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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Co-operatives Amendment Bill 2015 Contents 1. Short title 2 2. Commencement 2 3. Act amended 2 4. Section 4 amended 2 5. Sections 5A and 5B inserted 5 5A. Corresponding co-operatives laws 5 5B. Involvement in contraventions 5 6. Section 10 amended 6 7. Section 11 amended 6 8. Part 2 Division 1 heading replaced 8 Division 1 -- Introductory 9. Section 13 amended 8 10. Section 14 amended 8 11. Section 15A inserted 9 15A. Provisions regarding Registrar's approvals about numbers 9 12. Section 15 amended 10 13. Section 16 amended 10 14. Section 17 amended 12 15. Section 18 amended 13 16. Section 22 amended 14 17. Section 23 amended 15 18. Section 24 amended 15 19. Section 28 amended 16 20. Section 33 amended 16 21. Section 65 amended 17 22. Section 68 amended 17 23. Section 69A inserted 18 69A. False copies of documents 18 24. Section 75 amended 19 25. Section 76 amended 20 26. Section 84 amended 20 155--1 page i Co-operatives Amendment Bill 2015 Contents 27. Section 86 amended 20 28. Part 4 Division 6A inserted 20 Division 6A -- Inspection of books 90A. Order for inspection of books of co-operative 20 90B. Ancillary orders 22 90C. Disclosure of information acquired in inspection 22 90D. Co-operative may allow member to inspect books 22 29. Section 98 amended 23 30. Section 103 amended 23 31. Section 126 amended 24 32. Section 131 amended 25 33. Section 132 amended 25 34. Section 133 amended 26 35. Part 7 Division 2 heading replaced 26 Division 2 -- Disclosure requirements for distributing co-operatives 36. Sections 137A and 137B inserted 26 137A. Registration of current disclosure statement 26 137B. Restrictions on advertising and publicity: shares 27 37. Sections 137 and 138 replaced 28 137. Disclosure to intending shareholders in distributing co-operative 28 38. Section 139 amended 29 39. Part 7 Division 3A inserted 30 Division 3A -- Compensation for defective disclosure 140A. Contravention leading to right to recover loss or damage 30 140B. Right to recover for loss or damage resulting from contravention 31 140C. Due diligence defence 32 140D. General defences 33 40. Section 141 deleted 33 41. Section 146 amended 33 42. Part 7 Division 4A inserted 34 Division 4A -- Provisions applying to particular share subscriptions 150A. Term used: disclosure statement 34 150B. Application of this Division 34 150C. Application money to be held on trust 34 page ii Co-operatives Amendment Bill 2015 Contents 150D. Minimum subscription condition must be fulfilled before issue or transfer 35 150E. Repayment of money if disclosure statement condition not met 36 43. Part 7 Division 4 heading replaced 37 Division 4 -- Disclosure and registration of interests in shares 44. Section 151 amended 37 45. Section 163 amended 37 46. Section 169 amended 38 47. Section 171 amended 38 48. Section 180 amended 38 49. Section 181 amended 39 50. Section 185 amended 39 51. Section 187 amended 39 52. Section 190 amended 40 53. Section 194 amended 40 54. Section 196 amended 40 55. Sections 197A to 197D inserted 41 197A. Auditor entitled to notice and other communications 41 197B. Auditor's right to be heard at general meetings 41 197C. Questions and comments by members on co-operative management at annual general meeting 42 197D. Questions by members of auditors at annual general meeting 42 56. Section 197 amended 43 57. Section 198 amended 44 58. Section 200 deleted 44 59. Section 205 amended 44 60. Section 206A inserted 45 206A. Removal from office by resolution 45 61. Part 9 Division 2A inserted 47 Division 2A -- Disqualification from managing co-operatives 206B. Offence for disqualified person to manage co-operative 47 206C. Automatic disqualification for offences 48 206D. Extension of period of automatic disqualification 49 206E. Court's power of disqualification: contravention of civil penalty provision 49 page iii Co-operatives Amendment Bill 2015 Contents 206F. Court's power of disqualification: insolvency and non-payment of debts 50 206G. Court's power of disqualification: repeated contraventions of law 51 206H. Registrar's power of disqualification 52 206I. Registrar's power to give permission 53 206J. Court's power to grant leave 54 62. Section 207A inserted 55 207A. Responsibility of secretary 55 63. Sections 207 to 212 replaced 55 207. Care and diligence: civil obligations 55 208. Good faith: civil obligations 56 209. Use of position: civil obligations 57 210. Use of information: civil obligations 57 211. Good faith, use of position and use of information: criminal offences 57 212. Other duties and liabilities not affected 59 64. Section 213 amended 59 65. Section 214 amended 59 66. Section 215 amended 60 67. Section 216 amended 60 68. Section 217 amended 60 69. Section 218 amended 60 70. Section 220 amended 61 71. Part 9 Division 6 deleted 61 72. Part 9 Division 7 heading replaced 61 Division 7 -- Registers, books and returns 73. Section 230 amended 61 74. Section 232 amended 62 75. Section 233 amended 63 76. Section 234 amended 63 77. Section 235 deleted 64 78. Section 236 amended 64 79. Section 237 amended 64 80. Section 238 amended 64 81. Section 240 replaced 65 240. Name to appear on business documents etc. 65 82. Section 241 amended 66 83. Section 242 amended 66 84. Section 243 amended 66 85. Part 10A inserted 67 page iv Co-operatives Amendment Bill 2015 Contents Part 10A -- Financial reports and audit Division 1 -- Preliminary 244A. Terms used 67 244B. General modifications to applied provisions of the Corporations Act Chapter 2M 68 Division 2 -- Financial records 244C. Obligation to keep financial records 69 244D. Language requirements 69 244E. Physical format 70 244F. Place where records are kept 70 244G. Director access 71 Division 3 -- Annual financial reports and directors' reports generally 244H. Who has to prepare annual financial reports and directors' reports 72 244I. Small co-operative: direction by members 72 244J. Small co-operative: direction by Registrar 74 Division 4 -- Annual financial reports 244K. Contents of annual financial report 75 244L. Compliance with accounting standards and regulations 76 244M. True and fair view 77 244N. Audit of financial report 77 244O. Application of Corporations Act to co-operatives with quoted securities: declaration about financial statements by certain officers 78 Division 5 -- Annual directors' reports 244P. Annual directors' report 78 244Q. Annual directors' report: general information 80 244R. Annual directors' report: specific information 81 244S. Application of Corporations Act to co-operatives with quoted securities: additional information to be provided in annual directors' report 86 Division 6 -- Half-year financial report and directors' report 244T. Application of Corporations Act to co-operatives that are disclosing entities: half-year financial reports and directors' reports 86 Division 7 -- Audit and auditor's report 244U. Application of Corporations Act: audit and auditor's report 87 page v Co-operatives Amendment Bill 2015 Contents Division 8 -- Annual financial reporting to members 244V. Annual financial reporting to members 87 244W. Deadline for reporting to members 90 244X. Member's choices for annual financial information 91 244Y. Consideration of reports at annual general meeting 92 244ZA. Application of Corporations Act: additional reporting by debenture issuers 92 Division 9 -- Lodging reports and returns with Registrar 244ZB. Lodgment of annual returns with the Registrar 93 244ZC. Lodgment of financial reports etc. with Registrar 94 244ZD. Lodgment of half-year reports with the Registrar 94 244ZE. Registrar's power to require lodgment 95 244ZF. Relodgment if financial report or directors' reports amended after lodgment 95 Division 10 -- Special provisions about consolidated financial statements 244ZG. Application of Corporations Act: special provisions about consolidated financial statements 96 Division 11 -- Financial years and half years 244ZH. Financial year 96 244ZI. Half-year 97 Division 12 -- Auditors Subdivision 1 -- General provisions relating to auditors 244ZJ. Application of Corporations Act: auditors 97 Subdivision 2 -- Appointment of auditors 244ZK. Appointment of auditor of small co-operative 98 244ZL. Initial appointment of auditor of a large co-operative 98 244ZM. Annual appointment at annual general meeting of auditor of large co-operative to fill vacancy 99 244ZN. Appointment by directors or annual general meeting of auditor of large co-operative to fill casual vacancy 103 244ZO. Appointment to replace auditor removed from office 104 244ZP. Registrar to be notified of appointment of auditor 105 page vi Co-operatives Amendment Bill 2015 Contents 244ZQ. Registrar may appoint auditor of large co-operative if auditor removed but not replaced 105 244ZR. Registrar's general power to appoint auditor of large co-operative 106 244ZS. Restrictions on Registrar's powers to appoint auditor of large co-operative 107 244ZT. Remaining auditors may act during vacancy 107 244ZU. Nomination of auditor 108 244ZV. Auditor's consent to appointment 109 Subdivision 3 -- Removal and resignation of auditors 244ZW. Removal and resignation of auditors 110 244ZX. Effect of winding-up on office of auditor 113 Subdivision 4 -- Auditors' fees and expenses 244ZY. Fees and expenses of auditors 113 Subdivision 5 -- Protection of auditors 244ZZA. Protection of auditors 113 Division 13 -- Accounting and auditing standards 244ZZB. Accounting and auditing standards 114 244ZZC. Interpretation of accounting and auditing standards 115 Division 14 -- Exemptions and modifications 244ZZD. Exemptions: individual co-operatives 115 244ZZE. Exemptions: classes of co-operatives 116 244ZZF. Exemptions: criteria for exemptions for individual co-operatives or classes of co-operatives 117 244ZZG. Exemptions: non-auditor members and former members of audit firms, and former employees of audit companies 118 244ZZH. Exemptions: classes of non-auditor members 119 244ZZI. Exemptions: criteria for exemptions for non-auditor members etc. 120 244ZZJ. Exemptions from regulations 120 244ZZK. Registrar's power to modify the operation of section 324DA of Corporations Act 121 244ZZL. Auditor to notify co-operative of declaration 123 244ZZM. Amendment, suspension or revocation of exemption 124 Division 15 -- Miscellaneous 244ZZN. Disclosure by directors 124 244ZZO. Contravention by directors of a provision of this Part 124 86. Section 250 amended 125 page vii Co-operatives Amendment Bill 2015 Contents 87. Section 251 deleted 125 88. Section 252 amended 126 89. Sections 253A and 253B inserted 127 253A. Restrictions on advertising and publicity 127 253B. Application money to be held on trust 127 90. Section 254 amended 128 91. Section 255 amended 128 92. Section 257 amended 129 93. Section 261 amended 129 94. Section 271 amended 129 95. Section 273 amended 130 96. Section 284 amended 132 97. Section 288 amended 132 98. Section 289 amended 133 99. Section 