsection (1) holds
office until the auditor—
(a) dies; or
(b) is removed, or resigns, from office in accordance with
section 310; or
(c) ceases to be capable of acting as auditor because of Division 2
of Part 2M.4 of the Corporations Act as applying under this Part;
or
(d) ceases to be auditor under
subsection (3),
(4) or
(5).
(3) Termination of
appointment of individual auditor (cf Corporations Act
section 327B(2A))
An individual auditor ceases to be auditor of a large co-operative under
this subsection if—
(a) on a particular day (the start day), the individual
auditor—
(i) informs the Registrar of a conflict of interest situation in relation
to the co-operative under section 324CA(1A) of the Corporations Act as
applying under this Part; or
(ii) informs the Registrar of particular circumstances in relation to the
co-operative under section 324CE(1A) of the Corporations Act as applying
under this Part; and
(b) the individual auditor does not give the Registrar a notice, before
the notification day (see
subsection (6)),
that that conflict of interest situation has, or those circumstances have,
ceased to exist before the end of the period (the remedial period)
of 21 days, or such longer period as the Registrar approves in writing,
from the start day.
(4) Termination of
appointment of audit firm (cf Corporations Act
section 327B(2B))
An audit firm ceases to be auditor of a large co-operative under this
subsection if—
(a) on a particular day (the start day), the Registrar
is—
(i) informed of a conflict of interest situation in relation to the
co-operative under section 324CB(1A) of the Corporations Act as applying
under this Part; or
(ii) informed of particular circumstances in relation to the co-operative
under section 324CF(1A) of the Corporations Act as applying under this
Part; and
(b) the Registrar has not been given a notice on behalf of the audit firm,
before the notification day (see
subsection (6)),
that that conflict of interest situation has, or those circumstances have,
ceased to exist before the end of the period (the remedial period)
of 21 days, or such longer period as the Registrar approves in writing,
from the start day.
(5) Termination of
appointment of audit company (cf Corporations Act
section 327B(2C))
An audit company ceases to be auditor of a large co-operative under this
subsection if—
(a) on a particular day (the start day), the Registrar
is—
(i) informed of a conflict of interest situation in relation to the
co-operative under section 324CB(1A) or 324CC(1A) of the Corporations Act
as applying under this Part; or
(ii) informed of particular circumstances in relation to the co-operative
under section 324CF(1A) or 324CG(1A) or (5A) of the Corporations Act as
applying under this Part; and
(b) the Registrar has not been given a notice on behalf of the audit
company, before the notification day (see
subsection (6)),
that that conflict of interest situation has, or those circumstances have,
ceased to exist before the end of the period (the remedial period)
of 21 days, or such longer period as the Registrar approves in writing,
from the start day.
(6) Meaning of
notification day (cf Corporations Act section 327B(2D))
The notification day is—
(a) the last day of the remedial period; or
(b) such later day as the Registrar approves in writing (whether before or
after the remedial period ends).
(7) Compliance with requirement to appoint auditor (cf Corporations Act
section 327B(3))
A director of a large co-operative must take all reasonable steps to comply
with, or to secure compliance with,
subsection (1).
Maximum penalty: $2 500 or imprisonment for 6 months, or
both.
(8) Member of audit firm ceases to be auditor when firm ceases to be
auditor (cf Corporations Act section 327B(4))
If an audit firm ceases to be the auditor of a large co-operative under
subsection (2) at a
particular time, each member of the firm who—
(a) is taken to have been appointed as an auditor of the co-operative
under section 324AB(1) or 324AC(4) of the Corporations Act as applying
under this Part; and
(b) is an auditor of the co-operative immediately before that
time,
ceases to be an auditor of the co-operative at that time.
301—Appointment by directors or annual general
meeting of auditor of large co-operative to fill casual vacancy (cf Corporations
Act section 327C)
(a) a vacancy occurs in the office of auditor of a large co-operative;
and
(b) the vacancy is not caused by the removal of an auditor from office;
and
(c) there is no surviving or continuing auditor of the
co-operative,
the directors must, within one month after the vacancy occurs, appoint an
auditor to fill the vacancy unless the co-operative at a general meeting has
appointed an auditor to fill the vacancy.
(2) An auditor appointed under
subsection (1) holds
office, subject to this Part, until the co-operative's next annual general
meeting.
(3) A director of a
large co-operative must take all reasonable steps to comply with, or to secure
compliance with,
subsection (1).
Maximum penalty (for
subsection (3)): $2
500 or imprisonment for 6 months, or both.
302—Appointment to replace auditor removed from
office (cf Corporations Act section 327D)
(1) This section deals with the situation in which an auditor of a
co-operative is removed from office at a general meeting in accordance with
section 310.
(2) The co-operative
may at that general meeting (without adjournment), by special resolution
immediately appoint an individual, firm or company as auditor of the
co-operative if a copy of the notice of nomination has been sent to the
individual, firm or company under
section 308(3).
(3) If a special
resolution under
subsection (2)—
(a) is not passed; or
(b) could not be passed merely because a copy of the notice of nomination
has not been sent to an individual, firm or company under
section 308(3),
the general meeting may be adjourned and the co-operative may, at the
adjourned meeting, by ordinary resolution appoint an individual, firm or company
as auditor of the co-operative if—
(c) a member of the co-operative gives the co-operative notice of the
nomination of the individual, firm or company for appointment as auditor;
and
(d) the co-operative receives the notice at least 14 clear days
before the day to which the meeting is adjourned.
(4) The day to which the general meeting is adjourned must
be—
(a) not earlier than 20 days after the day of the meeting; and
(b) not later than 30 days after the day of the meeting.
(5) Subject to this Part, an auditor appointed under
subsection (2) or
(3) holds office until
the co-operative's next annual general meeting.
303—Registrar to be notified of appointment of
auditor
A co-operative must notify the Registrar in an approved form of the
appointment, by the co-operative or directors of the co-operative, of an auditor
of the co-operative within 28 days after the date of the
appointment.
Maximum penalty: $2 000.
304—Registrar may appoint auditor if auditor
removed but not replaced (cf Corporations Act
section 327E)
(1) This section deals with the situation in which a large co-operative
fails to appoint an auditor under
section 302(2) or
(3) (the auditor
replacement failure).
(2) The co-operative
must give the Registrar written notice of the auditor replacement failure within
the period of 7 days commencing on the day of the auditor replacement
failure (the notification period).
(3) If the co-operative gives the Registrar the notice required by
subsection (2), the
Registrar must appoint an auditor of the co-operative as soon as practicable
after receiving the notice. This subsection has effect subject to
section 306.
(4) If the co-operative does not give the Registrar the notice required by
subsection (2), the
Registrar may appoint an auditor of the co-operative at any
time—
(a) after the end of the notification period; and
(b) before the Registrar receives notice of the auditor replacement
failure from the co-operative.
This subsection has effect subject to
section 306.
(5) If the co-operative—
(a) does not give the Registrar the notice required by
subsection (2);
and
(b) gives the Registrar notice of the auditor replacement failure after
the end of the notification period,
the Registrar must appoint an auditor of the co-operative as soon as
practicable after receiving the notice. This subsection has effect subject to
section 306.
(6) Subject to this Part, an auditor appointed under this section holds
office until the co-operative's next annual general meeting.
305—Registrar's general power to appoint auditor of
large co-operative (cf Corporations Act section 327F)
(1) The Registrar may
appoint an auditor of a large co-operative if—
(a) the co-operative does not appoint an auditor when required by this Law
to do so; and
(b) a member of the co-operative applies to the Registrar in writing for
the appointment of an auditor under this section.
This subsection has effect subject to
section 306.
(2) An individual, firm or company appointed as auditor of a co-operative
under
subsection (1) holds
office, subject to this Part, until the next annual general meeting of the
co-operative.
306—Restrictions on Registrar's powers to appoint
auditor of large co-operative (cf Corporations Act
section 327G)
(1) The Registrar may appoint an individual, firm or company as auditor of
a co-operative under
section 304 or
305 only if the individual,
firm or company consents to being appointed.
(2) The Registrar must not appoint an auditor of a co-operative under
section 304 or
305 if—
(a) there is another auditor of the co-operative (the continuing
auditor); and
(b) the Registrar is satisfied that the continuing auditor is able to
carry out the responsibilities of auditor alone; and
(c) the continuing auditor agrees to continue as auditor.
(3) The Registrar must not appoint an auditor of a co-operative under
section 304 or
305 if—
(a) the co-operative does not give the Registrar the notice required by
section 304(2)
before the end of the notification period; and
(b) the Registrar has already appointed an auditor of the co-operative
under
section 304 after
the end of the notification period.
307—Remaining auditors may act during vacancy (cf
Corporations Act section 327I)
While a vacancy in the office of auditor of a co-operative continues, the
surviving or continuing auditor or auditors (if any) may act as auditors of the
co-operative.
308—Nomination of auditor (cf Corporations Act
section 328B)
(1) Subject to this
section, a co-operative may appoint an individual, firm or company as auditor of
the co-operative at its annual general meeting only if a member of the
co-operative gives the co-operative written notice of the nomination of the
individual, firm or company for appointment as auditor—
(a) before the meeting was convened; or
(b) not less than 21 days before the meeting.
This subsection does not apply if an auditor is removed from office at the
annual general meeting.
(2) If a co-operative purports to appoint an individual, firm or company
as auditor of the co-operative in contravention of
subsection (1)—
(a) the purported appointment is of no effect; and
(b) the co-operative is guilty of an offence.
Maximum penalty: $2 500.
(3) If a member gives a
co-operative notice of the nomination of an individual, firm or company for
appointment as auditor of the co-operative, the co-operative must send a copy of
the notice to—
(a) each individual, firm or company nominated; and
(b) each auditor of the co-operative; and
(c) each person entitled to receive notice of general meetings of the
co-operative,
and this is so whether the appointment is to be made at a meeting or an
adjourned meeting referred to in
section 302 or at an
annual general meeting.
(4) The copy of the notice of nomination must be sent—
(a) not less than 7 days before the meeting; or
(b) at the time notice of the meeting is given.
309—Auditor's consent to appointment (cf
Corporations Act section 328A)
(1) A co-operative or
the directors of a co-operative must not appoint an individual, firm or company
as auditor of the co-operative unless that individual, firm or
company—
(a) has consented, before the appointment, to act as auditor;
and
(b) has not withdrawn that consent before the appointment is
made,
and for the purposes of this section, a consent, or the withdrawal of a
consent, must be given by written notice to the co-operative or the
directors.
(2) A notice under
subsection (1) given
by a firm must be signed by a member of the firm who is a registered company
auditor both—
(a) in the firm name; and
(b) in his or her own name.
(3) A notice under
subsection (1) given
by a company must be signed by a director or senior manager of the company
both—
(a) in the company's name; and
(b) in his or her own name.
(4) If a co-operative
or the directors of a co-operative appoint an individual, firm or company as
auditor of a co-operative in contravention of
subsection (1)—
(a) the purported appointment does not have any effect; and
(b) the co-operative is guilty of an offence.
Maximum penalty (for
subsection (4)):
$2 500.
Subdivision 3—Removal and resignation of
auditors
310—Removal and resignation of auditors (cf
Corporations Act section 329)
(1) An auditor of a co-operative may be removed from office by resolution
of the co-operative at a general meeting of which notice under
subsection (2) has
been given, but not otherwise.
(2) Notice of intention
to move the resolution must be given to the co-operative at least 2 months
before the meeting is to be held. However, if the co-operative calls a meeting
after the notice of intention is given under this subsection, the meeting may
pass the resolution even though the meeting is held less than 2 months
after the notice of intention is given.
(3) Where notice under
subsection (2) of a
resolution to remove an auditor is received by a co-operative, it must as soon
as possible send a copy of the notice to the auditor and lodge a copy of the
notice with the Registrar.
(4) Within 7 days after receiving a copy of the notice, the auditor may
make representations in writing, not exceeding a reasonable length, to the
co-operative and request that, before the meeting at which the resolution is to
be considered, a copy of the representations be sent by the co-operative at its
expense to every member of the co-operative to whom notice of the meeting is
sent.
(5) Unless the Registrar on the application of the co-operative otherwise
orders, the co-operative must send a copy of the representations in accordance
with the auditor's request, and the auditor may, without prejudice to his or her
right to be heard orally or, where a firm is the auditor, to have a member of
the firm heard orally on its behalf, require that the representations be read
out at the meeting.
(6) An auditor of a
co-operative may, by notice in writing given to the co-operative, resign as
auditor of the co-operative if—
(a) the auditor has, by notice in writing given to the Registrar, applied
for consent to the resignation and stated the reasons for the application and,
at or about the same time as the notice was given to the Registrar, notified the
co-operative in writing of the application to the Registrar; and
(b) the consent of the Registrar has been given.
(7) The Registrar must, as soon as practicable after receiving a notice
from an auditor under
subsection (6),
notify the auditor and the co-operative whether the Registrar consents to the
resignation of the auditor.
(8) A statement made by an auditor in an application to the Registrar
under
subsection (6) or in
answer to an inquiry by the Registrar relating to the reasons for the
application—
(a) is not admissible in evidence in any civil or criminal proceedings
against the auditor; and
(b) may not be made the ground of a prosecution, action or suit against
the auditor,
and a certificate by the Registrar that the statement was made in the
application or in the answer to the inquiry by the Registrar is conclusive
evidence that the statement was so made.
(9) Subject to
subsection (10), the
resignation of an auditor takes effect—
(a) on the day (if any) specified for the purpose in the notice of
resignation; or
(b) on the day on which the Registrar gives its consent to the
resignation; or
(c) on the day (if any) fixed by the Registrar for the purpose,
whichever last occurs.
(10) The resignation of
an auditor of a small co-operative does not require the consent of the Registrar
under
subsection (6), and
takes effect—
(a) on the day (if any) specified for the purpose in the notice of
resignation; or
(b) on the day on which the notice is received by the
co-operative,
whichever is the later.
(11) Where on the retirement or withdrawal from a firm of a member the
firm will no longer be capable, by reason of the provisions of
section 324BB(1)(b)(i) or (2)(b)(i) of the Corporations Act (as applying
under this Part) of acting as auditor of a co-operative, the member so retiring
or withdrawing is (if not disqualified from acting as auditor of the
co-operative) taken to be the auditor of the co-operative until he or she
obtains the consent of the Registrar to his or her retirement or
withdrawal.
(12) Within 14 days after—
(a) the removal from office of an auditor of a co-operative; or
(b) the receipt of a notice of resignation from an auditor of a
co-operative,
the co-operative must—
(c) lodge with the Registrar a notice of the removal or resignation in the
approved form; and
(d) where there is a trustee for the holders of debentures or CCUs of the
co-operative—give to the trustee a copy of the notice lodged with the
Registrar.
311—Effect of winding up on office of auditor (cf
Corporations Act section 330)
An auditor of a co-operative ceases to hold office if—
(a) a special
resolution is passed for the voluntary winding up of the co-operative;
or
(b) in a case to which
paragraph (a) does
not apply—an order is made by the Supreme Court for the winding up of the
co-operative.
Subdivision 4—Auditors' fees and
expenses
312—Fees and expenses of auditors (cf Corporations
Act section 331)
The reasonable fees and expenses of an auditor of a co-operative are
payable by the co-operative.
Subdivision 5—Protection of
auditors
313—Protection of auditors
(1) An auditor of a
co-operative has qualified privilege in proceedings for defamation in relation
to—
(a) a statement the auditor makes, orally or in writing, in the course of
his or her duties as auditor; or
(b) the giving of notice, or the sending of a copy of financial reports or
another report, to the Registrar under this Law.
(2) A person has qualified privilege in proceedings for defamation in
relation to—
(a) the publishing of a document prepared by an auditor in the course of
the auditor's duties and required under this Law to be filed with the Registrar,
whether or not the document has been so filed; or
(b) the publishing of a statement made by an auditor as referred to in
subsection (1).
(3) This section does not limit or affect a right, privilege or immunity
an auditor or other person has, apart from this section, as defendant in
proceedings for defamation.
Division 13—Accounting and auditing
standards
314—Accounting and auditing
standards
(1) A reference in this
Part (including provisions of the Corporations Act as applying under this Part)
to accounting or auditing standards is a reference
to—
(a) the accounting or
auditing standards made for the purposes of the Corporations Act, except as
provided by
paragraphs (b) and
(c); or
(b) the accounting or
auditing standards referred to in
paragraph (a) but as
modified by the National Regulations; or
(c) the accounting or
auditing standards prescribed by or determined under the National Regulations in
substitution for all or any accounting or auditing standards referred to in
paragraph (a).
(2) If an accounting or auditing standard referred to in
subsection (1)(a)
applies for the purposes of a particular provision of the Corporations Act, the
accounting or auditing standard is (subject to
subsection (1)(b)
and
(c)) taken to apply for
the purposes of the corresponding provision of this Law (if any).
(3) The National Regulations may provide that an accounting or auditing
standard referred to in
subsection (1)(a)
does not apply for the purposes of—
(a) this Law; or
(b) a particular provision of this Law; or
(c) a particular aspect or application of this Law,
and may do so without substituting another accounting or auditing
standard.
315—Interpretation of accounting and auditing
standards (cf Corporations Act section 337)
In interpreting an accounting or auditing standard, unless the contrary
intention appears—
(a) expressions used in the standard have the same meanings as they have
in this Part or in Chapter 2M of the Corporations Act, as the case
requires; and
(b) the provisions of
Chapter 1 Part 2 of
this Law or of Part 1.2 of the Corporations Act apply as if the standard's
provisions were provisions of this Part or Chapter 2M of the Corporations
Act, as the case requires.
Division 14—Exemptions and
modifications
316—Exemptions—individual co-operatives (cf
Corporations Act section 340)
(1) On an application
made in accordance with
subsection (4) in
relation to a co-operative, the Registrar may, by designated instrument, exempt
any of the following from compliance with all or specified requirements of the
target provisions referred to in
subsection (2):
(a) the directors;
(b) the co-operative;
(c) the auditor.
Note—
For the criteria for granting exemptions under this section, see
section 318.
(2) The target
provisions are—
(a) Divisions 2—11 of this Part, including provisions of the
Corporations Act (as applying under any of the provisions of those Divisions),
but not including Division 4 of Part 2M.4 of the Corporations Act as
so applying; and
(b) sections 324BA, 324BB and 324BC of the Corporations Act (as applying
under
section 297 of
this Law).
Note—
The target provisions generally correspond to the provisions of the
Corporations Act referred to in section 340 of that Act (being
Parts 2M.2, 2M.3 and 2M.4 (other than Division 4)).
(3) The exemption may—
(a) be expressed to be subject to conditions; and
(b) be indefinite or limited to a specified period; and
(c) if indefinite, be expressed to commence on a specified date.
(a) authorised by a resolution of the directors; and
(b) in writing and signed by a director; and
(c) lodged with the Registrar.
(5) The Registrar must give the applicant written notice of the granting,
revocation or suspension of the exemption.
317—Exemptions—classes of co-operatives (cf
Corporations Act section 341)
(1) The Registrar may,
by designated instrument in respect of a specified class of co-operatives,
exempt any of the following from compliance with all or specified requirements
of the target provisions referred to in
subsection (2):
(a) directors;
(b) the co-operatives themselves;
(c) auditors of the co-operatives.
Note—
For the criteria for granting exemptions under this section, see
section 318.
(2) The target
provisions are—
(a) Divisions 2—11 of this Part, including provisions of the
Corporations Act (as applying under any of the provisions of those Divisions),
but not including Division 4 of Part 2M.4 of the Corporations Act as
so applying; and
(b) sections 324BA, 324BB and 324BC of the Corporations Act (as applying
under
section 297 of
this Law).
Note—
The target provisions generally correspond to the provisions of the
Corporations Act referred to in section 341 of that Act (being
Parts 2M.2, 2M.3 and 2M.4 (other than Division 4)).
(3) The exemption may—
(a) be expressed to be subject to conditions; and
(b) be indefinite or limited to a specified period; and
(c) if indefinite, be expressed to commence on a specified date.
318—Exemptions—criteria for exemptions for
individual co-operatives or classes of co-operatives (cf Corporations Act
section 342)
(1) To grant an
exemption under
section 316 or
317, the Registrar must be
satisfied that complying with the relevant requirements of the target provisions
would—
(a) make the financial report or other reports misleading; or
(b) be inappropriate in the circumstances; or
(c) impose unreasonable burdens.
(2) In deciding for the
purposes of
subsection (1)
whether the audit requirements for a small co-operative, or a class of small
co-operatives, would impose an unreasonable burden on the co-operative or
co-operatives, the Registrar is to have regard to—
(a) the expected costs of complying with the audit requirements;
and
(b) the expected benefits of having the co-operative or co-operatives
comply with the audit requirements; and
(c) any practical difficulties that the co-operative or co-operatives face
in complying effectively with the audit requirements (in particular, any
difficulties that arise because a financial year is the first one for which the
audit requirements apply or because the co-operative or co-operatives are likely
to move frequently between the small and large co-operative categories from one
financial year to another); and
(d) any unusual aspects of the operation of the co-operative or
co-operatives during the financial year concerned; and
(e) any other matters that the Registrar considers relevant.
(3) In assessing expected benefits under
subsection (2), the
Registrar is to take account of—
(a) the number of creditors and potential creditors; and
(b) the position of creditors and potential creditors (in particular,
their ability to independently obtain financial information about the
co-operative or co-operatives); and
(c) the nature and extent of the liabilities of the co-operative or
co-operatives.
319—Exemptions—non-auditor members and former
members of audit firms, and former employees of audit companies (cf Corporations
Act section 342AA)
(1) On an application
made in accordance with
subsection (4) by
any of the following, the Registrar may, by designated instrument, exempt the
applicant from all or specified requirements of the target provisions referred
to in
subsection (2):
(a) a member of the firm who is not a registered company
auditor;
(b) a person who has ceased to be—
(i) a member of an audit firm; or
(ii) a director of an audit company; or
(iii) a professional employee of an audit company.
Note—
For the criteria for granting exemptions under this section, see
section 321.
(2) The target
provisions are the provisions of Division 3 of Part 2M.4 of
the Corporations Act (as applying under
Division 12 of this
Part).
Note—
The target provisions correspond to the provisions of the Corporations Act
referred to in section 342AA of that Act.
(3) The exemption may—
(a) be expressed to be subject to conditions; and
(b) be indefinite or limited to a specified period; and
(c) if indefinite, be expressed to commence on a specified date.
(a) in writing and signed by the applicant; and
(b) lodged with the Registrar.
(5) The Registrar must give the applicant written notice of the granting,
revocation or suspension of the exemption.
320—Exemptions—classes of non-auditor members
etc (cf Corporations Act section 342AB)
(1) The Registrar may,
by designated instrument in respect of a specified class of audit firms or audit
companies, exempt any of the following from all or specified requirements of the
target provisions referred to in
subsection (2):
(a) members of firms who are not registered company auditors;
(b) persons who have ceased to be—
(i) members of audit firms; or
(ii) directors of audit companies; or
(iii) professional employees of audit companies.
Note—
For the criteria for granting exemptions under this section, see
section 321.
(2) The target
provisions are the provisions of Division 3 of Part 2M.4 of
the Corporations Act (as applying under
Division 12 of this
Part).
Note—
The target provisions correspond to the provisions of the Corporations Act
referred to in section 342AB of that Act.
(3) The exemption may—
(a) be expressed to be subject to conditions; and
(b) be indefinite or limited to a specified period; and
(c) if indefinite, be expressed to commence on a specified date.
321—Exemptions—criteria for exemptions for
non-auditor members etc (cf Corporations Act
section 342AC)
To grant an exemption under
section 319 or
320, the Registrar must be
satisfied that complying with the relevant requirements of the target provisions
would—
(a) make the financial report or other reports misleading; or
(b) be inappropriate in the circumstances; or
(c) impose unreasonable burdens.
322—Exemptions from National
Regulations
(1) The Registrar may,
by designated instrument, exempt—
(a) a specified co-operative, a specified person or firm proposed to be
appointed as an auditor, or a specified director or auditor of a co-operative;
or
(b) a specified class of co-operatives, a specified class of persons or
firms proposed to be appointed as auditors, or a specified class of directors or
auditors of co-operatives,
from compliance with a provision of the National Regulations made under
this Part.
(2) The exemption may—
(a) be expressed to be subject to conditions; and
(b) be indefinite or limited to a specified period; and
(c) if indefinite, be expressed to commence on a specified date.
323—Registrar's power to modify the operation of
section 324DA of Corporations Act (cf Corporations Act
section 342A)
(1) On an application
made in accordance with this section, the Registrar may—
(a) declare that section 324DA(1) of the Corporations Act (as applying
under
Division 12 of
this Part) applies to a registered company auditor, in relation to the audit of
an audited body or a class of audited bodies, as if the references in that
subsection to 5 successive financial years were references to—
(i) 6 successive financial years; or
(ii) 7 successive financial years; or
(b) declare that section 324DA(2) of the Corporations Act (as applying
under
Division 12 of
this Part) applies to a registered company auditor, in relation to the audit of
an audited body or a class of audited bodies during a particular period of 7
successive financial years, as if the reference in that subsection to 5 out of 7
successive financial years were a reference to 6 out of 7 successive financial
years.
(2) The following persons may apply for the declaration:
(a) the registered company auditor;
(b) a firm or company on whose behalf the registered company auditor acts
or would act in relation to the audit or audits,
and if the application is made by a firm or company, the declaration has
effect only in relation to activities undertaken by the registered company
auditor on behalf of that firm or company.
(3) The application must be—
(a) in writing; and
(b) signed by the applicant; and
(c) lodged with the Registrar.
(4) If the application is made by a registered company auditor who
engages, or is to engage, in audit activities on behalf of a firm or company,
the application must include the firm's or company's written consent to the
application.
(5) If the application is made by a firm or company in relation to a
registered company auditor, the application must include the registered company
auditor's written consent to the application.
(6) To make a
declaration under
subsection (1), the
Registrar must be satisfied that, without the modification, Division 4 of
Part 2M.4 of the Corporations Act (as applying under
Division 12 of this Part)
would impose an unreasonable burden on—
(a) a registered company auditor; or
(b) a firm or company that is applying for the declaration; or
(c) the audited body or bodies in relation to which the application was
made.
(7) In deciding for the purposes of
subsection (6)
whether, without the modification, Division 4 of Part 2M.4 of the
Corporations Act (as applying under
Division 12 of this Part)
would impose an unreasonable burden on a person referred to in that subsection,
the Registrar is to have regard to—
(a) the nature of the audited body or bodies, including whether the
activity in which the audited body or bodies engage is such that specialist
knowledge about that activity is necessary to carry out the audit properly;
and
(b) the availability of other registered company auditors capable of
providing satisfactory audit services for the audited body or bodies;
and
(c) any other matters which the Registrar considers relevant.
(8) The Registrar must give the applicant written notice of the making,
revocation or suspension of the declaration.
324—Auditor to notify co-operative of declaration
(cf Corporations Act section 342B)
(1) If a registered company auditor plays a significant role in the audit
of a co-operative in reliance on a declaration by the Registrar under
section 323, the auditor
must give the co-operative written notice of the declaration.
Maximum penalty: $500.
(2) The notice must specify—
(a) the name of the registered company auditor; and
(b) the additional financial years for which the registered company
auditor is, because of the declaration under
section 323, eligible to
play a significant role in the audit of the co-operative.
(3) The notice must be given—
(a) as soon as practicable after the declaration is made if the auditor
has been appointed before the declaration is made; or
(b) before the auditor is appointed if the declaration is made before the
auditor is appointed.
325—Modification by National Regulations (cf
Corporations Act section 343)
(1) The National Regulations may modify the operation of this Part in
relation to—
(a) a specified co-operative; or
(b) all co-operatives of a specified kind.
(2) This section does not affect the power to make National Regulations
prescribing modifications to applied provisions.
326—Amendment, suspension or revocation of
exemption
(1) The Registrar may amend, suspend or revoke an exemption granted under
this Division.
(2) The power to amend, suspend or revoke an exemption granted under this
Division is exercisable in the same way, and subject to the same conditions, as
the power to grant the exemption.
Division 15—Miscellaneous
327—Disclosure by directors
The directors of a co-operative must make the disclosures about the affairs
of the co-operative and of an entity the co-operative controls that are required
under the National Regulations.
Maximum penalty: $2 000.
328—Contravention by directors of provisions of
this Part (cf Corporations Act section 344)
(1) A director of a
co-operative contravenes this subsection if they fail to take all reasonable
steps to comply with or to secure compliance with—
(a)
section 272,
284(1) or
(2),
289,
290,
291,
292 or
293; or
(b) section 315(1) of the Corporations Act as applying under
section 285(2) of
this Law; or
(c) section 318 of the Corporations Act as applying under
section 288 of this
Law.
Note—
This subsection is a civil penalty provision (see
section 554).
(2) A person commits an offence if they contravene
subsection (1) and
the contravention is dishonest.
Maximum penalty: $200 000 or imprisonment for 5 years, or
both.
329—Submission of financial reports to Financial
Reporting Panel
Without limitation, the National Regulations may make provision for or with
respect to requiring the submission of financial reports to the Financial
Reporting Panel.
Note—
The Financial Reporting Panel is established under the ASIC Act.
330—Notification of ASIC by Registrar of certain
matters relating to auditor independence
The Registrar may notify ASIC of any investigation or prosecution
undertaken for a contravention, or an alleged or possible contravention, of
section 324CA, 324CB, 324CC, 324CD, 324CE, 324CF or 324CG of the
Corporations Act as applying under this Law.
Part 4—Funds and property
Division 1—Power to raise
money
331—Meaning of obtaining of financial
accommodation
A reference in this Division to the obtaining of financial
accommodation includes a reference to the obtaining of credit and the
borrowing or raising of money by any means.
332—Fundraising to be in accordance with National
Regulations
The National Regulations may impose requirements and restrictions on the
obtaining of financial accommodation and the giving of security for obtaining
financial accommodation by a co-operative.
333—Limits on deposit taking
A co-operative must not accept money on deposit unless—
(a) the co-operative is
authorised by its rules to accept money on deposit and was authorised by its
rules immediately before the commencement of this section in this jurisdiction
to accept money on deposit; or
(b) the co-operative was a deposit-taking corporation immediately before
it became a co-operative and it is authorised by its rules to accept money on
deposit; or
(c) for a merged co-operative—one or more of the co-operatives
involved in the merger was a deposit-taking co-operative immediately before the
registration of the merged co-operative and the merged co-operative is
authorised by its rules to accept money on deposit.
Note—
Paragraph (a) prevents a
co-operative from accepting money on deposit unless it was authorised to do so
before the commencement of this section. Accordingly, co-operatives registered
before that commencement but not so authorised and all co-operatives registered
after that commencement are prevented from accepting money on deposit.
Authorisation under previous legislation commenced at various times in the
various jurisdictions.
334—Members and other persons not required to see
to application of money
A member or other person from whom a co-operative obtains financial
accommodation is not required to see to its application and is not affected or
prejudiced by the fact that in doing so the co-operative contravened a provision
of this Law, the National Regulations or the rules of the
co-operative.
335—Registrar's directions about obtaining
financial accommodation
(1) The Registrar may,
by written notice served on a co-operative, give a direction to the co-operative
as to the way in which it is to exercise its functions in relation to the
activities of the co-operative in obtaining financial accommodation.
(2) A direction under
subsection (1) may
make provision for one or more of the following matters:
(a) requiring the co-operative to stop obtaining financial accommodation
or to stop obtaining financial accommodation in a particular way;
(b) requiring the co-operative to repay in accordance with the direction
all or part of financial accommodation obtained;
(c) requiring the co-operative to refinance in a stated way financial
accommodation repaid in accordance with the Registrar's direction;
(d) the way in which the co-operative is permitted to invest or use the
proceeds of financial accommodation it obtains.
(3) The co-operative may, within 28 days after the direction is given,
apply to the designated tribunal for a review of the direction, and the
designated tribunal may confirm, modify or rescind the direction or substitute
another direction.
336—Subordinated debt
(1) A co-operative may incur subordinated debt.
(2) Subordinated
debt is debt incurred under an agreement under which, in the event of
the winding up of the co-operative, a claim of the creditor against the
co-operative for the debt is to rank in priority—
(a) equally with the
claim of another creditor who is a party to a similar agreement; and
(b) except as provided by
paragraph (a)—after
the claims of another creditor of the co-operative and before the claims of
members to repayment of share capital in the co-operative.
(3) An agreement referred to in
subsection (2)
has effect despite the provisions of Division 6 of Part 5.6 of the
Corporations Act as applying under this Law.
337—Application of Corporations Act—issues of
debentures
(1) The debentures of a co-operative are declared to be applied
Corporations legislation matters for the purposes of the Corporations
application legislation of this jurisdiction in relation to Part 1.2A,
Chapters 2L, 6CA and 6D, and Part 7.10 of the Corporations Act,
subject to the following modifications:
(a) sections 111AS and 283I of the Corporations Act are taken to be
omitted;
(b) the modifications referred to in
section 13(3) of
this Law so far as they are relevant.
Note—
See
section 13,
including Note 1 to that section.
(2) However, the
provisions of the Corporations Act applying to debentures of a co-operative by
this section do not apply to—
(a) a loan to which
section 343 applies;
or
(b) an issue of debentures of a co-operative that is made—
(i) solely to members of the co-operative; or
(ii) solely to members and employees of the co-operative; or
(iii) to a person who on becoming an inactive member of the co-operative
has had his or her share capital converted to debt.
(3) The following provisions of the Corporations Act as applying under
this section are civil penalty provisions under this Law (see
section 554) and are not
civil penalty provisions under that Act:
(a) section 674(2) and (2A);
(b) section 675(2) and (2A);
(c) section 1041A;
(d) section 1041B(1);
(e) section 1041C(1);
(f) section 1041D;
(g) section 1043A(1) and (2).
(4) Words used in
subsection (2) that
are not defined in this Law have the same meanings as they have in the
Corporations Act.
338—Disclosure statement
(1) This section
applies to the issue of debentures of a co-operative if the issue is
made—
(a) solely to members; or
(b) solely to members and employees of the co-operative,
but does not apply to the issue of debentures under
section 108(1),
128(2) or
163(2).
(2) Before issuing to a
person debentures to which this section applies, a co-operative
must—
(a) inform the person in writing that the person is entitled to receive a
disclosure statement on request to the co-operative; and
(b) give the person a disclosure statement if the person requests
it.
(3) The
disclosure statement is a statement, approved by the Registrar,
and containing the information that is reasonably necessary to enable a person
to make an informed assessment of the financial prospects of the co-operative,
including—
(a) the purpose for which the money raised by the co-operative by the
issue of debentures is to be used; and
(b) the rights and liabilities attaching to the debentures; and
(c) the financial position of the co-operative; and
(d) the interests of the directors of the co-operative in the issue of the
debentures; and
(e) compensation or consideration to be paid to officers or members of the
co-operative in connection with the issue of debentures; and
(f) other matters the Registrar directs.
(4) A draft disclosure statement must be submitted to the Registrar at
least 28 days (or the shorter period the Registrar may allow in a
particular case) before the issue of debentures.