290 replaced 134 290. Requirements to be satisfied before offer can be made 134 100. Section 291 amended 134 101. Section 293 amended 134 102. Section 296 amended 135 103. Section 300 amended 135 104. Section 306 amended 135 105. Section 309 amended 136 106. Section 315 amended 137 107. Section 316 replaced 137 316. Application of Corporations Act to winding-up and deregistration 137 108. Section 317 amended 139 109. Section 322 amended 139 110. Part 12 Division 4 heading replaced 140 Division 4 -- Administration 111. Part 12 Division 4 Subdivision 1 inserted 140 Subdivision 1 -- Introductory 323A. Operation of this Division 140 112. Part 12 Division 4 Subdivision 2 heading inserted 140 Subdivision 2 -- Administration under Corporations Act 113. Section 323 amended 140 114. Section 324A inserted 141 324A. Appointment of administrator by Registrar in case of insolvency 141 115. Part 12 Division 5 heading replaced 142 page viii Co-operatives Amendment Bill 2015 Contents Subdivision 3 -- Administration: alternative procedure 116. Section 324B inserted 142 324B. Operation of this Division 142 117. Section 325 amended 142 118. Section 326 amended 143 119. Section 336 amended 143 120. Section 337 amended 143 121. Section 344 amended 145 122. Section 346 amended 145 123. Section 359 amended 145 124. Part 14 heading replaced 146 Part 14 -- Participating co-operatives 125. Section 365 deleted 146 126. Section 366 amended 146 127. Section 367 deleted 146 128. Section 368 amended 147 129. Part 14 Division 2 heading replaced 147 Division 2 -- Participating co-operatives carrying on business in this State 130. Section 370 amended 148 131. Sections 372 to 374 replaced 148 372. Existing foreign co-operatives 148 132. Section 376 amended 149 133. Section 377 amended 149 134. Sections 378 and 379 replaced 150 378. Appeal against Registrar's decision under s. 377(5) 150 379. Application of Act and regulations to participating co-operatives 151 135. Section 380 replaced 151 380A. False copies of rules of participating co-operative 151 380B. False copies of documents of participating co-operatives 152 380C. Restrictions on advertising and publicity: shares in participating co-operatives 153 380D. Restrictions on advertising and publicity: debentures or CCUs in participating co-operatives 154 380E. Registrar's directions about participating co-operative obtaining financial accommodation 155 page ix Co-operatives Amendment Bill 2015 Contents 380. Name and place of origin to appear on business and other documents of participating co-operative 156 136. Section 381 amended 157 137. Sections 382 and 383 deleted 158 138. Section 384 amended 158 139. Section 385A inserted 158 385A. Registrar may exempt participating co-operatives 158 140. Section 386 amended 159 141. Section 387 amended 159 142. Section 388 amended 160 143. Part 14 Division 5 heading replaced 160 Division 5 -- Mergers and transfers of engagements affecting participating co-operatives 144. Section 389 amended 161 145. Section 390 amended 161 146. Section 391 amended 161 147. Section 392 amended 162 148. Section 393 amended 163 149. Section 394 amended 163 150. Section 395 amended 163 151. Section 396 amended 164 152. Part 15 Division 1A inserted 164 Division 1A -- Examining a person about a co-operative 398A. Application of Corporations Act: court-directed examinations 164 153. Part 15 Division 1 heading replaced 164 Division 1 -- Supervision and inspection 154. Section 398 amended 164 155. Section 399 amended 165 156. Section 400 amended 165 157. Section 412 amended 166 158. Section 415 amended 166 159. Section 419 amended 167 160. Section 420 amended 167 161. Section 421 amended 167 162. Section 422 amended 167 163. Section 423 amended 167 164. Section 427 amended 168 165. Section 431 amended 168 page x Co-operatives Amendment Bill 2015 Contents 166. Section 432 amended 168 167. Section 438 replaced 168 438. Falsification of books 168 168. Section 449 amended 170 169. Section 452 amended 170 170. Section 454 amended 170 171. Part 16 Division 4 deleted 171 172. Part 17 heading replaced 171 Part 17 -- Legal proceedings and other matters Division 1 -- Offences, enforcement and remedies 173. Section 474 deleted 171 174. Section 476 amended 171 175. Section 478 amended 172 176. Section 480A inserted 172 480A. Order against person concerned with co-operative 172 177. Section 481 replaced 174 481A. Undertakings 174 481B. Offence of contravention of undertaking 175 481C. Enforcement order on application with consent of person giving undertaking 175 481D. Enforcement orders after contravention of undertaking 175 481E. Copy of undertaking 177 481F. Registration of undertakings 177 481G. Double jeopardy 178 481H. Time limit for starting proceedings for offence 178 481I. Authorisation to start proceedings for offence 179 481. Proceedings for recovery of fine or penalty imposed by rules 179 178. Part 17 Divisions 2 and 3 inserted 179 Division 2 -- Civil consequences of contravening civil penalty provisions 482A. Terms used 179 482B. Declarations of contravention 180 482C. Declaration of contravention is conclusive evidence 181 482D. Pecuniary penalty orders 181 482E. Compensation orders 182 482F. Who may apply for a declaration or order 183 482G. Time limit for application for a declaration or order 183 page xi Co-operatives Amendment Bill 2015 Contents 482H. Civil evidence and procedural rules for declarations and civil penalty orders 183 482I. Civil proceedings after criminal proceedings 184 482J. Criminal proceedings during civil proceedings 184 482K. Criminal proceedings after civil proceedings 184 482L. Evidence given in proceedings for penalty not admissible in criminal proceedings 185 482M. Relief from liability for contravention of civil penalty provision 185 Division 3 -- Miscellaneous 482N. Power to grant relief 187 482O. Irregularities 189 482P. Civil proceedings not to be stayed 192 482Q. Standard of proof 192 179. Section 482 amended 193 180. Section 483 amended 193 181. Section 484 amended 195 182. Section 485 amended 195 183. Section 487 replaced 196 487. Disclosure statements 196 184. Section 489A inserted 196 489A. Approvals to be in writing 196 185. Schedule 3 clause 1 amended 197 186. Schedule 3 clause 32 amended 197 187. Schedule 3 clause 39 amended 197 188. Schedule 3 clause 41 amended 197 189. Schedule 4 clause 1 amended 198 190. Schedule 4 clause 20 amended 198 191. Schedule 4 clause 22 amended 199 192. Schedule 4 clause 23 amended 199 193. Schedule 5 deleted 199 194. Schedule 6 amended 199 195. Schedule 6 Division 1 inserted 200 Division 1 -- Modifications to Corporations Act provisions applying under section 316 1A. Modifications to winding-up and deregistration provisions: co-operatives 200 196. Schedule 6 Division 2 heading inserted 202 Division 2 -- Modifications to Corporations Act provisions applying under section 387 197. Schedule 6 clause 1 amended 203 page xii Co-operatives Amendment Bill 2015 Contents 198. Various references to "co-operative capital unit" amended 204 199. Various references to "foreign co-operative" amended 205 200. Various penalties amended 206 page xiii Western Australia LEGISLATIVE COUNCIL Co-operatives Amendment Bill 2015 A Bill for An Act to amend the Co-operatives Act 2009. The Parliament of Western Australia enacts as follows: page 1 Co-operatives Amendment Bill 2015 s. 1 1 1. Short title 2 This is the Co-operatives Amendment Act 2015. 3 2. Commencement 4 This Act comes into operation as follows -- 5 (a) sections 1 and 2 -- on the day on which this Act 6 receives the Royal Assent; 7 (b) the rest of the Act -- on a day fixed by proclamation, 8 and different days may be fixed for different provisions. 9 3. Act amended 10 This Act amends the Co-operatives Act 2009. 11 4. Section 4 amended 12 (1) In section 4(1) delete the definitions of: 13 co-operative capital unit 14 foreign co-operative 15 officer 16 records 17 (2) In section 4(1) insert in alphabetical order: 18 19 books includes -- 20 (a) a register; and 21 (b) minutes; and 22 (c) any other record of information; and 23 (d) financial reports or financial records, however 24 compiled, recorded or stored; and 25 (e) a document; 26 carry on business, in relation to a co-operative or a 27 participating co-operative, has the same meaning as it page 2 Co-operatives Amendment Bill 2015 s. 4 1 has in the Corporations Act Part 1.2 Division 3 in 2 relation to a company; 3 CCU means a co-operative capital unit as defined in 4 section 257(1); 5 corresponding co-operatives law means a law of 6 another jurisdiction declared under section 5A to be a 7 corresponding co-operatives law; 8 department means the department of the Public Service 9 principally assisting the Minister in the administration 10 of this Act; 11 director, of a co-operative, includes -- 12 (a) a person who occupies or acts in the position of 13 a director or member of the board of a 14 co-operative, whether or not the person is 15 called a director and whether or not the person 16 is validly appointed or properly authorised to 17 act in the position; and 18 (b) a person under whose directions or instructions 19 the directors or members of the board of 20 directors of the co-operative are accustomed to 21 act; 22 financial year has the meaning given in 23 section 244ZH; 24 half-year has the meaning given in section 244ZI; 25 involved, in a contravention, has the meaning given in 26 section 5B; 27 jurisdiction means a State or Territory; 28 large co-operative means a co-operative that is not a 29 small co-operative; 30 legal practitioner means an Australian legal 31 practitioner within the meaning of that term in the 32 Legal Profession Act 2008 section 3; page 3 Co-operatives Amendment Bill 2015 s. 4 1 officer, of a co-operative or participating co-operative, 2 means -- 3 (a) a director or secretary of the co-operative; or 4 (b) a person -- 5 (i) who makes, or participates in making, 6 decisions that affect the whole, or a 7 substantial part, of the business of the 8 co-operative; or 9 (ii) who has the capacity to affect 10 significantly the co-operative's financial 11 standing; or 12 (iii) in accordance with whose instructions 13 or wishes the directors of the 14 co-operative are accustomed to act 15 (excluding advice given by the person in 16 the proper performance of functions 17 attaching to the person's professional 18 capacity or their business relationship 19 with the directors or the co-operative); 20 or 21 (c) a receiver, or receiver and manager, of property 22 of the co-operative; or 23 (d) an administrator of the co-operative; or 24 (e) an administrator of a deed of arrangement 25 executed by the co-operative; or 26 (f) a liquidator of the co-operative; or 27 (g) a trustee or other person administering a 28 compromise or arrangement made between the 29 co-operative and someone else; 30 participating co-operative means a body that is 31 registered and incorporated under, and is subject to, a 32 corresponding co-operatives law; page 4 Co-operatives Amendment Bill 2015 s. 5 1 participating jurisdiction means a jurisdiction in which 2 a corresponding co-operatives law is in force; 3 participating Registrar means a person exercising the 4 functions of a Registrar under a corresponding 5 co-operatives law; 6 quoted security means a security that is quoted on a 7 prescribed financial market (as defined in the 8 Corporations Act section 9); 9 small co-operative means a co-operative of a class or 10 description prescribed by the regulations; 11 12 5. Sections 5A and 5B inserted 13 At the end of Part 1 Division 1 insert: 14 15 5A. Corresponding co-operatives laws 16 The regulations may declare a law of another 17 jurisdiction that substantially corresponds to this Act to 18 be a corresponding co-operatives law for the purposes 19 of this Act. 20 5B. Involvement in contraventions 21 For the purposes of this Act, a person is involved in a 22 contravention if, and only if, the person -- 23 (a) has aided, abetted, counselled or procured the 24 contravention; or 25 (b) has induced, whether by threats or promises or 26 otherwise, the contravention; or 27 (c) has been in any way, by act or omission, 28 directly or indirectly, knowingly concerned in, 29 or party to, the contravention; or page 5 Co-operatives Amendment Bill 2015 s. 6 1 (d) has conspired with others to effect the 2 contravention. 