(5)
Section 25 (except
subsections (1),
(2) and
(3)) applies to a
disclosure statement under this section with any necessary modifications, and in
particular as if a reference in that section to a formation meeting were a
reference to the issue of debentures.
(6) The Registrar may,
by designated instrument, exempt a co-operative or class of co-operatives from
complying with this section.
(7) An exemption may be given unconditionally or subject to
conditions.
339—Restrictions on advertising and
publicity
(a) advertise; or
(b) publish a statement that directly or indirectly refers to,
an offer, or intended offer, of debentures in a co-operative unless a
disclosure statement relating to the debentures is approved by the Registrar
under
section 338.
Maximum penalty: $1 000.
(2) A person does not contravene
subsection (1)
by publishing an advertisement or statement if they publish it in the ordinary
course of a business of—
(a) publishing a newspaper or magazine; or
(b) broadcasting by radio or television,
and the person did not know and had no reason to suspect that its
publication would amount to a contravention of a provision of that
subsection.
(3) An offence based on
subsection (1) is an
offence of strict liability.
340—Application money to be held on trust (cf
Corporations Act section 722)
(1) If a person offers
debentures for issue under a disclosure statement, the person must
hold—
(a) all application money received from people applying for debentures
under the disclosure statement; and
(b) all other money paid by them on account of the debentures before they
are issued,
in trust under this section for the applicants until—
(c) the debentures are issued; or
(d) the money is returned to the applicants.
Maximum penalty: $2 500 or imprisonment for 6 months, or
both.
(2) If the application
money needs to be returned to an applicant, the person must return the money as
soon as practicable.
Maximum penalty: $2 500 or imprisonment for 6 months, or
both.
(3) An offence based on
subsection (1) or
(2) is an offence of
strict liability.
341—Approval of board for transfer of
debentures
A debenture of a co-operative cannot be sold or transferred except with the
consent of the board and under the rules of the co-operative.
342—Application of Corporations Act—reissue
of redeemed debentures
Debentures issued by a co-operative to any of its members or employees are
declared to be applied Corporations legislation matters for the purposes of the
Corporations application legislation of this jurisdiction in relation to
section 563AAA of the Corporations Act, subject to the following
modifications:
(a) the section applies as if a co-operative were a company;
(b) the modifications referred to in
section 13(3) of
this Law so far as they are relevant.
Note—
See
section 13,
including Note 1 to that section.
343—Compulsory loan by member to
co-operative
(1) A co-operative may, by levy, require its members to lend money, with
or without security, to the co-operative, in accordance with a proposal approved
by special resolution of the co-operative passed by a special postal
ballot.
(2) The term of the loan cannot be for more than 7 years or any shorter
period prescribed in the National Regulations.
(a) be accompanied by a disclosure statement, approved by the Registrar,
explaining the purpose for which the money raised by the co-operative under the
proposal is to be used and including the other information the Registrar
directs; and
(b) clearly show the total amount of the loan to be raised by the
co-operative and the basis on which the money required to be lent by each member
is to be calculated; and
(c) be accompanied by a
statement informing the member that the member may inform the board by notice on
or before the date of closing of the ballot for the special postal ballot that
the member resigns on the registration of the special resolution.
(4) If the proposal
allows, the board of the co-operative may, under the terms of the proposal,
deduct the money required to be lent by a member to the co-operative from money
payable from the co-operative to the member for his or her dealings with the
co-operative.
(5) A proposal to deduct money referred to in
subsection (4) must,
in addition, clearly show—
(a) the basis on which the money is to be deducted; and
(b) the time and way of making the deductions.
(6) When the special resolution is registered, the proposal is binding
on—
(a) all members of the co-operative at the date of passing of the special
resolution, other than a member who has given a notice of resignation under
subsection (3)(c);
and
(b) all persons who become members of the co-operative after the date and
before the total amount of the loan to be raised under the proposal has been
raised.
(7) A draft disclosure statement must be submitted to the Registrar before
notice of the ballot is given to members.
(8)
Section 25 (except
subsections (1),
(2) and
(3)) applies to a
disclosure statement under this section with any necessary modifications, and in
particular as if a reference in that section to the holding of a formation
meeting were a reference to the giving of notice of the ballot to
members.
(9) The National Regulations may prescribe the maximum amount that may be
levied in any period of 12 months on either or both of the
following:
(a) an individual member of the co-operative;
(b) all members of the co-operative or all members of a class of
members.
(10) The Registrar may,
by designated instrument, exempt a co-operative or class of co-operatives from
complying with all or specified provisions of this section.
(11) An exemption may be given unconditionally or subject to
conditions.
344—Interest payable on compulsory
loan
(1) The rate of interest payable by a co-operative for a loan under
section 343 during a
period is—
(a) for a co-operative
with share capital—
(i) the rate (or, if there is more than one rate, the higher or highest
rate) of dividend payable for the period on the share capital of the
co-operative; or
(ii) if the rate of dividend payable for the period has not been
decided—the rate (or the higher or highest rate) payable for the
immediately preceding period for which a rate has been decided; or
(iii) if a rate of dividend has never been decided for the share capital
of the co-operative—the rate the board of the co-operative considers
reasonable; or
(b) for a co-operative
without share capital—the rate the board of the co-operative considers
reasonable; or
(c) if the rules of the co-operative provide for a rate to be payable that
is higher than the rate applicable under
paragraph (a)
or
(b)—the higher
rate.
(2) A member may agree to the rate of interest being less than what would
otherwise be payable under this section and may agree to no interest being
paid.
Division 2—Co-operative capital units
(CCUs)
345—General nature of CCU
(1) A co-operative capital unit (in this Law referred to as a
CCU) is an interest issued by a co-operative conferring an
interest in the capital (but not the share capital) of the
co-operative.
(a) is personal property; and
(b) is transferable or transmissible as provided by this Law and the rules
of the co-operative, subject to the terms of issue of the CCU; and
(c) is, subject to the rules of the co-operative, capable of devolution by
will or by operation of law.
(3) Subject to
subsection (2)—
(a) the laws applicable to ownership of and dealing with personal property
apply to a CCU in the same way as they apply to other property; and
(b) equitable interests in respect of a CCU may be created, dealt with and
enforced as in the case of other personal property.
(4) A transferor of a CCU remains the holder of the CCU until the transfer
is registered and the name of the transferee is entered in the register of CCUs
and their holders (referred to in
section 212(1)(e))
in respect of the CCU.
(5) Despite any rule of law or equity to the contrary, a condition subject
to which a CCU is issued is not invalid merely because the CCU is, by the
condition, made irredeemable or redeemable only on the happening of a
contingency however remote or at the end of a period however long.
346—Priority of CCUs on winding
up
(1) On a winding up of a co-operative, a debt owed to a person as the
holder or former holder of a CCU issued by the co-operative is to rank for
priority of payment in accordance with the terms of issue of the CCU.
(2) Such a debt may rank as a secured debt if it is secured but if it is
unsecured may not rank in priority to other unsecured debts.
(3) Such a debt may rank equally with or behind unsecured debts and (if
the debt ranks behind unsecured debts) may rank in priority to, equally with or
behind debts due to contributories.
347—Financial accommodation provisions apply to
issue of CCUs
(1) The issuing of CCUs is to be considered to be the obtaining of
financial accommodation and accordingly
Division 1 applies to the
issue of CCUs.
(2) For the purpose of that Division, a CCU is to be considered to be a
debenture.
348—CCUs can be issued to
non-members
CCUs may be issued to persons whether or not they are members of the
co-operative.
349—Minimum requirements for rules concerning
CCUs
The rules of a co-operative that permit the co-operative to issue CCUs must
contain provision to the effect of the following provisions and must not contain
provisions that are inconsistent with the following provisions:
(a) either (as specified in the rules)—
(i) each holder of a CCU is entitled to one vote only at a meeting of the
holders of CCUs; or
(ii) each holder of a CCU is entitled to one vote per CCU held at a
meeting of the holders of CCUs;
(b) the rights of the holders of CCUs may be varied only in the manner and
to the extent provided by their terms of issue and only with the consent of at
least 75% of the holders of CCUs given in writing or at a meeting;
(c) the holder of a CCU has, in the person's capacity as a holder, none of
the rights or entitlements of a member of the co-operative;
(d) the holder of a CCU is entitled to receive notice of all meetings of
the co-operative and all other documents in the same manner as the holder of a
debenture of the co-operative.
350—CCUs not to be issued unless terms of issue
approved by Registrar
(1) A co-operative is not to issue CCUs unless—
(a) the terms of issue have been approved by a special resolution of the
co-operative; and
(b) the issue is made pursuant to an offer accompanied by a copy of a
statement approved by the Registrar for the purposes of the issue; and
(c) the Registrar approves of the terms of the issue.
(2) The terms of issue must specify the following (but this subsection
does not limit the contents of the terms of issue):
(a) details of entitlement to repayment of capital;
(b) details of entitlement to participate in surplus assets and
profits;
(c) details of entitlement to interest on capital (whether cumulative or
non-cumulative interest);
(d) details of how capital and interest on capital are to rank for
priority of payment on a winding up;
(e) whether there is a limit on the total holding of CCUs that may be
acquired by persons who are not members of the co-operative and, if there is a
limit, what the limit is.
(3) The statement approved by the Registrar for the purposes of the issue
is to set out the terms of the issue, the rights of the holders of CCUs, the
terms of redemption and the manner of transferability of CCUs.
(4) The Registrar is not to approve of the terms of issue unless satisfied
that they will not result in a failure to comply with co-operative principles
and are not contrary to the rules of the co-operative or this Law.
351—Directors' duties concerning
CCUs
In discharging their duties, it is proper for the directors of a
co-operative to take into account that the holders of CCUs, in their capacity as
holders of CCUs, have none of the rights and entitlements of, and are not
entitled to be regarded as, members of the co-operative.
352—Redemption of CCUs
(1) The redemption of CCUs is not to be considered to be a reduction in
the share capital of the co-operative.
(2) A co-operative may redeem CCUs but only on the terms and in the way
that are provided by the terms of their issue and only if they are fully paid
up.
(3) CCUs may not be
redeemed except out of—
(a) profits; or
(b) the proceeds of a fresh issue of shares, or an approved issue of CCUs,
made for the purpose of the redemption.
(4) An issue of CCUs is an approved issue for the purposes of
subsection (3) if
there is the same entitlement to priority of payment of capital and dividend in
relation to shares in the co-operative as there was for the redeemed
CCUs.
(5) Any premium payable on redemption is to be provided for out of profits
or out of the share premium account or an account created for that
purpose.
353—Capital redemption reserve
(1) This section applies if CCUs are redeemed out of profits.
(2) Out of profits there is to be transferred to a reserve called the
capital redemption reserve a sum equal to the nominal amount of the CCUs
redeemed.
(3) Subject to
subsection (5), the
provisions of this Law relating to the reduction of share capital of a
co-operative apply as if the capital redemption reserve were paid up share
capital of the co-operative.
(4) Subject to
subsection (5), the
capital redemption reserve may be applied in paying up unissued shares of the
co-operative to be issued to members of the co-operative as fully paid bonus
shares.
(5)
Subsections (3) and
(4) do not apply to a
non-distributing co-operative.
Note—
Section 448 provides
that, on a winding up of a non-distributing co-operative, the surplus property
of the co-operative must be distributed as required by the rules of the
co-operative.
354—Issue of shares in substitution for
redemption
(1) If a co-operative has redeemed or is about to redeem CCUs held by an
active member of the co-operative, it may—
(a) issue shares to the member up to the sum of the nominal value of the
CCUs redeemed or to be redeemed, as if those CCUs had never been issued;
or
(b) pay up amounts unpaid on shares held by the member up to the sum of
the nominal value of the CCUs redeemed or to be redeemed, as if those CCUs had
never been issued.
(2) This section applies only if the terms of issue of the CCUs provide
for the conversion of CCUs held by an active member of the co-operative into
shares of the co-operative.
Division 3—Disposal of surplus from
activities
355—Retention of surplus for benefit of
co-operative
The board of a co-operative may resolve to retain all or part of the
surplus arising in a year from the business of the co-operative to be applied
for the benefit of the co-operative.
356—Application for charitable purposes or approved
activities
(1) A co-operative may
apply a part of the surplus arising in a year from the business of the
co-operative for any charitable purpose.
(2) A distributing
co-operative may apply a part of the surplus arising in a year from the business
of the co-operative for supporting an activity approved by the
co-operative.
(3) The rules of a co-operative must limit the amount that may be applied
under
subsection (1) or
(2) to a stated
proportion of the surplus.
357—Distribution of surplus or reserves to
members
(1) A distributing
co-operative may apply a part of the surplus arising in a year from the business
of the co-operative or a part of the reserves of the co-operative
by—
(a) distribution to
members as a rebate in proportion to—
(i) the value of business done by each member with the co-operative;
or
(ii) profits earned by the co-operative on business done by each member
with the co-operative; or
(b) the issue to members of bonus shares in proportion to—
(i) the value of business done by each member with the co-operative;
or
(ii) profits earned by the co-operative on business done by each member
with the co-operative; or
(iii) shares held by each member; or
(c) the issue to
members of a limited dividend for shares held by each member.
(2) The amount of a
rebate payable to a member under
subsection (1)(a)
may be applied—
(a) in payment for the issue to the member of bonus shares, with the
consent of the member; or
(b) as a loan to the
co-operative—
(i) with the consent of the member; or
(ii) if the rules of
the co-operative authorise the amount of a rebate payable to a member under
subsection (1)(a) to
be applied as a loan to the co-operative.
(3) The amount of a
dividend payable to a member under
subsection (1)(c)
may be applied—
(a) in payment for the issue to the member of bonus shares, with the
consent of the member; or
(b) as a loan to the
co-operative—
(i) with the consent of the member; or
(ii) if the rules of
the co-operative authorise the amount of a dividend payable to a member under
subsection (1)(c) to
be applied as a loan to the co-operative.
(4) A loan to the co-operative authorised by the rules (as referred to in
subsection (2)(b)(ii)
or
(3)(b)(ii)) is repayable
at call and must bear interest at a rate not lower than the rate prescribed by
the National Regulations.
(5) In this section—
limited dividend means a dividend that is not more than the
amount prescribed by the National Regulations.
358—Application of surplus to other
persons
(1) Part of the surplus arising in a year from the business of a
distributing co-operative may be credited to a person who is not a member, but
is qualified to be a member, by way of rebate in proportion to the value of
business done by the person with the co-operative or to the profit earned by the
co-operative, if—
(a) the person was a member when the business was done and the membership
has lapsed; or
(b) the person has applied for membership after the business was
done.
(2) Nothing in this section precludes the payment of a bonus to an
employee under the terms of his or her employment.
Division 4—Acquisition and disposal of
assets
359—Acquisition and disposal of
assets
(1) A co-operative must not do any of the following things except as
approved by special resolution by a special postal ballot:
(a) sell or lease the undertaking of the co-operative as a going
concern;
(b) sell or lease a part of the undertaking of the co-operative that
relates to its primary activities and the value of which represents a percentage
prescribed by the National Regulations or more of the total book value of the
undertaking;
(c) acquire from or dispose of to—
(i) a director or employee of the co-operative; or
(ii) a relative (within the meaning of the Corporations Act) of a director
or employee of the co-operative or of the spouse or de facto partner of a
director or employee of the co-operative,
property the value of which represents a percentage prescribed by the
National Regulations or more of the total book value of all the assets of the
co-operative relating to its primary activities;
(d) acquire an asset the value of which represents a percentage prescribed
by the National Regulations or more of the total book value of the undertaking
of the co-operative, if the acquisition would result in the co-operative
commencing to carry on an activity that is not one of its primary
activities;
(e) dispose of an asset, if the disposal would result—
(i) in the co-operative ceasing to carry on a primary activity of the
co-operative; or
(ii) in the ability of the co-operative to carry on a primary activity of
the co-operative being substantially impaired.
Maximum penalty: $6 000.
(2) If a co-operative contravenes this section, each person who is a
member of the board of the co-operative is taken to have committed the offence,
if the person—
(a) was in a position to influence the conduct of the co-operative in
relation to the commission of the offence by it; and
(b) did not use all due diligence to prevent the commission of the offence
by it.
(3) The Registrar may,
by designated instrument, exempt a co-operative from compliance with a provision
of this section and
section 248 in relation to
a matter to which this section applies.
(4) An exemption may be given unconditionally or subject to
conditions.
(5) In this section—
undertaking of a co-operative means all the assets of the
co-operative.
Note—
This section applies to non-distributing co-operatives as well as to
distributing co-operatives.
Part 5—Restrictions on acquisition of
interests in co-operatives
Division 1—Restrictions on share and voting
interests
360—Notice required to be given of voting
interest
(1) A person (whether or not a member of the co-operative) must give
notice to a co-operative within 5 business days after becoming aware the
person has a relevant interest in the right to vote of a member of the
co-operative.
Maximum penalty: $2 000.
(2) A person (whether or not a member of the co-operative) who has ceased
to have a relevant interest in the right to vote of a member of a co-operative
must give notice to the co-operative within 5 business days after becoming
aware of the fact.
Maximum penalty: $2 000.
(3)
Section 233
provides for the effect of a person having a relevant interest in the right to
vote of a member of a co-operative.
Note—
See
Schedule 2
Part 1 for the term relevant interest.
361—Notice required to be given of substantial
share interest
(1) A person must give notice to a co-operative within 5 business
days after becoming aware the person has a substantial share interest in the
co-operative.
Maximum penalty: $2 000.
(2) A person who has a substantial share interest in a co-operative must
give notice to the co-operative within 5 business days after becoming aware
a substantial change has occurred in the share interest.
Maximum penalty: $2 000.
(3) A person who has ceased to have a substantial share interest in a
co-operative must give notice to the co-operative within 5 business days
after becoming aware the person has ceased to have the interest.
Maximum penalty: $2 000.
(4) A person has a substantial share interest in a
co-operative if the nominal value of the shares in the co-operative in which the
person has a relevant interest represents 5% or more of the nominal value of the
issued share capital of the co-operative.
(5) A substantial change takes place in a person's share
interest in a co-operative if there is an increase or decrease in the number of
shares in the co-operative in which the person has a relevant interest and the
increase or decrease represents at least 1% of the nominal value of the issued
share capital of the co-operative.
362—Requirements for notices
A notice required under this Division must—
(a) be in the approved form; and
(b) state the particulars prescribed by the National Regulations of the
interest or change being notified.
363—Maximum permissible level of share
interest
(1) A person must not
have a relevant interest in shares of a co-operative the nominal value of which
is more than a maximum of 20% of the nominal value of the issued share capital
of the co-operative.
(2) The Registrar may,
by designated instrument, state a maximum greater than 20% as the maximum for
subsection (1) for a
particular co-operative or class of co-operatives.
Note—
For example, a co-operative group may not have enough members to allow each
member to comply with
subsection (1).
(3) The maximum of 20%
stated by
subsection (1) may
be increased for a particular person by special resolution of the co-operative
concerned passed by a special postal ballot.
(4) A resolution under
subsection (3) does
not have effect unless it is approved by the Registrar.
(5) The Registrar's approval of the resolution may be given subject to
conditions.
364—Shares to be forfeited to remedy
contravention
(1) If a person has a relevant interest in a share of a co-operative in
contravention of this Division that is not remedied within 14 days of a
notice of that contravention being issued by the board, the board of the
co-operative must declare to be forfeited enough of the shares in which the
person has a relevant interest to remedy the contravention.
(2) The shares to be forfeited are—
(a) the shares nominated by the person for the purpose; or
(b) in the absence of that nomination, the shares in which the person has
had a relevant interest for the shortest time.
(3) A declaration of the board that shares are forfeited operates to
forfeit the shares concerned.
(4)
Section 163,
164 and
165 apply to shares forfeited
under this section as if the shares had been forfeited under
Chapter 2
Part 6.
365—Powers of board in response to suspected
contravention
(1) If the board of a co-operative is satisfied on reasonable grounds that
a person has contravened
section 361 in relation to
the co-operative, the board may do either or both of the following:
(a) refuse to register a share transfer involving the person;
(b) suspend a stated right or entitlement a person has as a member of the
co-operative or attaching to any shares of the co-operative in which the person
has a relevant interest.
(2) The board may ask a
person who it suspects has a relevant interest in shares of the co-operative to
give stated information to the board about the interest.
(3) A failure by a person to comply with a request under
subsection (2) is a
reasonable ground for being satisfied the person has contravened
section 361.
366—Powers of Supreme Court about
contravention
(1) If a person has
contravened
section 360
or
361 in relation to a
co-operative, the Supreme Court may, on the application of the co-operative or
the Registrar, make any order it considers appropriate.
(2) Without limiting
subsection (1), an
order may include—
(a) a remedial order; and
(b) for securing compliance with any other order made under this
section—an order directing the co-operative or another person to do or
refrain from doing a stated act.
(3) An order may be made whether or not the contravention
continues.
(4) Proof to the satisfaction of the Supreme Court at the hearing of an
application that—
(a) a person has a relevant interest in a share of a co-operative because
an associate (within the meaning of
Schedule 2 Part 2) of
the person has a relevant interest in a share; and
(b) the associate became entitled to the relevant interest within
6 months before the application was filed with the court,
is evidence that the associate was an associate of the person from the time
the person first had the relevant interest until the date of the
hearing.
367—Co-operative to inform Registrar of interest
over 20%
(1) A co-operative must inform the Registrar in writing within
14 days after the board becomes aware that—
(a) a particular person
has a relevant interest in shares of the co-operative the nominal value of which
is more than 20% of the nominal value of the issued share capital of the
co-operative; or
(b) there has been a change in the number of shares in which a person
referred to in
paragraph (a) holds
a relevant interest.
(2) The notification must give details of the relevant interest or change
concerned.
368—Co-operative to keep
register
(1) A co-operative must keep a register of notifiable interests.
(2) The co-operative must enter in the register the names of persons from
whom the co-operative has received a notice under this Division together with
the information contained in the notice.
(3) The register must be open for inspection by a member of the
co-operative free of charge.
369—Unlisted companies to provide list of
shareholders etc
(1) This section applies to a company registered under the Corporations
Act that is not a listed corporation (within the meaning of that Act).
(2) The Registrar or
the board of a co-operative may at any time request a company to which this
section applies that is a member of a co-operative to give the Registrar and the
board a list showing—
(a) the name of each member of the company; and
(b) if the company is limited by shares (or by shares and by
guarantee)—
(i) the number of shares in the company held by each member; and
(ii) the name of each person who has a relevant interest in a share of the
company together with details of the interest; and
(c) the name of each person who is an associate (within the meaning of the
Corporations Act) of the company.
(3) A list under
subsection (2) must
be given within 28 days after a written request for the list is made to the
company by the Registrar or board.
(4) The details to be shown on the list are the details as at the date
stated in the request.
Note—
Section 91 provides
that the board of a co-operative may give directions about disclosure of
relevant interests and instructions.
370—Excess share interest not to affect loan
liability
(1) This section applies if a co-operative has made a loan to a member and
the member had or has a relevant interest in shares of the co-operative in
contravention of this Division.
(2) Until the amount lent to the member has been repaid to the
co-operative (with the interest payable), the member is liable to make to the
co-operative the payments the member would be liable to make if all the shares
concerned were lawfully held by the member.
(3) Security for the repayment of the loan is not affected by a
contravention of this Division.
371—Extent of operation of this
Division
This Division—
(a) applies to all individuals, whether resident in this jurisdiction or
in Australia or not and whether Australian citizens or not, and to all bodies
corporate or unincorporated, whether incorporated or carrying on business in
this jurisdiction or in Australia or not; and
(b) extends to acts done or omitted to be done outside this jurisdiction,
whether in Australia or not.
372—Exemptions
(1) The Registrar may,
by designated instrument, exempt a person or class of persons from the operation
of this Division.
(2) An exemption may be given unconditionally or subject to
conditions.
Division 2—Restrictions on certain share
offers
373—Share offers to which this Division
applies
(1) This Division
applies to the following offers to purchase shares in a co-operative:
(a) an offer made as
part of a proposal for, or that is conditional on, the sale of the business or
part of the business, as a going concern, of the co-operative;
(b) an offer made as
part of a proposal for, or that is conditional on, the registration of the
co-operative as a company under the Corporations Act;
(c) an offer made as
part of a proposal for, or that is conditional on, the winding up of the
co-operative;
(d) an offer that would
result in a contravention of
section 363 were the
offerer to be registered (immediately after the offer is made) as the holder of
the shares that are the subject of the offer;
(e) an offer that would
lead to the offerer having a substantial share interest in the co-operative, or
to a substantial change taking place in a substantial share interest the offerer
has in the co-operative, were the offerer to be registered (immediately after
the offer is made) as the holder of the shares that are the subject of the
offer.
(2) In
subsection (1)(e),
substantial share interest and substantial change
have the same meanings as they have in
section 361.
374—Requirements to be satisfied before offer can
be made
(1) A person must not
make an offer to which this Division applies unless the making of the offer has
been approved—
(a) by special resolution by a special postal ballot; and
(b) by the Registrar.
(2) Despite
subsection (1), an
offer referred to in
section 373(1)(e)
can be made even if it has not been approved as referred to in
subsection (1) if it
is made in circumstances stated in, and in accordance with the requirements of,
the National Regulations.
375—Some offers totally prohibited if they
discriminate
An offer referred to in
section 373(1)(a)—
(d) must not be made at
all if it operates or would operate to discriminate between members who are
active members and members who are not active members.
376—Offers to be submitted to board
first
(1) A proposal to make an offer to which this Division applies must in the
first instance be submitted to the board of the co-operative.
(2) The board may
decline to put a proposed offer to a special postal ballot unless arrangements
satisfactory to the board have been made for payment to the co-operative of the
expenses involved in holding the ballot.
(3) The board may require payment under
subsection (2) in
advance.
(4) A requisition for a special postal ballot for this Division cannot be
served unless the board has had a reasonable opportunity to consider the
proposed offer concerned.
(5) A period of 28 days is a reasonable opportunity for considering a
proposed offer but the Registrar may extend the period in a particular case,
whether before or after the end of the 28 days, by written notice to the
co-operative.
377—Announcements of proposed takeovers about
proposed company
(1) This section applies to an offer to purchase shares in a co-operative
made as part of a proposal for, or that is conditional on, the registration of
the co-operative as a company (the proposed company) under the
Corporations Act.
(2) A person must not make a public announcement to the effect the person
proposes, or the person and another person or other persons together propose, to
make takeover offers, or to cause a takeover announcement to be made, in
relation to the proposed company if—
(a) the person knows the announcement is false or is recklessly
indifferent as to whether it is true or false; or
(b) the person has no reasonable grounds for believing the person, or the
person and the other person or persons, will be able to perform obligations
arising under the scheme or announcement or under the Corporations Act in
relation to the scheme or announcement if a substantial proportion of the offers
or the offers made under the announcement are accepted.
Maximum penalty: $20 000 or imprisonment for 5 years, or both.
(3) If a person makes a
public announcement to the effect the person proposes, or the person and another
person or other persons together propose, to make a takeover bid in relation to
the proposed company, the person must proceed to make a takeover bid in relation
to shares in the company in accordance with the public announcement within
2 months after the day on which the company is incorporated.
Maximum penalty: $10 000 or imprisonment for 2 years, or both.
(4) A person is not liable to be convicted of more than one offence under
subsection (3) for
any one public announcement.
(5) A person who contravenes this section (whether or not the person is
convicted of an offence for the contravention) is liable to pay compensation to
a person who suffered loss because of entering into a share transaction in
reliance on the public announcement concerned.
(6) The amount of the compensation is the difference between the price of
the shares at which the transaction was entered into and the price of the shares
at which the transaction would have been likely to have been entered into if the
person had not made the public announcement.
(7) A person does not contravene
subsection (3)
and is not liable to pay compensation for the contravention if it is proved the
person could not reasonably have been expected to make the takeover bid
concerned—
(a) because of circumstances that existed when the public announcement was
made but of which the person had no knowledge and could not reasonably have been
expected to have knowledge; or
(b) because of a change in circumstances after the announcement was made,
other than a change in circumstances caused directly or indirectly by the
person.
(8) Expressions used in this section have the same meanings as they had in
section 746 of the Corporations Law as applying on
12 March 2000.
378—Additional disclosure requirements for offers
involving conversion to company
If an offer is part of a proposal for, or is conditional on, the
registration of the co-operative as a company under the Corporations Act, the
disclosure statement required to be sent to members for the special postal
ballot must contain the following additional information:
(a) full particulars of any proposal by which a director will acquire a
relevant interest in a share of the company to be formed;
(b) other information that—
(i) is material to the making of a decision by a member whether or not to
agree to the making of the offer; and
(ii) is within the knowledge of the directors; and
(iii) has not previously been disclosed to the members;
(c) other information the Registrar directs.
379—Consequences of prohibited
offer
(1) If a person makes an offer to purchase shares in a co-operative in
contravention of this Division—
(a) the person cannot be registered as the holder of the shares concerned;
and
(b) if the transfer of the shares is registered—the person cannot
vote at a meeting of the co-operative.
(2) A vote cast by or for a member when the member cannot vote because of
this section must be disregarded.
380—Exemptions
(1) The Registrar may,
by designated instrument, exempt a co-operative from compliance with a provision
of this Division and
section 248 in relation to
a matter to which this Division applies.
(2) An exemption may be given unconditionally or subject to
conditions.
Chapter 4—Structural
and other events for co-operatives
Part 1—Appointment of
administrator
Division 1—Introductory
381—Operation of this Part
This Part provides 2 methods for the administration of a co-operative, as
follows:
(a) administration under the Corporations Act as applying under
Division 2;
(b) administration under
Division 3.
Division 2—Administration under Corporations
Act
382—Application of Corporations
Act—administration of co-operative
A co-operative is declared to be an applied Corporations legislation matter
for the purposes of the Corporations application legislation of this
jurisdiction in relation to Part 5.3A and Division 3 of Part 5.9
of the Corporations Act, subject to the following modifications:
(a) a reference in the provisions to sections 128 and 129 of the
Corporations Act is to be read as a reference to
Division 3 of
Chapter 2 Part 2 of
this Law;
(b) a reference in section 436D of the Corporations Act to
"section 436A, 436B or 436C" is to be read as including a reference to
section 385 of this
Law;
(c) a reference in section 436E(4)(a) or 448B of the Corporations Act
to an administrator is to be read as not including a reference to an
administrator appointed under
section 385 of this
Law;
(d) a reference in section 440D(2)(b) of the Corporations Act to
prescribed proceedings is to be read as a reference to proceedings prescribed by
the local regulations;
(e) section 444GA of the Corporations Act is taken to include a provision
to the effect that the section has effect subject to Divisions 7 and 8 of
Chapter 2 Part 4 of
this Law;
(f) section 446B of the Corporations Act is taken to be omitted;
(g) the reference in section 600H(2) of the Corporations Act to "a
compromise or arrangement under part 5.1" is to be read as a reference to a
compromise or arrangement under
Chapter 4 Part 4 of
this Law;
(h) the modifications referred to in
section 13(3) of
this Law so far as they are relevant.
Note—
See
section 13,
including Note 1 to that section.
383—Appointment of administrator by Registrar in
the case of insolvency
(1) The Registrar may appoint a person as an administrator for the
purposes of Part 5.3A of the Corporations Act (as applying under this
Division) if the Registrar is of the opinion that the co-operative is insolvent
or likely to become insolvent at some future time.
(2) The person appointed by the Registrar must be a registered liquidator
within the meaning of the Corporations Act, but the Registrar may appoint a
person who is not a registered liquidator if the Registrar forms the view that
the likely costs of administration by a registered liquidator are excessive
taking into account the known assets of the co-operative and the expected extent
of debt of the co-operative.
Division 3—Administration—alternative
procedure
384—Operation of this Division
(1) The provisions of the Corporations Act as applying under
Division 2 do not apply to
the appointment of an administrator under this Division or to an administrator
so appointed.
(2) This Division does not apply to the appointment of an administrator
under
section 383 or to
an administrator so appointed.
385—Appointment of administrator by
Registrar
(1) The Registrar may, by written notice, appoint an administrator to
conduct the affairs of a co-operative.
(2) A notice of appointment must state—
(a) the date of appointment; and
(b) the appointee's name; and
(c) the appointee's business address.
(3) If the appointee's name or business address changes, the appointee
must immediately give written notice of the change to the Registrar.
(4) The Registrar must not appoint an administrator unless the necessary
grounds for taking the action exist, as referred to in
section 455.
386—Effect of appointment of
administrator
(1) On the appointment of an administrator of a
co-operative—
(a) the directors of the co-operative cease to hold office; and
(b) all contracts for the provision of secretarial or administrative
services for the co-operative are terminated; and
(c) the administrator may terminate any contract of employment with the
co-operative or any contract for providing other services to the
co-operative.
(2) An administrator of a co-operative has the functions of the board of
the co-operative, including the board's powers of delegation.
(3) A director of a co-operative must not be appointed or elected while
the administrator is in office except as provided by this Division.
387—Revocation of appointment
(1) An administrator holds office until the administrator's appointment is
revoked.
(2) The Registrar may, by written notice, revoke the appointment of an
administrator.
(3) When a liquidator of a co-operative is appointed, the appointment of
an administrator of the co-operative is automatically revoked.
(4) Immediately on the revocation of an administrator's appointment, the
administrator must prepare and give to the Registrar a report showing how the
administration was carried out, and for that purpose an administrator has access
to the co-operative's books.
(5) On giving the report and accounting fully for the administration of
the co-operative to the satisfaction of the Registrar, the administrator is
released from any further duty to account for the administration of the
co-operative other than because of fraud, dishonesty, negligence or wilful
failure to comply with this Law.
(6) Before revoking the
appointment of an administrator of a co-operative, the Registrar
must—
(a) appoint another administrator; or
(b) appoint a liquidator; or
(c) ensure directors of the co-operative have been elected under the rules
of the co-operative at a meeting called by the administrator under the rules of
the co-operative; or
(d) appoint directors of the co-operative.
(7) Directors elected or appointed under
subsection (6)—
(a) take office on revocation of the administrator's appointment;
and
(b) in the case of directors appointed under
subsection (6)—hold
office until the next annual general meeting of the co-operative after the
revocation of the administrator's appointment.
(8) This section has effect subject to
section 390.
388—Expenses of administration
(1) The expenses of and
incidental to the conduct of a co-operative's affairs by an administrator are
payable from the co-operative's funds.
(2) The expenses of
conducting a co-operative's affairs include—
(a) if the administrator is not a public sector
official—remuneration of the administrator at a rate approved by the
Registrar; or
(b) if the
administrator is a public sector official—the amount the Registrar
certifies should be paid to the Registrar as repayment of the administrator's
remuneration.
(3) An amount certified under
subsection (2)(b)
may be recovered by the Registrar in a court of competent
jurisdiction.
(4) An administrator has, in relation to the expenses referred to in
subsection (1), the
same priority on the winding up of a co-operative as a liquidator appointed
under the Corporations Act as applying under this Law has.
Note—
Subdivision D of Division 6 of Part 5.6 of the Corporations Act contains
provisions relating to the priority of payments.
389—Liabilities arising from
administration
(1) If a co-operative
incurs loss because of fraud, dishonesty, negligence or wilful failure to comply
with this Law or the rules of the co-operative by an administrator, the
administrator is liable for the loss.
(2) An administrator is not liable for a loss that is not a loss to which
subsection (1)
applies but must account for the loss in a report given under
section 387.
390—Additional powers of
Registrar
(1) If the Registrar
appoints directors of a co-operative under
section 387, the Registrar
may, by written notice given to the co-operative, state—
(a) a time during which this section is to apply to the co-operative;
and
(b) the terms on which all or any of the directors hold office;
and
(c) the rules that are to be the rules of the co-operative.
(2) While this section applies to a co-operative, the Registrar
may—
(a) remove and appoint directors; and
(b) vary, revoke or state new terms in place of all or any of the terms
stated under
subsection (1);
and
(c) amend all or any of the rules stated under
subsection (1).
(3) The Registrar may, by written notice given to the co-operative, extend
the time for which this section is to apply to a co-operative.
(4) A rule stated by the Registrar under this section to be a rule of a
co-operative—
(a) must not to be amended other than in the way set out in this section;
and
(b) if it is inconsistent with another rule of the
co-operative—prevails over the other rule (and the other rule is
inoperative to the extent of the inconsistency); and
(c) has the same evidentiary value as is by this Law accorded to the rules
of the co-operative and to copies of them.
391—Stay of proceedings
(1) If the Registrar
appoints an administrator to conduct a co-operative's affairs, a person must not
begin or continue proceedings in a court against the co-operative until the
administrator's appointment is revoked other than with the leave of the
designated tribunal and, if the tribunal gives leave, in accordance with any
terms the tribunal imposes.
(2) A person intending to apply for leave of the designated tribunal under
subsection (1) must
give the Registrar at least 10 days notice of intention to apply.
(3) On the hearing of an application under
subsection (1), the
Registrar may be represented and may oppose the application.
392—Administrator to report to
Registrar
On receipt of a request from the Registrar, the administrator of a
co-operative must, without delay, prepare and give to the Registrar a report
showing how the administration is being carried out.
Part 2—Receivers and other controllers of
property
393—Application of Corporations Act—receivers
and other controllers of property of co-operatives
A co-operative is declared to be an applied Corporations legislation matter
for the purposes of the Corporations application legislation of this
jurisdiction in relation to Part 5.2 of the Corporations Act, subject to
the following modifications:
(a) section 416 of the applied provisions is to be read as including the
following definitions:
administrator means an administrator of a deed of arrangement
appointed under Part 5.3A of the Corporations Act, as applying under
section 382 of the Co-operatives National Law.
senior manager—
(a) of a co-operative—means a person referred to in
paragraph (b) of the definition of officer in section 4
of the Co-operatives National Law; or
(b) of a corporation other than a co-operative—means a senior
manager within the meaning of the Corporations Act.
(b) section 416 of the applied provisions is to be read as if the
following definition were substituted for the definition of
officer:
officer of a co-operative has the meaning given by
section 4 of the Co-operatives National Law and, in relation to a
participating co-operative, includes a local agent of the participating
co-operative.
(c) section 417 of the applied provisions is taken to be omitted and the
following section substituted:
417—Application of Part
Except so far as the contrary intention appears, this Part applies in
relation to a receiver of property of a co-operative who is appointed after the
commencement of section 393 of the Co-operatives National Law in
this jurisdiction, even if the appointment arose out of a transaction entered
into, or an act or thing done, before that commencement.
(d) section 418A (1) of the applied provisions is to be read as if
"23 June 1993" wherever occurring were omitted and "the commencement
of section 393 of the Co-operatives National Law in this
jurisdiction" were substituted;
(e) section 429 (1) of the applied provisions is to be read as if the
following definition were substituted for the definition of reporting
officer:
reporting officer, in relation to a co-operative for property
of which a person is controller, means a person who was on the control
day—
(a) for a co-operative—a director or secretary of the co-operative;
or
(b) for a participating co-operative—a local agent of the
participating co-operative.
(f) a reference in section 432 of the applied provisions to ASIC is to be
read as a reference to the Registrar, but this paragraph does not limit the
operation of
section 15
of this Law;
(g) the modifications referred to in
section 13(3) of
this Law so far as they are relevant.
Note—
See
section 13,
including Note 1 to that section.
Part 3—Mergers and transfers of
engagements
Division 1—Merger or transfer of
engagements
394—Application of this
Division
This Division does not apply to a merger or transfer of engagements to
which
Chapter 5
applies.
395—Mergers and transfers of engagements of local
co-operatives
Any 2 or more co-operatives may consolidate all or any of their assets,
liabilities and undertakings by way of merger or transfer of engagements
approved under this Division.
396—Requirements before application can be
made
(1) Before co-operatives can apply for approval under this Division of a
merger or transfer of engagements, the proposed merger or transfer must have
been approved by each of the co-operatives by—
(a) a special resolution passed by a special postal ballot; or
(b) if permitted by
subsection (2)—a
resolution of the board of the co-operative.
(2) The proposed merger
or transfer of engagements may be approved by resolution of the board of a
co-operative if the Registrar consents to the procedure applying in the
particular case.
397—Disclosure statement
required
(1) A resolution of a co-operative is not effective for the purposes of
this Division unless this section has been complied with.
(2) Each co-operative must send to each of its members a disclosure
statement approved by the Registrar stating—
(a) the financial position of each co-operative concerned in the proposed
merger or transfer of engagements as shown in financial statements prepared as
at a date not more than 6 months before the date of the statement;
and
(b) any interest any officer of each co-operative has in the proposed
merger or transfer of engagements; and
(c) compensation or other consideration proposed to be paid, or other
incentive proposed to be given, to any officer or member of each co-operative in
relation to the proposed merger or transfer of engagements; and
(d) whether the proposal is a merger or transfer of engagements and the
reason for the merger or transfer of engagements; and
(e) for a transfer of engagements—whether it is a total or partial
transfer of engagements; and
(f) other information the Registrar directs.
(3) The disclosure statement must be sent to the members of each
co-operative so that it will, in the ordinary course of post, reach each member
who is entitled to vote on the special resolution no later than 21 days
before the day on or before which the ballot papers must be returned by members
voting in the special postal ballot.
(4) The Registrar may,
by designated instrument, exempt a co-operative from complying with this
section.
(5) The Registrar may give an approval or an exemption under this section
unconditionally or subject to conditions.
398—Making an application
(1) An application for approval of a merger or transfer of engagements
under this Division must be made to the Registrar in the approved
form.
(2) An application for approval of a merger must be accompanied by
2 copies of the proposed rules of the merged co-operative and other
particulars required by the Registrar.
399—Approval of merger
(1) The Registrar must approve a merger under an application under this
Division if satisfied—
(a) this Division and the National Regulations have been complied with in
relation to the application; and
(b) the proposed rules of the merged co-operative are consistent with this
Law and may reasonably be approved; and
(c) the certificates of registration of the co-operatives have been
surrendered to the Registrar; and
(d) there is no good reason why the merged co-operative and its rules
should not be registered.
(2) On approving an application for merger, the Registrar
must—
(a) cancel the registration of the co-operatives involved in the merger;
and
(b) register the merged co-operative and its rules; and
(c) issue to the merged co-operative a certificate of registration under
this Law.
(3) A merger takes effect on the issue of the certificate of registration
for the merged co-operative.
400—Approval of transfer of
engagements
(1) The Registrar must approve a transfer of engagements under an
application under this Division if satisfied—
(a) this Division has been complied with in relation to the application;
and
(b) the rules or proposed rules of the transferee co-operative are
adequate; and
(c) for a total transfer of engagements from a co-operative—the
certificate of registration of the co-operative has been surrendered to the
Registrar; and
(d) there is no good reason why the transfer of engagements should not
take effect.
(2) A transfer of engagements takes effect on the day stated in the
approval of the Registrar.
401—Transfer of engagements by direction of
Registrar
(1) The Registrar may, with the approval of the Minister, direct a
co-operative—
(a) to transfer its engagements to a co-operative approved by the
Registrar; and
(b) within a period fixed by the Registrar when giving the direction, or
the further period the Registrar allows, to enter into an agreement approved by
the Registrar to give effect to the transfer of engagements directed.
(2) The Registrar must not give the direction to a co-operative unless the
necessary grounds exist for giving the direction, as referred to in
section 455.
(3) The transfer of engagements must make provision in a way approved by
the Registrar for the members of the transferor co-operative who wish to do so
to become members of the transferee co-operative.
(4) If a co-operative
fails to comply with a direction under this section, the Registrar may elect to
treat the failure as the necessary grounds—
(a) for winding up the co-operative on a certificate of the Registrar;
or
(b) for appointing an administrator of the co-operative.
(5) The Registrar must notify the co-operative of the Registrar's decision
under
subsection (4).
(6) The Registrar may revoke a direction under this section at any time up
until the co-operative has agreed under the direction to transfer its
engagements.
(7) A transfer of
engagements directed under this section takes effect on a day notified by the
Registrar by designated instrument.
(8) An officer of a
co-operative must not—
(a) fail to take all reasonable steps to secure compliance by the
co-operative with a direction given under this section; or
(b) by a wilful act or omission be the cause of a failure by the
co-operative to comply with a direction given under this section.
Maximum penalty (for
subsection (8)):
$2 000.
Division 2—Transfer of
incorporation
402—Meaning of new body and
transfer
The registration or incorporation of a co-operative as a corporation
because of an application under this Division is referred to in this Division as
its transfer and the corporation concerned is referred to in this
Division as the new body.
403—Application for transfer
A co-operative may, subject to obtaining any necessary approvals under this
Division, apply to become registered, incorporated or otherwise established as
one of the following:
(a) a company under the Corporations Act;
(b) a corporation under legislation of this or any other jurisdiction that
is prescribed by the National Regulations or the local regulations.
404—Requirements before application can be
made
(1) Before an application is made under
section 403, the
co-operative must, by special resolution passed by a special postal
ballot—
(a) approve the proposed application; and
(b) decide under what name the co-operative is to apply to be registered,
incorporated or otherwise established; and
(c) adopt constituent documents that may be necessary or considered
desirable.
(2) An application cannot be made under
section 403 in respect of
a co-operative without share capital unless—
(a) the application is made at least 2 weeks after a notice has been
published in a newspaper circulating generally in the district in which the
registered office of the co-operative is situated advising of the proposal to
submit the proposed special resolution to members of the co-operative;
and
(b) either—
(i) in a case where the new body will have share capital—all the
members of the co-operative will have an equal shareholding; or
(ii) in any case—the Registrar approves in writing of the making of
the application.
(3) The name applied for need not be the same as that of the co-operative
and must not include the word "Co-operative" or another word or abbreviation
importing a similar meaning.
(4) The Registrar may,
by designated instrument, exempt a co-operative from compliance with a provision
of this section and
section 248 in relation to
a matter to which this section applies.
(5) An exemption may be given unconditionally or subject to
conditions.
405—New body ceases to be registered as
co-operative
On the transfer of a co-operative under this Division, it ceases to be
registered as a co-operative under this Law.
406—Transfer not to impose greater liability
etc
(1) The constituent documents adopted in the transfer must
not—
(a) impose on the members of the new body who were members of the
co-operative at the date of transfer any greater or different liability to
contribute to the assets of the new body than the liability to which they were
subject as members of the co-operative; or
(b) deprive a member of the new body of preferential rights to dividends
or capital to which the member was entitled as a member of the co-operative at
the date of transfer.
(2) The transfer must result in all persons who were members of the
co-operative at the date of transfer becoming members of the new body.
(3) In the case of a transfer of a co-operative having share capital to a
new body having share capital, the transfer must result in every member of the
co-operative at the date of transfer who held shares in the co-operative being
the holder of shares in the capital of the new body equal in number and nominal
value to the shares held by the member as a member of the
co-operative.
Note—
Section 168(1)
provides that "Even though a person's shares in a co-operative have been
forfeited under
Chapter 2
Part 6
, the person is to be taken to be the holder of shares in the
co-operative (the same in all respects as those that were forfeited) for the
following purposes:
...
(b) the entitlement of a shareholder when the
co-operative becomes registered as a company if the relevant special resolution
under
section 404 is
passed within 2 years after the person's shares were forfeited".
407—Effect of new certificate
A certificate of registration, incorporation or establishment as the new
body issued by the appropriate officer under the law applicable to the new body
is evidence that all requirements of this Division about the registration,
incorporation or establishment have been complied with.
408—Copy of new certificate to be given to
Registrar
On the transfer of a co-operative under this Division, the new body must
immediately give the Registrar a copy of its new certificate of registration,
incorporation or establishment.
Maximum penalty: $1 000.
409—New body is a continuation of the
co-operative
(1) When a co-operative
transfers to a new body, the corporation constituted by the new body is taken to
be the same entity as the corporation constituted by the co-operative.
Note—
Division 3 also
applies to a transfer of incorporation under this Division—see
section 412.
(2) If the new body is a company under the Corporations Act,
subsection (1) and
Division 3 have effect
subject to the provisions of section 601BM of that Act.
Note—
Section 601BM of the Corporations Act provides that the registration of a
body as a company under Part 5B.1 of that Act does not—
(a) create a new legal entity; or
(b) affect the body's existing property, rights or obligations (except as
against the members of the body in their capacity as members); or
(c) render defective any legal proceedings by or against the body or its
members.
Division 3—Effect of merger or transfer on
assets and liabilities
410—How this Division applies to a
merger
(1) This Division applies to a merger of co-operatives under
Division 1.
(2) In the application of this Division to the merger—
new body means the co-operative resulting from the
merger;
original body means each co-operative that is a party to the
merger;
relevant day means the day on which the merged co-operative
is registered under this Law.
411—How this Division applies to a transfer of
engagements
(1) This Division applies to a transfer of engagements of a co-operative
to another co-operative under
Division 1.
(2) In the application of this Division to the transfer of
engagements—
new body means the co-operative to which the engagements are
transferred;
original body means the co-operative that transfers its
engagements;
relevant day means the day on which the transfer of
engagements takes effect.
412—How this Division applies to a transfer of
incorporation
(1) This Division applies to a transfer of incorporation under
Division 2.
(2) In the application of this Division to the transfer of
incorporation—
new body means the corporation resulting from the
transfer;
original body means the co-operative transferring its
incorporation;
relevant day means the day on which the transfer takes
effect.
413—Effect of merger or transfer on assets and
liabilities
(1) In this section—
assets means a legal or equitable estate or interest (whether
present or future, whether vested or contingent and whether personal or
assignable) in real or personal property of any description (including money),
and includes securities, choses in action and documents;
instrument means an instrument (other than this Law) that
creates, changes or extinguishes rights or liabilities (or would do so if filed
or registered under any law), and includes a judgment, order and process of a
court;
liabilities means liabilities, debts and obligations (whether
present or future, whether vested or contingent and whether personal or
assignable);
rights means any rights, powers, privileges or immunities
(whether present or future, whether vested or contingent and whether personal or
assignable).
(2) On and from the relevant day for an event to which this Division
applies—
(a) the assets of the original body vest in the new body without the need
for a conveyance, transfer, assignment or assurance; and
(b) the rights and liabilities of the original body become the rights and
liabilities of the new body; and
(c) all proceedings by or against the original body pending immediately
before the relevant day are taken to be proceedings pending by or against the
new body; and
(d) an act, matter or thing done or omitted to be done by, to or in
relation to the original body before the relevant day is (to the extent to which
the act, matter or thing has any force or effect) taken to have been done or
omitted by, to or in relation to the new body; and
(e) a reference in an instrument or in a document of any kind to the
original body is to be read as, or as including, a reference to the new
body.
(3) The operation of this section is not to be regarded—
(a) as a breach of contract or confidence or otherwise as a civil wrong;
or
(b) as a breach of a contractual provision prohibiting, restricting or
regulating the assignment or transfer of assets, rights or liabilities;
or
(c) as giving rise to a remedy by a party to an instrument, or as causing
or permitting the termination of an instrument, because of a change in the
beneficial or legal ownership of an asset, right or liability.
Part 4—Compromises and
arrangements
Division 1—General
requirements
414—Requirements for binding compromise or
arrangement
(1) A compromise or
arrangement is binding only if it is approved by order of the Supreme Court and
it is agreed to—
(a) if the compromise
or arrangement is between the co-operative and any of its creditors—at a
court ordered meeting by a majority in number of the creditors concerned who are
present and voting (in person or by proxy), being a majority whose debts or
claims against the co-operative amount to at least 75% of the total of the debts
and claims of all creditors who are present and voting (in person or by proxy);
or
(b) if the compromise or arrangement is between the co-operative and any
of its members—by the members concerned, by special resolution passed by a
special postal ballot.
(2) The court ordered meeting referred to in
subsection (1)(a) is
a meeting called in accordance with an order of the Supreme Court under this
Part.
(3) The Supreme Court may give its approval to a compromise or arrangement
subject to the amendments or conditions it considers appropriate.
(4) An order of the Supreme Court approving a compromise or arrangement
does not have effect until an office copy of the order is filed with the
Registrar.
(5) On the copy being filed, the order takes effect from the date of
filing or the earlier date the Supreme Court states in the order.
415—Court ordered meeting of
creditors
(1) If a compromise or arrangement is proposed between a co-operative and
any of its creditors, the Supreme Court may, on application by an appropriate
person, order a meeting or meetings of the creditors concerned.
(2) An appropriate person to apply for an order
is—
(a) the co-operative; or
(b) a member of the co-operative; or
(c) one of the creditors concerned; or
(d) for a co-operative being wound up—the liquidator.
(3) The meeting must be called in the way and be held in the place or
places (in this jurisdiction or elsewhere) the Supreme Court directs.
(4) In considering whether to make an order for a meeting to be held in
another jurisdiction, the Supreme Court may have regard to where creditors
concerned reside.
416—Registrar to be given notice and opportunity to
make submissions
(1) The Supreme Court may make an order under this Division if the court
is satisfied—
(a) at least 14 days notice of the hearing of the application for the
order, or a shorter period of notice the court or the Registrar permits, has
been given to the Registrar; and
(b) the Registrar has had a reasonable opportunity to examine the terms
of, and make submissions to the court in relation to, the proposed compromise or
arrangement concerned and a draft explanatory statement relating to
it.
(2) In this section—
draft explanatory statement means a
statement—
(a) explaining the effect of the proposed compromise or arrangement and,
in particular, stating—
(i) material interests of the directors of the co-operative, whether as
directors, as members or creditors of the co-operative or otherwise;
and
(ii) the effect on the interests of the proposed compromise or arrangement
in so far as the effect is different from the effect on the like interests of
other persons; and
(b) setting out information prescribed by the National Regulations;
and
(c) setting out other information that—
(i) is material to the making of a decision by a creditor or member of the
co-operative whether or not to agree to the proposed compromise or arrangement;
and
(ii) is within the knowledge of the directors of the co-operative;
and
(iii) has not previously been disclosed to the creditors or members of the
co-operative.
417—Results of 2 or more
meetings
If the Supreme Court orders 2 or more meetings of creditors to be held in
relation to a proposed compromise or arrangement—
(a) the meetings are taken to form a single meeting; and
(b) the votes in favour of the proposed compromise or arrangement cast at
each of the meetings are to be totalled; and
(c) the votes against the proposed compromise or arrangement cast at each
of the meetings are to be totalled.
418—Persons disqualified from administering
compromise or arrangement
(1) Except with the leave of the Supreme Court, a person must not be
appointed to administer, and must not administer, a compromise or arrangement
approved under this Law between a co-operative and any of its creditors or
members, whether by the terms of the compromise or arrangement or under a power
given by the terms of a compromise or arrangement, if the
person—
(a) is a mortgagee of a property of the co-operative; or
(b) is an auditor or an officer of the co-operative; or
(c) is an officer of a corporation that is a mortgagee of property of the
co-operative; or
(d) is not a registered liquidator, unless the person is a corporation
authorised under a law of this jurisdiction to administer the compromise or
arrangement concerned; or
(e) is an officer of a corporation related to the co-operative;
or
(f) unless the Registrar directs in writing that this paragraph does not
apply in relation to the person and the co-operative—has within the last
year been an officer or promoter of the co-operative or of a related
corporation.
(2) This section does not disqualify a person from administering a
compromise or arrangement under an appointment validly made before the
commencement of this section in this jurisdiction.
419—Application of Corporations Act to person
appointed to administer compromise or arrangement
The provisions of sections 425, 427(1A) and (2), 428, 432 and 434 of the
Corporations Act as applying under this Law apply to a person appointed to
administer a compromise or arrangement in relation to a co-operative, as
if—
(a) the appointment were an appointment of the person as a receiver and
manager of property of the co-operative; and
(b) a reference in those sections to a receiver were a reference to the
person.
420—Application of Corporations Act—person
appointed to administer compromise or arrangement
A person appointed to administer a compromise or arrangement is declared to
be an applied Corporations legislation matter for the purposes of the
Corporations application legislation of this jurisdiction in relation to
section 536 of the Corporations Act, subject to the following
modifications:
(a) that section applies as if the appointment were an appointment of the
person as a liquidator of the co-operative;
(b) a reference in that section to a liquidator is taken to be a reference
to the person;
(c) the modifications referred to in
section 13(3) of
this Law so far as they are relevant.
Note—
See
section 13,
including Note 1 to that section.
421—Copy of order to be attached to
rules
(1) A co-operative must ensure a copy of an order of the Supreme Court
approving a compromise or arrangement is attached to each copy of the rules of
the co-operative issued after the order is made.
Maximum penalty: $2 000.
(2) The Supreme Court may, by order, exempt a co-operative from compliance
with this section or decide the period during which the co-operative must
comply.
422—Directors to arrange for
reports
(1) When a compromise or arrangement (whether or not for a scheme for the
reconstruction of a co-operative or the merger of 2 or more co-operatives) has
been proposed, the directors of the co-operative must—
(a) if a meeting of the members of the co-operative by resolution
directs—instruct the accountants or Australian legal practitioners or both
named in the resolution to report on the proposals and send their report or
reports to the directors as soon as practicable; and
(b) make the report or reports available at the registered office of the
co-operative for inspection by the members and creditors of the co-operative at
least 7 days before the day of the meeting ordered by the Supreme Court or
the holding of the special postal ballot, as appropriate.
(2) If this section is
not complied with, each director of the co-operative commits an
offence.
Maximum penalty: $2 000.
(3) An offence based on
subsection (2) is an
offence of strict liability.
423—Power of Court to restrain further
proceedings
(1) If a proposed compromise or arrangement is made between a co-operative
and any of its creditors and no order has been made or resolution passed for the
winding up of the co-operative, the Supreme Court may restrain further
proceedings in an action or other civil proceedings against the co-operative
except by leave of the court and on the terms the court imposes.
(2) The Supreme Court's power under this section is in addition to any of
its other powers and must not be exercised except on application by the
co-operative or a creditor or member of the co-operative.
424—Court need not approve compromise or
arrangement takeovers
(1) The Supreme Court need not approve a compromise or arrangement
unless—
(a) it is satisfied the compromise or arrangement has not been proposed
for enabling a person to avoid the operation of any provision of
Division 2 of
Chapter 3 Part 5;
and
(b) there is produced to the court a written statement by the Registrar
stating the Registrar has no objection to the compromise or
arrangement.
(2) The Supreme Court need not approve a compromise or arrangement merely
because a statement by the Registrar stating the Registrar has no objection to
the compromise or arrangement has been produced to the court.
425—Provisions for facilitating reconstructions and
mergers
(1) This section applies if an application is made to the Supreme Court
under this Division for the approval of a compromise or arrangement and it is
shown to the court that—
(a) the compromise or arrangement has been proposed for a scheme for the
reconstruction of a co-operative or the merger of a co-operative with another
co-operative or another corporation; and
(b) under the scheme all or part of the business or of the property of a
co-operative concerned in the scheme (the transferor) is to be
transferred to another corporation (the transferee), except a
company within the meaning of the Corporations Act.
(2) If this section
applies, the Supreme Court may, either by the order approving the compromise or
arrangement or by a later order, provide for any one or more of the
following:
(a) the transfer to the transferee of all or part of the business and the
property or liabilities of the transferor;
(b) the allotting or appropriation by the transferee of shares,
debentures, policies or other interests in the transferee that, under the
compromise or arrangement, are to be allotted or appropriated by the transferee
to or for a person;
(c) the continuation by or against the transferee of legal proceedings
pending by or against the transferor;
(d) the deregistration,
without winding up, of the transferor;
(e) provision to be made for persons who, within the time and in the way
the court directs, dissent from the compromise or arrangement;
(f) the transfer or allotment of an interest in property to a person
concerned in the compromise or arrangement;
(g) the incidental, consequential and supplemental matters necessary to
ensure the reconstruction or merger is fully and effectively carried
out.
(3) If an order made under this section provides for the transfer of
property or liabilities, then, by virtue of the order—
(a) the property is transferred to and vests in the transferee free, for a
particular property if the order so directs, from a security interest that is
under the compromise or arrangement to cease to have effect; and
(b) the liabilities are transferred to and become the liabilities of the
transferee.
(4) If an order is made under this section, each body to which the order
relates must, within 14 days after the making of the order, file with the
Registrar an office copy of the order.
(5) In this section—
co-operative includes a participating co-operative
registered, formed or incorporated under a law of another
jurisdiction;
liabilities includes duties of any description, including
duties that are of a personal character or are incapable under the general law
of being assigned or performed vicariously;
property includes rights and powers of any description,
including rights and powers that are of a personal character and are incapable
under the general law of being assigned or performed vicariously.
426—Costs for Registrar
Without limiting any power of the Supreme Court to award costs, the court
may make an order as to costs in favour of the Registrar in connection with an
appearance by or on behalf of the Registrar in proceedings under this
Division.
Division 2—Explanatory
statements
427—Explanatory statement required to accompany
notice of meeting etc
(1) An explanatory
statement must accompany every notice sent—
(a) to a creditor of a
co-operative calling the court ordered meeting to obtain agreement to the
compromise or arrangement; or
(b) to a member of a co-operative for the conduct of the special postal
ballot to obtain agreement to the compromise or arrangement.
(2) In every notice of a meeting referred to in
subsection (1) given
by advertisement, there must be included either a copy of the explanatory
statement or notification of the place at which and the way in which creditors
entitled to attend the meeting may obtain copies of the explanatory
statement.
(3) The explanatory statement must—
(a) explain the effect of the compromise or arrangement and, in
particular, state—
(i) material interests of the directors, whether as directors, as members
or creditors of the co-operative or otherwise; and
(ii) the effect on the interests of the compromise or arrangement in so
far as the effect is different from the effect on the like interests of other
persons; and
(b) state the information prescribed by the National Regulations;
and
(c) state other information that—
(i) is material to the making of a decision by a creditor or member
whether or not to agree to the compromise or arrangement; and
(ii) is within the knowledge of the directors; and
(iii) has not previously been disclosed to the creditors or
members.
(4)
Subsection (1)(a) does
not apply to a creditor whose debt is not more than $200 (or another amount
prescribed by the National Regulations) unless the Supreme Court otherwise
orders.
(5) The notice calling
the meeting sent to a creditor referred to in
subsection
(1)(a) must state a place at which a copy of the explanatory statement can
be obtained on request.
(6) The co-operative must comply with a request under
subsection (5) as
soon as practicable.
428—Requirements for explanatory
statement
(1) An explanatory statement must be as approved by the
Registrar.
(2) If the compromise or arrangement affects the rights of debenture
holders, the explanatory statement must state—
(a) material interests of the trustees for the debenture holders, whether
as trustees for the debenture holders, as members or creditors of the
co-operative or otherwise; and
(b) the effect on the interests of the compromise or arrangement to the
extent that the effect is different from the effect on the like interests of
other persons.
(3) If a notice given by advertisement includes a notification that copies
of the explanatory statement can be obtained in a particular way, the
co-operative must give a copy of the statement free of charge to each creditor
or member entitled to attend the meeting or vote in the ballot who applies for
it in the appropriate way.
(4) Each person who is a director or trustee for debenture holders must
give notice to the co-operative of the matters relating to the person required
to be included in the explanatory statement.
429—Contravention of this Division—offence by
co-operative
(1) If a provision of
this Division is contravened, the co-operative concerned and any other person
involved in the contravention commits an offence.
Maximum penalty: $2 000.
Note—
Section 9 defines
involved in a contravention.
(2) It is a defence to a prosecution for an offence under
subsection (1) if it
is proved the contravention was because of the failure of a person (other than
the defendant), who is a director of the co-operative or a trustee for debenture
holders of the co-operative, to supply for the explanatory statement particulars
of the person's interests.
Division 3—Acquisition of shares of dissenting
shareholders
430—Definitions
In this Division—
dissenting shareholder, in relation to a scheme or contract,
means a shareholder who has not assented to the scheme or contract or who has
failed to transfer the shareholder's shares under the scheme or
contract;
excluded shares, in relation to a scheme or contract
involving a transfer to a person of shares in a class of shares in a
co-operative, means shares in the class that, when the offer relating to the
scheme or contract is made, are held by—
(a) in any case—the person or a nominee of the person; or
(b) if the person is a corporation—a subsidiary of the
corporation.
431—Schemes and contracts to which this Division
applies
(1) This Division applies to a scheme or contract involving a transfer of
shares in a co-operative (the transferor) to a person (the transferee) that has,
within 4 months after the making of the offer relating to the scheme or
contract by the transferee, been approved by the holders of at least 90% in
nominal value of all the shares concerned (other than excluded
shares).
(2) This Division does not apply to a scheme or contract arising out of
the making of an offer to which
Division 2 of
Chapter 3 Part 5
applies.
432—Acquisition of shares pursuant to notice to
dissenting shareholder
(1) The transferee under the scheme or contract may, within 2 months
after the offer is approved, give notice as prescribed by the National
Regulations (a compulsory acquisition notice) to a dissenting
shareholder that the transferee wishes to acquire the shares held by the
shareholder.
(2) If a compulsory
acquisition notice is given, the dissenting shareholder may, by written notice
given to the transferee within one month after the day the compulsory
acquisition notice was given, ask for a statement in writing of the names and
addresses of all other dissenting shareholders as shown in the register of
members and the transferee must give the statement.
(3) Having given the compulsory acquisition notice, the transferee is,
unless the Supreme Court orders to the contrary, entitled and bound to acquire
those shares on the terms on which, under the scheme or contract, the shares of
the approving shareholders are to be transferred to the transferee.
(4) The Supreme Court
may give an order to the contrary only on the application of the dissenting
shareholder made within the later of 28 days after the compulsory
acquisition notice was given or 14 days after any statement asked for under
subsection (2) was
given.
(5) If alternative terms are offered to the approving
shareholders—
(a) the dissenting shareholder is entitled to elect which of the terms are
preferred but must make the election within the time allowed for making an
application to the Supreme Court under
subsection (4);
and
(b) if the dissenting shareholder fails to make the election within the
time—the transferee may, unless the Supreme Court otherwise orders, decide
which of the terms is to apply to the acquisition of the shares of the
dissenting shareholder.
433—Restrictions when excluded shares are more than
10%
If the nominal value of excluded shares is more than 10% of the total
nominal value of all the shares (including excluded shares) to be transferred
under the scheme or contract,
section 432 does not apply
unless—
(a) the transferee offers the same terms to all holders of the shares
(other than excluded shares) to be transferred under the scheme or contract;
and
(b) the holders who approve the scheme or contract together hold at least
90% in nominal value of the shares (other than excluded shares) to be
transferred under the scheme or contract and are also at least 75% in number of
the holders of the shares (with joint owners of shares being counted as one
person).
434—Remaining shareholders may require
acquisition
(1) If, under a scheme or contract to which this Division applies, the
transferee becomes beneficially entitled to shares in the transferor that,
together with other shares in the transferor to which the transferee or a
corporation related to the transferee is beneficially entitled, comprise or
include 90% in nominal value of the shares concerned—
(a) the transferee
must, within 28 days after becoming beneficially entitled to the shares, give
notice of the fact as prescribed by the National Regulations to the holders of
the remaining shares concerned who, when the notice was given, had
not—
(i) assented to the scheme or contract; or
(ii) been given a compulsory acquisition notice by the transferee under
this Division; and
(b) a holder referred to in
paragraph (a) may,
within 3 months after being given the notice, by notice to the transferee
require the transferee to acquire the holder's shares and, if alternative terms
were offered to the approving shareholders, elect which of the terms the holder
will accept.
(2) If a shareholder gives notice under this section in relation to the
shareholder's shares, the transferee is entitled and bound to acquire
them—
(a) on the terms on which under the scheme or contract the shares of the
approving shareholders were transferred to the transferee and, if alternative
terms were offered to the shareholders, on the terms for which the shareholder
has elected, or, if no election is made, for whichever of the terms the
transferee decides; or
(b) on other terms that may be agreed or as the Supreme Court, on the
application of the transferee or of the shareholder, considers appropriate to
order.
435—Transfer of shares pursuant to compulsory
acquisition
(1) A transferee who has given a compulsory acquisition notice
must—
(a) send a copy of the notice to the transferor together with an
instrument of transfer for the shares the transferee is entitled to acquire
under this Division and executed, on the shareholder's behalf, by a person
appointed by the transferee and, on the transferee's own behalf, by the
transferee; and
(b) pay, allot or transfer to the transferor the consideration for the
shares.
(2) The transferee must do so within 14 days after whichever of the
following happens last:
(a) the period of 28 days after the day on which the compulsory
acquisition notice was given ends;
(b) the period of 14 days after a statement of the names and addresses of
dissenting shareholders is supplied under this Division ends;
(c) if an application has been made to the Supreme Court by a dissenting
shareholder—the application is disposed of.
(3) When the transferee has complied with this section, the transferor
must register the transferee as the holder of the shares.
(4) This section does not apply if the Supreme Court, on the application
of the dissenting shareholder, orders to the contrary.
436—Disposal of consideration for shares
compulsorily acquired
(1) Amounts received to be paid to ADI account and held in
trust
Amounts received by the transferor under this Division must be paid into a
separate authorised deposit-taking institution account and the amounts, and any
other consideration received, are to be held by the transferor in trust for the
persons entitled to the shares in relation to which they were respectively
received.
(2) Transfer of
amounts or property to Registrar after 2 years
If an amount or other property received by the transferor under this
Division has been held in trust by the transferor for a person for at least
2 years, the transferor must pay the amount or transfer the consideration,
and any accretions to it and any property that may become substituted for it or
for part of it, to the Registrar.
(3) Application of
Corporations Act
Anything paid or transferred to the Registrar under
subsection (2) is
declared to be an applied Corporations legislation matter for the purposes of
the Corporations application legislation of this jurisdiction in relation to
Part 9.7 of the Corporations Act, subject to the following
modifications:
(a) a reference in the provisions to unclaimed property is to be read as a
reference to whatever was paid or transferred to the Registrar under
subsection (2);
(b) if the
Co-operatives National Law Act of this jurisdiction or the local regulations so
provide—
(i) references in
section 1339 of the Corporations Act to crediting an amount to the Companies and
Unclaimed Moneys Special Account are to be read as references to dealing with
the amount in a manner specified in the Co-operatives National Law Act of this
jurisdiction or the local regulations for the purposes of this subparagraph;
or
(ii) section 1341 (1) and (2) of the Corporations Act are taken to be
omitted and replaced by provisions specified in the Co-operatives National Law
Act of this jurisdiction or the local regulations for the purposes of this
subparagraph,
or both;
(c) the modifications referred to in
section 13(3) of
this Law so far as they are relevant.