3 4 6. Section 10 amended 5 In section 10(1) after "co-operatives" insert: 6 7 or participating co-operatives 8 9 7. Section 11 amended 10 In section 11(1): 11 (a) before paragraph (a) insert: 12 13 (aa) a reference in the applied provisions to a 14 corporation, company or public company is to 15 be read as a reference to a co-operative; 16 (ab) a reference in the applied provisions to ASIC is 17 to be read as a reference to the Registrar; 18 19 (b) after paragraph (d) insert: 20 21 (ea) a reference in the applied provisions to a 22 special resolution is to be read as a reference to 23 a special resolution referred to in section 177 of 24 this Act; 25 (eb) a reference in the applied provisions to 26 shareholders is to be read as a reference to 27 members; 28 (ec) a reference in the applied provisions (including 29 the Corporations Act section 311) to "a 30 contravention of this Act" is to be read as 31 including a reference to a contravention of this 32 Act; page 6 Co-operatives Amendment Bill 2015 s. 7 1 (ed) despite paragraph (aa), a reference in the 2 applied provisions to a company that is the 3 auditor of a company is to be read as a 4 reference to a company that is the auditor of a 5 co-operative; 6 (ee) a statement in the applied provisions that an 7 offence based on a particular provision is an 8 offence of strict liability is to be read as a 9 statement that, despite The Criminal Code 10 section 23B(2), it is immaterial for the purposes 11 of that provision that any event occurred by 12 accident; 13 (ef) a reference in the applied provisions to 14 "prescribed" is to be read as a reference to 15 "approved by the Registrar" and, without 16 limitation, a reference to a prescribed form is to 17 be read as a reference to a form approved by 18 the Registrar; 19 (eg) a reference in the applied provisions to 20 regulations is to be read as a reference to 21 regulations made under this Act; 22 (eh) the applied provisions are to be read as if all 23 notes were deleted; 24 25 (c) in paragraph (e) after "co-operatives" (each occurrence) 26 insert: 27 28 or participating co-operatives 29 page 7 Co-operatives Amendment Bill 2015 s. 8 1 8. Part 2 Division 1 heading replaced 2 Delete the heading to Part 2 Division 1 and insert: 3 4 Division 1 -- Introductory 5 6 9. Section 13 amended 7 (1) In section 13(3)(b)(i) delete "prescribed by the regulations," and 8 insert: 9 10 approved by the Registrar, 11 12 (2) After section 13(3) insert: 13 14 (4) An approval under subsection (3)(b)(i) may be given in 15 relation to a particular co-operative or class of 16 co-operatives. 17 18 10. Section 14 amended 19 (1) In section 14(3)(b)(i) delete "prescribed by the regulations," and 20 insert: 21 22 approved by the Registrar, 23 24 (2) After section 14(3) insert: 25 26 (4) An approval under subsection (3)(b)(i) may be given in 27 relation to a particular co-operative or class of 28 co-operatives. 29 page 8 Co-operatives Amendment Bill 2015 s. 11 1 11. Section 15A inserted 2 At the end of Part 2 Division 1 insert: 3 4 15A. Provisions regarding Registrar's approvals about 5 numbers 6 (1) The Registrar may give one composite approval that 7 operates as more than one of the following -- 8 (a) an approval concerning the number of active 9 members of a co-operative required under 10 section 13(3)(b)(i) or 14(3)(b)(i); 11 (b) an approval concerning the number of persons 12 required to hold the formation meeting of a 13 co-operative under section 15(3)(b); 14 (c) an approval concerning the number of members 15 required to sign the application for registration 16 of a proposed co-operative under 17 section 18(1)(c)(ii); 18 (d) an approval concerning the minimum number 19 of members for a co-operative to continue to 20 carry on business under section 65(3)(b). 21 (2) A composite approval may be given in relation to -- 22 (a) a particular co-operative or proposed 23 co-operative; or 24 (b) a particular class of co-operatives or proposed 25 co-operatives; or 26 (c) all co-operatives or proposed co-operatives. 27 (3) This section does not limit the power of the Registrar 28 to give separate approvals under any of the relevant 29 sections. 30 page 9 Co-operatives Amendment Bill 2015 s. 12 1 12. Section 15 amended 2 (1) Delete section 15(2)(b) and insert: 3 4 (b) a disclosure statement approved under 5 section 16 must be presented to the meeting in 6 the case of -- 7 (i) a proposed distributing co-operative; or 8 (ii) a proposed non-distributing 9 co-operative that is the subject of a 10 direction under section 16(2B); 11 and 12 13 (2) In section 15(3)(b) delete "prescribed by the regulations, not 14 less than the prescribed number" and insert: 15 16 approved by the Registrar, not less than the approved number 17 18 13. Section 16 amended 19 (1) After section 16(1) insert: 20 21 (2A) If the Registrar so directs under subsection (2B), a draft 22 disclosure statement of a proposed non-distributing 23 co-operative must be submitted to the Registrar by the 24 time specified in the direction. 25 (2B) The Registrar may by written notice direct that -- 26 (a) a draft disclosure statement of a proposed 27 non-distributing co-operative must be 28 submitted to the Registrar by the time specified 29 in the direction, being a time before the 30 formation meeting is due to be held; and page 10 Co-operatives Amendment Bill 2015 s. 13 1 (b) a disclosure statement approved under this 2 section must be presented to the formation 3 meeting for the co-operative. 4 5 (2) In section 16(2): 6 (a) delete "The draft" and insert: 7 8 A draft 9 10 (b) after "subsection (1)" insert: 11 12 or (2A) 13 14 (3) In section 16(3) delete "The disclosure statement" and insert: 15 16 A draft disclosure statement of a proposed distributing 17 co-operative submitted under subsection (1) 18 19 (4) After section 16(3) insert: 20 21 (4A) A draft disclosure statement of a proposed 22 non-distributing co-operative submitted under 23 subsection (2A) must contain the information that the 24 Registrar directs to be included. 25 26 (5) In section 16(4) delete "The disclosure statement" and insert: 27 28 A draft disclosure statement submitted under subsection (1) or 29 (2A) 30 page 11 Co-operatives Amendment Bill 2015 s. 14 1 (6) In section 16(5) delete "The Registrar may --" and insert: 2 3 The Registrar may, in respect of a draft disclosure statement 4 submitted under subsection (1) or (2A) -- 5 6 (7) In section 16(6) and (7) after "disclosure statement" insert: 7 8 submitted under subsection (1) or (2A) 9 10 (8) In section 16(8) delete "the disclosure statement as submitted to 11 the Registrar" and insert: 12 13 a disclosure statement as submitted to the Registrar under 14 subsection (1) or (2A) 15 16 (9) After section 16(8) insert: 17 18 (9) If the Registrar approves an amended or different 19 disclosure statement, or refuses to approve a disclosure 20 statement, the Registrar must give the person who 21 submitted the draft statement written notice of the 22 reasons for doing so. 23 24 14. Section 17 amended 25 (1) In section 17(4): 26 (a) in paragraph (c) delete "rules." and insert: 27 28 rules; or 29 page 12 Co-operatives Amendment Bill 2015 s. 15 1 (b) after paragraph (c) insert: 2 3 (d) require the person submitting the draft rules to 4 give the Registrar any additional information 5 the Registrar reasonably requires, and then act 6 under paragraph (a), (b) or (c). 7 8 (2) After section 17(6) insert: 9 10 (7) If the Registrar approves different rules to those 11 submitted, or refuses to approve proposed rules, the 12 Registrar must give the person who submitted the 13 proposed rules notice of the reasons for doing so. 14 15 15. Section 18 amended 16 In section 18(1): 17 (a) in paragraph (c)(ii) delete "prescribed under a 18 regulation, at least the prescribed number" and insert: 19 20 approved by the Registrar, at least the approved number 21 22 (b) in paragraph (d)(ii) delete "proposed distributing 23 co-operative," and insert: 24 25 proposed distributing co-operative, or a proposed 26 non-distributing co-operative that is the subject of a 27 direction under section 16(2B) -- 28 page 13 Co-operatives Amendment Bill 2015 s. 16 1 16. Section 22 amended 2 (1) In section 22(1): 3 (a) delete "special resolution in accordance with its 4 constitution" and insert: 5 6 resolution 7 8 (b) in paragraph (b) delete "Act." and insert: 9 10 Act; and 11 12 (c) after paragraph (b) insert: 13 14 (c) the proposed rules of the proposed co-operative 15 approved under section 17, including active 16 membership provisions in accordance with 17 Part 6. 18 19 (2) Delete section 22(2) to (4) and insert: 20 21 (2) At the meeting to pass the resolution, a disclosure 22 statement approved under section 16 must be presented 23 to the meeting in the case of -- 24 (a) a proposed distributing co-operative; or 25 (b) a proposed non-distributing co-operative that is 26 the subject of a direction under section 16(2B). 27 (3) A resolution under this section must have been passed 28 by a two-thirds majority of eligible members present at 29 the meeting. 30 31 Note: The heading to amended section 22 is to read: 32 Formation meeting page 14 Co-operatives Amendment Bill 2015 s. 17 1 17. Section 23 amended 2 In section 23(1): 3 (a) in paragraph (c)(iv) delete "22(2) by special" and insert: 4 5 22(1) by 6 7 (b) in paragraph (c)(v) delete "proposed distributing 8 co-operative," and insert: 9 10 proposed distributing co-operative, or a proposed 11 non-distributing co-operative that is the subject of a 12 direction under section 16(2B) -- 13 14 (c) delete paragraph (c)(viii) and insert: 15 16 (viii) a statement setting out the connection 17 that the proposed co-operative would 18 have to this State; and 19 (ix) a statement of the address of the 20 co-operative's registered office or 21 proposed registered office; and 22 (x) any other particulars that the Registrar 23 may require. 