Note—
See
section 13,
including Note 1 to that section.
(4) Timing for transfer to Registrar
The transferor must comply with
subsection (2)
before the end of 10 years after the day on which the amount was paid, or
the consideration was allotted or transferred, to the transferor.
Division 4—Miscellaneous
437—Notification of appointment of scheme
manager
Within 14 days after being appointed to administer a compromise or
arrangement approved under this Part, a person must file with the Registrar a
written notice of the appointment.
Maximum penalty: $1 000.
438—Power of Supreme Court to require
reports
If an application is made to the Supreme Court under this Part in relation
to a proposed compromise or arrangement, the court may—
(a) before making an order on the application, require the Registrar or
another person to give to the court a report as to—
(i) the terms of the compromise or arrangement or of the scheme for, or in
relation to, which the compromise or arrangement has been proposed;
and
(ii) the conduct of the officers of the body or bodies concerned;
and
(iii) any other matters that, in the opinion of the Registrar or the
person, ought to be brought to the attention of the court; and
(b) in deciding the application, have regard to anything contained in the
report; and
(c) make any order as to the payment of the costs of preparing and giving
the report as the court considers appropriate.
439—Effect of out-of-jurisdiction compromise or
arrangement
(1) A compromise or arrangement that is binding on any creditors of a
participating co-operative because of a provision of the law of another
jurisdiction that corresponds to this Part is also binding on the creditors of
the participating co-operative whose debts are recoverable by action in a court
of this jurisdiction.
(2) If a court of another jurisdiction makes an order under a provision of
the law of that jurisdiction that corresponds to a provision of this Part, the
order is taken to have been made by the Supreme Court of this jurisdiction under
the corresponding provision of this Law, and has effect and may be enforced
accordingly.
440—Jurisdiction to be exercised in harmony with
Corporations Act jurisdiction
The jurisdiction of the Supreme Court under this Part is intended to
complement the Supreme Court's jurisdiction under the Corporations Act (as
applying under this Law) and should be exercised in harmony with the
jurisdiction.
441—Registrar may appear and be
heard
In proceedings before the Supreme Court under this Part, the Registrar is
entitled to appear and be heard, either in person or by the Registrar's properly
appointed representative.
Part 5—Winding up
442—Methods of winding up
A co-operative may be wound up—
(a) on a certificate of the Registrar; or
(b) voluntarily; or
(c) by the Supreme Court.
443—Winding up on Registrar's
certificate
(1) A co-operative may be wound up on a certificate of the Registrar only
if the necessary grounds for taking the action exist, as referred to in
section 455.
(2) A winding up on a certificate of the Registrar starts when the
certificate is given.
(3) On the giving of a certificate, the Registrar may appoint a person to
be the liquidator of the co-operative.
(4) The person appointed by the Registrar must be a registered liquidator
within the meaning of the Corporations Act, but the Registrar may appoint a
person who is not a registered liquidator if the Registrar forms the view that
the likely costs of administration by a registered liquidator are excessive
taking into account the known assets of the co-operative and the expected extent
of debt of the co-operative.
(5) The liquidator
must, within 10 days after appointment, give notice of his or her appointment by
designated instrument.
(6) A vacancy occurring in the office of liquidator is to be filled by a
person appointed by the Registrar.
(7) The Registrar may fix—
(a) the security to be given by a liquidator; and
(b) the fees payable to a liquidator.
444—Application of Corporations Act—voluntary
winding up and court-ordered winding up
(1) Application of this section
This section applies to the winding up of a co-operative—
(a) voluntarily; or
(b) by the Supreme Court.
(2) Winding up of co-operatives
A co-operative may be wound up in the same way and in the same
circumstances as a company under the Corporations Act may be wound up.
(3) Application of Corporations Act
The winding up of a co-operative is declared to be an applied Corporations
legislation matter for the purposes of the Corporations application legislation
of this jurisdiction in relation to Parts 5.4, 5.4A, 5.4B, 5.5 and 5.6 of
the Corporations Act, subject to the following modifications:
(a) a reference in section 459B or 459C of the Corporations Act to
section 234 of that Act is to be read as a reference to
section 133 of this
Law;
(b) section 462(2)(h) of the Corporations Act is taken to be
omitted;
(c) the reference in section 464 of the Corporations Act to an
investigation under Division 1 of Part 3 of the ASIC Act is to be read
as a reference or an investigation or inquiry under this Law;
(d) a reference in section 467B of the Corporations Act to section 233 is
to be read as a reference to
section 134 of this
Law;
(e) section 470(3) of the Corporations Act is to be read as if the words
", and subsection 1274(2) applies in relation to the document containing those
particulars and to the office copy as if they were documents lodged with ASIC"
were omitted;
(f) section 495 of the Corporations Act is to be read as being subject to
section 445 of this
Law;
(g) section 513B of the Corporations Act is to be read as if it were
amended by inserting after paragraph (d):
(da) if, when the resolution was passed, a winding up of the co-operative
on the certificate of the Registrar was already in progress—on the date
that the certificate was given; or
(h) section 516 of the Corporations Act is to be read as if it were
amended by inserting after "past member", "together with any charges payable by
him or her to the co-operative in accordance with the rules of the
co-operative";
(i) section 521 of the Corporations Act is to be read as being subject to
section 450 of this
Law;
(j) references in section 544 of the Corporations Act to dealing with
money under Part 9.7 of that Act are to be read as references to dealing
with the money under Part 9.7 of that Act as applying under
section 436 of this
Law;
(k) references in sections 565—567 of the Corporations Act to
23 June 1993 are, if the Co-operatives National Law Act of this
jurisdiction so provides, to be read as references to a date specified in that
Act of this jurisdiction for the purposes of this paragraph;
(l) the definition of external administration matter in
section 580 of the Corporations Act is taken to be omitted and the
following definition substituted:
external administration matter means a matter relating to a
winding up of a co-operative or participating co-operative under Part 4.5
of the Co-operatives National Law.
(m) section 15(2)(g) of this Law does not apply to the definition of
prescribed country in section 580 of the Corporations
Act;
Note—
The meaning of the term "prescribed country" accordingly is determined by
regulations under the Corporations Act.
(n) a reference in the provisions to a registered liquidator is to be read
as including a reference to a person approved by the Registrar as a liquidator
of a co-operative;
(o) a reference in the provisions to any provision of Part 2F.1 of
the Corporations Act is to be read as a reference to the appropriate provision
of
Division 4 of
Chapter 2 Part 5 of
this Law;
(p) for the purposes of the application of the provisions to a winding up
on the certificate of the Registrar, the winding up is to be considered to be a
voluntary winding up (but section 490 of the Corporations Act does not
apply);
(q) the provisions are to be read subject to
sections 121 and
450 of this Law for the
purposes of determining the liability of members and former members to
contribute on a winding up of a co-operative;
(r) the modifications referred to in
section 13(3) of
this Law so far as they are relevant.
Note—
See
section 13,
including Note 1 to that section.
(4) Where applied
provisions of Corporations Act prevail over other provisions of this
Law
Despite any other provisions of this Law—
(a) a copy of a special
resolution for the voluntary winding up of a co-operative referred to in
section 491(2)(a) of the Corporations Act as applying under this section is
to be filed with the Registrar—
(i) within the period referred to in that paragraph (and not the period of
28 days referred to in
section 243(2) of
this Law); or
(ii) within a longer period approved by the Registrar; and
(b) the form of a notice or account required to be given or lodged by a
liquidator under section 496, 497, 537 or 539 of the Corporations Act as
applying under this section is the form required under the section concerned but
with any necessary modifications (and not a form approved under this Law);
and
(c) the quorum for a meeting referred to in section 509 of the
Corporations Act as applying under this section is the quorum referred to in
that section (and not a quorum determined under
section 255 of this Law);
and
(d) the time when a voluntary winding up is taken to commence is to be
determined under section 513B of the Corporations Act as applying under
this section and is not affected by
section 242 of this
Law.
(5) Where other provisions of this Law prevail over applied provisions
of Corporations Act
The provisions of the Corporations Act applying under this section have
effect subject to any other sections of this Part.
445—Voluntary winding
up—restrictions
(1) A co-operative may be wound up voluntarily only—
(a) by a creditors' voluntary winding up; or
(b) if a special resolution is passed by a special postal ballot in favour
of voluntary winding up.
(2) When a special postal ballot is held, the members may, by means of the
same ballot, by simple majority—
(a) appoint one or more liquidators to wind up the affairs and distribute
the assets of the co-operative; and
(b) fix the remuneration to be paid to the liquidator.
(3) The Registrar may,
by designated instrument, exempt a co-operative or class of co-operatives from
compliance with a provision of this section or
section 248.
(4) An exemption may be given unconditionally or subject to
conditions.
446—Voluntary winding up—start of members'
voluntary winding up
A members' voluntary winding up of a co-operative starts when the result of
the special postal ballot is noted in the minutes by the secretary of the
co-operative.
447—Voluntary winding up—liquidator vacancy
may be filled by Registrar
If a co-operative is being wound up voluntarily, a vacancy occurring in the
office of liquidator is to be filled by a person appointed by the
Registrar.
448—Distribution of surplus—non-distributing
co-operatives
(1) On a winding up of a non-distributing co-operative, the surplus
property of the co-operative must be distributed as required by the rules of the
co-operative.
(2) The rules of a non-distributing co-operative must make provision for
the way in which the surplus property of the co-operative is to be distributed
in a winding up.
(3) In this section—
surplus property means property of the co-operative remaining
after satisfaction of the debts and liabilities of the co-operative and the
costs, charges and expenses of the winding up.
449—Review of liquidator's
remuneration
(1) A member or creditor of a co-operative or the liquidator may, at any
time before the completion of the winding up of the co-operative, apply
to—
(a) the Supreme Court, except where
paragraph (b)
applies; or
(b) the Registrar,
where the liquidator was appointed by the Registrar,
to review the amount of the remuneration of the liquidator.
(2) The Supreme Court or the Registrar, respectively, may review the
remuneration and (if thought fit) vary the amount of the remuneration.
450—Liability of member to contribute in a winding
up if shares forfeited etc
(1) If a person's membership of a co-operative is cancelled under
Chapter 2 Part 6
within 2 years before the start of the winding up of the co-operative, the
person is liable on the winding up to contribute to the property of the
co-operative the nominal value of shares forfeited under that cancellation
(being their nominal value immediately before cancellation).
(2) If, under
section 107, a
co-operative—
(a) purchases a share of a member in the co-operative; or
(b) repays to a member the whole or part of the amount paid up on a share
held by a member,
within 2 years before the start of the winding up of the co-operative, the
member or former member is liable on the winding up to contribute to the
property of the co-operative the amount paid by the co-operative to the member
or former member for the purchase or repayment, together with any amount unpaid
on the shares immediately before the purchase or repayment.
(3) If a person contributes to the property of a co-operative under a
liability under this section, the amount contributed is, for the purposes of the
winding up, to be treated as having been paid up by the person on shares of the
co-operative.
(4) The liability of a member or former member of a co-operative under
this section is in addition to any other liability of the member or former
member to contribute to the property of the co-operative on a winding up of the
co-operative.
Part 6—Insolvency
451—Application of Corporations Act—insolvent
co-operatives
(1) A co-operative is declared to be an applied Corporations legislation
matter for the purposes of the Corporations application legislation of this
jurisdiction in relation to Part 5.7B of the Corporations Act, subject to
the following modifications:
(a) a reference in the provisions to any provision of
sections 286—290 of the Corporations Act is to be read as a reference
to the appropriate provision of
Division 2 of
Chapter 3 Part 3 (
sections 265—
269) of this Law;
(b) section 588G of the Corporations Act is to be read as if item 2
of the table to section 588G(1A) of that Act were omitted;
(c) section 588G of the Corporations Act is to be read as if item 3
of the table to section 588G(1A) of that Act read as follows:
"repaying share capital |
when the obligation to repay share capital is effective |
receiving the resignation of a member under the rules of the
co-operative |
when the resignation is effective |
expelling a member |
when the expulsion occurs"; |
(d) section 588G of the Corporations Act is to be read as if a reference
(however expressed) in items 4 and 5 of the table to section 588G(1A)
of that Act to redeemable preference shares were a reference to CCUs;
(e) a reference (however expressed) in section 588V or 588W of the
Corporations Act to a corporation that is the holding company of a company is to
be read as if the reference to—
(i) a corporation were a reference to a co-operative (as provided in
section 15(2) of
this Law); and
(ii) "the holding company" were a reference to that co-operative;
and
(iii) "a company" were a reference to a company that is a subsidiary of
that co-operative (and accordingly that reference to a "company" is not to be
read as a reference to a co-operative);
(f) the reference in section 588Z(b) of the Corporations Act to
23 June 1993 is, if the Co-operatives National Law Act of this
jurisdiction so provides, to be read as a reference to a date specified in that
Act of this jurisdiction for the purposes of this paragraph;
(g) the modifications referred to in
section 13(3) of
this Law so far as they are relevant.
Note—
See
section 13,
including Note 1 to that section.
(2) Section 588G(2) of the Corporations Act as applying under this section
is a civil penalty provision under this Law (see
section 554) and is not a
civil penalty provision under that Act.
Part 7—Deregistration
452—Method of deregistration
A co-operative may be deregistered under—
(a) the Corporations Act as applying under
section 453; or
(b)
section 454.
453—Application of Corporations
Act—deregistration
The deregistration of a co-operative and a deregistered co-operative are
declared to be applied Corporations legislation matters for the purposes of the
Corporations application legislation of this jurisdiction in relation to
Part 5A.1 of the Corporations Act, subject to the following
modifications:
(a) references in sections 601AA and 601AB of the Corporations Act to
ASIC database are to be read as references to the register of co-operatives kept
under
section 599 of
this Law;
(b) section 601AB(1A) of the Corporations Act is taken to be
omitted;
(c) the reference in section 601AC(1)(a) of the Corporations Act to
section 413(1)(d) of that Act is to be read as a reference to
section 425(2)(d) of
this Law;
(d) references in sections 601AD—601AF of the Corporations Act to
the Commonwealth are to be read as references to an entity specified in the
Co-operatives National Law Act of this jurisdiction for the purposes of this
paragraph;
(e) references in section 601AE of the Corporations Act to crediting an
amount to a Special Account (within the meaning of the Financial Management
and Accountability Act 1997 of the Commonwealth) are to be read as
references to dealing with the amount in a manner specified in the Co-operatives
National Law Act of this jurisdiction or the local regulations for the purposes
of this paragraph;
(f) the modifications referred to in
section 13(3) of
this Law so far as they are relevant.
Note—
See
section 13,
including Note 1 to that section.
454—Deregistration of co-operative ceasing to
exist
(1) As soon as practicable after a co-operative ceases to exist, other
than on deregistration of the co-operative under
section 444, the Registrar
must deregister the co-operative by registering the cessation and cancelling the
registration of the co-operative.
(2) The Registrar may remove from a register kept by the Registrar the
name of a co-operative that has been deregistered or otherwise ceased to
exist.
(3) A co-operative that has transferred its engagements to another
co-operative is taken to have ceased to exist.
Part 8—Grounds for certain
actions
455—Grounds for appointment of administrator,
transfer of engagements or winding up of co-operative
(1) This section applies to the following actions:
(a) the appointment of an administrator of a co-operative by the Registrar
under
Division 3 of
Chapter 4
Part 1;
(b) a direction by the Registrar to a co-operative to transfer its
engagements under
section 401;
(c) the winding up of a co-operative on a certificate of the Registrar
under
section 443.
(2) The necessary grounds for taking action to which this section applies
exist if the Registrar certifies—
(a) the number of members is reduced to less than the minimum number of
persons allowed by or under
section 119; or
(b) the co-operative has not started business within one year of
registration or has suspended business for more than 6 months; or
(c) the registration of the co-operative has been obtained by mistake or
fraud; or
(d) the co-operative exists for an illegal purpose; or
(e) the co-operative has wilfully and after notice from the Registrar
violated the provisions of this Law or the rules of the co-operative;
or
(f) the board of the co-operative has, after notice from the Registrar,
failed to ensure the rules of the co-operative contain active membership
provisions required under
Chapter 2 Part 6;
or
(g) there are, and have been for one month immediately before the date of
the Registrar's certificate, insufficient directors of the co-operative to form
a quorum under the rules of the co-operative; or
(h) after an inquiry under this Law into the affairs of a co-operative or
the working and financial condition of a co-operative—in the interests of
members or creditors of the co-operative or the public, the action concerned
should be taken.
(3) Alternatively, the necessary grounds for winding up a co-operative on
a certificate of the Registrar exist if the Registrar certifies—
(a) the period (if any) fixed for the duration of the co-operative by its
rules has ended; or
(b) an event (to be stated in the certificate) has occurred on the
occurrence of which the National Regulations or the rules provide the
co-operative is to be wound up.
(4) The Registrar must not certify under this section as to a matter
unless the matter has been proved to the Registrar's satisfaction.
Chapter 5—Participating
co-operatives
Part 1—Introductory
456—What constitutes carrying on
business
For the purposes of this Chapter and without limiting the definition of
carry on business in
section 4 in its
application to a participating co-operative, a participating co-operative
carries on business in this jurisdiction if it—
(a) solicits for members in this jurisdiction; or
(b) seeks share capital in this jurisdiction, takes deposits in this
jurisdiction or offers other securities in the co-operative in this jurisdiction
(including the issue of CCUs and debentures).
Part 2—Participating co-operatives carrying on
business in this jurisdiction
457—Operation of participating co-operatives in
this jurisdiction
A participating co-operative must not carry on business in this
jurisdiction as a co-operative unless it is authorised under this Part to do
so.
Maximum penalty: $24 000.
458—Authorisation to carry on business in this
jurisdiction
A participating co-operative is, by this Law, authorised to carry on
business in this jurisdiction unless it ceases to be so authorised under
section 460.
459—Authorisation to carry on business in this
jurisdiction is subject to conditions and restrictions of participating
jurisdiction
The authorisation of a participating co-operative is subject to the same
conditions or restrictions that apply to the carrying on of its business under
its registration in the participating jurisdiction.
460—Ceasing to be authorised to carry on business
in this jurisdiction
A participating co-operative ceases to be authorised to carry on business
in this jurisdiction if—
(a) it is deregistered or otherwise ceases to exist as a co-operative
under the laws of the place in which it is registered, incorporated or formed;
or
(b) its authorisation to carry on business in this jurisdiction is
withdrawn under
section 461.
461—Withdrawal of authorisation to carry on
business
(1) The Registrar may
give written notice to a participating co-operative requiring it to show cause
(a show cause notice), within the period specified in the notice,
why its authorisation to carry on business in this jurisdiction should not be
withdrawn on any one or more of the following grounds:
(a) that the name under which the co-operative carries on business or
proposes to carry on business in this jurisdiction does not comply with this
Part;
(b) that the co-operative has, after notice from the Registrar, failed to
comply with—
(i) provisions of this Law or of a corresponding co-operatives law
applicable to the co-operative; or
(ii) provisions of the rules of the co-operative;
(c) that the co-operative has contravened a direction given to it under
section 468.
(2) A show cause notice may be given if the Registrar is of the opinion
that there are reasonable grounds to do so.
(3) The show cause notice must specify the period, being at least
14 days, within which it must be complied with.
(4) The participating co-operative may, within the period specified in the
show cause notice, make oral or written submissions to the Registrar and provide
evidence with respect to any of the matters to which the notice
relates.
(5) The Registrar must
consider any submissions made, or evidence adduced, within the period required
by the show cause notice and may, if the Registrar is satisfied that any of the
grounds referred to in
subsection (1) have
been established in relation to the participating co-operative, give the
co-operative a written notice withdrawing its authorisation to carry on business
in this jurisdiction.
(6) The Registrar may withdraw a show cause notice or other notice given
under this section.
(7) The Registrar may, on application or otherwise, by notice given to a
participating co-operative, revoke the cancellation of its authorisation to
carry on business in this jurisdiction. The co-operative is taken to be
authorised to carry on business in this jurisdiction on and from the date the
notice is given to the co-operative or a later date specified in the
notice.
462—Name of participating
co-operative
A participating co-operative carrying on business in this jurisdiction must
do so under a name that is not likely to be confused with the name of a body
corporate or a registered business name.
463—Application of Law and National Regulations to
participating co-operatives
(1) A participating
co-operative that is authorised to carry on business in this jurisdiction under
this Chapter must comply with such provisions of this Law and the National
Regulations as are prescribed by the National Regulations (including any
modifications prescribed by the National Regulations).
(2) The provisions referred to in
subsection (1)
are in addition to the provisions of this Chapter, and any other provisions of
this Law or the National Regulations, that are expressed to apply to
participating co-operatives.
Note—
For example,
Chapter 6
Part 4 applies to a participating co-operative.
Part 3—General
464—False copies of rules
(1) A person must not give to—
(a) a member of a participating co-operative; or
(b) a person intending or applying to become a member of a participating
co-operative,
a copy of any rules or any amendments of rules of the participating
co-operative, other than those that have been registered under the relevant
corresponding co-operatives law, representing that they are binding on the
members of the participating co-operative.
(2) A person must not circulate a copy of any rules of a participating
co-operative after they have been registered under the relevant corresponding
co-operatives law if the copy contains amendments that have not been so
registered and the person represents that they have been so registered when they
have not been.
Maximum penalty: $1 000.
465—False copy of documents
(1) A person who, in purported compliance with a provision of the relevant
corresponding co-operatives law that corresponds to
section 122—
(a) gives a person intending or applying to become a member of a
participating co-operative a document as a copy of—
(i) a special resolution of the co-operative; or
(ii) the last annual report of the co-operative; and
(b) knows or ought to know that, in a material respect, it is not a true
copy of the resolution or report; and
(c) does not indicate to that person that it is not a true copy,
is guilty of an offence.
Note—
Section 464 deals with
false copies of rules.
(2) A person who, in purported compliance with a provision of the relevant
corresponding co-operatives law that corresponds to
section 122—
(a) makes available for inspection by a person intending or applying to
become a member of a participating co-operative a document as a copy
of—
(i) a special resolution of the co-operative; or
(ii) the last annual report of the co-operative; and
(b) knows or ought to know that, in a material respect, it is not a true
copy of the resolution or report; and
(c) does not indicate to that person that it is not a true copy,
is guilty of an offence.
Maximum penalty: $1 000.
466—Restrictions on advertising and
publicity—shares (cf Corporations Act
section 734)
(a) advertise; or
(b) publish a statement that directly or indirectly refers to,
an offer, or intended offer, of shares in a participating co-operative that
is a distributing co-operative within the meaning of the relevant corresponding
co-operatives law of another jurisdiction unless—
(c) a current disclosure statement relating to the shares
is—
(i) registered with the Registrar for the other jurisdiction under a
provision of that corresponding co-operatives law that corresponds to
section 68; or
(ii) lodged with that Registrar for registration under that provision;
and
(d) any other applicable requirements specified in the National
Regulations for the purposes of this section are complied with.
Maximum penalty: $1 000.
(2)
Subsection (1)
applies in relation to shares in a distributing co-operative only
if—
(a) the shares are offered to persons who are not shareholders in the
co-operative; or
(b) the invitation is made to persons who are not shareholders in the
co-operative.
(3) A person does not contravene
subsection (1)
by publishing an advertisement or statement if they publish it in the ordinary
course of a business of—
(a) publishing a newspaper or magazine; or
(b) broadcasting by radio or television,
and the person did not know and had no reason to suspect that its
publication would amount to a contravention of a provision of that
subsection.
(4) An offence based on
subsection (1) is an
offence of strict liability.
467—Restrictions on advertising and
publicity—debentures or CCUs
(a) advertise; or
(b) publish a statement that directly or indirectly refers to,
an offer, or intended offer, of debentures or CCUs in a participating
co-operative unless—
(c) a disclosure statement relating to the debentures or CCUs is approved
under a provision of the relevant corresponding co-operatives law of another
jurisdiction that corresponds to
section 338 by the
Registrar for the other jurisdiction; and
(d) any other applicable requirements specified in the National
Regulations for the purposes of this section are complied with.
Maximum penalty: $1 000.
(2) A person does not contravene
subsection (1)
by publishing an advertisement or statement if they publish it in the ordinary
course of a business of—
(a) publishing a newspaper or magazine; or
(b) broadcasting by radio or television,
and the person did not know and had no reason to suspect that its
publication would amount to a contravention of a provision of that
subsection.
(3) An offence based on
subsection (1) is an
offence of strict liability.
468—Registrar's directions about obtaining
financial accommodation
(1) The Registrar may,
by written notice served on a participating co-operative, give a direction to
the co-operative as to the way in which it is to exercise its functions in
relation to the activities of the co-operative in obtaining financial
accommodation in this jurisdiction.
(2) A direction under
subsection (1) may
make provision for one or more of the following matters:
(a) requiring the co-operative to stop obtaining financial accommodation
or to stop obtaining financial accommodation in a particular way;
(b) requiring the co-operative to repay in accordance with the direction
all or part of financial accommodation obtained;
(c) requiring the co-operative to refinance in a stated way financial
accommodation repaid in accordance with the Registrar's direction;
(d) the way in which the co-operative is permitted to invest or use the
proceeds of financial accommodation it obtains.
(3) The co-operative may, within 28 days after the direction is given,
apply to the designated tribunal for a review of the direction, and the
designated tribunal may confirm, modify or rescind the direction or substitute
another direction.
469—Name and place of origin to appear on business
and other documents
(1) A participating
co-operative must ensure its name, the jurisdiction of its registration and any
other information prescribed by the National Regulations appear in legible
characters—
(a) on each seal of the co-operative; and
(b) in all notices, advertisements and other official publications of the
participating co-operative; and
(c) in all its business documents.
Maximum penalty: $2 000.
(2) An officer of a participating co-operative or a person on its behalf
must not—
(a) use any seal of the co-operative; or
(b) issue or authorise the issue of a notice, advertisement or other
official publication of the co-operative; or
(c) sign or authorise to be signed on behalf of the co-operative any
business document of the co-operative,
in or on which the co-operative's name or place of origin does not appear
in legible characters.
Maximum penalty: $2 000.
(3) A director of a participating co-operative must not knowingly
authorise or permit a contravention of this section.
Maximum penalty: $2 000.
(4) An offence based on
subsection (1) is an
offence of strict liability.
(5) In this section—
business document of a participating co-operative means a
document that is issued, signed or endorsed by or on behalf of the co-operative
and is—
(a) a business letter, statement of account, invoice or order for goods or
services; or
(b) a bill of exchange, promissory note, cheque or other negotiable
instrument; or
(c) a receipt or letter of credit issued by the co-operative; or
(d) a document of a class prescribed by the National Regulations as a
class of business documents.
Part 4—Winding up of participating
co-operatives in this jurisdiction
470—Winding up to relate to activities in this
jurisdiction
(1) This Part applies to the winding up of the affairs of a participating
co-operative in or in relation to this jurisdiction.
(2) A participating co-operative may be wound up under this Part even
though it has been wound up or deregistered or has otherwise ceased to exist as
a co-operative under or because of the laws of the place in which it is
registered, incorporated or formed.
(3) This Part has effect in addition to, and not in derogation of, any
other provisions of this Law or any other law with respect to the winding up of
co-operatives.
471—Supreme Court may order winding
up
(1) The Supreme Court
may order the winding up of a participating co-operative if—
(a) the co-operative's authorisation to carry on business in this
jurisdiction has been withdrawn under this Law; or
(b) the co-operative has been deregistered or has ceased to exist as a
co-operative in the place in which it was registered, incorporated or formed or
has ceased to carry on business in that place.
(2) The Registrar may apply to the Supreme Court for the winding up of a
participating co-operative on any of the grounds referred to in
subsection (1).
(3) The Registrar must give a copy of an application made under this
section to the participating co-operative the subject of the application if it
is still in existence.
472—Application of Corporations Act—winding
up of participating co-operatives in this jurisdiction
(1) The winding up or deregistration of a participating co-operative is
declared to be an applied Corporations legislation matter for the purposes of
the Corporations application legislation of this jurisdiction in relation to
Parts 5.4B and 5.6 of the Corporations Act, subject to the following
modifications:
(a) a reference in those provisions of the Corporations Act to an
application to wind up a company under section 464 or Part 5.4A is to
be read as a reference to an application by the Registrar under
Chapter 5 Part 4 of
this Law;
(b) a reference in those provisions to a winding up ordered by the court
under a provision of Part 5.4A is a reference to a winding up ordered by
the Supreme Court under
Chapter 5 Part 4 of
this Law;
(c) a reference in those provisions to an order under a provision of
Part 5.4A is a reference to an order under
section 471 of this
Law;
(d) for the purposes of an application by the Registrar to wind up a
participating co-operative, those provisions apply, with such modifications as
the circumstances require, as if a winding up application had been made by the
co-operative;
(e) those provisions apply as if a ground specified in
section 471 of this Law
were a ground for winding up by the court specified in section 461 of the
Corporations Act;
(f) a reference in those provisions to an official liquidator is to be
read as a reference to a person approved by the Registrar as a liquidator of a
co-operative;
(g) sections 467(4) and (5), 480(d), 481(5)(b), 513B, 517, 518, 523 and
524 of the Corporations Act do not apply;
(h) a reference in section 485(2) of the Corporations Act to persons
entitled to any surplus is a reference to a person entitled to the surplus under
section 473 of this
Law;
(i) section 516 of the Corporations Act is to be read as if "together with
any charges payable by the member to the co-operative in accordance with the
rules" were inserted after "past member";
(j) Subdivision C of Division 6 of Part 5.6 of the Corporations Act
does not apply;
(k) a reference in Parts 5.4B and 5.6 of the Corporations Act to
section 233 is to be read as a reference to
Division 4 of
Chapter 2 Part 5 of
this Law;
(l) those provisions of the Corporations Act are to be read subject to
sections 121 and
450 of this Law for the
purposes of determining the liability of members and past members to contribute
on a winding up of a co-operative;
(m) the modifications referred to in
section 13(3) of
this Law so far as they are relevant.
Note—
See
section 13,
including Note 1 to that section.
(2) The fact that a participating co-operative has been deregistered or
has ceased to exist as a co-operative in the place in which it was registered,
incorporated or formed does not affect the liability of a member or former
member as a contributory on a winding up under this Part.
473—Outstanding property of participating
co-operative
(1) This section applies if, after the winding up of a participating
co-operative in this jurisdiction, outstanding property of the co-operative
remains in this jurisdiction.
(2) The estate and interest in the property, at law or in equity, of the
participating co-operative or its liquidator at that time, together with all
claims, rights and remedies that the co-operative or its liquidator then had in
respect of the property, vest by force of this section in the person entitled to
the property under the law of the place in which the co-operative was
registered, formed or incorporated.
Part 5—Mergers and transfers of engagements
affecting participating co-operatives
474—Definitions
In this Part—
appropriate Registrar, in relation to a proposed merger or
transfer of engagements, means—
(a) the local Registrar—if the merger is to result in a local
co-operative or the transfer is to a local co-operative; or
(b) the participating Registrar—if the merger is to result in a
co-operative under the co-operatives law of the participating jurisdiction
concerned or the transfer is to such a co-operative;
assets has the same meaning as it has in
section 413;
instrument has the same meaning as it has in
section 413;
liabilities has the same meaning as it has in
section 413;
local co-operative means a co-operative registered in this
jurisdiction;
original co-operative means—
(a) in the case of a transfer of engagements—the transferor
co-operative; or
(b) in the case of a merger—each of the co-operatives that are
merging;
rights has the same meaning as it has in
section 413;
successor co-operative means—
(a) in the case of a transfer of engagements—the transferee
co-operative; or
(b) in the case of a merger—the co-operative formed by the
merger.
475—Authority for merger or transfer of
engagements
A local co-operative and a participating co-operative may consolidate all
or any of their assets, liabilities and undertakings by way of merger or
transfer of engagements approved under this Part.
476—Requirements before application can be
made
(1) Before a local co-operative and a participating co-operative can apply
for approval under this Part of a merger or transfer of engagements, the
proposed merger or transfer must have been approved by each of the
co-operatives—
(a) by a special resolution passed by special postal ballot; or
(b) if permitted by
subsection (2), by a
special resolution, or by a resolution of the board, of the
co-operative.
(2) The proposed merger
or transfer of engagements may be approved by special resolution, or by
resolution of the board, of the co-operative if—
(a) the local Registrar consents to that procedure applying in the
particular case; and
(b) the participating Registrar also consents to that procedure applying
in the particular case.
(3) A consent referred to in
subsection (2) may
be granted subject to conditions, including any condition that a disclosure
statement be provided to members or directors.
(4) A co-operative that contravenes a condition of a consent is taken not
to have been given consent.
477—Disclosure statement
required
(1) A special resolution of the local co-operative or participating
co-operative is not effective for the purposes of this Part unless this section
has been complied with.
(2) Each co-operative must send to each of its members a disclosure
statement approved by the appropriate Registrar specifying the
following:
(a) the financial position of the local co-operative and the participating
co-operative as shown in financial statements that have been prepared as at a
date that is not more than 6 months before the date of the
statement;
(b) any interest that any officer of the local co-operative or the
participating co-operative has in the proposed merger or transfer of
engagements;
(c) any compensation or other consideration proposed to be paid, or any
other incentive proposed to be given, to any officer or member of the local
co-operative or participating co-operative in relation to the proposed merger or
transfer of engagements;
(d) whether the proposal is a merger or transfer of engagements and the
reason for the merger or transfer of engagements;
(e) in the case of a transfer of engagements—whether it is a total
or partial transfer of engagements;
(f) in the case of a merger—whether the merged co-operative will
result in a local co-operative or a co-operative under the co-operatives law of
the participating jurisdiction concerned;
(g) any other information that the appropriate Registrar
directs.
(3) The disclosure statement must be sent to the members of the local
co-operative or participating co-operative so that it will in the ordinary
course of post reach each member who is entitled to vote on the special
resolution not later than—
(a) if the resolution is to be decided at a meeting—21 days before
the date of the meeting; or
(b) if the resolution is to be decided by a postal ballot—21 days
before the day on or before which the ballot papers must be returned by members
voting in the ballot.
(4) The appropriate Registrar may exempt the local co-operative or
participating co-operative from complying with this section.
(5) The appropriate Registrar may give an approval or an exemption under
this section unconditionally or subject to conditions.
478—Making an application
(1) An application for approval of a merger or transfer of engagements
under this Part must be made to the local Registrar and, if the merger or
transfer of engagements affects a participating co-operative, to the
participating Registrar in the manner and form required by the Registrar
concerned.
(2) An application for approval of a merger must be accompanied
by—
(a) 2 copies of the proposed rules of the merged co-operative;
and
(b) any other information required by the Registrar to whom the
application is made.