24 25 (2) Delete section 23(2). 26 18. Section 24 amended 27 In section 24(2): 28 (a) in paragraph (c) delete "co-operative." and insert: 29 30 co-operative; 31 page 15 Co-operatives Amendment Bill 2015 s. 19 1 (b) after paragraph (c) insert: 2 3 (d) the proposed co-operative must have a 4 sufficient connection with this State. 5 6 19. Section 28 amended 7 (1) After section 28(2) insert: 8 9 (3A) An alteration of the rules for the conversion of a 10 non-distributing co-operative to a distributing 11 co-operative does not have effect without the prior 12 approval of the Registrar under section 103. 13 14 (2) After section 28(3) insert: 15 16 (4) The Registrar may, by order published in the Gazette, 17 exempt a co-operative or class of co-operatives from 18 the requirements of subsection (3). 19 (5) An exemption may be granted unconditionally or 20 subject to conditions. 21 22 20. Section 33 amended 23 At the end of section 33(1) insert: 24 25 Penalty for this subsection: a fine of $6 000. 26 page 16 Co-operatives Amendment Bill 2015 s. 21 1 21. Section 65 amended 2 In section 65(3)(b) delete "prescribed by the regulations, the 3 prescribed" and insert: 4 5 approved by the Registrar, the approved 6 7 22. Section 68 amended 8 (1) In section 68(1): 9 (a) delete "written notice to each person intending to 10 become a member of the co-operative and eligible to do 11 so that the person may request to either inspect at the 12 co-operative's nearest office, or be sent --" and insert: 13 14 each person intending or applying to become a member 15 of the co-operative and eligible to do so -- 16 17 (b) delete paragraph (c) and insert: 18 19 (c) a copy of the most recent financial information 20 reported to members of the co-operative under 21 Part 10A. 22 23 (2) After section 68(1) insert: 24 25 (2A) The board of a co-operative may comply with 26 subsection (1) in relation to a person by giving the 27 person a notice stating any or all of the following -- 28 (a) that the person may request to inspect the 29 documents referred to in subsection (1) at an 30 office of the co-operative nominated by the 31 person; page 17 Co-operatives Amendment Bill 2015 s. 23 1 (b) that the person may request to be sent an 2 electronic copy of the documents referred to in 3 subsection (1) by an electronic means 4 nominated by the person; 5 (c) that the documents referred to in subsection (1) 6 are available on a website and specifying the 7 direct address on the website where the 8 documents may be accessed. 9 10 (3) In section 68(2) delete "(1)," and insert: 11 12 (2A)(a) or (b), 13 14 23. Section 69A inserted 15 After section 68 insert: 16 17 69A. False copies of documents 18 (1) A person who, in purported compliance with 19 section 68 -- 20 (a) gives a person intending or applying to become 21 a member of a co-operative a document as a 22 copy of -- 23 (i) a special resolution of the co-operative; 24 or 25 (ii) the most recent financial information 26 reported to members of the co-operative 27 under Part 10A; 28 and 29 (b) knows, or ought to know that, in a material 30 respect, it is not a true copy of the resolution or 31 information; and page 18 Co-operatives Amendment Bill 2015 s. 24 1 (c) does not indicate to that person that it is not a 2 true copy, 3 is guilty of an offence. 4 Penalty for this subsection: a fine of $1 000. 5 (2) A person who, in purported compliance with 6 section 68 -- 7 (a) makes available for inspection by a person 8 intending or applying to become a member of a 9 co-operative a document as a copy of -- 10 (i) a special resolution of the co-operative; 11 or 12 (ii) the most recent financial information 13 reported to members of the co-operative 14 under Part 10A; 15 and 16 (b) knows, or ought to know that, in a material 17 respect, it is not a true copy of the resolution or 18 information; and 19 (c) does not indicate to that person that it is not a 20 true copy, 21 is guilty of an offence. 22 Penalty for this subsection: a fine of $1 000. 23 24 24. Section 75 amended 25 In section 75 delete "sections 76 and 159," and insert: 26 27 sections 76, 158(2) and 159, 28 page 19 Co-operatives Amendment Bill 2015 s. 25 1 25. Section 76 amended 2 In section 76(1) delete "section 159," and insert: 3 4 sections 158(2) and 159, 5 6 26. Section 84 amended 7 In section 84: 8 (a) in paragraph (k) delete "costs." and insert: 9 10 costs; 11 12 (b) after paragraph (k) insert: 13 14 (l) an order making alterations to the rules of the 15 co-operative. 16 17 27. Section 86 amended 18 In section 86 delete "member." and insert: 19 20 member or unfairly prejudice the members as a whole. 21 22 28. Part 4 Division 6A inserted 23 After Part 4 Division 5 insert: 24 25 Division 6A -- Inspection of books 26 90A. Order for inspection of books of co-operative 27 (1) On application by a member of a co-operative, the 28 Supreme Court may make an order -- page 20 Co-operatives Amendment Bill 2015 s. 28 1 (a) authorising the applicant to inspect books of the 2 co-operative; or 3 (b) authorising another person (whether a member 4 or not) to inspect books of the co-operative on 5 the applicant's behalf. 6 (2) A person who -- 7 (a) is granted leave under section 91; or 8 (b) applies for leave under that section; or 9 (c) is eligible to apply for leave under that section, 10 may apply to the Supreme Court for an order under 11 subsection (3). 12 (3) On application, the Supreme Court may make an order 13 authorising -- 14 (a) the applicant to inspect books of the 15 co-operative; or 16 (b) another person to inspect books of the 17 co-operative on the applicant's behalf. 18 (4) The Supreme Court may make the order only if it is 19 satisfied that -- 20 (a) the applicant is acting in good faith; and 21 (b) the inspection is to be made for a purpose 22 connected with -- 23 (i) applying for leave under section 91; or 24 (ii) bringing or intervening in proceedings 25 with leave under that section. 26 (5) A person authorised to inspect books under this section 27 may make copies of the books unless the Supreme 28 Court orders otherwise. page 21 Co-operatives Amendment Bill 2015 s. 28 1 90B. Ancillary orders 2 If the Supreme Court makes an order under 3 section 90A, the court may make any other orders it 4 considers appropriate, including either or both of the 5 following -- 6 (a) an order limiting the use that a person who 7 inspects books may make of information 8 obtained during the inspection; 9 (b) an order limiting the right of a person who 10 inspects books to make copies in accordance 11 with section 90A(5). 12 90C. Disclosure of information acquired in inspection 13 (1) A person who inspects books on behalf of an applicant 14 under section 90A must not disclose information 15 obtained during the inspection. 16 Penalty for this subsection: a fine of $500. 17 (2) Subsection (1) does not apply to the extent that the 18 disclosure is to -- 19 (a) the Registrar; or 20 (b) the applicant. 21 (3) Despite The Criminal Code section 23B(2), it is 22 immaterial for the purposes of subsection (1) that any 23 event occurred by accident. 24 90D. Co-operative may allow member to inspect books 25 (1) The board of a co-operative, or the co-operative by 26 resolution passed at a general meeting, may authorise a 27 member to inspect books of the co-operative. 28 (2) Subsection (1) does not apply to -- 29 (a) minutes of board meetings; or page 22 Co-operatives Amendment Bill 2015 s. 29 1 (b) minutes of meetings of committees to which the 2 board's functions have been delegated under 3 section 204(1). 4 5 29. Section 98 amended 6 Delete section 98(4) and insert: 7 8 (4) The rules may adopt by reference all or any of the 9 provisions of the model rules prescribed under 10 section 101 as in force at a particular time. 11 12 30. Section 103 amended 13 (1) Before section 103(1) insert: 14 15 (1A) This section applies to -- 16 (a) an alteration of rules referred to in 17 subsection (1B); and 18 (b) an alteration of rules referred to in 19 section 28(3A) relating to the conversion of a 20 non-distributing co-operative to a distributing 21 co-operative. 22 (1B) The Registrar may, by order published in the Gazette, 23 specify for the purposes of this section classes of 24 alterations that must not be made to the rules of a 25 co-operative without the prior approval of the Registrar 26 and, without limitation, may do so by reference to 27 classes or subclasses of matters referred to in 28 Schedule 1. 29 page 23 Co-operatives Amendment Bill 2015 s. 31 1 (2) In section 103(1) after "rules of a co-operative" insert: 2 3 to which this section applies 4 5 (3) In section 103(5): 6 (a) in paragraph (c) delete "alteration." and insert: 7 8 alteration; or 9 10 (b) after paragraph (c) insert: 11 12 (d) require the co-operative to give the Registrar 13 any additional information the Registrar 14 reasonably requires, and then act under 15 paragraph (a), (b) or (c). 16 17 (4) After section 103(7) insert: 18 19 (8) If the Registrar approves a different alteration to that 20 submitted, or refuses to approve a proposed alteration, 21 the Registrar must give the co-operative written notice 22 of the reasons for doing so. 23 24 Note: The heading to amended section 103 is to read: 25 Approval of certain alterations of rules 26 31. Section 126 amended 27 (1) In section 126(1) delete "Court may" and insert: 28 29 Court may, on application by the member or former member, 30 page 24 Co-operatives Amendment Bill 2015 s. 32 1 (2) After section 126(1) insert: 2 3 (2A) An application for an order can only be made within 4 6 months after -- 5 (a) notice of the board's intention to declare the 6 membership to be cancelled is given to the 7 member under section 125(1); or 8 (b) if notice was not required as referred to in 9 section 125(2) -- the cancellation takes effect. 10 11 32. Section 131 amended 12 In section 131(2) delete "the extent they are not inconsistent 13 with the rules of each particular distributing co-operative." and 14 insert: 15 16 a distributing co-operative only to the extent that they are not 17 inconsistent with rules of the co-operative that were in effect 18 immediately before the commencement of the Co-operatives 19 Amendment Act 2015 section 32. 20 21 33. Section 132 amended 22 (1) In section 132(1)(a) deleted "289(a)," and insert: 23 24 289(1)(a), 25 26 (2) In section 132(2)(a) delete "289(a)" and insert: 27 28 289(1)(a) 29 page 25 Co-operatives Amendment Bill 2015 s. 34 1 34. Section 133 amended 2 Delete section 133(1)(a). 3 35. Part 7 Division 2 heading replaced 4 Delete the heading to Part 7 Division 2 and insert: 5 6 Division 2 -- Disclosure requirements for distributing 7 co-operatives 8 9 36. Sections 137A and 137B inserted 10 At the beginning of Part 7 Division 2 insert: 11 12 137A. Registration of current disclosure statement 13 (1) A distributing co-operative must take all reasonable 14 steps to ensure that it has a current disclosure statement 15 in accordance with this section registered with the 16 Registrar. 