479—Approval of merger
(1) If the local
Registrar is the appropriate Registrar, he or she must approve a merger pursuant
to an application under this Part if satisfied that—
(a) this Part has been complied with in relation to the application;
and
(b) the proposed rules of the merged co-operative are adequate;
and
(c) the certificate of registration of the local co-operative has been
surrendered to the local Registrar; and
(d) the certificate of registration of the participating co-operative has
been surrendered to the Registrar for the participating jurisdiction concerned;
and
(e) there is no good reason why the merged co-operative and its rules
should not be registered.
(2) If the local Registrar is not the appropriate Registrar, he or she
must approve a merger pursuant to an application under this Part if satisfied
that the merger has been approved under the provision of the co-operatives law
of the participating jurisdiction that corresponds with
subsection (1).
(3) On approving an application for merger, the local Registrar
must—
(a) cancel the registration of the local co-operative involved in the
merger; and
(b) if the merger is to result in a local co-operative, register the
merged co-operative and its rules and issue to it a certificate of registration
under this Law.
(4) A merger takes effect on the issue of the certificate of registration
for the merged co-operative (whether under this Law or under the co-operatives
law of the participating jurisdiction concerned).
480—Approval of transfer of
engagements
(1) If the local
Registrar is the appropriate Registrar, he or she must approve a transfer of
engagements pursuant to an application under this Part if satisfied
that—
(a) this Part has been complied with in relation to the application;
and
(b) the rules or proposed rules of the transferee co-operative are
adequate; and
(c) in the case of a total transfer of engagements from a participating
co-operative—the certificate of registration of the participating
co-operative has been surrendered to the participating Registrar; and
(d) there is no good reason why the transfer of engagements should not
take effect.
(2) If the local Registrar is not the appropriate Registrar, he or she
must approve a transfer of engagements pursuant to an application under this
Part if satisfied that the transfer has been approved under the provision of the
co-operatives law of the participating jurisdiction that corresponds with
subsection (1).
(3) A transfer of engagements takes effect on the day specified in the
approval of the local Registrar.
481—Effect of merger or transfer of
engagements
(1) When a merger or transfer of engagements takes effect under this Part
(the transfer day), the following provisions apply to the extent
necessary to give effect to the merger or transfer:
(a) persons who were members of the original co-operative immediately
before the transfer day are members of the successor co-operative in accordance
with its rules;
(b) the assets of the original co-operative vest in the successor
co-operative without the need for any conveyance, transfer, assignment or
assurance;
(c) the rights and liabilities of the original co-operative become the
rights and liabilities of the successor co-operative;
(d) all proceedings by or against the original co-operative that are
pending immediately before the transfer day are taken to be proceedings pending
by or against the successor co-operative;
(e) any act, matter or thing done or omitted to be done by, to or in
respect of the original co-operative before the transfer day is (to the extent
to which that act, matter or thing has any force or effect) to be taken to have
been done or omitted by, to or in respect of the successor
co-operative;
(f) a reference in an instrument or in any document of any kind to the
original co-operative is to be read as, or as including, a reference to the
successor co-operative.
(2) The operation of this section is not to be regarded—
(a) as a breach of contract or confidence or otherwise as a civil wrong;
or
(b) as a breach of any contractual provision prohibiting, restricting or
regulating the assignment or transfer of assets, rights or liabilities;
or
(c) as giving rise to any remedy by a party to an instrument, or as
causing or permitting the termination of any instrument, because of a change in
the beneficial or legal ownership of any asset, right or liability.
482—Part applies instead of certain other
provisions of this Law
(1) This Part applies instead of
Division 1 of
Chapter 4 Part 3, in
respect of the merger of a local co-operative with a participating
co-operative.
(2) This Part applies instead of
Division 1 of
Chapter 4 Part 3, in
respect of a transfer of engagements between a local co-operative and a
participating co-operative.
Chapter 6—Supervision
and protection of co-operatives
Part 1—Introductory
483—Application of Chapter
Parts 6.4—6.6 apply to this jurisdiction except to the extent (if
any) that the Co-operatives National Law Act of this jurisdiction provides
otherwise, and with the modifications (if any) made by that Act.
Part 2—Prevention of fraud and other
activities
484—Falsification of books
(1) Offence
regarding securities or books (cf Corporations Act
section 1307(1))
An officer, former officer, employee, former employee, member or former
member of a co-operative who engages in conduct that results in the concealment,
destruction, mutilation or falsification of—
(a) any securities of or belonging to the co-operative; or
(b) any books affecting or relating to affairs of the co-operative;
or
(c) any record required to be sent, kept or delivered under this
Law,
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years, or both.
(2) Offence—computerised
and other books (cf Corporations Act section 1307(2))
Where matter that is used or intended to be used in connection with the
keeping of any books affecting or relating to affairs of a co-operative is
recorded or stored in an illegible form by means of a mechanical device, an
electronic device or any other device, a person who—
(a) records or stores by means of that device matter that the person knows
to be false or misleading in a material particular; or
(b) engages in conduct that results in the destruction, removal or
falsification of matter that is recorded or stored by means of that device, or
has been prepared for the purpose of being recorded or stored, or for use in
compiling or recovering other matter to be recorded or stored by means of that
device; or
(c) having a duty to record or store matter by means of that device, fails
to record or store the matter by means of that device—
(i) with intent to falsify any entry made or intended to be compiled,
wholly or in part, from matter so recorded or stored; or
(ii) knowing that the failure so to record or store the matter will render
false or misleading in a material particular other matter so recorded or
stored,
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years, or both.
(3) Defence (cf Corporations Act section 1307(3))
It is a defence to a charge arising under
subsection (1) or
(2) if the defendant
proves that he, she or it acted honestly and that in all the circumstances the
act or omission constituting the offence should be excused.
485—Fraud or misappropriation
(a) by false representation or imposition obtain possession of any
property of a co-operative; or
(b) having property of a co-operative in his or her possession, withhold
or misapply it or wilfully apply part of it to purposes other than purposes
authorised by the rules of the co-operative or this Law.
Maximum penalty: $6 000.
(2) A person who is
found guilty of an offence under
subsection (1) must,
if ordered to do so by the court, deliver up all the property and repay all
money improperly applied.
Maximum penalty (for
subsection (2)): $6
000 or imprisonment for 6 months, or both.
486—Offering or paying
commission
A person must not offer or pay commission, fee or reward, whether pecuniary
or otherwise, to an officer of a co-operative in relation to a transaction or
proposed transaction between the person and the co-operative.
Maximum penalty: $6 000 or imprisonment for 6 months, or
both.
487—Accepting commission
(1) An officer of a
co-operative must not accept a commission, fee or reward, whether pecuniary or
otherwise, from a person in relation to a transaction or proposed transaction
between the person and the co-operative.
Maximum penalty: $6 000 or imprisonment for 6 months, or
both.
(2) An officer of a co-operative who is found guilty of an offence under
subsection (1) is
also liable to make good to the co-operative double the value or amount of the
commission, fee or reward.
488—False statements in loan application
etc
(1) A person must not
in, or in relation to, an application, request, or demand for money made to or
of a co-operative—
(a) give information or make a statement to the co-operative or an
officer, employee or agent of the co-operative knowing it to be false or
misleading in a material particular; or
(b) proffer to the co-operative or an officer, employee or agent of the
co-operative any information or statement provided by another person knowing it
to be false or misleading in a material particular.
Maximum penalty: $6 000 or imprisonment for 6 months, or
both.
(2) If a person is found guilty of an offence under
subsection (1), a
co-operative from which money has been obtained by the person in relation to the
commission of the offence may exercise all rights under a mortgage or other
security given to it by the person to secure the repayment of money that it
could exercise if there were a breach of a covenant or of a term of a contract
by which the security was given.
(3) The co-operative may exercise the rights whether the mortgage or other
security was executed by the person alone or by the person and another person or
other persons.
Part 3—Examining a person about a
co-operative
489—Application of Corporations
Act—court-directed examinations
A co-operative is declared to be an applied Corporations legislation matter
for the purposes of the Corporations application legislation of this
jurisdiction in relation to Division 1 of Part 5.9 of the Corporations Act,
subject to the modifications referred to in
section 13(3) of
this Law so far as they are relevant.
Note—
See
section 13,
including Note 1 to that section.
Part 4—Supervision and
inspection
490—Definitions
In this Part—
co-operative venture means—
(a) a corporation or unit trust formed by a co-operative or in the
formation of which a co-operative participated; or
(b) a partnership, joint venture or association of persons or bodies
formed or entered into by a co-operative;
place includes all or part of a structure, building,
aircraft, vehicle, vessel and place (whether built on or not);
relevant documents means books or other documents relating to
the promotion, formation, membership, control, transactions, dealings, business
or property of a co-operative.
491—Co-operative includes subsidiaries,
participating co-operatives and co-operative ventures
A reference in this Part to a co-operative includes a reference to each of
the following:
(a) a participating co-operative;
(b) a subsidiary of a co-operative or participating
co-operative;
(c) a co-operative venture;
(d) a co-operative or participating co-operative, or a subsidiary of
either, or a co-operative venture, that is in the course of being wound up or
has been deregistered.
492—Appointment of inspectors
The designated authority may appoint a person as an inspector under this
Law if—
(a) the designated authority considers the person has the necessary
expertise or experience to be an inspector; or
(b) the person has satisfactorily finished training approved by the
designated authority.
493—Registrar and investigators have functions of
inspectors
The Registrar, and an investigator exercising functions under
Chapter 6 Part 5,
have and may exercise all the functions of an inspector and for the purpose are
taken to be inspectors.
494—Inspector's identity card
(1) The designated authority must give each inspector an identity
card.
(2) The identity card must—
(a) contain a recent photo of the person; and
(b) be signed by the person; and
(c) identify the person as an inspector.
(3) A person who stops being an inspector must return the person's
identity card to the designated authority as soon as possible (but within
21 days) after the person stops being an inspector, unless the person has a
reasonable excuse.
Maximum penalty: $2 000.
(4) This section does not prevent the giving of a single identity card to
a person for this Law and other legislation or for other purposes.
495—Production or display of inspector's identity
card
(1) An inspector may
exercise a power in relation to someone only if—
(a) the inspector first produces the inspector's identity card for the
other person's inspection; or
(b) the inspector has the inspector's identity card displayed so it is
clearly visible to the other person.
(2) However, if for any reason it is not practicable to comply with
subsection (1)
before exercising the power, the inspector must produce the identity card for
inspection by the person at the first reasonable opportunity.
496—Powers of inspector
(1) An inspector is subject to the directions of the Registrar.
(2) The powers of an inspector may be limited—
(a) under a local regulation; or
(b) under a condition of appointment; or
(c) by written notice given by the Registrar to the inspector.
497—Inspector's appointment
conditions
(1) An inspector holds office on the conditions stated in the instrument
of appointment.
(2) An inspector—
(a) if the appointment provides for a term of appointment—stops
holding office at the end of the term; and
(b) if the conditions of appointment provide—stops holding office
when the inspector stops holding another office stated in the appointment
conditions (the main office); and
(c) may resign by signed notice of resignation given to the
Registrar.
(3) However, an inspector may not resign from the office under this Law
(the secondary office) if a term of employment to the main office
requires the person to hold the secondary office.
498—Entry of place
(1) An inspector may enter a place if—
(a) its occupier consents to the entry; or
(b) the entry is authorised by a warrant; or
(c) it is a place at which the affairs or activities of a co-operative are
managed or conducted.
(2) An inspector, without the occupier's consent or a warrant, may enter
the land around the premises to ask its occupier for consent to enter the
premises.
499—Consent to entry
(1) This section applies if an inspector intends to ask an occupier of a
place to consent to the inspector or another inspector entering the
place.
(2) Before asking for the consent, the inspector must inform the
occupier—
(a) of the purpose of the entry; and
(b) that the occupier is not required to consent.
(3) If the consent is given, the inspector may ask the occupier to sign an
acknowledgment of the consent.
(4) The acknowledgment must state—
(a) that the occupier was informed—
(i) of the purpose of the entry; and
(ii) that the occupier is not required to consent; and
(b) that the occupier gives an inspector consent to enter the place and
exercise powers under this Law or under or referred to in the Co-operatives
National Law Act of this jurisdiction; and
(c) the time and date the consent was given.
(5) If the occupier signs an acknowledgment of consent, the inspector must
immediately give a copy to the occupier.
(6) If—
(a) a question arises, in proceedings in or before the court, as to
whether the occupier of a place consented to an inspector entering the place
under this Law; and
(b) an acknowledgment under this section is not produced in evidence for
the entry; and
(c) it is not proved the occupier consented to the entry,
the court may presume the occupier did not consent.
500—Inspectors may require certain persons to
appear, answer questions and produce documents
(1) An inspector may, by notice in the approved form—
(a) require a co-operative to produce to the inspector at a time and place
stated in the notice stated relevant documents relating to the co-operative;
and
(b) require a person who is involved in the activities of a co-operative
to produce to the inspector at a time and place stated in the notice stated
relevant documents relating to the co-operative; and
(c) require a person who is involved in the activities of a
co-operative—
(i) to attend before the inspector at a time and place stated in the
notice; and
(ii) to answer questions put to the person by the inspector relating to
the promotion, formation, membership, control, transactions, dealings, business
or property of the co-operative.
(2) A person is considered to be involved in the activities of a
co-operative if the person—
(a) is or has been an officer or employee of, or an agent, authorised
deposit-taking institution, Australian legal practitioner, auditor or other
person acting in any capacity for, the co-operative; or
(b) has a relevant document relating to the co-operative in the person's
possession or control; or
(c) was a party to the creation of a relevant document relating to the
co-operative.
501—Powers of inspectors at place
entered
An inspector has the following powers at a place the inspector is
authorised to enter:
(a) power to search for evidence of a contravention of this Law;
(b) power to search for relevant documents and to require a person at the
place to produce to the inspector any relevant document in the person's custody
or under the person's control;
(c) power to require a person at the place who is apparently involved in
the management or conduct of the affairs or activities of a co-operative to
answer questions or provide information;
(d) power to exercise the functions of an inspector under
section 502 in relation to
a relevant document found at the place or produced to the inspector.
502—Functions of inspectors in relation to relevant
documents
(1) An inspector has the following powers in relation to a relevant
document found by an inspector at a place entered by the inspector or produced
to the inspector under a requirement made under this Part—
(a) power to take possession of the document or secure it against
interference;
(b) power to make copies of, or take extracts from, the
document;
(c) power to require a person who was party to the creation of the
document to make a statement giving any explanation the person is able to give
as to any matter relating to the creation of the document or as to any matter to
which the document relates;
(d) power to retain possession of the document for the period necessary to
enable the document to be inspected, and copies of, or extracts from, the
document to be made or taken.
(2) While an inspector retains possession of a document, the inspector
must permit a person who would be entitled to inspect the document were it not
in the possession of the inspector to inspect the document at a reasonable time
and make a copy of, or take extracts from, the document.
(3) If an inspector takes possession of or secures against interference a
relevant document and a person has a lien on the document, the inspector's
actions do not prejudice the lien.
503—Protection from
incrimination
(1) A person is not excused from making a statement under a requirement
under this Part on the ground the statement might tend to incriminate him or
her.
(2) However, if the
person claims before making a statement that the statement might tend to
incriminate him or her, the statement is not admissible in evidence against him
or her in criminal proceedings, other than proceedings under this
Part.
(3) Except as provided by
subsection (2), a
statement made by a person in compliance with a requirement under this Part may
be used in evidence in any criminal or civil proceedings against the
person.
504—Warrants
(1) An inspector may apply to the designated authority for a warrant to
enter a place.
(2) The application must be sworn and state the grounds on which the
warrant is sought.
(3) The designated authority may refuse to consider the application until
the inspector gives the designated authority all the information the designated
authority requires about the application in the way the designated authority
requires.
Note—
The designated authority may, for example, require additional information
supporting the application to be given by statutory declaration.
(4) The designated authority may issue the warrant only if satisfied there
are reasonable grounds for suspecting—
(a) the affairs or activities of a co-operative are being managed or
conducted at the place; or
(b) there are relevant documents at the place; or
(c) there is a particular thing or activity (the evidence)
that may provide evidence of an offence against this Law; or
(d) the evidence is at the place, or may be at the place, within the next
7 days.
(5) The warrant must state—
(a) that the inspector may, with reasonable and necessary help and force,
enter the place and exercise the inspector's powers under this Law;
and
(b) the suspected offence (if any) for which the warrant was issued;
and
(c) any evidence that may be seized under the warrant; and
(d) the hours when the place may be entered; and
(e) the date, within 7 days after the warrant's issue, when the warrant
ends.
(6) A police officer may accompany an inspector executing a warrant issued
under this section and may take all reasonable steps to assist in the exercise
of the functions of the inspector under this Law.
505—Warrants—applications made otherwise than
in person
(1) An inspector may apply for a warrant by phone, fax, radio or another
form of communication if the inspector considers it necessary because
of—
(a) urgent circumstances; or
(b) other special circumstances, including, for example, the inspector's
remote location.
(2) Before applying for the warrant, the inspector must prepare an
application stating the grounds on which the warrant is sought.
(3) The inspector may apply for the warrant before the application is
sworn.
(4) After issuing the warrant, the designated authority must immediately
provide by fax or another form of communication a copy to the inspector if it is
reasonably practicable to do so.
(5) If it is not reasonably practicable to provide a copy to the
inspector—
(a) the designated authority must—
(i) tell the inspector what the terms of the warrant are; and
(ii) tell the inspector the date and time the warrant was issued;
and
(b) the inspector must complete a form of warrant (the warrant
form) and write on it—
(i) the designated authority's name; and
(ii) the date and time the designated authority issued the warrant;
and
(iii) the warrant's terms.
(6) The copy of the warrant, or the warrant form properly completed by the
inspector, authorises the entry and the exercise of the other powers stated by
the warrant issued by the designated authority.
(7) The inspector must, at the first reasonable opportunity, send the
designated authority—
(a) the sworn application; and
(b) if the inspector completed a warrant form—the completed warrant
form.
(8) On receiving the documents, the designated authority must attach them
to the warrant.
(9)
Subsection (10)
applies to a court if—
(a) a question arises, in proceedings in or before the court, whether a
power exercised by an inspector was authorised by a warrant issued under this
section; and
(b) the warrant is not produced in evidence.
(10) The court may
presume the exercise of the power was not authorised by a warrant issued under
this section, unless the contrary is proved.
506—Requirements before executing
warrant
(1) Before executing a
warrant, the inspector named in the warrant or a person assisting the inspector
must announce that he or she is authorised by the warrant to enter the premises
and give any person at the premises an opportunity to allow entry to the
premises.
(2) The inspector or a person assisting the inspector need not comply with
subsection (1) if he
or she believes on reasonable grounds that immediate entry to the premises is
required to ensure the effective execution of the warrant is not
frustrated.
(3) If an occupier or another person who apparently represents the
occupier is present at a place when a warrant is being executed, the inspector
must—
(a) identify himself or herself to the person by producing his or her
identity card for inspection by the person; and
(b) give to the person a copy of the execution copy of the
warrant.
507—General powers after entering
places
(1) This section applies to an inspector who enters a place under this
Part.
(2) For the purpose of
monitoring or enforcing compliance with this Law, the inspector
may—
(a) search any part of
the place; or
(b) examine, inspect, photograph or film anything at the place;
or
(c) copy a document at the place; or
(d) take into or onto
the place any persons, equipment and materials the inspector reasonably requires
for exercising a power under this Part; or
(e) require a person in
the place to give the inspector reasonable help to exercise the powers referred
to in
paragraphs (a)—
(d).
(3) A person required to give reasonable help under
subsection (2)(e)
must comply with the requirement, unless the person has a reasonable
excuse.
Maximum penalty: $2 000.
(4) If the help is required to be given to an inspector
by—
(a) answering a question; or
(b) producing a document, other than a document required to be kept under
this Law,
it is a reasonable excuse for the person to fail to answer the question, or
produce the document, if complying with the requirement might tend to
incriminate the person.
508—Power to seize evidence
(1) An inspector who
enters a place under this Part other than under a warrant may seize a thing in
the place if—
(a) the inspector reasonably believes the thing is evidence of an offence
against this Law or the Co-operatives National Law Act of this jurisdiction;
and
(b) seizure of the thing is consistent with the purpose of entry as told
to the occupier.
(2) An inspector who
enters a place under this Part under a warrant may seize the evidence for which
the warrant was issued.
(3) An inspector may also seize anything else in a place referred to in
subsection (1) or
(2) if the inspector
reasonably believes—
(a) the thing is evidence of an offence against this Law or the
Co-operatives National Law Act of this jurisdiction; and
(b) the seizure is necessary to prevent the thing being hidden, lost or
destroyed or used to continue or repeat the offence.
509—Receipt for seized things
(1) As soon as possible
after an inspector seizes a thing, the inspector must give a receipt for it to
the person from whom it was seized.
(2) However, if for any reason it is not practicable to comply with
subsection (1), the
inspector must leave the receipt at the place of seizure, in a reasonably secure
way and in a conspicuous position.
(3) The receipt must describe generally each thing seized and its
condition.
510—Return of seized things
(1) An inspector must
return a seized thing to its owner at the end of—
(a) 6 months; or
(b) if proceedings for an offence involving it is started within the
6 months—the proceedings and any appeal from the
proceedings.
(2) Despite
subsection (1), the
inspector must return the seized thing to the person immediately the inspector
stops being satisfied its retention as evidence is necessary.
511—Power to require name and
address
(1) This section applies if—
(a) an inspector finds a person committing an offence against this Law or
the Co-operatives National Law Act of this jurisdiction; or
(b) an inspector finds a person in circumstances that lead, or has
information that leads, the inspector to reasonably suspect the person has just
committed an offence against this Law or the Co-operatives National Law Act of
this jurisdiction.
(2) The inspector may
require the person to state the person's name and address.
(3) When making the requirement, the inspector must warn the person it is
an offence to fail to state the person's name or address, unless the person has
a reasonable excuse.
(4) The inspector may
require the person to give evidence of the correctness of the stated name or
address if the inspector reasonably suspects the stated name or address is
false.
(5) A person must
comply with a requirement under
subsection (2) or
(4), unless the person
has a reasonable excuse.
Maximum penalty: $2 000.
(6) A person does not commit an offence against
subsection (5)
if—
(a) the person was
required to state the person's name and address by an inspector who suspected
the person had committed an offence against this Law or the Co-operatives
National Law Act of this jurisdiction; and
(b) the person is not proved to have committed the offence referred to in
paragraph (a).
512—False or misleading
statements
(1) A person must not
state anything to an inspector the person knows is false or misleading in a
material particular.
Maximum penalty: $12 000 or imprisonment for 1 year, or both.
(2) It is sufficient for a complaint for an offence against
subsection (1) to
state the statement made was false or misleading to the person's knowledge
without stating which.
513—Power to require production of
documents
(1) An inspector may require a person to produce to the inspector, for
inspection, a document this Law requires the person to hold or keep.
(2) The person must produce the document, unless the person has a
reasonable excuse for not producing it.
Maximum penalty: $12 000 or imprisonment for 1 year, or both.
(3) The inspector may keep a document that is produced—
(a) to take an extract from the document; or
(b) to make a copy of it.
(4) The inspector must return the document to the person as soon as
practicable after taking the extract or making the copy.
514—False or misleading
documents
(1) A person must not
give to the Registrar or an inspector a document containing information the
person knows is false or misleading in a material particular.
Maximum penalty: $12 000 or imprisonment for 1 year, or both.
(2)
Subsection (1) does not
apply to a person who, when giving the document—
(a) tells the Registrar or inspector, to the best of the person's ability,
how it is false, misleading or incomplete; and
(b) if the person has, or can reasonably get, the correct
information—gives the correct information to the Registrar or
inspector.
(3) It is sufficient for a complaint against a person for an offence
against
subsection (1) to state
the document was false, misleading or incomplete to the person's knowledge
without stating which.
515—Obstruction of inspectors
(1) A person must not obstruct an inspector, or a person helping an
inspector, in the exercise of a power under this Law, unless the person has a
reasonable excuse.
Maximum penalty: $12 000 or imprisonment for 1 year, or both.
(2) If a person obstructs an inspector in the exercise of a power under
this Law and the inspector decides to exercise the power, the inspector must
warn the person.
(3) In warning the person, the inspector must tell the
person—
(a) it is an offence to obstruct the inspector, unless the person has a
reasonable excuse; and
(b) the inspector considers the person's conduct is an
obstruction.
(4) In this section—
obstruct includes hinder and attempt to obstruct.
516—Copies or extracts of records to be admitted in
evidence
(1) In any legal
proceedings (whether under this Law or otherwise), a copy of or extract from a
record relating to affairs of a co-operative is admissible in evidence as if it
were the original record or the relevant part of the original record.
(2) However, a copy of
or extract from a record is not admissible in evidence under
subsection (1)
unless it is proved the copy or extract is a true copy of the record or of the
relevant part of the record.
(3) For the purposes of
subsection (2),
evidence that a copy of or extract from a record is a true copy of the record or
of part of the record may be given either orally or by an affidavit or statutory
declaration by a person who has compared the copy or extract with the record or
the part of the record.
517—Privilege
(1) An Australian legal practitioner is entitled to refuse to comply with
a requirement under
section 500 or
502 relating to a relevant
document if—
(a) the document contains a privileged communication made by or on behalf
of or to the practitioner in his or her capacity as an Australian legal
practitioner; or
(b) the practitioner is not able to comply with the requirement without
disclosing a privileged communication made by or on behalf of or to the
practitioner in his or her capacity as an Australian legal
practitioner.
(2) The practitioner is not entitled to refuse to comply with the
requirement to the extent he or she is able to comply with it without disclosing
the privileged communication.
(3) The practitioner is also not entitled to refuse to comply with the
requirement if the person by or on behalf of whom the communication was made or
(if the person is under administration under Part 5.3A of the Corporations
Act, as applying under this Law, or in the course of being wound up) the
administrator or the liquidator agrees to the practitioner complying with the
requirement.
(4) If the practitioner refuses to comply with the requirement, he or she
must immediately give in writing to the Registrar—
(a) the name and address of the person to whom or by or on behalf of whom
the communication was made (if known to the practitioner); and
(b) sufficient particulars to identify the document containing the
communication (if the communication was made in writing).
Maximum penalty: $6 000.
518—Machinery and other provisions for
warrants
It is intended that the Co-operatives National Law Act of this jurisdiction
may contain machinery and other provisions for applications for, the issue of,
and the execution of, warrants.
Part 5—Inquiries
519—Definitions
In this Part—
affairs of a co-operative includes—
(a) the promotion, formation, membership, control, transactions, dealings,
business and property of the co-operative; and
(b) loans made to the co-operative; and
(c) matters that are concerned with identifying people who are, or have
been, financially interested in the success or failure, or apparent success or
failure, of the co-operative or who are, or have been, able to control or
influence materially the policies of the co-operative; and
(d) the circumstances in which a person placed, withdrew or disposed of
funds with, or loans to, the co-operative;
costs of an inquiry under this Part includes—
(a) the expenses of,
and incidental to, the inquiry; and
(b) the expenses payable by the Registrar in proceedings instituted by the
Registrar under this Part in the name of the co-operative the subject of the
inquiry; and
(c) the part of the remuneration of a public sector official that the
Minister decides is attributable to matters connected with the
inquiry;
involved person, in relation to an inquiry into the affairs
of a co-operative, means—
(a) an officer of the co-operative; or
(b) a person who acts, or has at any time acted, as authorised
deposit-taking institution, Australian legal practitioner, auditor or actuary,
or in another capacity, for the co-operative; or
(c) a person who has, or at any time had, in his or her possession
property of the co-operative; or
(d) a person who is indebted to the co-operative; or
(e) a person who is
capable of giving information relating to the affairs of the co-operative;
or
(f) a person whom an investigator believes on reasonable grounds to be a
person referred to in
paragraphs (a)—
(e).
520—Appointment of
investigators
(1) The designated authority may appoint a person or persons to hold an
inquiry into the affairs of a co-operative if the designated authority considers
it is desirable to do so for the protection or otherwise in the interests of the
public or of members or creditors of the co-operative.
(2) The designated authority may vary the terms of appointment of an
investigator if the investigator agrees to the variation.
(3) In the course of an inquiry into the affairs of a co-operative, an
investigator may inquire into the affairs of a subsidiary of the co-operative
that, if the subsidiary were the co-operative, would be affairs of the
co-operative.
(4) An inquiry into the affairs of a subsidiary of a co-operative may be
conducted as if the subsidiary were the co-operative.
521—Powers of investigators
(1) An investigator
inquiring into the affairs of a co-operative may, by giving an involved person a
notice in the approved form, require the person—
(a) to produce any document of which the person has custody or control and
that relates to those affairs; or
(b) to give the investigator all reasonable help in the inquiry;
or
(c) to appear before the investigator for examination on oath or
affirmation.
(2) An investigator may administer an oath or affirmation to an involved
person given a notice under
subsection (1).
(3) An investigator may take possession of a document produced by an
involved person under
subsection (1) and
retain it for the period the investigator decides is necessary for the
inquiry.
(4) While an investigator retains possession of a document, the
investigator must permit a person who would be entitled to inspect the document
were it not in the investigator's possession to inspect the document at any
reasonable time and make a copy of, or take extracts from, the
document.
522—Examination of involved
person
(1) An Australian legal practitioner acting for an involved
person—
(a) may attend an examination of the involved person by an investigator;
and
(b) may, to the extent the investigator permits, address the investigator
and examine the involved person.
(2) An involved person is not excused from answering a question asked by
the investigator even if seeking to be excused on the ground of possible
self-incrimination.
(3) If an involved person answers a question of an investigator after
having claimed possible self-incrimination by doing so, neither the question nor
the answer is admissible in evidence in criminal proceedings other
than—
(a) proceedings under
section 524 for giving a
false or misleading answer to the question; or
(b) proceedings on a charge of perjury in relation to the
answer.
(4) An involved person who attends for examination by an investigator is
entitled to be paid the allowance and the expenses—
(a) prescribed by the National Regulations, except to the extent
paragraph (b)
applies; or
(b) prescribed by the
local regulations.
523—Privilege
(1) An involved person who is an Australian legal practitioner is entitled
to refuse to produce a document to an investigator if the document contains a
privileged communication made by or on behalf of or to the practitioner in his
or her capacity as an Australian legal practitioner.
(2) The practitioner is not entitled to refuse to produce the document if
the person by or on behalf of whom the communication was made or (if the person
is under administration under Part 5.3A of the Corporations Act, as
applying under this Law, or in the course of being wound up) the administrator
or liquidator agrees to the practitioner producing the document.
(3) If the practitioner refuses to comply with the requirement to produce
a document, he or she must immediately give in writing to the
investigator—
(a) the name and address of the person to whom or by or on behalf of whom
the communication was made (if known to the practitioner); and
(b) sufficient particulars to identify the document.
Maximum penalty: $6 000.
524—Offences by involved
person
(1) An involved person
must not—
(a) fail to comply with
a lawful requirement of an investigator without showing reasonable cause for the
failure; or
(b) give an investigator information knowing the information to be false
or misleading in a material particular; or
(c) when appearing before an investigator—
(i) make a statement knowing the statement to be false or misleading in a
material particular; or
(ii) fail to be sworn or to make an affirmation.
Maximum penalty: $24 000 or imprisonment for 2 years, or both.
(2) If an investigator considers a failure by a person to comply with a
requirement of the investigator is an offence under
subsection (1)(a),
the investigator may certify the failure to the Supreme Court and the court may
then—
(a) order the involved person to comply with the requirement of the
investigator within a stated period; or
(b) instead of, or in addition to, making the order, punish the involved
person as for a contempt of the Supreme Court if satisfied there was no lawful
excuse for the failure to comply with the requirement of the
investigator.
525—Offences relating to
documents
If an inquiry into the affairs of a co-operative is being held under this
Part, a person who—
(a) conceals, destroys, mutilates or alters a document relating to the
co-operative; or
(b) sends, or causes to be sent, out of this jurisdiction a document or
other property belonging to, or under the control of, the
co-operative,
commits an offence, unless it is established the person charged did not
intend to defeat, delay or obstruct the inquiry.
Maximum penalty: $12 000 or imprisonment for 1 year, or both.
526—Record of examination
(1) Except as provided by
section 522, a record of
an examination may be used in proceedings against the person examined, but this
does not preclude the admission of other written or oral evidence.
(2) A person examined is, on written application made to the investigator,
entitled to a free copy of the record of examination.
(3) The Registrar may give an Australian legal practitioner a copy of a
record of examination made by an investigator if the Registrar is satisfied the
practitioner is conducting, or is in good faith contemplating, proceedings about
affairs of the co-operative to which the record relates.
(4) An Australian legal practitioner must not—
(a) use a copy of a record of examination otherwise than for the
preparation for, institution of, or conduct of, proceedings; or
(b) publish or communicate the record or part of it for another
purpose.
Maximum penalty: $6 000.
527—Report of investigator
(1) An investigator may, and if directed by the Registrar to do so must,
make interim reports to the Registrar on any inquiry being held by the
investigator.
(2) As soon as practicable after the end of an inquiry, the investigator
must report to the Registrar—
(a) the opinion of the investigator in relation to the affairs of the
co-operative the subject of the inquiry; and
(b) the findings on which the opinion is based.
(3) An investigator's report may include a recommendation as to
whether—
(a) a direction should be given under
section 530(3);
or
(b) an application should be made under
section 530(4) or
(5); or
(c) both a direction should be given and an application should be
made.
(4) A report by an investigator may be accompanied by any document of
which the investigator has taken possession after being produced under this
Part, in which case the Registrar—
(a) may retain the document for the period the Registrar considers
necessary to decide whether proceedings should be instituted as a result of the
inquiry; and
(b) may retain the document for the further period the Registrar considers
necessary to enable proceedings to be instituted and prosecuted; and
(c) may permit the use of the document for proceedings instituted as a
result of the inquiry; and
(d) must permit inspection of the document by a person who would be
entitled to inspect it if it were returned to its former custody; and
(e) may permit inspection of the document by another person while it is in
the possession of the Registrar, but only if the Registrar considers the person
has an interest in the inquiry and, because of the interest, refusal of the
inspection would be unjust.
528—Proceedings following
inquiry
(1) If proceedings are
to be, or have been, instituted by the Registrar as a result of an inquiry under
this Part, the Registrar may, by written notice, require a person who, in
relation to the inquiry, was an involved person to give all the assistance in
the proceedings the person is reasonably able to give.
(2) The Supreme Court may, on the application of the Registrar, order a
person to comply with a notice under
subsection (1) if
the person has failed to do so.
(3) If the Registrar considers, as a result of an inquiry under this Part,
proceedings should, in the public interest, be instituted by a co-operative for
the recovery of—
(a) damages for fraud or other misconduct in the affairs of the
co-operative; or
(b) property of the co-operative,
the proceedings may be instituted and prosecuted in the name of the
co-operative.
529—Admission of investigator's report as
evidence
(1) A document
certified by the Registrar as being a copy of a report of an inquiry under this
Part is admissible as evidence of any findings made by the
investigator.
(2)
Subsection (1) does not
authorise the admission of evidence that is inadmissible under
section 522.
530—Costs of inquiry
(1) The costs of an inquiry under this Part are to be paid out of money
appropriated by the Legislature of this jurisdiction.
(2) At the direction of the Minister, the Registrar must act under one or
more of
subsections (3),
(4) and
(5).
(3) The Registrar may,
by written notice given to a co-operative, direct the co-operative to pay
to—
(a) the Registrar, unless
paragraph (b)
applies; or
(b) the entity
prescribed by the Co-operatives National Law Act of this jurisdiction for the
purposes of this paragraph,
all or part of the costs of an inquiry under this Part into the affairs of
the co-operative.
(4) If proceedings are
instituted by the Registrar under
section 528 in the name of
a co-operative, the court may, in the course of the proceedings and on the
application of the Registrar, order all or part of the costs of the inquiry that
led to the proceedings be paid to the Registrar by a stated party to the
proceedings.
(5) If a person is
convicted of an offence in proceedings certified by the Registrar to be the
result of an inquiry into the affairs of a co-operative, the court may, on the
application of the Registrar made at the time of the conviction or within
14 days later, order the convicted person to pay to the Registrar all or
part of the costs of the inquiry.
(6) An order under this section must state—
(a) the amount to be paid; and
(b) the time or times for payment; and
(c) the manner of payment.
(7) An amount that has not been paid by a person in accordance with an
order under this section is recoverable from the person by the Registrar as a
debt.
Part 6—Special meetings and
inquiries
531—Application for special meeting or
inquiry
(1) The Registrar must, on the application of a majority of the members of
the board or of not less than one-third in number of the members of a
co-operative—
(a) call a special meeting of the co-operative; or
(b) hold, or appoint an inspector to hold, an inquiry into the affairs of
the co-operative or of a subsidiary of the co-operative.
(2) An application must be supported by the evidence the Registrar directs
to show the applicants have good reason for requiring the meeting or inquiry and
the application is made without malicious motive.
(3) Notice of the application must be given to the co-operative as the
Registrar directs.
(4) The applicants must give security for the expenses of the meeting or
inquiry as directed by the Registrar.
532—Holding of special meeting
(1) The Registrar may direct the time and place at which a special meeting
is to be held and the matters to be discussed and decided at the
meeting.
(2) The Registrar must give the notice to members of the holding of the
special meeting that the Registrar considers appropriate (despite a provision in
the rules of the co-operative as to the giving of notice).
(3) The special meeting has all the powers of a meeting called under the
rules of the co-operative and has power to appoint its own chairperson (despite
a rule of the co-operative to the contrary).
(4) The Registrar or another person nominated by the Registrar may attend
and address the meeting.
533—Expenses of special meeting or
inquiry
The expenses of and incidental to a meeting called or an inquiry held under
this Part (including under
section 534) must be
defrayed in the proportions the Registrar directs—
(a) by the applicants (if any); or
(b) out of the funds of the co-operative to which the meeting or inquiry
related or whose subsidiary was the subject of the inquiry; or
(c) by an officer, member, former officer or former member of the
co-operative.
534—Power to hold special inquiry into
co-operative
The Registrar may without an application hold, or appoint an inspector to
hold, an inquiry into the working and financial condition of a co-operative or a
subsidiary of a co-operative.
535—Special meeting following
inquiry
(1) After an inquiry under this Part, the Registrar may call a special
meeting of the co-operative.
(2)
Sections 532 and
533 apply to the
meeting.
Chapter 7—Legal
proceedings and other matters
Part 1—Offences, enforcement and
remedies
536—Notice to be given of conviction for
offence
If a co-operative or an officer of a co-operative is convicted of an
offence against a provision of this Law or of a corresponding co-operatives law,
the co-operative must, within 28 days after the conviction is recorded,
give to each member of the co-operative notice of—
(a) the conviction; and
(b) any penalty imposed; and
(c) the nature of the offence.
537—Secrecy
(1) A person who is, or
at any time was, engaged in the administration of this Law or a former Act must
not, other than as provided by this section, record, make use of or divulge
information obtained in the course of the administration.
Maximum penalty: $6 000.
(2)
Subsection (1) does not
apply to—
(a) the recording, making use of or divulging of information in the course
of the administration of this Law; or
(b) the recording or making use of information for the purpose of
divulging it as permitted by
subsection (3) or
(4); or
(c) the divulging of information as permitted by
subsection (3) or
(4).
(3) Information may be
divulged—
(a) for the purposes of criminal proceedings; or
(b) for the purposes of proceedings under this Law or a corresponding
co-operatives law or of an inquiry authorised by legislation of this
jurisdiction or of another jurisdiction; or
(c) with the consent of the person to whom the information relates;
or
(d) under a requirement imposed under legislation of this jurisdiction or
of another jurisdiction; or
(e) under a reciprocal arrangement under
sections 616 and
617.
(4) Information may be
divulged to—
(b) the Registrar or a
participating Registrar; or
(c) a person specified in the Co-operatives National Law Act of this
jurisdiction (subject to any conditions or limitations specified in that Act)
for the purposes of this paragraph; or
Note—
This paragraph is intended to cover the Treasurer, Auditor-General,
Independent Commission Against Corruption, etc.
(d) the person who, under a law of this jurisdiction or another
jurisdiction, administers a law of the jurisdiction that relates to taxation or
the imposition of a duty; or
(e) the Commissioner of Taxation, a Second Commissioner of Taxation or a
Deputy Commissioner of Taxation holding office under a law of the Commonwealth;
or
(g) a person nominated by a person referred to in
paragraphs (a)—
(f); or
(h) a person seeking information under a reciprocal arrangement under
section 616 or
617; or
(i) a police officer exercising functions as a police officer;
or
(j) a person, to whom the Registrar considers it is in the public interest
that the information be divulged.
(5) For the purposes of this section, a person is, or was, engaged in the
administration of this Law or a former Act if the person exercises, or at any
time exercised, a function as—
(a) the Registrar holding office under this Law or a former Act;
or
(b) an inspector appointed under this Law or a former Act; or
(c) an investigator appointed under this Law or a former Act; or
(d) a person appointed or employed for the purposes of this Law or a
former Act.
(6) In this section—
divulge information means—
(a) communicate the information orally; or
(b) make available a document containing the information; or
(c) make available anything from which, by electronic process or
otherwise, the information may be obtained; or
(d) communicate the information in another way;
former Act means an Act specified in the Co-operatives
National Law Act of this jurisdiction for the purposes of this
definition.
538—False or misleading
statements
(1) A person must not, in a document required for the purposes of this Law
or filed with the Registrar, make, or authorise the making of, a statement
knowing it to be false or misleading in a material particular.
Maximum penalty: $12 000.
(2) A person must not, from a document required for the purposes of this
Law or filed with the Registrar, omit, or authorise the omission of, anything
knowing that the omission makes the document false or misleading in a material
particular.
Maximum penalty: $12 000.
(3) A person who, in a document required for the purposes of this Law or
filed with the Registrar, makes, or authorises the making of, a statement that
is false or misleading in a material particular commits an offence, unless it is
proved that the person had taken reasonable precautions aimed at avoiding the
making or authorising of false or misleading statements in the
document.
Maximum penalty: $6 000.
(4) If an omission
makes a document required for the purposes of this Law or filed with the
Registrar false or misleading in a material particular, a person who made or
authorised the omission commits an offence, unless it is proved that the person
had taken reasonable precautions aimed at avoiding the making or authorising of
omissions that would make the document false or misleading.
Maximum penalty (for
subsection (4)): $6
000.
539—Further offence for failure to do required
act
(1) If a provision of this Law requires an act to be done, the obligation
to do the act continues until the act is done—
(a) even if the person has been convicted of an offence for the failure to
do the act; and
(b) even if the provision required the act to be done within a particular
period or before a particular time and the period has ended or the time
passed.
(2) If a person is convicted of an offence (a primary
conviction) for a failure to do an act (whether it is the first or a
second or subsequent offence in relation to the failure) and the failure to do
the act continues after the time of the conviction, the person commits a further
offence for the continuing failure.
(3) The further offence is constituted by the failure to do the act during
the period (the further offence period) that starts with the
primary conviction and ends when proceedings for the further offence are started
or the act concerned is done (whichever happens first).
(4) Proceedings for a further offence are taken to be started on the day
the information or other initiating process for the further offence is laid or
commenced or an earlier day stated in the information or process for the
purpose.
(5) The maximum penalty for the further offence is the penalty worked out
by multiplying $50 by the number of days in the further offence
period.
540—Civil remedies
(1) If a co-operative in making, guaranteeing or raising a loan or
receiving a deposit contravenes this Law or a rule of the co-operative, the
civil rights and liabilities of the co-operative or another person in relation
to the recovery of the loan or deposit are not affected or prejudiced by the
contravention, but the money becomes immediately payable.
(2) The same remedies may be had for the recovery of the loan or deposit
and for the enforcement of any security for it as if there had not been a
contravention of this Law or the rules of the co-operative.
541—Order against person concerned with
co-operative (cf Corporations Act section 598)
(1) Subject to
subsection (2),
where, on application by an eligible applicant, the Supreme Court is satisfied
that—
(a) a person is guilty of fraud, negligence, default, breach of trust or
breach of duty in relation to a co-operative; and
(b) the co-operative has suffered, or is likely to suffer, loss or damage
as a result of the fraud, negligence, default, breach of trust or breach of
duty,
the court may make such order or orders as it thinks appropriate against or
in relation to the person (including either or both of the orders specified in
subsection (3)) and
may so make an order against or in relation to a person even though the person
may have committed an offence in respect of the matter to which the order
relates.
(2) The Supreme Court
must not make an order against a person under
subsection (1)
unless the court has given the person the opportunity—
(a) to give evidence; and
(b) to call witnesses to give evidence; and
(c) to bring other evidence in relation to the matters to which the
application relates; and
(d) to employ, at the person's own expense, an Australian legal
practitioner to put to the person, or to any other witness, such questions as
the court considers just for the purpose of enabling the person to explain or
qualify any answers or evidence given by the person.
(3) The orders that may
be made under
subsection (1)
against a person include—
(a) an order directing the person to pay money or transfer property to the
co-operative; and
(b) an order directing the person to pay to the co-operative the amount of
the loss or damage.
(4) Nothing in this section prevents any person from instituting any other
proceedings in relation to matters in respect of which an application may be
made under this section.
(5) In this section—
eligible applicant, in relation to a co-operative,
means—
(a) the Registrar; or
(b) a liquidator or provisional liquidator of the co-operative;
or
(c) an administrator of the co-operative; or
(d) an administrator of a deed executed by the co-operative under
section 382; or
(e) a person authorised in writing by the Registrar to make an application
under this section in relation to the co-operative.
Note—
Section 561 provides
that the Supreme Court must not make a declaration of contravention or a
pecuniary penalty order against a person for a contravention if the person has
been convicted of an offence constituted by conduct that is substantially the
same as the conduct constituting the contravention.
542—Injunctions
(1) This section applies to conduct that constituted, constitutes or would
constitute—
(a) a contravention of this Law; or
(b) attempting to contravene this Law; or
(c) aiding, abetting, counselling or procuring a person to contravene this
Law; or
(d) inducing or attempting to induce, whether by threats, promises or
otherwise, a person to contravene this Law; or
(e) being in any way, directly or indirectly, knowingly concerned in, or
party to, the contravention by a person of this Law; or
(f) conspiring with others to contravene this Law.
(2) On the application of—
(a) the Registrar; or
(b) a person whose interests have been, are or would be affected by
conduct that another person has engaged in, is engaging in or is proposing to
engage in,
the Supreme Court, if satisfied that the conduct is conduct to which this
section applies, may grant an injunction, on the terms the court considers
appropriate, restraining a person from engaging in the conduct and, if the court
considers it desirable to do so, requiring the person to do any act or
thing.
(3) If the Supreme Court considers it desirable to do so, the court may
grant an interim injunction pending decision of the application.
(4) The Supreme Court may discharge or vary an injunction granted under
this section.
(5) The power of the Supreme Court to grant an injunction restraining a
person from engaging in conduct may be exercised—
(a) whether or not it appears to the court that the person intends to
engage again, or to continue to engage, in the conduct; and
(b) whether or not the person has previously engaged in the conduct;
and
(c) whether or not there is an imminent danger of substantial damage to a
person if the first-mentioned person engages in the conduct.
(6) The power of the Supreme Court to grant an injunction requiring a
person to do an act or thing may be exercised—
(a) whether or not it appears to the court that the person intends to
refuse or fail again, or to continue to refuse or fail, to do the act or thing;
and
(b) whether or not the person has previously refused or failed to do the
act or thing; and
(c) whether or not there is an imminent danger of substantial damage to
any person if the first-mentioned person refuses or fails to do the act or
thing.
(7) If the Supreme Court has power under this section to grant an
injunction restraining a person from engaging in particular conduct, or
requiring a person to do a particular act or thing, the court may, either in
addition to or in substitution for the grant of the injunction, order the person
to pay damages to another person.
543—Undertakings
(1) The Registrar may
accept a written undertaking given by a person in connection with a matter
relating to a contravention of this Law or where the Registrar has reasonable
grounds to believe there may be a contravention of this Law.
(2) Without limiting
subsection (1), the
Registrar may accept a written undertaking given by the person that the person
will do either or both of the following:
(a) refrain from conduct that constitutes a contravention of this
Law;
(b) take action to prevent or remedy a contravention of this
Law.
(3) The person may
withdraw or vary an undertaking at any time, if the person has first obtained
the consent of the Registrar.
(4) The consent of the Registrar is required for the purposes of
subsection (3) even
if the undertaking purports to authorise a withdrawal or variation of the
undertaking without that consent.
(5) If the Registrar
accepts an undertaking given by a person, the Registrar must not proceed against
the person in respect of the conduct specified in the undertaking, unless it
appears to the Registrar that the person has contravened the
undertaking.
(6)
Subsection (5) does
not apply to an application by the Registrar for an order under
section 545.
544—Offence for contravention of
undertaking
A person who contravenes an undertaking accepted by the Registrar commits
an offence.
Maximum penalty: $6 000.
545—Enforcement order on application with consent
of person giving undertaking
(1) The Registrar, with
the consent of the person who gave an undertaking, may apply, at any time, to
the designated tribunal for an order directing the person to comply with the
undertaking.
(2) On an application under
subsection (1), the
designated tribunal may by order direct the person to comply with the
undertaking.
(3) This section does not limit
section 546.
546—Enforcement orders after contravention of
undertaking
(1) If the designated
tribunal is satisfied, on the application of the Registrar, that a person has
contravened an undertaking accepted by the Registrar, the tribunal may make any
or all of the following orders:
(a) an order
prohibiting the person from engaging in specified conduct;
(b) an order directing the person to take specified action to comply with
the undertaking;
(c) an order directing the person to pay to the Registrar an amount up to
the amount of any financial benefit that the person has obtained directly or
indirectly and that is reasonably attributable to the contravention of the
undertaking;
(d) any order that the tribunal considers appropriate directing the person
to compensate any other person who has suffered loss, injury or damage as a
result of the contravention of the undertaking;
(e) any other order that the tribunal considers appropriate.
(2) The designated tribunal may make an interim order under
subsection (1)(a)
pending final determination of the application.
(3) The designated tribunal may, on the application of the Registrar or
the person in respect of whom the order was made, vary or discharge an order
under
subsection (1)(a).
(4) An order under
subsection (1)(a)
may be made subject to such conditions as the designated tribunal thinks
appropriate.
(5) The designated tribunal must not make an order under this section
(other than an interim order) unless satisfied on the balance of probabilities
that proper grounds for the order have been established.
(6) If a co-operative or other corporation is found to have contravened an
undertaking, each officer of the co-operative or other corporation is taken to
have so breached the undertaking if the officer knowingly authorised or
permitted the breach, and the court may make, against the officer, all or any of
the orders specified in
subsection (1) that
the court thinks appropriate.
547—Copy of undertaking
The Registrar must give a copy of an undertaking under
section 543 to the person
who gave the undertaking.
548—Registration of
undertakings
(1) The Registrar must register each undertaking in the register of
co-operatives.
(2) The register of co-operatives must include the following:
(a) the name and address of the person who gave the undertaking;
(b) the date of the undertaking;
(c) a copy of the undertaking.
(3) The Registrar may withhold information relating to an undertaking from
inclusion in the register of co-operatives if the Registrar is satisfied
that—
(a) the information consists of personal details of an individual not
involved in a contravention or possible contravention to which the undertaking
relates; or
(b) the information is commercial-in-confidence; or
(c) disclosure of the information would be against the public
interest.
Note—
Section 9 defines
"involved" in a contravention.
(4) If information is withheld under this section from inclusion in the
register of co-operatives, the register must include a statement that
information has been withheld in relation to the undertaking concerned and of
the grounds on which it has been withheld.
(5) For the purposes of this section, information is
commercial-in-confidence if—
(a) its disclosure would place a person at a substantial commercial
disadvantage in relation to present or potential contractual negotiations or
arrangements; or
(b) it is of a kind prescribed by the National Regulations as being
commercial-in-confidence.
549—Double jeopardy
If—
(a) an act or omission constitutes an offence under this Law and under a
co-operatives law of a participating jurisdiction; and
(b) the offender has been punished for that offence under the
co-operatives law of the participating jurisdiction,
the offender is not liable to be punished for the offence under this
Law.
550—Strict liability
(1) If a provision of
this Law that creates an offence provides that the offence is an offence of
strict liability—
(a) there are no fault elements for any of the physical elements of the
offence; and
(b) the defence of mistake of fact is available.
(2) If a provision of this Law that creates an offence provides that
strict liability applies to a particular physical element of the
offence—
(a) there are no fault elements for that physical element; and
(b) the defence of mistake of fact is available in relation to that
physical element.
(3) The existence of
strict liability does not make any other defence unavailable.
(4)
Subsections (1)—
(3) do not apply in
relation to an offence under the Corporations Act as applying under this
Law.
551—Time limit for starting proceedings for
offence
Proceedings for an offence under this Law or the National Regulations may
be started no later than 5 years after the alleged commission of the
offence.
552—Authorisation to start proceedings for
offence
Proceedings for an offence under this Law or the National Regulations may
be started only by the Registrar or a person authorised in writing by the
Registrar to start the proceedings.
Part 2—Civil consequences of contravening
civil penalty provisions
553—Definitions (cf Corporations Act
section 1317DA)
In this Law—
civil penalty provision means a provision referred to in
section 554;
compensation order means an order under
section 557;
pecuniary penalty order means an order under
section 556.
554—Declarations of contravention (cf Corporations
Act section 1317E)
(1) If the Supreme Court is satisfied that a person has contravened one of
the following provisions, it must make a declaration of contravention:
(a)
section 192(1) (Care
and diligence);
(b)
section 193(1) (Good
faith);
(c)
section 193(2);
(d)
section 194(1) (Use
of position);
(e)
section 194(2);
(f)
section 195(1) (Use
of information);
(g)
section 195(3);
(h)
section 328(1)
(Contravention by directors of provisions of
Chapter 3
Part 3);
(i) without limiting
paragraph (h)—
(i) section 315(1) of the Corporations Act (Deadline for reporting to
members) as applying under
section 285(2) or
328(1) of this
Law;
(ii) section 318 of the Corporations Act (Additional reporting by
debenture issuers) as applying under
section 288 or
328(1) of this
Law;
(j) any of the following provisions of the Corporations Act relating to
debentures as applying under
section 337 of this
Law:
(i) section 674(2) (Continuous disclosure—listed disclosing entity
bound by a disclosure requirement in market listing rules);
(ii) section 674(2A);
(iii) section 675(2) (Continuous disclosure—other disclosing
entities);
(iv) section 675(2A);
(v) section 1041A (Market manipulation);
(vi) section 1041B(1) (False trading and market rigging—creating a
false or misleading appearance of active trading etc);
(vii) section 1041C(1) (False trading and market
rigging—artificially maintaining etc trading price);
(viii) section 1041D (Dissemination of information about illegal
transactions);
(ix) section 1043A(1) (Prohibited conduct by person in possession of
inside information);
(x) section 1043A(2);
(k) section 588G(2) of the Corporations Act (Director's duty to prevent
insolvent trading by company) as applying under
section 451 of this
Law.
(2) A declaration of
contravention must specify the following:
(a) the court that made the declaration;
(b) the civil penalty provision that was contravened;
(c) the person who contravened the provision;
(d) the conduct that constituted the contravention.
555—Declaration of contravention is conclusive
evidence (cf Corporations Act section 1317F)
A declaration of contravention is conclusive evidence of the matters
referred to in
section 554(2).
556—Pecuniary penalty orders (cf Corporations Act
section 1317G)
(1) The Supreme Court may order a person to pay a pecuniary penalty of up
to $200 000 if—
(a) a declaration of contravention by the person has been made under
section 554; and
(b) the contravention—
(i) materially prejudices the interests of the co-operative or its
members; or
(ii) materially prejudices the co-operative's ability to pay its
creditors; or
(iii) is serious.
(2) A pecuniary penalty ordered to be paid in this jurisdiction is to be
paid and treated in accordance with the Co-operatives National Law Act of this
jurisdiction.
557—Compensation orders (cf Corporations Act
section 1317H)
(1) Compensation for damage suffered
The Supreme Court may order a person to compensate a co-operative for
damage suffered by the co-operative if—
(a) the person has contravened a civil penalty provision in relation to
the co-operative; and
(b) the damage resulted from the contravention.
The order must specify the amount of the compensation and may be made under
this subsection whether or not a declaration of contravention has been made
under
section 554.
(2) Damage includes profits
In determining the damage suffered by the co-operative for the purposes of
making a compensation order, profits made by any person resulting from the
contravention or the offence are to be included.
(3) Recovery of damage
A compensation order may be enforced as if it were a judgment of the
Supreme Court.
558—Who may apply for a declaration or order (cf
Corporations Act section 1317J)
(1) The Registrar may apply for a declaration of contravention, a
pecuniary penalty order or a compensation order.
(2) The co-operative may apply for a compensation order.
(3) The co-operative may intervene in an application for a declaration of
contravention or a pecuniary penalty order in relation to the co-operative. The
co-operative is entitled to be heard on all matters other than whether the
declaration or order should be made.
(4) No person may apply
for a declaration of contravention, a pecuniary penalty order or a compensation
order unless permitted by this section.
(5) It is intended that the Co-operatives National Law Act of this
jurisdiction may provide that
subsection (4) does
not exclude the operation of any specified law.
(6) An application for a compensation order may be made whether or not a
declaration of contravention has been made under
section 554.
559—Time limit for application for a declaration or
order (cf Corporations Act section 1317K)
Proceedings for a declaration of contravention, a pecuniary penalty order,
or a compensation order, may be started no later than 6 years after the
contravention.
560—Civil evidence and procedure rules for
declarations of contravention and civil penalty orders (cf Corporations Act
section 1317L)
The Supreme Court must apply the rules of evidence and procedure for civil
matters when hearing proceedings for—
(a) a declaration of contravention; or
(b) a pecuniary penalty order.
561—Civil proceedings after criminal proceedings
(cf Corporations Act section 317M)
The Supreme Court must not make a declaration of contravention or a
pecuniary penalty order against a person for a contravention if the person has
been convicted of an offence constituted by conduct that is substantially the
same as the conduct constituting the contravention.
562—Criminal proceedings during civil proceedings
(cf Corporations Act section 1317N)
(1) Proceedings for a declaration of contravention or pecuniary penalty
order against a person are stayed if—
(a) criminal proceedings are started or have already been started against
the person for an offence; and
(b) the offence is constituted by conduct that is substantially the same
as the conduct alleged to constitute the contravention.
(2) The proceedings for the declaration or order may be resumed if the
person is not convicted of the offence. Otherwise, the proceedings for the
declaration or order are dismissed.
563—Criminal proceedings after civil proceedings
(cf Corporations Act section 1317P)
Criminal proceedings may be started against a person for conduct that is
substantially the same as conduct constituting a contravention of a civil
penalty provision regardless of whether—
(a) a declaration of contravention has been made against the person;
or
(b) a pecuniary penalty order has been made against the person;
or
(c) a compensation order has been made against the person; or
(d) the person has been disqualified from managing a co-operative under
Division 2 of
Chapter 3
Part 1.
564—Evidence given in proceedings for penalty not
admissible in criminal proceedings (cf Corporations Act
section 1317Q)
Evidence of information given or evidence of production of documents by an
individual is not admissible in criminal proceedings against the individual
if—
(a) the individual previously gave the evidence or produced the documents
in proceedings for a pecuniary penalty order against the individual for a
contravention of a civil penalty provision (whether or not the order was made);
and
(b) the conduct alleged to constitute the offence is substantially the
same as the conduct that was claimed to constitute the contravention.
However, this does not apply to a criminal proceeding in respect of the
falsity of the evidence given by the individual in the proceedings for the
pecuniary penalty order.
565—Relief from liability for contravention of
civil penalty provision (cf Corporations Act
section 1317S)
(1) In this section—
eligible proceedings—
(a) means proceedings for a contravention of a civil penalty provision,
including—
(i) proceedings under
section 557 of this Law;
and
(ii) proceedings under section 588M or 588W of the Corporations Act
as applying under this Law (see
section 451);
and
(b) does not include proceedings for an offence, except so far as the
proceedings relate to the question whether the Supreme Court should make an
order under—
(i)
section 557
of this Law; or
(ii) section 588K of the Corporations Act as applying under this Law (see
section 451).
(a) eligible proceedings are brought against a person; and
(b) in the proceedings it appears to the Supreme Court that the person
has, or may have, contravened a civil penalty provision but
that—
(i) the person has acted honestly; and
(ii) having regard to all the circumstances of the case (including, where
applicable, those connected with the person's appointment as an officer, or
employment as an employee, of a co-operative), the person ought fairly to be
excused for the contravention,
the Supreme Court may relieve the person either wholly or partly from a
liability to which the person would otherwise be subject, or that might
otherwise be imposed on the person, because of the contravention.
(3) In determining under
subsection (2)
whether a person ought fairly to be excused for a contravention of
section 588G of the Corporations Act as applying under this Law, the
matters to which regard is to be had include, but are not limited
to—
(a) any action the person took with a view to appointing an administrator
of the co-operative; and
(b) when that action was taken; and
(c) the results of that action.
(4) If a person thinks
that eligible proceedings will or may be begun against them, they may apply to
the Supreme Court for relief.
(5) On an application under
subsection (4), the
court may grant relief under
subsection (2) as if
the eligible proceedings had been begun in the court.
(6) For the purposes of
subsection (2) as
applying for the purposes of a case tried by a judge with a
jury—
(a) a reference in that subsection to the Supreme Court is a reference to
the judge; and
(b) the relief that may be granted includes withdrawing the case in whole
or in part from the jury and directing judgment to be entered for the defendant
on such terms as to costs as the judge thinks appropriate.
(7) Nothing in this section limits, or is limited by,
section 566.
566—Power to grant relief (cf Corporations Act
section 1318)
(1) If, in any civil
proceeding against a person to whom this section applies for negligence,
default, breach of trust or breach of duty in a capacity as such a person, it
appears to the Supreme Court—
(a) that the person is or may be liable in respect of the negligence,
default or breach but that the person has acted honestly; and
(b) that, having regard to all the circumstances of the case, including
those connected with the person's appointment, the person ought fairly to be
excused for the negligence, default or breach,
the Supreme Court may relieve the person either wholly or partly from
liability on such terms as the court thinks fit.
(2) Where a person to whom this section applies has reason to apprehend
that any claim will or might be made against the person in respect of any
negligence, default, breach of trust or breach of duty in a capacity as such a
person—
(a) the person may apply to the Supreme Court for relief; and
(b) the Supreme Court has the same power to relieve the person as it would
have had under
subsection (1) if it
had been a court before which proceedings against the person for negligence,
default, breach of trust or breach of duty had been brought.
(3) Where a case to which
subsection (1)
applies is being tried by a judge with a jury, the judge after hearing the
evidence may—
(a) if he or she is satisfied that the defendant ought pursuant to that
subsection to be relieved either wholly or partly from the liability sought to
be enforced against the person, withdraw the case in whole or in part from the
jury; and
(b) forthwith direct judgment to be entered for the defendant on such
terms as to costs or otherwise as the judge thinks proper.
(4) This section applies to a person who is—
(a) an officer or employee of a co-operative; or
(b) an auditor of a co-operative, whether or not the person is an officer
or employee of the co-operative; or
(c) an expert in relation to a matter—
(i) relating to a co-operative; and
(ii) in relation to which the civil proceeding has been taken or the claim
will or might arise; or
(d) a receiver, receiver and manager, liquidator or other person appointed
or directed by the Supreme Court to carry out any duty under this Law in
relation to a co-operative.
567—Irregularities (cf Corporations Act
section 1322)
(1) In this section, unless the contrary intention
appears—
(a) a reference to a proceeding under this Law is a reference to any
proceeding whether a legal proceeding or not; and
(b) a reference to a procedural irregularity includes a reference
to—
(i) the absence of a quorum at a meeting of a co-operative, at a meeting
of directors or creditors of a co-operative, or at a joint meeting of creditors
and members of a co-operative; and
(ii) a defect, irregularity or deficiency of notice or time.
(2) A proceeding under this Law is not invalidated because of any
procedural irregularity unless the Supreme Court is of the opinion that the
irregularity has caused or may cause substantial injustice that cannot be
remedied by any order of the court and by order declares the proceeding to be
invalid.
(3) A meeting held for the purposes of this Law, or a meeting notice of
which is required to be given in accordance with the provisions of this Law, or
any proceeding at such a meeting, is not invalidated only because of the
accidental omission to give notice of the meeting or the non-receipt by any
person of notice of the meeting, unless the Supreme Court, on the application of
the person concerned, a person entitled to attend the meeting or the Registrar,
declares proceedings at the meeting to be void.
(4) A meeting held for the purposes of this Law, or a meeting notice of
which is required to be given in accordance with the provisions of this Law, or
any proceeding at such a meeting, is not invalidated only because of the
inability of a person to access the notice of meeting, unless the Supreme Court,
on the application of the person concerned, a person entitled to attend the
meeting or the Registrar, declares proceedings at the meeting to be
void.
(5) If a member does not have a reasonable opportunity to participate in a
meeting of members, or part of a meeting of members, held at 2 or more venues,
the meeting will only be invalid on that ground if—
(a) the Supreme Court is of the opinion that—
(i) a substantial injustice has been caused or may be caused;
and
(ii) the injustice cannot be remedied by any order of the Supreme Court;
and
(b) the Supreme Court declares the meeting or proceeding (or that part of
it) invalid.
(6) Subject to the
following provisions of this section but without limiting the generality of any
other provision of this Law, the Supreme Court may, on application by any
interested person, make all or any of the following orders, either
unconditionally or subject to such conditions as the court imposes:
(a) an order declaring
that any act, matter or thing purporting to have been done, or any proceeding
purporting to have been instituted or taken, under this Law or in relation to a
co-operative is not invalid by reason of any contravention of a provision of
this Law or a provision of the constitution of a co-operative;
(b) an order directing the rectification of any register kept by the
Registrar under this Law;
(c) an order relieving
a person in whole or in part from any civil liability in respect of a
contravention or failure of a kind referred to in
paragraph (a);
(d) an order extending the period for doing any act, matter or thing or
instituting or taking any proceeding under this Law or in relation to a
co-operative (including an order extending a period where the period concerned
ended before the application for the order was made) or abridging the period for
doing such an act, matter or thing or instituting or taking such a
proceeding,
and may make such consequential or ancillary orders as the court thinks
fit.
(7) An order may be made under
subsection (6)(a) or
(c) notwithstanding that
the contravention or failure referred to in the paragraph concerned resulted in
the commission of an offence.
(8) The Supreme Court must not make an order under this section unless it
is satisfied—
(a) in the case of an order referred to in
subsection (6)(a)—
(i) that the act, matter or thing, or the proceeding, referred to in that
paragraph is essentially of a procedural nature; or
(ii) that the person or persons concerned in or party to the contravention
or failure acted honestly; or
(iii) that it is just and equitable that the order be made; and
(b) in the case of an order referred to in
subsection (6)(c)—that
the person subject to the civil liability concerned acted honestly;
and
(c) in every case—that no substantial injustice has been or is
likely to be caused to any person.
568—Civil proceedings not to be stayed (cf
Corporations Act section 1331)
No civil proceedings under this Law are to be stayed merely because the
proceeding discloses, or arises out of, the commission of an offence.
569—Standard of proof (cf Corporations Act
section 1332)
Where, in proceedings other than proceedings for an offence, it is
necessary to establish, or for the court to be satisfied, for any purpose
relating to a matter arising under this Law, that—
(a) a person has
contravened a provision of this Law; or
(b) default has been
made in complying with a provision of this Law; or
(c) an act or omission
was unlawful by virtue of a provision of this Law; or
(d) a person has been
in any way, by act or omission, directly or indirectly, knowingly concerned in
or party to a contravention of, or a default in complying with, a provision of
this Law,
it is sufficient if the matter referred to in
paragraph (a),
(b),
(c) or
(d) is established, or
the court is so satisfied, as the case may be, on the balance of
probabilities.
Part 3—Appeals and review
570—Operation of Part—appeal includes
review
A reference in this Part to an appeal against a decision of the Registrar
includes a reference to a review of the decision.
571—Appeal against refusal to approve draft
rules
(1) The person who submitted draft rules to the Registrar under
section 23 may appeal to
the designated tribunal against a decision of the Registrar to refuse to approve
the rules.
(2) A failure of the Registrar to approve draft rules is taken to be a
decision of the Registrar to refuse to approve the rules.
572—Appeal against refusal to approve disclosure
statement
(1) The person who submitted a draft disclosure statement to the Registrar
may appeal to the designated tribunal against a decision of the Registrar to
refuse to approve the statement under this Law.
Note—
See
sections 25,
248,
338,
343,
397 and
477 concerning approval of
disclosure statements.
(2) A failure of the Registrar to approve a draft disclosure statement is
taken to be a decision of the Registrar to refuse to approve the
statement.
573—Appeal against refusal to register
co-operative
(1) The applicants for registration of a proposed co-operative may appeal
to the designated tribunal against a decision of the Registrar to refuse to
register the co-operative under this Law.
(2) A failure of the Registrar to register a co-operative is taken to be a
decision of the Registrar to refuse to register the co-operative.
574—Appeal against refusal to approve amendment of
rules
(1) A co-operative may appeal to the designated tribunal against a
decision of the Registrar to refuse to approve an amendment of its rules under
this Law.
(2) A failure of the Registrar to approve an amendment of rules is taken
to be a decision of the Registrar to refuse to approve the amendment.
575—Appeal against refusal to register
amendment
(1) A co-operative may appeal to the designated tribunal against a
decision of the Registrar to refuse to register an amendment of its rules under
this Law.
(2) A failure of the Registrar to register an amendment of rules is taken
to be a decision of the Registrar to refuse to register the amendment.
576—Appeal against decision of Registrar about
remuneration of liquidator
(1) An applicant under
section 449 for a review
by the Registrar of the amount of the remuneration of a liquidator may appeal to
the designated tribunal against the decision of the Registrar on the
review.
(2) A failure of the Registrar to undertake or complete a review is taken
to be a decision of the Registrar not to vary the amount of the
remuneration.
577—Appeal against notice that participating
co-operative not authorised to carry on business in this
jurisdiction
A participating co-operative may appeal to the designated tribunal against
a decision of the Registrar to give written notice to the co-operative under
section 461(5)
withdrawing its authorisation to carry on business in this
jurisdiction.