17 Penalty for this subsection: a fine of $1 000. 18 (2) The disclosure statement must contain the information 19 necessary to ensure prospective members are 20 adequately informed of the nature and extent of a 21 person's financial involvement or liability as a member 22 of the co-operative including so far as applicable -- 23 (a) the active membership provisions of the 24 co-operative; and 25 (b) the rights and liabilities attaching to shares in 26 the co-operative; and 27 (c) any other information that the Registrar directs 28 to be included. page 26 Co-operatives Amendment Bill 2015 s. 36 1 (3) A disclosure statement approved by the Registrar under 2 section 16 is taken to be registered with the Registrar 3 for the purposes of this section until it stops being 4 current under subsection (4). 5 (4) A disclosure statement stops being current when -- 6 (a) a change occurs in the rights or liabilities 7 attaching to any class of share in the 8 co-operative; or 9 (b) a significant change occurs in the financial 10 position or prospects of the co-operative. 11 (5) The co-operative must lodge a new disclosure 12 statement with the Registrar for registration when the 13 currently registered disclosure statement stops being 14 current, and must do so within 14 days (or a longer 15 period approved by the Registrar) after it stops being 16 current. 17 Penalty for this subsection: a fine of $1 000. 18 (6) A disclosure statement lodged under subsection (5) is 19 taken to be registered with the Registrar. 20 137B. Restrictions on advertising and publicity: shares 21 (1) A person must not -- 22 (a) advertise; or 23 (b) publish a statement that directly or indirectly 24 refers to, 25 an offer, or intended offer, of shares in a distributing 26 co-operative unless a current disclosure statement 27 relating to the shares is registered with the Registrar 28 under section 137A. 29 Penalty for this subsection: a fine of $1 000. 30 (2) Subsection (1) applies in relation to shares in a 31 distributing co-operative only if the shares are offered, page 27 Co-operatives Amendment Bill 2015 s. 37 1 or intended to be offered, to persons who are not 2 shareholders in the co-operative. 3 (3) A person does not contravene subsection (1) by 4 publishing an advertisement or statement if they 5 publish it in the ordinary course of business of -- 6 (a) publishing a newspaper or a magazine; or 7 (b) broadcasting by radio or television, 8 and the person did not know and had no reason to 9 suspect that its publication would amount to a 10 contravention of that subsection. 11 (4) Despite The Criminal Code section 23B(2), it is 12 immaterial for the purposes of subsection (1) that any 13 event occurred by accident. 14 15 37. Sections 137 and 138 replaced 16 Delete sections 137 and 138 and insert: 17 18 137. Disclosure to intending shareholders in distributing 19 co-operative 20 (1) The board of a distributing co-operative must give a 21 person who intends to acquire shares in the 22 co-operative and is not already a shareholder in the 23 co-operative -- 24 (a) a current disclosure statement; and 25 (b) any other information the Registrar directs. 26 (2) The disclosure statement and any other information 27 required under subsection (1) and Part 4 must be given 28 before the person becomes bound to acquire the shares. page 28 Co-operatives Amendment Bill 2015 s. 38 1 (3) The board of a co-operative may comply with 2 subsection (1) in relation to a person by giving the 3 person a notice stating any or all of the following -- 4 (a) that the person may request to inspect the 5 statement and information referred to in 6 subsection (1) at an office of the co-operative 7 nominated by the person; 8 (b) that the person may request to be sent an 9 electronic copy of the statement and 10 information referred to in subsection (1) by an 11 electronic means nominated by the person; 12 (c) that the statement and information referred to in 13 subsection (1) are available on a website and 14 specifying the direct address on the website 15 where the documents may be accessed. 16 (4) If a person who has received notice under this section 17 makes a request referred to in subsection (3)(a) or (b), 18 the co-operative must comply with that request. 19 20 38. Section 139 amended 21 (1) Delete section 139(1) and insert: 22 23 (1) The Registrar may, by order published in the Gazette, 24 exempt a co-operative or a class of co-operatives from 25 any or all of the provisions of this Division. 26 27 (2) After section 139(2) insert: 28 29 (3) An exemption may be granted unconditionally or 30 subject to conditions. 31 page 29 Co-operatives Amendment Bill 2015 s. 39 1 39. Part 7 Division 3A inserted 2 After Part 7 Division 2 insert: 3 4 Division 3A -- Compensation for defective disclosure 5 140A. Contravention leading to right to recover loss or 6 damage 7 (1) A co-operative contravenes this subsection if -- 8 (a) a disclosure statement is given to a person 9 under section 137; and 10 (b) there is -- 11 (i) a misleading or deceptive statement in 12 the disclosure statement or in any 13 application form or document that 14 accompanies the disclosure statement; 15 or 16 (ii) an omission from the disclosure 17 statement of material or information that 18 is required to be contained in the 19 statement by or under this Act; 20 and 21 (c) the misleading or deceptive statement or the 22 omission is materially adverse from the point of 23 view of the person to whom it is given. 24 (2) A co-operative contravenes this subsection if -- 25 (a) a disclosure statement is given to a person 26 under section 137; and 27 (b) the disclosure statement is not current (as 28 referred to in section 137A(4)). page 30 Co-operatives Amendment Bill 2015 s. 39 1 140B. Right to recover for loss or damage resulting from 2 contravention 3 (1) A person who suffers loss or damage because of a 4 contravention of section 140A(1) or (2) in relation to a 5 co-operative may recover the amount of the loss or 6 damage from a person referred to in a paragraph of 7 subsection (2) if the loss or damage is one that the 8 paragraph makes the person liable for, even if the 9 person did not commit, and was not involved in, the 10 contravention. 11 (2) For the purposes of subsection (1) -- 12 (a) the co-operative is liable for loss or damage 13 caused by any contravention of section 140A(1) 14 or (2) in relation to the disclosure statement; 15 and 16 (b) each director of the co-operative is liable for 17 loss or damage caused by any contravention of 18 section 140A(1) or (2) in relation to the 19 disclosure statement; and 20 (c) a person named in the disclosure statement with 21 their consent as having made a statement (see 22 section 487) -- 23 (i) that is included in the disclosure 24 statement; or 25 (ii) on which a statement in the disclosure 26 statement is based, 27 is liable for loss or damage caused by the 28 inclusion of the statement in the disclosure 29 statement; and 30 (d) a person who is involved in the contravention 31 of section 140A(1) or (2) is liable for loss or 32 damage caused by that contravention. page 31 Co-operatives Amendment Bill 2015 s. 39 1 (3) Any action under subsection (1) may begin at any time 2 within 6 years after the day on which the cause of the 3 action arose. 4 (4) This Division does not affect any liability that a person 5 has under any other written law. 6 140C. Due diligence defence 7 (1) A person is not liable under this Division in relation to 8 a contravention of section 140A(1) because of a 9 misleading or deceptive statement if the person proves 10 they -- 11 (a) made all inquiries (if any) that were reasonable 12 in the circumstances; and 13 (b) after doing so, believed on reasonable grounds 14 that the statement was not misleading or 15 deceptive. 16 (2) A person is not liable under this Division in relation to 17 a contravention of section 140A(1) because of an 18 omission from a disclosure statement in relation to a 19 particular matter or particular information if the person 20 proves they -- 21 (a) made all inquiries (if any) that were reasonable 22 in the circumstances; and 23 (b) after doing so, believed on reasonable grounds 24 that there was no omission from the statement 25 in relation to that matter or information. 26 (3) A person is not liable under this Division in relation to 27 a contravention of section 140A(2) because a 28 disclosure statement is not current if the person proves 29 they -- 30 (a) made all inquiries (if any) that were reasonable 31 in the circumstances; and page 32 Co-operatives Amendment Bill 2015 s. 40 1 (b) after doing so, believed on reasonable grounds 2 that the statement was current. 3 140D. General defences 4 (1) A person is not liable under this Division in relation to 5 a contravention of section 140A(1) if the person proves 6 that they placed reasonable reliance on information 7 given to them by -- 8 (a) if the person is a body -- someone other than a 9 director, employee or agent of the body; or 10 (b) if the person is an individual -- someone other 11 than an employee or agent of the individual. 12 (2) For the purposes of subsection (1), a person is not the 13 agent of a body or individual merely because they 14 perform a particular professional or advisory function 15 for the body or individual. 16 (3) A person is not liable under this Division in relation to 17 a contravention of section 140A(2) if the person proves 18 that they were not aware of the circumstance or event 19 that caused the disclosure statement to cease to be 20 current. 21 22 40. Section 141 deleted 23 Delete section 141. 24 41. Section 146 amended 25 (1) In section 146(1) delete "the co-operative." and insert: 26 27 the co-operative passed by a special postal ballot. 28 page 33 Co-operatives Amendment Bill 2015 s. 42 1 (2) Delete section 146(7) and insert: 2 3 (7) The requirements in respect of a proposal to take up 4 additional shares under subsection (3) do not apply to 5 the issue of bonus shares under section 144(4)(a), 147 6 or 271(2). 7 8 42. Part 7 Division 4A inserted 9 After Part 7 Division 3 insert: 10 11 Division 4A -- Provisions applying to particular share 12 subscriptions 13 150A. Term used: disclosure statement 14 In this Division -- 15 disclosure statement means a disclosure statement, of 16 any type, under this Act. 17 150B. Application of this Division 18 This Division applies in relation to shares in a 19 co-operative only if the shares are offered to persons 20 who are not shareholders in the co-operative. 