578—Provisions relating to
appeals
(1) An appeal is to be made in accordance with rules of the designated
tribunal.
(2) The designated tribunal may make any order it considers appropriate to
dispose of an appeal under this Part.
(3) The Registrar must comply with an order of the designated tribunal on
an appeal under this Part.
Part 4—Proceedings in relation to
co-operatives
579—Bringing, or intervening in, proceedings on
behalf of co-operative
(1) Bringing or
intervening in proceedings (cf Corporations Act
section 236(1))
A person may bring proceedings on behalf of a co-operative, or intervene in
any proceedings to which a co-operative is a party for the purpose of taking
responsibility on behalf of the co-operative for those proceedings, or for a
particular step in those proceedings (for example, compromising or settling
them), if—
(i) a member, former member, or person entitled to be registered as a
member, of the co-operative or of a related corporation; or
(ii) an officer or former officer of the co-operative; or
(iii) the Registrar; and
(b) the person is acting with leave granted under
section 580.
(2) Bringing proceedings in co-operative's name (cf Corporations Act
section 236(2))
Proceedings brought on behalf of a co-operative may be brought in the
co-operative's name.
580—Applying for and granting
leave
(1) Applying for leave (cf Corporations Act
section 237(1))
A person referred to in
section 579(1)(a)
may apply to the Supreme Court for leave to bring, or to intervene in,
proceedings.
(2) Granting leave (cf Corporations Act
section 237(2))
The Supreme Court may grant the application if it is satisfied
that—
(a) it is probable the co-operative will not itself bring the proceedings,
or properly take responsibility for them, or for the steps in them;
and
(b) the applicant is acting in good faith; and
(c) it is in the best interests of the co-operative that the applicant be
granted leave; and
(d) if the applicant is applying for leave to bring
proceedings—there is a serious question to be tried; and
(e) either—
(i) at least 14 days
before making the application, the applicant gave written notice to the
co-operative of the intention to apply for leave and the reasons for applying;
or
(ii) it is appropriate to grant leave even if
subparagraph (i) is
not satisfied.
581—Substitution of another person for the person
granted leave
(1) Applying for substitution (cf Corporations Act
section 238(1))
Any of the following persons may apply to the Supreme Court for an order
that the person be substituted for a person to whom leave has been granted under
section 580:
(a) a member, former member, or person entitled to be registered as a
member, of the co-operative or of a related corporation;
(b) an officer, or former officer, of the co-operative;
(c) the Registrar.
(2) Application may be made whether or not the applicant has already
brought the proceedings or intervened
The application may be made whether or not the applicant has already
brought the proceedings or made the intervention.
(3) Making the order (cf Corporations Act
section 238(2))
The Supreme Court may make the order if it is satisfied
that—
(a) the applicant is acting in good faith; and
(b) in all the circumstances, it is appropriate to make the
order.
(4) Effect of order (cf Corporations Act
section 238(3))
An order substituting one person for another person has the effect
that—
(a) the grant of leave is taken to have been made in favour of the
substituted person; and
(b) if the other person has already brought the proceedings or
intervened—the substituted person is taken to have brought those
proceedings or to have made that intervention.
582—Effect of ratification by members (cf
Corporations Act section 239)
(1) A ratification or approval of conduct by members of a
co-operative—
(a) does not prevent a person from bringing or intervening in proceedings
with leave under
section 580 or from
applying for leave under that section; and
(b) does not have the effect that proceedings brought or intervened in
with leave under
section 580 must be
decided in favour of the defendant, or that an application for leave under that
section must be refused.
(2) The Supreme Court
may take into account a ratification or an approval of the conduct by members of
a co-operative in deciding what order or judgment (including as to damages) to
make in proceedings brought or intervened in with leave under
section 580 or in relation
to an application for leave under that section.
(3) In taking a ratification or approval into account under
subsection (2), the
Supreme Court may have regard to—
(a) how well informed about the conduct the members were when deciding
whether to ratify or approve the conduct; and
(b) whether the members who ratified or approved the conduct were acting
for proper purposes.
583—Leave to discontinue, compromise or settle
proceedings brought, or intervened in, with leave (cf Corporations Act
section 240)
Proceedings brought or intervened in with leave must not be discontinued,
compromised or settled without the leave of the Supreme Court.
584—General powers of Supreme
Court
(1) Orders and
directions (cf Corporations Act section 241(1))
The Supreme Court may make any orders, and give any directions, it thinks
just in relation to proceedings brought or intervened in with leave, or in
relation to an application for leave, including—
(a) interim orders; and
(b) directions about the conduct of the proceedings, including requiring
mediation; and
(c) an order directing the co-operative, or an officer of the
co-operative, to do, or not to do, any act; and
(d) an order appointing
an independent person to investigate, and report to the court
on—
(i) the financial affairs of the co-operative; or
(ii) the facts or circumstances that gave rise to the cause of action the
subject of the proceedings; or
(iii) the costs incurred in the proceedings by the parties to the
proceedings and the person granted leave.
(2) Appointee entitled to inspect and copy books (cf Corporations Act
section 241(2))
A person appointed by the Supreme Court under
subsection (1)(d) is
entitled, on giving reasonable notice to the co-operative, to inspect and make
copies of any books of the co-operative for any purpose connected with the
person's appointment.
585—Power of Supreme Court to make costs orders (cf
Corporations Act section 242)
At any time, the Supreme Court may, in relation to proceedings brought or
intervened in with leave under
section 580 or an
application for leave under that section, make any order it thinks just about
the costs of the person who applied for or was granted leave, the co-operative
or any other party to the proceedings or application, including an order
requiring indemnification for costs.
586—Power of Registrar to intervene in
proceedings
(1) The Registrar may intervene in proceedings relating to a matter
arising under this Law.
(2) When the Registrar intervenes in proceedings, the Registrar is taken
to be a party to the proceedings and, subject to this Law, has all the rights,
duties and liabilities of a party to the proceedings.
(3) The Registrar may appear and be represented in proceedings in which
the Registrar wishes to intervene under this section—
(a) by a person or body to whom the Registrar has delegated the
Registrar's functions under this Law or the functions relating to a matter to
which the proceedings relate; or
(b) by a public sector official who is engaged in the administration of
this Law; or
(c) by an Australian legal practitioner.
Part 5—Evidentiary
matters
587—Certificate of
registration
(1) A certificate of registration of a co-operative issued under this Law
is evidence that the co-operative is incorporated under this Law and that all
the requirements of this Law for registration have been complied with.
(2) This section does not affect a provision of this Law for the winding
up or deregistration of the co-operative or the cancellation of its
registration.
588—Certificate evidence
(1) If a function under this Law is conferred or imposed on the Registrar
as a consequence of something being done or omitted to be done within a
specified period, the Registrar may certify that—
(a) the thing had or had not been done within that period; or
(b) the thing had or had not been done by a specified date.
(2) The Registrar may issue a certificate stating that a requirement of
this Law specified in the certificate—
(a) had, or had not, been complied with at a date or within a period
specified in the certificate; or
(b) had been complied with at a date specified in the certificate but not
before the date.
(3) The Registrar may issue a certificate stating that on a date specified
in the certificate a body specified in the certificate was not or had ceased to
be registered as a co-operative under this Law.
(4) A certificate given by the Registrar under this section is evidence of
the matters stated in the certificate.
589—Records kept by
co-operatives
(1) A record kept by a co-operative under a requirement of this Law is
admissible in evidence in proceedings and is evidence of a matter stated or
recorded in the record.
(2) A document purporting to be a record kept by a co-operative is, unless
the contrary is proved, taken to be a record kept by the co-operative under a
requirement of this Law.
(3) A copy of an entry in a record regularly kept by a co-operative in the
course of its business is, if verified by statutory declaration of the secretary
of the co-operative to be a true copy of the entry, to be received in evidence
in any case where and to the same extent as the original entry itself is
admissible.
590—Minutes
(1) Every entry in the minutes purporting to be a minute of the business
transacted at a meeting of a co-operative or of the board, and purporting to
have been signed by the chairperson at a subsequent meeting, is evidence that
the business recorded in the minute was transacted at the meeting and that the
meeting was properly convened and held.
(2) An entry in the minutes of a meeting of a co-operative to the effect
that a resolution was carried or carried unanimously, or was lost, is evidence
of the fact without proof of the number or proportion of votes recorded for or
against the resolution.
591—Official certificates
(1) A certificate of registration given by the Registrar must be received
in evidence as if it were the original certificate.
(2) A certificate of registration or other official document relating to a
co-operative signed by or bearing the seal of the Registrar is to be received in
evidence without further proof.
(3) A copy of rules certified by the Registrar to be a true copy of the
rules of a co-operative is evidence of the registered rules of the
co-operative.
592—The Registrar and
proceedings
(1) Judicial notice must be taken of the signature or the fax of the
signature (by whatever process it is produced) and seal of a person who holds or
has held the office of Registrar, if the signature or fax signature or seal
purports to be attached to a certificate or other official document.
(2) This section extends to a copy of the rules of a co-operative
certified by the Registrar to be a true copy of its registered rules.
(3) In proceedings, no proof is required (until evidence is given to the
contrary) of the appointment of the Registrar or a former Registrar.
593—Rules
A printed copy of the rules of a co-operative verified by statutory
declaration of the secretary of the co-operative to be a true copy of its
registered rules is, in proceedings, evidence of the rules.
594—Co-operative's registers
The register of directors and the register of members of a co-operative are
each evidence of the particulars directed or authorised under this Law to be
inserted in the register.
Part 1—Administrative and other
matters
595—Registrar of Co-operatives and other
officials
It is intended that the Co-operatives National Law Act of this jurisdiction
will provide for the appointment or designation of persons as the Registrar of
Co-operatives and other staff and for the protection of officials from liability
in the exercise of their functions under this Law in relation to this
jurisdiction.
596—Registrar's functions
(1) Subject to this Law, the Registrar is responsible for the general
administration of this Law, and has the functions expressed to be conferred or
imposed on the Registrar under this Law.
(2) The Registrar may have a seal of office.
(3) The Registrar may enter into a written agreement with an entity to act
as the agent of the Registrar in the carrying out of the Registrar's
functions.
597—Functions conferred on Registrar under
corresponding co-operatives laws
The Registrar or another person or body who has functions under this Law as
applying in this jurisdiction may exercise any function conferred on the
Registrar or other person or body by or under a corresponding co-operatives
law.
598—Delegation by Registrar
(1) The Registrar may delegate to any person or body any of the
Registrar's functions under this Law.
(2) A delegate may sub-delegate to another person or body any function
delegated under this section if the delegate is authorised by the terms of the
delegation to do so.
599—Register of co-operatives
(1) The Registrar is to maintain a register of co-operatives.
(2) The register is to record—
(a) information or documents prescribed by the National Regulations
relating to—
(i) co-operatives; and
(ii) undertakings; and
(b) information or documents relating to anything else—
(i) that is required by this Law or the National Regulations to be
recorded in the register; or
(ii) that the Registrar considers should be recorded in the register for
the purposes of this Law.
600—Keeping of register of
co-operatives
(1) The register of co-operatives is to be kept in accordance with
arrangements approved by the Registrar.
(2) The Registrar may correct any error or omission in the register of
co-operatives by—
(a) inserting an entry; or
(b) amending an entry; or
(c) omitting an entry,
if the Registrar decides that the correction is necessary.
(3) The Registrar must not omit an entry in the register of co-operatives
unless satisfied that the whole of the entry was included in error.
601—Inspection of register of
co-operatives
(a) inspect the
register of co-operatives on payment of the prescribed fee (if any);
and
(b) inspect documents
kept by the Registrar relating to a co-operative and prescribed by the National
Regulations on payment of the prescribed fee (if any); and
(c) obtain, on payment of the prescribed fee, an extract from the register
of co-operatives inspected under
paragraph (a);
and
(d) obtain, on payment of the prescribed fee, a certified copy of a
document that the person may inspect under
paragraph (b);
and
(e) obtain, on payment of the prescribed fee, a copy of a document that
the person may inspect under
paragraph (b).
(2) The local regulations may prescribe the manner in which, or the times
and places at which, or both, a person may do any of the things referred to in
subsection (1).
(3) A person may pay a fee, in advance or in arrears, under an arrangement
approved by the designated authority.
(4) If a reproduction or transparency of a document or an extract of
information contained in a document and recorded in the register is produced for
inspection, a person is not entitled under
subsection (1) to
require the production of the original of the document.
(5) In this section—
prescribed fee means the fee—
(a) prescribed by the National Regulations, unless
paragraph (b)
applies; or
(b) prescribed by the
local regulations.
602—Retention of records by
Registrar
Subject to
section 603, a document
filed with, given to or registered by the Registrar under this Law must be kept
in the office of the Registrar or at another place approved by the
Registrar.
603—Disposal of records by
Registrar
Subject to any law relating to the retention and disposal of records
(including any law specified for the purposes of this section in the
Co-operatives National Law Act of this jurisdiction), the Registrar may, if the
Registrar considers it is no longer necessary or desirable for them to be
retained, destroy or dispose of any of the following:
(a) an annual report or balance sheet filed more than 7 years
ago;
(b) a document (other than the rules or a document affecting the rules of
a co-operative) filed, given or registered more than 15 years
ago;
(c) a document filed, given or registered in relation to a co-operative
that was deregistered or ceased to be registered more than 15 years
ago;
(d) a document of which a transparency or electronic image has been
incorporated with a register kept by the Registrar or is otherwise kept in the
office of the Registrar.
604—Filing of documents
A document is not filed under this Law unless—
(a) all information required to be provided in or with the document is
provided; and
(b) the fee (if any)—
(i) prescribed by the National Regulations, except to the extent
subparagraph (ii)
applies; or
(ii) prescribed by the
local regulations,
has been paid.
605—Way of filing
(1) Subject to
section 604, it is
sufficient compliance with a requirement under this Law that a document be filed
with the Registrar if the Registrar receives a copy of the document by fax or
electronic transmission.
(2) If the Registrar receives from a person a copy of a document under
subsection (1), the
Registrar may require the person to produce and file the original within the
time specified by the Registrar.
(3) If the person does not comply with a requirement of the Registrar
within the specified time, the person is to be taken not to have filed the
document.
606—Power of Registrar to refuse to register or
reject documents
(1) The Registrar may
refuse to register or may reject a document submitted to the Registrar if the
Registrar considers the document—
(a) contains matter contrary to law; or
(b) contains matter that is false or misleading in a material particular
in the form or context in which it is included; or
(c) because of an omission or misdescription, has not been properly
completed; or
(d) does not comply with the requirements of this Law; or
(e) contains an error, amendment or erasure; or
(f) has been submitted by electronic transmission in a form that is not
readily or satisfactorily accessible by the Registrar.
(2) If the Registrar refuses to register or rejects a document under
subsection (1), the
Registrar may ask that—
(a) the document be appropriately amended; or
(b) a fresh document be submitted in its place; or
(c) if the document has not been properly completed—a supplementary
document in the approved form be submitted.
607—Approvals by Registrar
(1) This section applies to any provision of this Law imposing a
requirement for the Registrar's approval of an action or thing.
(2) The Registrar may indicate in writing to an applicant for the approval
that the approval is taken to have been granted at the end of a specified period
unless the Registrar informs the applicant in writing within the period that the
approval has not been granted or is still being considered.
(3) An approval is to
be given or otherwise dealt with by designated instrument, except so far as
provision is made under this Law or the local regulations for it to be given or
otherwise dealt with in a different way.
608—Information and evidence
(1) On an application for registration of a co-operative or registration
or approval of a rule or document under this Law, the Registrar may require from
the applicant reasonable information and evidence to show the application should
be granted.
(2) The Registrar may require from a co-operative reasonable information
and evidence to show the co-operative is genuinely carrying on business under
the provisions of this Law.
(3) The Registrar may require from a co-operative evidence the Registrar
considers appropriate of all matters required to be done and of the entries in a
document required to be given to the Registrar under this Law.
609—Extension or shortening of
time
(1) The Registrar may grant an extension of, or may shorten, a time for
doing anything required to be done by a co-operative or participating
co-operative by this Law or by a co-operative by the rules of the co-operative
on the terms (if any) the Registrar decides.
(2) The Registrar may grant an extension of time even if the time for
doing the thing has ended.
Part 2—Service of
documents
610—Service of documents on co-operative or
participating co-operative
(1) A document may be served on a co-operative or participating
co-operative—
(a) by posting it to the registered office of the co-operative or
participating co-operative; or
(b) by leaving it at the registered office of the co-operative or
participating co-operative with a person who appears to be of or above the age
of 16 years; or
(c) by delivering a copy of the document personally to a director of the
co-operative or participating co-operative who resides in Australia;
or
(d) if a liquidator or administrator of the co-operative or participating
co-operative has been appointed—by post; or
(e) if a liquidator or administrator of the co-operative or participating
co-operative has been appointed by the Registrar—
(i) if the liquidator or administrator (as the case may be) is registered
with ASIC—by leaving it at the address of the office of the liquidator or
administrator (as the case may be) in the most recent notice of that address
lodged with ASIC; or
(ii) if the liquidator or administrator (as the case may be) is not
registered with ASIC—by leaving it at the address of the office of the
liquidator or administrator (as the case may be) in the most recent notice of
that address lodged with the Registrar; or
(f) if a liquidator or administrator of the co-operative or participating
co-operative has been appointed by someone else—by leaving it at the
address of the office of the liquidator or administrator (as the case may be) in
the most recent notice of that address lodged with ASIC.
(2) For the purpose of serving a document under this section by post, it
is properly addressed if it is addressed to the registered office of the
co-operative or participating co-operative.
(3) This section does not affect the operation of a provision of a law or
of the rules of a court authorising a document to be served on a co-operative or
a participating co-operative in another way.
611—Service on member of
co-operative
(1) A notice required under this Law to be given to a member of a
co-operative must be in writing.
(2) A notice or other document required under this Law to be given to a
member of a co-operative may be given—
(a) personally; or
(b) by post; or
(c) by publishing the notice in a newspaper circulating generally in this
jurisdiction or in the area served by the co-operative, if—
(i) the co-operative is a non-distributing co-operative; and
(ii) the member's whereabouts are unknown to the co-operative;
and
(iii) the Registrar permits notice to be given to members of the
co-operative in that way.
(3) This section does not limit any provision of this Law, or of
legislation or rules of court of this jurisdiction, that provides for the
service of notices.
Part 3—Co-operatives National
Regulations
612—Power to make Co-operatives National
Regulations
(1) For the purposes of this section, the designated
authority is the Governor of the State of New South Wales, or other
person for the time being administering the Government of that State, acting
with the advice of the Executive Council of that State and on the recommendation
of the Ministerial Council.
(2) The designated authority may make regulations for the purposes of this
Law, which are to be known as the Co-operatives National
Regulations and are referred to in this Law as the National
Regulations.
(3) In particular, the National Regulations may make provision for or with
respect to the following:
(a) the making of applications for the exercise of a power by the
Registrar;
(b) how to file documents with the Registrar, including electronic filing
and filing by fax;
(c) fees to be paid in relation to the administration of this Law,
including—
(i) fees for the filing of a document under this Law; and
(ii) additional fees for late filing of a document under this
Law;
(d) any other matter that is necessary or convenient to be prescribed for
carrying out or giving effect to this Law.
(4) Regulations relating to fees—
(a) may prescribe different fees for different classes of cases;
and
(b) may authorise the waiver, reduction or refund of fees in particular
cases or classes of cases.
(5) The National Regulations may create offences and impose penalties of
not more than $2 000 for an offence.
613—National Regulations for savings or
transitional matters
(1) The National Regulations may contain provisions of a savings or
transitional nature consequent on the enactment of legislation setting out,
applying or amending this Law.
(2) Any such provision may, if the National Regulations so provide, take
effect retrospectively.
(3) To the extent to which any such provision takes effect
retrospectively, the provision does not operate so as—
(a) to affect, in a manner prejudicial to any person (other than an
authority of a jurisdiction), the rights of that person existing before the date
of its publication; or
(b) to impose liabilities on any person (other than an authority of a
jurisdiction) in respect of anything done or omitted to be done before the date
of its publication.
614—Publication and commencement of National
Regulations
(1) The National Regulations are to be published on the NSW legislation
website.
(2) A National Regulation commences on the day or days specified in, or
ascertained in accordance with, the regulation for its commencement (being not
earlier than the date it is so published), but this subsection does not prevent
a regulation taking effect retrospectively where permitted under this
Law.
Part 4—Miscellaneous
615—Disclosure statements
A disclosure statement under this Law may only include a statement by a
person, or a statement said in the disclosure statement to be based on a
statement by a person, if—
(a) the person has consented to the statement being included in the
disclosure statement in the form and context in which it is included;
and
(b) the disclosure statement states that the person has given this
consent; and
(c) the person has not withdrawn this consent before the disclosure
statement is approved by, or registered with, the Registrar.
616—Supply of information between
jurisdictions
(1) The Registrar must,
at the request of a participating Registrar, give free of charge to the
participating Registrar information, or copies of documents, held by the
Registrar relating to a co-operative or a participating co-operative.
(2) The Registrar may
request a participating Registrar to give the Registrar information, or copies
of documents, held by the participating Registrar relating to a co-operative or
a participating co-operative.
(3)
Subsections (1) and
(2) apply regardless of
whether a reciprocal arrangement referred to in
section 617 exists and
regardless of the terms of such an arrangement.
617—Supply of information under reciprocal
arrangements
(1) If a reciprocal
arrangement (see
subsection (2)) with
another jurisdiction or country is in force, the Registrar—
(a) may, at the request
of the appropriate official of the other jurisdiction or country, give to the
official information, or copies of documents, held by the Registrar relating to
a co-operative or a participating co-operative; and
(b) may request the
appropriate official of the other jurisdiction or country to give the Registrar
information, or copies of documents, held by the official relating to an
organisation that, under the arrangement, is an organisation corresponding to a
co-operative or a participating co-operative,
in accordance with the terms of the arrangement.
(2) A reciprocal
arrangement with another jurisdiction is an arrangement made between the
Minister and a representative of the government of the other jurisdiction or
country under which it is agreed—
(a) that the Registrar will comply with a request referred to in
subsection (1)(a);
and
(b) that a request made by the Registrar to an official designated in the
arrangement as the appropriate official for the purposes of
subsection (1)(b)
will be complied with.
618—Translations of documents
A requirement imposed under this Law to give, file or submit a document or
make a document available for inspection is, in the case of a document that is
not in the English language, taken to include a requirement that a translation
of the document be given, filed, submitted or made available for inspection at
the same time.
619—Qualified privilege
(1) If this Law
provides that a person has qualified privilege for an act, matter or thing, the
person, in relation to the act, matter or thing—
(a) has qualified privilege in proceedings for defamation; and
(b) is not, in the absence of malice on the person's part, liable to an
action for defamation at the suit of a person.
(2) In
subsection (1)—
malice includes ill-will to the person concerned or any other
improper motive.
(3) Neither this section nor a provision of this Law that provides as
referred to in
subsection (1)
limits or affects any right, privilege or immunity a person has, apart from this
section or that type of provision, as a defendant in proceedings for
defamation.
620—Stamp duty and registration
fees
It is intended that the Co-operatives National Law Act of this jurisdiction
may provide for documents or instruments executed or registered for specified
purposes in connection with this Law are not liable to stamp duty or to
registration fees, or both, under any Act for registration.
621—Procedures regarding giving of
exemptions
The local regulations may make provision for or with respect to the
procedure for the giving of exemptions that are provided for under this
Law.
622—Approval of forms
The designated authority may approve forms for use under this
Law.
623—Exclusion of bodies
It is intended that the Co-operatives National Law Act of this jurisdiction
may provide that this Law or specified provisions of this Law do not apply to
specified bodies or specified classes of bodies.
624—Savings and transitional
provisions
Schedule 3
contains savings and transitional provisions.
Schedule 1—Matters for which rules of
co-operative must make provision
(
Section 56 of this
Law)
1—Requirements for all
co-operatives
The rules of a co-operative must set out or make provision for each of the
following:
(a) the name of the co-operative;
(b) active membership provisions;
(c) the mode and conditions of admission to membership, and the payment to
be made, or the share or interest to be acquired, before rights of membership
are exercised;
(d) the rights and liabilities of members, and of the estates of deceased
members, and the rights and liabilities of representatives of members under
bankruptcy or mental incapacity;
(e) the circumstances in which members may be expelled or suspended, and
the rights and liabilities of expelled and suspended members;
(f) the circumstances in which membership ceases;
(g) the charges or subscriptions payable by a member to the
co-operative;
(h) the circumstances in which fines and forfeitures may be imposed on
members of the co-operative, and the amount of the fines, being not more than
the maximum amount prescribed by the National Regulations;
(i) the grievance procedures for settling disputes between the
co-operative and any of its members as defined in
section 129, or between a
member and another member;
(j) the restrictions (if any) on the powers of the co-operative and the
board;
(k) the number of directors, the qualification of directors, the way of
electing, remunerating and removing directors and filling a vacancy, the period
for which directors are to hold office, whether directors are to retire by
rotation or otherwise, and the holding of annual elections;
(l) the quorum for and the procedure at meetings of the board;
(m) the device, custody and use of the seal of the co-operative;
(n) how the funds of the co-operative are to be managed, and in particular
the mode of drawing and signing cheques, drafts, bills of exchange, promissory
notes, and other negotiable instruments for the co-operative;
(o) the custody of securities belonging to the co-operative;
(p) how debentures may be transferred;
(q) the date on which the financial year of the co-operative
ends;
(r) the preparation of financial reports of the co-operative, the
provision of those reports to members of the co-operative, and whether and how
those reports are to be audited or reviewed;
(s) how a loss that may result from the transactions of the co-operative
is to be provided for;
(t) the procedure for calling general and special meetings, the requisite
notices of meetings, and the quorum for meetings, of the co-operative;
(u) the procedure at meetings of the co-operative, including the
following:
(i) the rights of members in voting at meetings;
(ii) the way of voting;
(iii) the majority necessary for carrying resolutions, and any special
majority in addition to that required under this Law necessary for carrying
specified resolutions;
(v) the method of conducting postal ballots (including special postal
ballots), including the following:
(i) the sending and filing of information and votes by fax or electronic
means;
(ii) the way of voting;
(iii) the majority necessary for carrying resolutions, and any special
majority in addition to that required under this Law necessary for carrying
specified resolutions;
(w) the way of amending the rules;
(x) how the co-operative may be wound up;
(y) a matter prescribed by the National Regulations for the purposes of
this clause;
(z) other matters that appear necessary or desirable to the
co-operative.
2—Additional matters—co-operatives with share
capital
In addition to the matters specified in
clause 1, the rules of a
co-operative with share capital must set out or make provision for each of the
following:
(a) the nominal value of each share in the co-operative;
(b) the amount of the contingent liability (if any) attaching to
shares;
(c) the terms on which shares, not including bonus shares, but including
shares (if any) with a contingent liability attached to them are to be
issued;
(d) the periodic subscriptions by which or the manner in which shares are
to be paid for;
(e) for a distributing co-operative—how any surplus may be
distributed;
(f) the allocation of a deficiency on the winding up of a
co-operative;
(g) the forfeiture of shares on expulsion or on failure to pay any
subscription or call, the extent to which members whose shares have been
forfeited are to remain liable for any amount still unpaid for them, and the
sale or cancellation of forfeited shares;
(h) how shares may be transferred;
(i) a matter prescribed by the National Regulations for the purposes of
this clause.
3—Additional matters—non-distributing
co-operatives
In addition to the matters specified in
clauses 1 and
2, the rules of a
non-distributing co-operative must provide—
(a) that there must be no return or distribution of surplus or share
capital to members other than the nominal value of shares (if any) at winding
up; and
(b) for the way of distribution of the surplus property at winding
up.
Schedule 2—Relevant interests, associates, and
related corporations
(
Section 4 of this
Law)
Part 1—Relevant interests
1—Terminology used in this
Part
(1) This clause applies for the purposes of this Part.
(2) Power to vote in relation to a right to vote is power to exercise, or
to control the exercise of, the right to vote.
(3) A reference to power to dispose of a share includes a reference to
power to exercise control over the disposal of the share.
(4) A reference to power or control includes a reference to power or
control that is direct or indirect or is, or can be, exercised because of, by
means of, in breach of, or by revocation of, trusts, agreements and practices,
or any of them, whether or not they are enforceable.
(5) Power to vote in relation to a right to vote, or power to dispose of a
share, that is exercisable by 2 or more persons jointly is taken to be
exercisable by either or any of those persons.
(6) A reference to a controlling interest includes a reference to an
interest that gives control.
2—Basic rules—relevant
interests
(1) In this Law (unless otherwise provided), relevant
interest has a meaning determined under this Part.
(2) A person who has power to vote in relation to a right to vote has a
relevant interest in the right to vote.
(3) A person who has power to dispose of a share has a relevant interest
in the share.
3—Control of corporation having power in relation
to a share
If a corporation has, or is by this Part taken to have—
(a) power to vote in
relation to a right to vote; or
(b) power to dispose of
a share,
a person is taken for the purposes of this Part to have in relation to the
right to vote or share the same power as the corporation has, or is taken to
have, if—
(c) the corporation is, or its directors are, accustomed or under an
obligation, whether formal or informal, to act under the directions,
instructions or wishes of the person in relation to the exercise of the power
referred to in
paragraph (a) or
(b); or
(d) the person has a controlling interest in the corporation.
4—Control of 20% of voting power in corporation
having power in relation to a share
If a corporation or an associate of a corporation has, or is by this Part
(other than this clause) taken to have—
(a) power to vote in relation to a right to vote; or
(b) power to dispose of a share,
a person is taken for the purposes of this Part to have in relation to the
right to vote or share the same power as the corporation or associate has, or is
taken to have, if—
(c) the person has; or
(d) an associate of the person has; or
(e) associates of the person together have; or
(f) the person and an associate or associates of the person together
have,
power to vote in relation to the right to vote attached to not less than
20% of the voting shares in the corporation.
5—Deemed relevant interest in advance of
performance of agreement that will give rise to a relevant
interest
If—
(a) a person—
(i) has entered into an agreement with another person with respect to an
issued share or right to vote in which the other person has a relevant interest;
or
(ii) has a right enforceable against another person in relation to an
issued share or right to vote in which the other person has a relevant interest,
whether the right is enforceable presently or in the future and whether or not
it is enforceable on the fulfilment of a condition; or
(iii) has an option granted by another person, or has granted to another
person an option, with respect to an issued share or right to vote in which the
other person has a relevant interest; and
(b) the first-mentioned
person would have a relevant interest in the share or right to vote on
performance of the agreement, enforcement of the right, or exercise of the
option,
the first-mentioned person is taken for the purposes of this Part to have
that relevant interest in the share or right to vote.
6—Control of corporation having a relevant interest
by virtue of clause 5
If a corporation is taken under
clause 5 to have a
relevant interest in a share in or right to vote at meetings of a co-operative,
a person is taken for the purposes of this Part to have a relevant interest in
the share or right to vote if—
(a) the corporation is, or its directors are, accustomed or under an
obligation, whether formal or informal, to act under the directions,
instructions or wishes of the person in relation to the exercise of power to
vote in relation to the right to vote or power to dispose of the shares;
or
(b) the person has a controlling interest in the corporation; or
(c) the person has power to vote in relation to the right to vote attached
to not less than 20% of the voting shares in the corporation.
7—Matters not affecting application of
Part
(1) It is immaterial for the purposes of this Part whether or not power to
vote in relation to a right to vote, or power to dispose of a
share—
(a) is express or implied or formal or informal; or
(b) is exercisable by a person alone or jointly with another person or
persons; or
(c) cannot be related to a particular share; or
(d) is, or can be made, subject to restraint or restriction.
(2) A relevant interest in a share or right to vote is not to be
disregarded merely because of either or both of the following:
(a) its remoteness;
(b) how it arose.
8—Corporation may have a relevant interest in its
own shares
A corporation may, by virtue of this Part, be considered to have a relevant
interest in a share in or right to vote arising from membership of the
corporation itself.
9—Exclusions—money-lenders
A relevant interest of a person in a share or right to vote is to be
disregarded if—
(a) the person's ordinary business includes lending money; and
(b) the person has authority to exercise powers as the holder of the
relevant interest only because of a security given for a transaction entered
into in the ordinary course of business in connection with lending money, other
than a transaction entered into with an associate of the person.
10—Exclusions—certain
trustees
A relevant interest of a person in a share or right to vote is to be
disregarded if—
(a) the share or right is subject to a trust; and
(b) the person has the relevant interest as a trustee of the trust;
and
(c) either—
(i) a beneficiary under the trust is taken under
clause 5 to have a
relevant interest in the share or right because the beneficiary has a presently
enforceable and unconditional right referred to in
clause 5(b);
or
(ii) the person is a bare trustee.
11—Exclusions—instructions to securities
dealer to dispose of share
A relevant interest of a person in a share or right to vote is to be
disregarded if—
(a) the person's ordinary business includes dealing in securities;
and
(b) the person has authority to exercise powers as the holder of the
relevant interest only because of instructions given to the person, by or on
behalf of another person, to dispose of the share on the other person's behalf
in the ordinary course of the business.
12—Exclusions—honorary
proxies
A relevant interest of a person in a share or right to vote is to be
disregarded if the person has it only because of having been appointed,
otherwise than for valuable consideration given by the person or an associate of
the person, to vote as a proxy or representative at a meeting of members, or of
a class of members, of a corporation.
13—Exclusions—holders of prescribed
offices
A relevant interest of a person in a share or right to vote is to be
disregarded if the person has it because of holding an office prescribed by the
National Regulations.
14—Prescribed exclusions
The National Regulations may provide that a relevant interest in a share
is, in specified circumstances and subject to specified conditions (if any), to
be disregarded for the purposes of a provision of this Law.
15—Effect of Schedule
(1) Nothing in this Schedule limits the generality of anything else in
it.
(2) A person does not have a relevant interest in a share of a
co-operative or a right to vote in relation to a co-operative except as provided
in this Schedule.
16—Relevant interest—corporation other than
co-operative
A reference in this Law (including this Schedule) to a relevant interest in
a share of a corporation other than a co-operative or a right to vote in
relation to a corporation other than a co-operative is to be construed under the
Corporations Act.
Part 2—Associates
17—Effect of Part
(1) In this Law (unless otherwise provided), associate has a meaning
determined under this Part.
(2) A person is not an associate of another person except as provided by
this Part.
18—Associates of a corporation
The associates of a corporation include the following:
(a) a director or secretary of the corporation;
(b) a related corporation;
(c) a director or secretary of a related corporation.
19—Matters relating to voting
rights
(1) If a reference to
an associate of a person relates to—
(a) the extent of power to exercise, or to control the exercise of, the
voting power attached to voting shares in or arising from membership of a
corporation; or
(b) the person's entitlement to shares in a corporation; or
(c) an offer to purchase shares to which
Division 2 of
Chapter 3 Part 5
applies,
the reference includes a reference to another person with whom the person
has entered into, or proposes to enter into, an agreement referred to in
subclause (2).
(2)
Subclause (1) applies to
an agreement—
(a) because of which one of the persons referred to in
subclause (1) has, or
will have, power (even if it is in any way qualified)—
(i) to exercise; or
(ii) to control, directly or indirectly, the exercise of; or
(iii) to influence substantially the exercise of,
any voting power attached to shares in the corporation; or
(b) for the purpose of controlling or influencing—
(i) the composition of the corporation's board; or
(ii) the conduct of affairs of the corporation; or
(c) under which one of the persons—
(i) will or may acquire; or
(ii) may be required by the other to acquire,
shares in the corporation in which the other has a relevant interest;
or
(d) under which one of the persons may be required to dispose of shares in
the corporation in accordance with the other's directions.
(3)
Subclause (1) applies
despite any other effect the agreement may have.
(4) In relation to a matter relating to shares in a corporation, a person
may be an associate of the corporation and the corporation may be an associate
of a person.
20—General
(1) A reference to an
associate of a person includes a reference to—
(a) another person in concert with whom the person is acting or proposes
to act; and
(b) another person who, under the National Regulations, is, for the
purposes of the provision in which the reference occurs, an associate of the
person; and
(c) another person with whom the person is or proposes to become
associated, whether formally or informally, in any other way,
in relation to the matter to which the reference relates.
(2) If a person has
entered, or proposes to enter, into a transaction, or has done, or proposes to
do, an act or thing, in order to become associated with another person as
referred to in an applicable provision of this Part, a reference to an associate
of the person includes a reference to the other person.
21—Exclusions
A person is not an associate of another person by virtue of
clause 19 or
20(1), or by virtue of
clause 20(2) as it
applies in relation to
clause 19 or
20(1), merely because of
one or more of the following:
(a) one gives advice to the other, or acts on the other's behalf, in the
proper performance of the functions attaching to a professional capacity or a
business relationship;
(b) one, a client, gives specific instructions to the other, whose
ordinary business includes dealing in securities, to acquire shares on the
client's behalf in the ordinary course of that business;
(c) one has made, or proposes to make, to the other an offer to which
Division 2 of
Chapter 3 Part 5
applies, in relation to shares held by the other;
(d) one has appointed the other, otherwise than for valuable consideration
given by the other or by an associate of the other, to vote as a proxy or
representative at a meeting of members, or of a class of members, of a
corporation.
Part 3—Related
corporations
22—Related corporations
For the purposes of this Law, a corporation is taken to be related
to—
(a) another corporation that is its subsidiary; and
(b) another corporation of which it is a subsidiary; and
(c) another corporation if both it and that other corporation are
subsidiaries of the same corporation.
Schedule 3—Savings and transitional
provisions
(
Section 624 of this
Law)
1—Entitlements of former members of trading or
distributing co-operatives
It is intended that the Co-operatives National Law Act of this jurisdiction
may provide that a reference in
Division 5 of
Chapter 2 Part 6 of
this Law to the period of 2 years is taken to be a reference to another
period in a case where the cancellation of membership concerned occurred before
the commencement of that Division in this jurisdiction.
2—Application of Chapter 5 to existing registered
foreign co-operatives not incorporated under corresponding
law
(1) This clause applies to a body that was a foreign co-operative
registered under the repealed legislation of this jurisdiction immediately
before the commencement of this clause in this jurisdiction but that is not
registered and incorporated under a corresponding co-operatives law.
(2) The co-operative is taken to be a participating co-operative
authorised to carry on business in this jurisdiction under
Chapter 5, and that
Chapter applies accordingly.
3—Maximum permissible level of share
interest
(1) This clause applies where, immediately before the commencement of this
clause in this jurisdiction—
(a) a person lawfully had a relevant interest in shares of a co-operative;
and
(b) the nominal value of the person's shares was a percentage (the
relevant percentage) of the issued share capital of the
co-operative that is more than 20% of the nominal value of the issued share
capital.
(2) The maximum of 20% stated by
section 363(1)
is taken to be increased for the person by force of this clause to a maximum
equal to the relevant percentage.
4—Receivers of property
Nothing in section 418 of the Corporations Act as applying under
section 393 prevents a
person from acting as receiver of property of a co-operative under an
appointment validly made before the commencement of this clause in this
jurisdiction.
Schedule 4—Miscellaneous provisions relating
to interpretation
(
Section 5 of this
Law)
Part 1—Preliminary
1—Displacement of Schedule by contrary
intention
The application of this Schedule may be displaced, wholly or partly, by a
contrary intention appearing in this Law.
Part 2—General
2—Law to be construed not to exceed legislative
power of Legislature
(1) This Law is to be construed as operating to the full extent of, but so
as not to exceed, the legislative power of the Legislature of this
jurisdiction.
(2) If a provision of this Law, or the application of a provision of this
Law to a person, subject matter or circumstance, would, but for this clause, be
construed as being in excess of the legislative power of the Legislature of this
jurisdiction—
(a) it is a valid provision to the extent to which it is not in excess of
the power; and
(b) the remainder of this Law, and the application of the provision to
other persons, subject matters or circumstances, is not affected.
(3) This clause applies to this Law in addition to, and without limiting
the effect of, any provision of this Law.
3—Every section to be a substantive
enactment
Every section of this Law has effect as a substantive enactment without
introductory words.
4—Material that is, and is not, part of this
Law
(1) The heading to a Chapter, Part, Division or Subdivision into which
this Law is divided is part of this Law.
(2) A Schedule to this Law is part of this Law.
(3) Punctuation in this Law is part of this Law.
(4) A heading to a section or subsection of this Law does not form part of
this Law.
(5) Notes included in this Law (including footnotes and endnotes) are part
of this Law.
5—References to particular Acts and to
enactments
In this Law—
(a) an Act of this jurisdiction may be cited—
(i) by its short title; or
(ii) by reference to the year in which it was passed and its number;
and
(b) a Commonwealth Act may be cited—
(i) by its short title; or
(ii) in another way sufficient in a Commonwealth Act for the citation of
such an Act,
together with a reference to the Commonwealth; and
(c) an Act of another jurisdiction may be cited—
(i) by its short title; or
(ii) in another way sufficient in an Act of the jurisdiction for the
citation of such an Act,
together with a reference to the jurisdiction.
6—References taken to be included in Law or Act
citation etc
(1) A reference in this
Law to this Law or an Act includes a reference to—
(a) this Law or the Act as originally enacted, and as amended from time to
time since its original enactment; and
(b) if this Law or the Act has been repealed and re-enacted (with or
without modification) since the enactment of the reference—the Act as
re-enacted, and as amended from time to time since its re-enactment.
(2) A reference in this
Law to a provision of this Law or of an Act includes a reference
to—
(a) the provision as originally enacted, and as amended from time to time
since its original enactment; and
(b) if the provision has been omitted and re-enacted (with or without
modification) since the enactment of the reference—the provision as
re-enacted, and as amended from time to time since its re-enactment.
(3)
Subclauses (1) and
(2) apply to a reference
in this Law to a law of the Commonwealth or another jurisdiction in the same way
as they apply to a reference in this Law to an Act and to a provision of an
Act.
7—Interpretation best achieving Law's purpose or
object
(1) In the
interpretation of a provision of this Law, the interpretation that will best
achieve the purpose or object of this Law is to be preferred to any other
interpretation.
(2)
Subclause (1) applies
whether or not the purpose or object is expressly stated in this Law.
8—Use of extrinsic material in
interpretation
(1) In this clause—
extrinsic material means relevant material not forming part
of this Law, including, for example—
(a) material that is set out in the document containing the text of this
Law as printed by the Government Printer; and
(b) a relevant report of a Royal Commission, Law Reform Commission,
commission or committee of inquiry, or a similar body, that was laid before the
Legislature or a House of the Legislature of this jurisdiction before the
provision concerned was enacted; and
(c) a relevant report of a committee of the Legislature or a House of the
Legislature of this jurisdiction that was made before the provision concerned
was enacted; and
(d) a treaty or other international agreement that is referred to in this
Law; and
(e) an explanatory note or memorandum relating to the Bill that contained
the provision concerned, or any relevant document, that was laid before, or
given to the members of, the Legislature or a House of the Legislature of this
jurisdiction by the member introducing or bringing in the Bill before the
provision was enacted; and
(f) the speech made to the Legislature or a House of the Legislature of
this jurisdiction by the member in moving a motion that the Bill be read a
second time; and
(g) material in the votes and proceedings or other official records of the
Legislature or a House of the Legislature of this jurisdiction of the
proceedings of or debates in the Legislature or House; and
(h) a document that is declared by this Law to be a relevant document for
the purposes of this clause;
ordinary meaning means the ordinary meaning conveyed by a
provision having regard to its context in this Law and to the purpose of this
Law.
(2) Subject to
subclause (3), in
the interpretation of a provision of this Law consideration may be given to
extrinsic material capable of assisting in the interpretation—
(a) if the provision is ambiguous or obscure—to provide an
interpretation of it; or
(b) if the ordinary meaning of the provision leads to a result that is
manifestly absurd or is unreasonable—to provide an interpretation that
avoids such a result; or
(c) in any other case—to confirm the interpretation conveyed by the
ordinary meaning of the provision.
(3) In determining
whether consideration should be given to extrinsic material, and in determining
the weight to be given to extrinsic material, regard is to be had
to—
(a) the desirability of a provision being interpreted as having its
ordinary meaning; and
(b) the undesirability of prolonging proceedings without compensating
advantage; and
(c) other relevant matters.
9—Effect of change of drafting
practice
If—
(a) a provision of this Law expresses an idea in particular words;
and
(b) a provision enacted later appears to express the same idea in
different words for the purpose of implementing a different legislative drafting
practice, including, for example—
(i) the use of a clearer or simpler style; or
(ii) the use of gender-neutral language,
the ideas must not be taken to be different merely because different words
are used.
10—Use of examples
If this Law includes an example of the operation of a
provision—
(a) the example is not exhaustive; and
(b) the example does not limit, but may extend, the meaning of the
provision; and
(c) the example and the provision are to be read in the context of each
other and the other provisions of this Law, but, if the example and the
provision so read are inconsistent, the provision prevails.
11—Compliance with forms
(1) If a form is prescribed or approved by or for the purpose of this Law,
strict compliance with the form is not necessary and substantial compliance is
sufficient.
(2) If a form prescribed or approved by or for the purpose of this Law
requires—
(a) the form to be completed in a specified way; or
(b) specified information or documents to be included in, attached to or
given with the form; or
(c) the form, or information or documents included in, attached to or
given with the form, to be verified in a specified way,
the form is not properly completed unless the requirement is complied
with.
Part 3—Terms and
references
12—Definitions
(1) In this Law—
Act means an Act of the Legislature of this
jurisdiction;
adult means an individual who is of or above the age of 18
years;
affidavit, in relation to a person allowed by law to affirm,
declare or promise, includes affirmation, declaration and promise;
amend includes—
(a) omit or substitute; or
(b) alter or vary; or
(c) amend by implication;
appoint includes reappoint;
Australia means the Commonwealth of Australia but, when used
in a geographical sense, does not include an external Territory;
business day means a day that is not—
(a) a Saturday or Sunday; or
(b) a public holiday, special holiday or bank holiday in the place in
which any relevant act is to be or may be done;
calendar month means a period starting at the beginning of
any day of 1 of the 12 named months and ending—
(a) immediately before the beginning of the corresponding day of the next
named month; or
(b) if there is no such corresponding day—at the end of the next
named month;
calendar year means a period of 12 months beginning on 1
January;
commencement, in relation to this Law or an Act or a
provision of this Law or an Act, means the time at which this Law, the Act or
provision comes into operation;
Commonwealth means the Commonwealth of Australia but, when
used in a geographical sense, does not include an external Territory;
confer, in relation to a duty, includes impose;
contravene includes fail to comply with;
country includes—
(a) a federation; or
(b) a state, province or other part of a federation;
date of assent, in relation to an Act, means the day on which
the Act receives the Royal Assent;
definition means a provision of this Law (however expressed)
that—
(a) gives a meaning to a word or expression; or
(b) limits or extends the meaning of a word or expression;
document means any record of information, and
includes—
(a) any paper or other material on which there is writing; or
(b) any paper or other material on which there are marks, figures, symbols
or perforations having a meaning for a person qualified to interpret them;
or
(c) any computer, disc, tape or other article or any material from which
sounds, images, writings or messages are capable of being reproduced (with or
without the aid of another article or device); or
(d) a map, plan, drawing or photograph;
electronic communication means—
(a) a communication of information in the form of data, text or images by
means of guided or unguided electromagnetic energy, or both; or
(b) a communication of information in the form of sound by means of guided
or unguided electromagnetic energy, or both, where the sound is processed at its
destination by an automated voice recognition system;
estate includes easement, security interest, right, title,
claim, demand or encumbrance, whether at law or in equity;
exercise a function includes perform a function;
expire includes lapse or otherwise cease to have
effect;
external Territory means a Territory, other than an internal
Territory, for the government of which as a Territory provision is made by a
Commonwealth Act;
fail includes refuse;
financial year means a period of 12 months beginning on 1
July;
foreign country means a country (whether or not an
independent sovereign State) outside Australia and the external
Territories;
function includes a power, authority or duty;
Gazette means the Government Gazette of this
jurisdiction;
Gazette notice means a notice published in the
Gazette;
gazetted means published in the Gazette;
Government Printer means the Government Printer of a
jurisdiction, and includes any other person authorised by the Government of a
jurisdiction to print an Act or instrument;
House of a Legislature includes, in the case of a Territory,
the Legislative Assembly of that Territory;
individual means a natural person;
information system means a system for generating, sending,
receiving, storing or otherwise processing electronic communications;
insert, in relation to a provision of this Law, includes
substitute;
instrument includes a statutory instrument;
interest, in relation to land or other property,
means—
(a) a legal or equitable estate in the land or other property;
or
(b) a right, power or privilege over, or in relation to, the land or other
property;
internal Territory means the Australian Capital Territory,
the Jervis Bay Territory or the Northern Territory;
Jervis Bay Territory means the Territory referred to in the
Jervis Bay Territory Acceptance Act 1915 of the Commonwealth;
make includes issue or grant;
minor means an individual who is under the age of 18
years;
modification includes addition, omission or
substitution;
month means a calendar month;
named month means 1 of the 12 months of the year;
Northern Territory means the Northern Territory of
Australia;
number means—
(a) a number expressed in figures or words; or
(b) a letter; or
(c) a combination of a number so expressed and a letter;
oath, in relation to a person allowed by law to affirm,
declare or promise, includes affirmation, declaration or promise;
office includes position;
omit, in relation to a provision of this Law or an Act,
includes repeal;
party includes an individual or a body politic or
corporate;
penalty includes forfeiture or punishment;
person includes an individual or a body politic or
corporate;
power includes authority;
prescribed means prescribed by, or by regulations made or in
force for the purposes of or under, this Law;
printed includes typewritten, lithographed or reproduced by
any mechanical means;
proceedings means legal or other action or
proceedings;
property means any legal or equitable estate or interest
(whether present or future, vested or contingent, or tangible or intangible) in
real or personal property of any description (including money), and includes
things in action;
provision, in relation to this Law or an Act, means words or
other matter that form or forms part of this Law or the Act, and
includes—
(a) a Chapter, Part, Division, Subdivision, section, subsection,
paragraph, subparagraph, sub-subparagraph or Schedule of or to this Law or the
Act; or
(b) a clause, subclause, section, subsection, item, column, table or form
of or in a Schedule to this Law or the Act; or
(c) the long title and any preamble to the Act;
record includes information stored or recorded by means of a
computer;
repeal includes—
(a) revoke or rescind; or
(b) repeal by implication; or
(c) abrogate or limit the effect of this Law or the instrument concerned;
or
(d) exclude from, or include in, the application of this Law or the
instrument concerned any person, subject matter or circumstance;
sign includes the affixing of a seal or the making of a
mark;
statutory declaration means a declaration made under an Act,
or under a Commonwealth Act or an Act of another jurisdiction, that authorises a
declaration to be made otherwise than in the course of judicial
proceedings;
statutory instrument means an instrument (including a
regulation) made or in force under or for the purposes of this Law, and includes
an instrument made or in force under any such instrument;
swear, in relation to a person allowed by law to affirm,
declare or promise, includes affirm, declare or promise;
word includes any symbol, figure or drawing;
writing includes any mode of representing or reproducing
words in a visible form;
year, without specifying the type of year, means calendar
year.
(2) In a statutory instrument—
the Law means this Law.
13—Provisions relating to defined terms and gender
and number
(1) If this Law defines a word or expression, other parts of speech and
grammatical forms of the word or expression have corresponding
meanings.
(2) Definitions in or applicable to this Law apply except so far as the
context or subject matter otherwise indicates or requires.
(3) In this Law, words indicating a gender include each other
gender.
(4) In this Law—
(a) words in the singular include the plural; and
(b) words in the plural include the singular.
14—Meaning of may and must etc
(1) In this Law, the word "may", or a similar word or expression, used in
relation to a power indicates that the power may be exercised or not exercised,
at discretion.
(2) In this Law, the word "must", or a similar word or expression, used in
relation to a power indicates that the power is required to be
exercised.
(3) This clause has effect despite any rule of construction to the
contrary.
15—Words and expressions used in statutory
instruments
(1) Words and expressions used in a statutory instrument have the same
meanings as they have, from time to time, in this Law or relevant provisions of
this Law, under or for the purposes of which the instrument is made or in
force.
(2) This clause has effect in relation to an instrument except so far as
the contrary intention appears in the instrument.
16—Effect of express references to bodies corporate
and individuals
In this Law, a reference to a person generally (whether the expression
"person", "party", "someone", "anyone", "no-one", "one", "another" or "whoever"
or another expression is used)—
(a) does not exclude a reference to a body corporate or an individual
merely because elsewhere in this Law there is particular reference to a body
corporate (however expressed); and
(b) does not exclude a reference to an individual or a body corporate
merely because elsewhere in this Law there is particular reference to an
individual (however expressed).
17—Production of records kept in computers
etc
If a person who keeps a record of information by means of a mechanical,
electronic or other device is required by or under this Law—
(a) to produce the information or a document containing the information to
a court, tribunal or person; or
(b) to make a document containing the information available for inspection
by a court, tribunal or person,
then, unless the court, tribunal or person otherwise
directs—
(c) the requirement obliges the person to produce or make available for
inspection, as the case may be, a document that reproduces the information in a
form capable of being understood by the court, tribunal or person; and
(d) the production to the court, tribunal or person of the document in
that form complies with the requirement.
18—References to this jurisdiction to be
implied
In this Law—
(a) a reference to an officer, office or statutory body is a reference to
such an officer, office or statutory body in and for this jurisdiction;
and
(b) a reference to a locality or other matter or thing is a reference to
such a locality or other matter or thing in and of this jurisdiction.
19—References to officers and holders of
offices
In this Law, a reference to a particular officer, or to the holder of a
particular office, includes a reference to the person for the time being
occupying or acting in the office concerned.
20—Reference to certain provisions of
Law
(1) If a provision of
this Law refers—
(a) to a Chapter, Part,
section or Schedule by a number and without reference to this Law—the
reference is a reference to the Chapter, Part, section or Schedule, designated
by the number, of or to this Law; or
(b) to a Schedule without reference to it by a number and without
reference to this Law—the reference, if there is only one Schedule to this
Law, is a reference to the Schedule; or
(c) to a Division, Subdivision, subsection, paragraph, subparagraph,
sub-subparagraph, clause, subclause, item, column, table or form by a number and
without reference to this Law—the reference is a reference
to—
(i) the Division, designated by the number, of the Part in which the
reference occurs; and
(ii) the Subdivision, designated by the number, of the Division in which
the reference occurs; and
(iii) the subsection, designated by the number, of the section in which
the reference occurs; and
(iv) the paragraph, designated by the number, of the section, subsection,
Schedule or other provision in which the reference occurs; and
(v) the paragraph, designated by the number, of the clause, subclause,
item, column, table or form of or in the Schedule in which the reference occurs;
and
(vi) the subparagraph, designated by the number, of the paragraph in which
the reference occurs; and
(vii) the subsubparagraph, designated by the number, of the subparagraph
in which the reference occurs; and
(viii) the clause, subclause, item, column, table or form, designated by
the number, of or in the Schedule in which the reference occurs,
as the case requires.
(2) If a provision of a Schedule to this Law refers to a section by a
number and without reference to this Law and the Schedule is divided into
sections—the reference is (despite
subclause (1)(a)) a
reference to the section designated by that number of the Schedule.
21—Reference to provisions of this Law or an Act is
inclusive
In this Law, a reference to a portion of this Law or an Act
includes—
(a) a reference to the Chapter, Part, Division, Subdivision, section,
subsection or other provision of this Law or the Act referred to that forms the
beginning of the portion; and
(b) a reference to the Chapter, Part, Division, Subdivision, section,
subsection or other provision of this Law or the Act referred to that forms the
end of the portion.
Note—
For example, a reference to "sections 5 to 9" includes both section 5 and
section 9. It is not necessary to refer to "sections 5 to 9 (both inclusive)" to
ensure that the reference is given an inclusive interpretation.
Part 4—Functions
22—Exercise of statutory
functions
(1) If this Law confers a function on a person or body, the function may
be exercised from time to time as occasion requires.
(2) If this Law confers a function on a particular officer or the holder
of a particular office, the function may be exercised by the person for the time
being occupying or acting in the office concerned.
(3) If this Law confers a function on a body (whether or not
incorporated), the exercise of the function is not affected merely because of
vacancies in the membership of the body.
23—Power to make instrument or decision includes
power to amend or repeal
If this Law authorises or requires the making of an instrument or
decision—
(a) the power includes power to amend or repeal the instrument or
decision; and
(b) the power to amend or repeal the instrument or decision is exercisable
in the same way, and subject to the same conditions, as the power to make the
instrument or decision.
24—Matters for which statutory instruments may make
provision
(1) If this Law authorises or requires the making of a statutory
instrument in relation to a matter, a statutory instrument made under this Law
may make provision for the matter by applying, adopting or incorporating (with
or without modification) the provisions of—
(a) an Act or statutory instrument; or
(b) another document (whether of the same or a different kind),
as in force at a particular time or as in force from time to
time.
(2) If a statutory instrument applies, adopts or incorporates the
provisions of a document, the statutory instrument applies, adopts or
incorporates the provisions as in force from time to time, unless the statutory
instrument otherwise expressly provides.
(3) A statutory instrument may—
(a) apply generally throughout this jurisdiction or be limited in its
application to a particular part of this jurisdiction; or
(b) apply generally to all persons, matters or things or be limited in its
application to—
(i) particular persons, matters or things; or
(ii) particular classes of persons, matters or things; or
(c) otherwise apply generally or be limited in its application by
reference to specified exceptions or factors.
(4) A statutory instrument may—
(a) apply differently according to different specified factors;
or
(b) otherwise make different provision in relation to—
(i) different persons, matters or things; or
(ii) different classes of persons, matters or things.
(5) A statutory instrument may authorise a matter or thing to be from time
to time determined, applied or regulated by a specified person or
body.
(6) If this Law authorises or requires a matter to be regulated by
statutory instrument, the power may be exercised by prohibiting by statutory
instrument the matter or any aspect of the matter.
(7) If this Law authorises or requires provision to be made with respect
to a matter by statutory instrument, a statutory instrument made under this Law
may make provision with respect to a particular aspect of the matter despite the
fact that provision is made by this Law in relation to another aspect of the
matter or in relation to another matter.
(8) A statutory instrument may provide for the review of, or a right of
appeal against, a decision made under the statutory instrument, or this Law, and
may, for that purpose, confer jurisdiction on any court, tribunal, person or
body.
(9) A statutory instrument may require a form prescribed by or under the
statutory instrument, or information or documents included in, attached to or
given with the form, to be verified by statutory declaration.
25—Presumption of validity and power to make
statutory instrument
(1) All conditions and preliminary steps required for the making of a
statutory instrument are presumed to have been satisfied and performed in the
absence of evidence to the contrary.
(2) A statutory instrument is taken to be made under all powers under
which it may be made, even though it purports to be made under this Law or a
particular provision of this Law.
26—Appointments may be made by name or
office
(1) If this Law authorises or requires a person or body—
(a) to appoint a person to an office; or
(b) to appoint a person or body to exercise a power; or
(c) to appoint a person or body to do another thing,
the person or body may make the appointment by—
(d) appointing a person or body by name; or
(e) appointing a particular officer, or the holder of a particular office,
by reference to the title of the office concerned.
(2) An appointment of a particular officer, or the holder of a particular
office, is taken to be the appointment of the person for the time being
occupying or acting in the office concerned.
27—Acting appointments
(1) If this Law authorises a person or body to appoint a person to act in
an office, the person or body may, in accordance with this Law,
appoint—
(a) a person by name; or
(b) a particular officer, or the holder of a particular office, by
reference to the title of the office concerned,
to act in the office.
(2) The appointment may
be expressed to have effect only in the circumstances specified in the
instrument of appointment.
(3) The appointer may—
(a) determine the terms and conditions of the appointment, including
remuneration and allowances; and
(b) terminate the appointment at any time.
(4) The appointment, or the termination of the appointment, must be in, or
evidenced by, writing signed by the appointer.
(5) The appointee must not act for more than one year during a vacancy in
the office.
(6) If the appointee is acting in the office otherwise than because of a
vacancy in the office and the office becomes vacant, then, subject to
subclause (2), the
appointee may continue to act until—
(a) the appointer otherwise directs; or
(b) the vacancy is filled; or
(c) the end of a year from the day of the vacancy,
whichever happens first.
(7) The appointment ceases to have effect if the appointee resigns by
writing signed and delivered to the appointer.
(8) While the appointee is acting in the office—
(a) the appointee has all the powers and other functions of the holder of
the office; and
(b) this Law and other laws apply to the appointee as if the appointee
were the holder of the office.
(9) Anything done by or in relation to a person purporting to act in the
office is not invalid merely because—
(a) the occasion for the appointment had not arisen; or
(b) the appointment had ceased to have effect; or
(c) the occasion for the person to act had not arisen or had
ceased.
(10) If this Law authorises the appointer to appoint a person to act
during a vacancy in the office, an appointment to act in the office may be made
by the appointer whether or not an appointment has previously been made to the
office.
28—Powers of appointment imply certain incidental
powers
(1) If this Law
authorises or requires a person or body to appoint a person to an
office—
(a) the power may be exercised from time to time as occasion requires;
and
(i) power to remove or suspend, at any time, a person appointed to the
office; and
(ii) power to appoint another person to act in the office if a person
appointed to the office is removed or suspended; and
(iii) power to reinstate or reappoint a person removed or suspended;
and
(iv) power to appoint a person to act in the office if it is vacant
(whether or not the office has ever been filled); and
(v) power to appoint a person to act in the office if the person appointed
to the office is absent or is unable to discharge the functions of the office
(whether because of illness or otherwise).
(2) The power to remove or suspend a person under
subclause (1)(b) may
be exercised even if this Law provides that the holder of the office to which
the person was appointed is to hold office for a specified period.
(3) The power to make an appointment under
subclause (1)(b) may
be exercised from time to time as occasion requires.
(4) An appointment under
subclause (1)(b) may
be expressed to have effect only in the circumstances specified in the
instrument of appointment.
29—Delegations
(1) If this Law authorises a person or body to delegate a function, the
person or body may, in accordance with this Law and any other applicable law,
delegate the function to—
(a) a person or body by name; or
(b) a specified officer, or the holder of a specified office, by reference
to the title of the office concerned.
(2) The delegation may be—
(a) general or limited; and
(b) made from time to time; and
(c) revoked, wholly or partly, by the delegator.
(3) The delegation, or a revocation of the delegation, must be in, or
evidenced by, writing signed by the delegator or, if the delegator is a body, by
a person authorised by the body for the purpose.
(4) A delegated function may be exercised only in accordance with any
conditions to which the delegation is subject.
(5) The delegate may, in the exercise of a delegated function, do anything
that is incidental to the delegated function.
(6) A delegated function that purports to have been exercised by the
delegate is taken to have been properly exercised by the delegate unless the
contrary is proved.
(7) A delegated function that is properly exercised by the delegate is
taken to have been exercised by the delegator.
(8) If, when exercised by the delegator, a function is dependent on the
delegator's opinion, belief or state of mind, then, when exercised by the
delegate, the function is dependent on the delegate's opinion, belief or state
of mind.
(9) If—
(a) the delegator is a specified officer or the holder of a specified
office; and
(b) the person who was the specified officer or holder of the specified
office when the delegation was made ceases to be the holder of the
office,
then—
(c) the delegation continues in force; and
(d) the person for the time being occupying or acting in the office
concerned is taken to be the delegator for the purposes of this
clause.
(10) If—
(a) the delegator is a body; and
(b) there is a change in the membership of the body,
then—
(c) the delegation continues in force; and
(d) the body as constituted for the time being is taken to be the
delegator for the purposes of this clause.
(11) If a function is delegated to a specified officer or the holder of a
specified office—
(a) the delegation does not cease to have effect merely because the person
who was the specified officer or the holder of the specified office when the
function was delegated ceases to be the officer or the holder of the office;
and
(b) the function may be exercised by the person for the time being
occupying or acting in the office concerned.
(12) A function that has been delegated may, despite the delegation, be
exercised by the delegator.
(13) The delegation of a function does not relieve the delegator of the
delegator's obligation to ensure that the function is properly
exercised.
(14) Subject to
subclause (15), this
clause applies to a subdelegation of a function in the same way as it applies to
a delegation of a function.
(15) If this Law
authorises the delegation of a function, the function may be subdelegated only
if the Law expressly authorises the function to be subdelegated.
30—Exercise of powers between enactment and
commencement
(1) If a provision of
this Law (the empowering provision) that does not commence on its
enactment would, had it commenced, confer a power—
(a) to make an appointment; or
(b) to make a statutory instrument of a legislative or administrative
character; or
(c) to do another thing,
then—
(d) the power may be exercised; and
(e) anything may be done for the purpose of enabling the exercise of the
power or of bringing the appointment, instrument or other thing into
effect,
before the empowering provision commences.
(2) If an instrument,
or a provision of an instrument, is made under
subclause (1) that
is necessary for the purpose of—
(a) enabling the exercise of a power referred to in the subclause;
or
(b) bringing an appointment, instrument or other thing made or done under
such a power into effect,
the instrument or provision takes effect—
(c) on the making of the instrument; or
(d) on such later day (if any) on which, or at such later time (if any) at
which, the instrument or provision is expressed to take effect.
(a) an appointment is made under
subclause (1);
or
(b) an instrument, or a provision of an instrument, made under
subclause (1) is not
necessary for a purpose referred to in
subclause (2),
the appointment, instrument or provision takes effect—
(c) on the commencement of the relevant empowering provision; or
(d) on such later day (if any) on which, or at such later time (if any) at
which, the appointment, instrument or provision is expressed to take
effect.
(4) Anything done under
subclause (1) does
not confer a right, or impose a liability, on a person before the relevant
empowering provision commences.
(5) In the application of this clause to a statutory instrument, a
reference to the enactment of the instrument is a reference to the making of the
instrument.
Part 5—Distance, time and
age
31—Matters relating to distance, time and
age
(1) In the measurement of distance for the purposes of this Law, the
distance is to be measured along the shortest road ordinarily used for
travelling.
(2) If a period beginning on a given day, act or event is provided or
allowed for a purpose by this Law, the period is to be calculated by excluding
the day, or the day of the act or event, and—
(a) if the period is expressed to be a specified number of clear days or
at least a specified number of days—by excluding the day on which the
purpose is to be fulfilled; and
(b) in any other case—by including the day on which the purpose is
to be fulfilled.
(3) If the last day of a period provided or allowed by this Law for doing
anything is not a business day in the place in which the thing is to be or may
be done, the thing may be done on the next business day in the place.
(4) If the last day of a period provided or allowed by this Law for the
filing or registration of a document is a day on which the office is closed
where the filing or registration is to be or may be done, the document may be
filed or registered at the office on the next day that the office is
open.
(5) If no time is provided or allowed for doing anything, the thing is to
be done as soon as possible, and as often as the prescribed occasion
happens.
(6) If, in this Law, there is a reference to time, the reference is, in
relation to the doing of anything in a jurisdiction, a reference to the legal
time in the jurisdiction.
(7) For the purposes of this Law, a person attains an age in years at the
beginning of the person's birthday for the age.
Part 6—Effect of repeal, amendment or
expiration
32—Time of Law ceasing to have
effect
If a provision of this Law is expressed—
(a) to expire on a specified day; or
(b) to remain or continue in force, or otherwise have effect, until a
specified day;
the provision has effect until the last moment of the specified
day.
33—Repealed Law provisions not
revived
If a provision of this Law is repealed or amended by an Act, or a provision
of an Act, the provision is not revived merely because the Act or the provision
of the Act—
(a) is later repealed or amended; or
(b) later expires.
34—Saving of operation of repealed Law
provisions
(1) The repeal, amendment or expiry of a provision of this Law does
not—
(a) revive anything not in force or existing at the time the repeal,
amendment or expiry takes effect; or
(b) affect the previous operation of the provision or anything suffered,
done or begun under the provision; or
(c) affect a right, privilege or liability acquired, accrued or incurred
under the provision; or
(d) affect a penalty incurred in relation to an offence arising under the
provision; or
(e) affect an investigation, proceedings or remedy in relation to such a
right, privilege, liability or penalty.
(2) Any such penalty may be imposed and enforced, and any such
investigation, proceedings or remedy may be begun, continued or enforced, as if
the provision had not been repealed or amended or had not expired.
35—Continuance of repealed
provisions
If an Act repeals some provisions of this Law and enacts new provisions in
substitution for the repealed provisions, the repealed provisions continue in
force until the new provisions commence.
36—Law and amending Acts to be read as
one
This Law and all Acts or regulations amending this Law are to be read as
one.
Part 7—Instruments under this
Law
37—Schedule applies to statutory
instruments
(1) This Schedule applies to a statutory instrument, and to things that
may be done or are required to be done under a statutory instrument, in the same
way as it applies to this Law, and things that may be done or are required to be
done under this Law, except so far as the context or subject matter otherwise
indicates or requires.
(2) The fact that a provision of this Schedule refers to this Law and not
also to a statutory instrument does not, by itself, indicate that the provision
is intended to apply only to this Law.
Part 8—Application to coastal
sea
38—Application
This Law has effect in and in relation to the coastal sea of this
jurisdiction as if that coastal sea were part of this jurisdiction.
Part 9—Offences under this
Law
39—Penalty at foot of
provision
In this Law, a penalty specified at the foot of—
(a) a section (whether or not the section is divided into subsections);
or
(b) a subsection (but not at the end of a section); or
(c) a section or subsection and expressed in such a way as to indicate
that it applies only to part of the section or subsection,
indicates that an offence referred to in the section, subsection or part is
punishable on conviction or, if no offence is mentioned, a contravention of the
section, subsection or part constitutes an offence against the provision that is
punishable, on conviction, by a penalty not more than the specified
penalty.
40—Penalty other than at foot of
provision
In this Law, a penalty specified for an offence, or a contravention of a
provision, indicates that the offence is punishable on conviction, or that the
contravention constitutes an offence against the provision that is punishable,
on conviction, by a penalty not more than the specified penalty.