21 150C. Application money to be held on trust 22 (1) If a person offers shares for issue or sale under a 23 disclosure statement, the person must hold -- 24 (a) all application money received from people 25 applying for shares under the disclosure 26 statement; and page 34 Co-operatives Amendment Bill 2015 s. 42 1 (b) all other money paid by them on account of the 2 shares before they are issued or transferred, 3 in trust under this section for the applicants until the 4 shares are issued or transferred or the money is 5 returned to the applicants. 6 Penalty for this subsection: a fine of $2 500, or 7 imprisonment for 6 months, or both. 8 (2) If the application money needs to be returned to an 9 applicant, the person must return the money as soon as 10 practicable. 11 Penalty for this subsection: a fine of $2 500, or 12 imprisonment for 6 months, or both. 13 (3) Despite The Criminal Code section 23B(2), it is 14 immaterial for the purposes of subsections (1) and (2) 15 that any event occurred by accident. 16 150D. Minimum subscription condition must be fulfilled 17 before issue or transfer 18 (1) If a disclosure statement for an offer of shares states 19 that the shares will not be issued or transferred 20 unless -- 21 (a) applications for a minimum number of the 22 shares are received from members, or persons 23 eligible to become members, of the 24 co-operative; or 25 (b) a minimum amount is raised, 26 the person making the offer must not issue or transfer 27 any of the shares until that condition is satisfied. 28 (2) For the purpose of working out whether a condition 29 referred to in subsection (1) has been satisfied, a person 30 who has agreed to take securities as underwriter is 31 taken to have applied for those shares. page 35 Co-operatives Amendment Bill 2015 s. 42 1 150E. Repayment of money if disclosure statement 2 condition not met 3 (1) If -- 4 (a) a person offers shares under a disclosure 5 statement; and 6 (b) the disclosure statement states (expressly or 7 impliedly) that it is a condition that the shares 8 will not be issued or transferred unless -- 9 (i) applications for a minimum number of 10 the shares are received from members, 11 or persons eligible to become members, 12 of the co-operative; or 13 (ii) a minimum amount is raised; 14 and 15 (c) that condition is not satisfied within 4 months 16 after the date of the disclosure statement, 17 the person must repay the money received by the 18 person in respect of any applications for the shares 19 made under the disclosure statement that have not 20 resulted in an issue or transfer of the shares. 21 Penalty for this subsection: a fine of $2 500, or 22 imprisonment for 6 months, or both. 23 (2) For the purpose of working out whether a condition 24 referred to in subsection (1) has been satisfied, a person 25 who has agreed to take shares as underwriter is taken to 26 have applied for those shares. 27 (3) Despite The Criminal Code section 23B(2), it is 28 immaterial for the purposes of subsection (1) that any 29 event occurred by accident. 30 page 36 Co-operatives Amendment Bill 2015 s. 43 1 43. Part 7 Division 4 heading replaced 2 Delete the heading to Part 7 Division 4 and insert: 3 4 Division 4 -- Disclosure and registration of interests 5 in shares 6 7 44. Section 151 amended 8 (1) In section 151(1) delete the Penalty and insert: 9 10 Penalty for this subsection: a fine of $1 000. 11 12 (2) After section 151(2) insert: 13 14 (3A) Despite The Criminal Code section 23B(2), it is 15 immaterial for the purposes of subsection (1) that any 16 event occurred by accident. 17 18 (3) After section 151(5) insert: 19 20 (6A) A person does not have to comply with a direction if 21 the person proves that the giving of the direction is 22 vexatious. 23 24 45. Section 163 amended 25 (1) In section 163(4)(a) delete "records" and insert: 26 27 books 28 page 37 Co-operatives Amendment Bill 2015 s. 46 1 (2) After section 163(4) insert: 2 3 (5A) A co-operative must not purchase shares or repay 4 amounts paid up on shares if -- 5 (a) the co-operative is likely to become insolvent 6 because of the repurchase of the shares or 7 because of the repayment of amounts paid up 8 on the shares; or 9 (b) the co-operative is insolvent. 10 11 46. Section 169 amended 12 In section 169(1) delete the Penalty and insert: 13 14 Penalty for this subsection: a fine of $6 000, or 15 imprisonment for 6 months, or both. 16 17 47. Section 171 amended 18 In section 171(1) delete "A member" and insert: 19 20 Subject to subsection (3) and section 167(5), a member 21 22 48. Section 180 amended 23 After section 180(2) insert: 24 25 (3) Subsection (2) and sections 181 and 182 do not apply 26 to a special resolution altering the rules of a 27 co-operative. 28 page 38 Co-operatives Amendment Bill 2015 s. 49 1 49. Section 181 amended 2 (1) At the end of section 181(1) insert: 3 4 Penalty for this subsection: a fine of $2 000. 5 6 (2) Delete section 181(4) and insert: 7 8 (4) Despite The Criminal Code section 23B(2), it is 9 immaterial for the purposes of subsection (1) that any 10 event occurred by accident. 11 12 50. Section 185 amended 13 Delete section 185(1) and insert: 14 15 (1) A postal ballot may be held as provided by the rules of 16 the co-operative and must be conducted in the way 17 prescribed by the regulations. 18 19 51. Section 187 amended 20 In section 187: 21 (a) in paragraph (h) delete "winding-up." and insert: 22 23 winding-up; 24 25 (b) after paragraph (h) insert: 26 27 (i) a requirement for members to take up or 28 subscribe for additional shares; 29 (j) a requirement for members to lend money to 30 the co-operative. 31 page 39 Co-operatives Amendment Bill 2015 s. 52 1 52. Section 190 amended 2 After section 190(3) insert: 3 4 (4) An annual general meeting is to be held in addition to 5 any other meetings held by a co-operative in a year. 6 (5) A co-operative commits an offence if it does not hold 7 an annual general meeting as required by this section. 8 Penalty for this subsection: a fine of $1 000. 9 (6) Despite The Criminal Code section 23B(2), it is 10 immaterial for the purposes of subsection (5) that any 11 event occurred by accident. 12 13 53. Section 194 amended 14 In section 194(3) delete "poll." and insert: 15 16 poll, unless the rules of the co-operative restrict the number of 17 votes that a proxy may exercise. 18 19 54. Section 196 amended 20 (1) In section 196(1) delete "records within one month after the 21 meeting and confirmed at, and signed by the chairman of, the 22 next meeting." and insert: 23 24 books within one month after the meeting. 25 26 (2) After section 196(1) insert: 27 28 (2A) A co-operative must ensure that minutes of a meeting 29 are signed within a reasonable time after the meeting 30 by one of the following -- 31 (a) the chairman of the meeting; page 40 Co-operatives Amendment Bill 2015 s. 55 1 (b) the chairman of the next meeting. 2 3 55. Sections 197A to 197D inserted 4 At the end of Part 8 Division 5 insert: 5 6 197A. Auditor entitled to notice and other 7 communications 8 (1) A co-operative must give its auditor -- 9 (a) notice of a general meeting in the same way 10 that a member of the co-operative is entitled to 11 receive notice; and 12 (b) any other communications relating to the 13 general meeting that a member of the 14 co-operative is entitled to receive. 15 Penalty for this subsection: a fine of $500. 16 (2) Despite The Criminal Code section 23B(2), it is 17 immaterial for the purposes of subsection (1) that any 18 event occurred by accident. 19 197B. Auditor's right to be heard at general meetings 20 (1) A co-operative's auditor is entitled to attend any 21 general meeting of the co-operative. 22 (2) The auditor is entitled to be heard at the meeting on 23 any part of the business of the meeting that concerns 24 the auditor in the capacity of auditor. 25 (3) The auditor is entitled to be heard even if -- 26 (a) the auditor retires at the meeting; or 27 (b) the meeting passes a resolution to remove the 28 auditor from office. page 41 Co-operatives Amendment Bill 2015 s. 55 1 (4) The auditor may authorise a person in writing as the 2 auditor's representative for the purpose of attending 3 and speaking at any general meeting. 4 197C. Questions and comments by members on 5 co-operative management at annual general 6 meeting 7 (1) The chairman of an annual general meeting of a 8 co-operative must allow a reasonable opportunity for 9 the members as a whole at the meeting to ask questions 10 about or make comments on the management of the 11 co-operative. 12 Penalty for this subsection: a fine of $500. 13 (2) Despite The Criminal Code section 23B(2), it is 14 immaterial for the purposes of subsection (1) that any 15 event occurred by accident. 16 197D. Questions by members of auditors at annual general 17 meeting 18 (1) If a co-operative's auditor or their representative is at 19 the meeting, the chairman of an annual general meeting 20 of the co-operative must -- 21 (a) allow a reasonable opportunity for the members 22 as a whole at the meeting to ask the auditor or 23 the auditor's representative questions relevant 24 to -- 25 (i) the conduct of the audit; and 26 (ii) the preparation and content of the 27 auditor's report; and 28 (iii) the accounting policies adopted by the 29 co-operative in relation to the 30 preparation of the financial statements; 31 and page 42 Co-operatives Amendment Bill 2015 s. 56 1 (iv) the independence of the auditor in 2 relation to the conduct of the audit; 3 and 4 (b) allow a reasonable opportunity for the auditor 5 or their representative to answer written 6 questions submitted to the auditor. 7 Penalty for this subsection: a fine of $500. 8 (2) Despite The Criminal Code section 23B(2), it is 9 immaterial for the purposes of subsection (1) that any 10 event occurred by accident. 11 (3) If -- 12 (a) the co-operative's auditor or their 13 representative is at the meeting; and 14 (b) the auditor has prepared a written answer to a 15 written question submitted to the auditor, 16 the chairman of the annual general meeting may permit 17 the auditor or their representative to table the written 18 answer to the written question. 19 (4) The co-operative must make the written answer tabled 20 under subsection (3) reasonably available to members 21 as soon as practicable after the annual general meeting. 22 Penalty for this subsection: a fine of $500. 23 24 56. Section 197 amended 25 After section 197(1) insert: 26 27 (2A) The board must consist of at least 3 directors (not 28 counting alternates of directors) and at least 2 of the 29 directors must be ordinarily resident in Australia. 30 page 43 Co-operatives Amendment Bill 2015 s. 57 1 57. Section 198 amended 2 Delete section 198(3) and insert: 3 4 (3) If authorised by the rules of the co-operative, a board 5 of directors may -- 6 (a) appoint a person to fill a casual vacancy in the 7 office of a director until the next annual general 8 meeting; or 9 (b) appoint an employee of the co-operative, or a 10 person qualified as provided by the rules, to be 11 a director of the co-operative until the next 12 annual general meeting. 13 14 58. Section 200 deleted 15 Delete section 200. 16 59. Section 205 amended 17 In section 205(2): 18 (a) in paragraph (a) delete "disqualified from being a 19 director as provided by section 200;" and insert: 20 21 a disqualified person under section 206B; 22 23 (b) in paragraph (d) delete "by special resolution of the 24 co-operative;" and insert: 25 26 under section 206A; 27 28 (c) in paragraph (f) delete "Division 5." and insert: 29 30 Division 4. 31 page 44 Co-operatives Amendment Bill 2015 s. 60 1 60. Section 206A inserted 2 At the end of Part 9 Division 1 insert: 3 4 206A. Removal from office by resolution 5 (1) A co-operative may by ordinary resolution remove a 6 director from office despite anything in -- 7 (a) the rules of the co-operative; or 8 (b) an agreement between the co-operative and the 9 director; or 10 (c) an agreement between any or all members of 11 the co-operative and the director. 12 (2) Notice of intention to move the resolution must be 13 given to the co-operative at least 2 months before the 14 meeting is to be held. 15 (3) However, subject to subsection (4), if the co-operative 16 calls a meeting after the notice of intention is given 17 under subsection (2), the meeting may pass the 18 resolution even though the meeting is held less than 19 2 months after the notice of intention is given. 20 (4) At least 21 days' notice must be given of a meeting of 21 the members of the co-operative at which a resolution 22 will be moved -- 23 (a) to remove a director from office; or 24 (b) to appoint a director in place of a director 25 removed from office. 26 (5) The co-operative must give the director a copy of the 27 notice as soon as practicable after it is received. 28 Penalty for this subsection: a fine of $500. page 45 Co-operatives Amendment Bill 2015 s. 60 1 (6) The director is entitled to put his or her case to 2 members by -- 3 (a) giving the co-operative a written statement for 4 circulation to members (see subsections (7) and 5 (8)); and 6 (b) speaking to the motion at the meeting. 7 (7) The co-operative must circulate the written statement 8 to members by -- 9 (a) sending a copy to everyone to whom notice of 10 the meeting is sent if there is time to do so; or 11 (b) if there is not time to comply with 12 paragraph (a) -- having the statement 13 distributed to members attending the meeting 14 and read out at the meeting before the 15 resolution is voted on. 16 Penalty for this subsection: a fine of $500. 17 (8) The director's statement does not have to be circulated 18 to members if it is more than 1 000 words long or 19 defamatory. 20 (9) If a person is appointed to replace a director removed 21 under this section, the time at which -- 22 (a) the replacement director; or 23 (b) any other director, 24 is to retire is to be worked out as if the replacement 25 director had become director on the day on which the 26 replaced director was last appointed a director. 27 (10) Despite The Criminal Code section 23B(2), it is 28 immaterial for the purposes of subsections (5) and (7) 29 that any event occurred by accident. 30 page 46 Co-operatives Amendment Bill 2015 s. 61 1 61. Part 9 Division 2A inserted 2 After Part 9 Division 1 insert: 3 4 Division 2A -- Disqualification from 5 managing co-operatives 6 206B. Offence for disqualified person to manage 7 co-operative 8 (1) A person is a disqualified person in relation to a 9 co-operative if the person -- 10 (a) is disqualified from managing corporations 11 under the Corporations Act Part 2D.6; or 12 (b) is disqualified from managing co-operatives 13 under this Division; or 14 (c) is disqualified from managing co-operatives 15 under a corresponding co-operatives law; or 16 (d) is the auditor of the co-operative or a business 17 partner, employee or employer of the auditor. 18 (2) A disqualified person in relation to a co-operative must 19 not -- 20 (a) act as a director of the co-operative; or 21 (b) directly or indirectly take part in, or be 22 concerned with, the management of the 23 co-operative. 24 Penalty for this subsection: a fine of $24 000, or 25 imprisonment for 2 years, or both. 26 (3) It is a defence to an offence arising under this section if 27 the person had permission or leave -- 28 (a) in the case of an offence arising in relation to 29 subsection (1)(a) -- to manage corporations 30 granted under the Corporations Act page 47 Co-operatives Amendment Bill 2015 s. 61 1 section 206G and as referred to in 2 section 206G(1)(a) of that Act; or 3 (b) in any case -- to manage co-operatives given 4 or granted under either section 206I or 206J, 5 and their conduct was within the terms of that 6 permission or leave. 7 206C. Automatic disqualification for offences 8 (1) A person who has been convicted of an offence under 9 this Act or a corresponding co-operatives law is 10 disqualified from managing co-operatives during the 11 period of 5 years after the conviction or, if sentenced to 12 imprisonment, after his or her release from prison. 13 (2) A person who has, whether before or after the 14 commencement of the Co-operatives Amendment 15 Act 2015 section 61, been convicted of an offence 16 under a previous law of this or any other jurisdiction 17 relating to co-operatives is disqualified from managing 18 co-operatives during the period of 5 years after the 19 conviction or, if sentenced to imprisonment, after his or 20 her release from prison. 21 (3) In proceedings for an offence arising under this 22 Division in relation to this section, a certificate by an 23 authority prescribed by the regulations stating that a 24 person has been convicted of an offence under a stated 25 law on a stated date is evidence the person was 26 convicted of that offence on that date. 27 (4) In proceedings for an offence arising under this 28 Division in relation to this section, a certificate by an 29 authority prescribed by the regulations stating that a 30 person was released from prison on a stated date is 31 evidence the person was released from prison on that 32 date. page 48 Co-operatives Amendment Bill 2015 s. 61 1 206D. Extension of period of automatic disqualification 2 (1) This section applies if a person is disqualified from 3 managing co-operatives on being convicted of an 4 offence under the Corporations Act, this Act, a 5 corresponding co-operatives law, or a previous law of 6 this or any other jurisdiction relating to co-operatives. 7 (2) On application by the Registrar, the Supreme Court 8 may extend the period of disqualification by up to an 9 additional 15 years. 10 (3) The Registrar must apply -- 11 (a) before the period of disqualification begins; or 12 (b) before the end of the first year of the 13 disqualification. 14 (4) The Registrar may apply only once in relation to the 15 disqualification. 16 (5) In determining whether an extension is justified (and if 17 so, for how long), the Supreme Court may have regard 18 to any matters that the court considers appropriate. 19 206E. Court's power of disqualification: contravention of 20 civil penalty provision 21 (1) On application by the Registrar, the Supreme Court 22 may disqualify a person from managing co-operatives 23 for a period that the court considers appropriate if -- 24 (a) a declaration is made under section 482B that 25 the person has contravened a civil penalty 26 provision; and 27 (b) the court is satisfied that the disqualification is 28 justified. page 49 Co-operatives Amendment Bill 2015 s. 61 1 (2) In determining whether the disqualification is justified, 2 the court may have regard to -- 3 (a) the person's conduct in relation to the 4 management, business or property of any 5 corporation; and 6 (b) any other matters that the court considers 7 appropriate. 8 206F. Court's power of disqualification: insolvency and 9 non-payment of debts 10 (1) On application by the Registrar, the Supreme Court 11 may disqualify a person from managing co-operatives 12 for up to 20 years if -- 13 (a) within the last 7 years, the person has been an 14 officer of 2 or more entities (being 15 co-operatives or other corporations) when they 16 have failed; and 17 (b) the court is satisfied that -- 18 (i) the manner in which the entity was 19 managed was wholly or partly 20 responsible for the entity failing; and 21 (ii) the disqualification is justified. 22 (2) For the purposes of subsection (1), an entity fails if -- 23 (a) a court orders the entity to be wound up 24 because the court is satisfied that it is insolvent; 25 or 26 (b) the entity enters into voluntary liquidation and 27 creditors are not fully paid or are unlikely to be 28 fully paid; or 29 (c) the entity executes a deed of arrangement and 30 creditors are not fully paid or are unlikely to be 31 fully paid; or page 50 Co-operatives Amendment Bill 2015 s. 61 1 (d) the entity ceases to carry on business and 2 creditors are not fully paid or are unlikely to be 3 fully paid; or 4 (e) a levy of execution against the entity is not 5 satisfied; or 6 (f) a receiver, receiver and manager, or provisional 7 liquidator is appointed in relation to the entity; 8 or 9 (g) the entity enters into a compromise or 10 arrangement with its creditors; or 11 (h) the entity is wound up and a liquidator lodges a 12 report about the entity's inability to pay its 13 debts. 14 (3) In determining whether the disqualification is justified, 15 the Supreme Court may have regard to -- 16 (a) the person's conduct in relation to the 17 management, business or property of any 18 entity; and 19 (b) any other matters that the court considers 20 appropriate. 21 206G. Court's power of disqualification: repeated 22 contraventions of law 23 (1) In this section -- 24 co-operatives legislation means this Act or a 25 corresponding co-operatives law. 26 (2) On application by the Registrar, the Supreme Court 27 may disqualify a person from managing co-operatives 28 for the period that the court considers appropriate if -- 29 (a) the person -- 30 (i) has at least twice been an officer of a 31 co-operative that has contravened 32 co-operatives legislation while they page 51 Co-operatives Amendment Bill 2015 s. 61 1 were an officer of the co-operative and 2 each time the person has failed to take 3 reasonable steps to prevent the 4 contravention; or 5 (ii) has at least twice contravened 6 co-operatives legislation while they 7 were an officer of a co-operative; or 8 (iii) has been an officer of a body corporate 9 and has done something that would have 10 contravened section 207 or 208 if the 11 body corporate had been a co-operative; 12 and 13 (b) the court is satisfied that the disqualification is 14 justified. 15 (3) In determining whether the disqualification is justified, 16 the Supreme Court may have regard to -- 17 (a) the person's conduct in relation to the 18 management, business or property of any 19 entity; and 20 (b) any other matters that the court considers 21 appropriate. 22 206H. Registrar's power of disqualification 23 (1) The Registrar may disqualify a person from managing 24 co-operatives for up to 5 years if -- 25 (a) within 7 years immediately before the Registrar 26 gives a notice under paragraph (b)(i) -- 27 (i) the person has been an officer of 2 or 28 more co-operatives; and 29 (ii) while the person was an officer, or 30 within 12 months after the person 31 ceased to be an officer of those 32 co-operatives, each of the co-operatives 33 was wound up and a liquidator lodged a page 52 Co-operatives Amendment Bill 2015 s. 61 1 report about the co-operative's inability 2 to pay its debts; 3 and 4 (b) the Registrar has given the person -- 5 (i) a notice in the form approved by the 6 Registrar requiring them to demonstrate 7 why they should not be disqualified; and 8 (ii) an opportunity to be heard on the 9 question; 10 and 11 (c) the Registrar is satisfied that the 12 disqualification is justified. 13 (2) If the Registrar disqualifies a person from managing 14 co-operatives under this section, the Registrar must 15 serve a notice on the person advising them of the 16 disqualification. 17 (3) The notice must be in the form approved by the 18 Registrar. 19 (4) The disqualification takes effect from the time when a 20 notice referred to in subsection (2) is served on the 21 person. 22 206I. Registrar's power to give permission 23 (1) The Registrar may give a person whom the Registrar 24 has disqualified from managing co-operatives under 25 this Division written permission to manage a particular 26 co-operative or co-operatives. 27 (2) The permission may be expressed to be subject to 28 conditions and limitations determined by the Registrar. 29 (3) A person must comply with any condition or limitation 30 subject to which permission is given. 31 Penalty for this subsection: a fine of $24 000, or 32 imprisonment for 2 years, or both. page 53 Co-operatives Amendment Bill 2015 s. 61 1 206J. Court's power to grant leave 2 (1) A person who is disqualified from managing 3 co-operatives may apply to the Supreme Court for 4 leave to manage -- 5 (a) co-operatives; or 6 (b) a particular class of co-operatives; or 7 (c) a particular co-operative, 8 except where the person was disqualified by the 9 Registrar under section 206H. 10 (2) The person must lodge a notice with the Registrar at 11 least 21 days before commencing the proceedings. 12 (3) The notice must be in the form approved by the 13 Registrar. 14 (4) The order granting leave may be expressed to be 15 subject to conditions or limitations determined by the 16 Supreme Court. 17 (5) The person must lodge with the Registrar a copy of any 18 order granting leave within 14 days after the order is 19 made. 20 (6) On application by the Registrar, the Supreme Court 21 may revoke the leave. 22 (7) An order revoking leave under subsection (6) does not 23 take effect until it is served on the person. 24 (8) A person must comply with any condition or limitation 25 subject to which leave is granted. 26 Penalty for this subsection: a fine of $24 000, or 27 imprisonment for 2 years, or both. 28 (9) This section does not apply to a person who is 29 disqualified from managing co-operatives because of 30 section 206B(1)(d). 31 page 54 Co-operatives Amendment Bill 2015 s. 62 1 62. Section 207A inserted 2 At the end of Part 9 Division 2 insert: 3 4 207A. Responsibility of secretary 5 The secretary of a co-operative must take all 6 reasonable steps to ensure that the co-operative does 7 not contravene a provision of this Act that is prescribed 8 by the regulations for the purposes of this section. 9 Penalty: a fine of $500. 10 11 63. Sections 207 to 212 replaced 12 Delete sections 207 to 212 and insert: 13 14 207. Care and diligence: civil obligations 15 (1) In this section -- 16 business judgment means any decision to take or not 17 take action in respect of a matter relevant to the 18 business operations of the co-operative. 19 (2) A director or other officer of a co-operative must 20 exercise their powers and discharge their duties with 21 the degree of care and diligence that a reasonable 22 person would exercise if they -- 23 (a) were a director or officer of a co-operative in 24 the co-operative's circumstances; and 25 (b) occupied the office held by, and had the same 26 responsibilities within the co-operative as, the 27 director or officer. 28 Note for this subsection: This is a civil penalty provision (see section 482A). 29 (3) A director or other officer of a co-operative who makes 30 a business judgment is taken to meet the requirements page 55 Co-operatives Amendment Bill 2015 s. 63 1 of subsection (2), and their equivalent duties at 2 common law and in equity in respect of the judgment, 3 if they -- 4 (a) make the judgment in good faith for a proper 5 purpose (taking into account the co-operative 6 principles where relevant and other relevant 7 matters); and 8 (b) do not have a material personal interest in the 9 subject matter of the judgment; and 10 (c) inform themselves about the subject matter of 11 the judgment to the extent they reasonably 12 believe to be appropriate; and 13 (d) rationally believe that the judgment is in the 14 best interests of the co-operative. 15 (4) The director's or officer's belief that the judgment is in 16 the best interests of the co-operative is a rational one 17 unless the belief is one that no reasonable person in 18 their position would hold. 19 208. Good faith: civil obligations 20 (1) A director or other officer of a co-operative must 21 exercise their powers and discharge their duties -- 22 (a) in good faith in the best interests of the 23 co-operative; and 24 (b) for a proper purpose. 25 Note for this subsection: This is a civil penalty provision (see section 482A). 26 (2) A person who is involved in a contravention of 27 subsection (1) contravenes this subsection. 28 Note for this subsection: This is a civil penalty provision (see section 482A). page 56 Co-operatives Amendment Bill 2015 s. 63 1 209. Use of position: civil obligations 2 (1) A director, secretary, other officer or employee of a 3 co-operative must not improperly use their position 4 to -- 5 (a) gain an advantage for themselves or someone 6 else; or 7 (b) cause detriment to the co-operative. 8 Note for this subsection: This is a civil penalty provision (see section 482A). 9 (2) A person who is involved in a contravention of 10 subsection (1) contravenes this subsection. 11 Note for this subsection: This is a civil penalty provision (see section 482A). 12 210. Use of information: civil obligations 13 (1) A person who obtains information because they are, or 14 have been, a director or other officer or employee of a 15 co-operative must not improperly use the information 16 to -- 17 (a) gain an advantage for themselves or someone 18 else; or 19 (b) cause detriment to the co-operative. 20 Note for this subsection: This is a civil penalty provision (see section 482A). 21 (2) The duty under subsection (1) continues after the 22 person stops being a director or other officer or 23 employee of the co-operative. 24 (3) A person who is involved in a contravention of 25 subsection (1) contravenes this subsection. 26 Note for this subsection: This is a civil penalty provision (see section 482A). 27 211. Good faith, use of position and use of information: 28 criminal offences 29 (1) A director or other officer of a co-operative commits an 30 offence if they are reckless, or are intentionally page 57 Co-operatives Amendment Bill 2015 s. 63 1 dishonest, and fail to exercise their powers and 2 discharge their duties -- 3 (a) in good faith in the best interests of the 4 co-operative; or 5 (b) for a proper purpose. 6 Penalty for this subsection: a fine of $200 000, or 7 imprisonment for 5 years, or both. 8 (2) A director, other officer or employee of a co-operative 9 commits an offence if they use their position 10 dishonestly -- 11 (a) with the intention of directly or indirectly 12 gaining an advantage for themselves, or 13 someone else, or causing detriment to the 14 co-operative; or 15 (b) recklessly as to whether the use may result in 16 themselves or someone else directly or 17 indirectly gaining an advantage, or in causing 18 detriment to the co-operative. 19 Penalty for this subsection: a fine of $200 000, or 20 imprisonment for 5 years, or both. 21 (3) A person who obtains information because they are, or 22 have been, a director or other officer or employee of a 23 co-operative commits an offence if they use the 24 information dishonestly -- 25 (a) with the intention of directly or indirectly 26 gaining an advantage for themselves, or 27 someone else, or causing detriment to the 28 co-operative; or 29 (b) recklessly as to whether the use may result in 30 themselves or someone else directly or 31 indirectly gaining an advantage, or in causing 32 detriment to the co-operative. 33 Penalty for this subsection: a fine of $200 000, or 34 imprisonment for 5 years, or both. page 58 Co-operatives Amendment Bill 2015 s. 64 1 212. Other duties and liabilities not affected 2 (1) Sections 207 to 211 -- 3 (a) have effect in addition to, and not in derogation 4 of, any rule of law relating to the duty or 5 liability of a person because of their office or 6 employment in relation to a co-operative; and 7 (b) do not prevent the commencement of civil 8 proceedings for a breach of duty or in respect of 9 a liability referred to in paragraph (a). 10 (2) This section does not apply to section 207(1), (3) and 11 (4) to the extent to which they operate on the duties at 12 common law and in equity that are equivalent to the 13 requirements of section 207(2). 14 15 64. Section 213 amended 16 In section 213: 17 (a) delete paragraphs (a) and (b); 18 (b) in paragraph (c) delete "210(1)" and insert: 19 20 210 21 22 (c) in paragraph (d) delete "210(2)" and insert: 23 24 209 25 26 65. Section 214 amended 27 In section 214: 28 (a) delete "sections 344, 589 to 598 and 1307," and insert: 29 30 Parts 5.8 and 5.8A, 31 page 59 Co-operatives Amendment Bill 2015 s. 66 1 (b) delete paragraphs (a) to (c) and insert: 2 3 (a) section 589(2) and (3) are taken to be deleted; 4 (b) a reference in section 592(1)(a) to 23 June 1993 5 is to be read as a reference to 6 1 September 2010; 7 8 66. Section 215 amended 9 In section 215 delete the Penalty and insert: 10 11 Penalty: a fine of $24 000, or imprisonment for 2 years, 12 or both. 13 14 67. Section 216 amended 15 In section 216(1) delete the Penalty and insert: 16 17 Penalty for this subsection: a fine of $24 000, or 18 imprisonment for 2 years, or both. 19 20 68. Section 217 amended 21 In section 217(5) delete the Penalty and insert: 22 23 Penalty for this subsection: a fine of $24 000, or 24 imprisonment for 2 years, or both. 25 26 69. Section 218 amended 27 In section 218 delete the Penalty and insert: 28 29 Penalty: a fine of $24 000, or imprisonment for 2 years, 30 or both. 31 page 60 Co-operatives Amendment Bill 2015 s. 70 1 70. Section 220 amended 2 (1) In section 220(1) delete the Penalty and insert: 3 4 Penalty for this subsection: a fine of $24 000, or 5 imprisonment for 2 years, or both. 6 7 (2) In section 220(5) delete the Penalty and insert: 8 9 Penalty for this subsection: a fine of $24 000, or 10 imprisonment for 2 years, or both. 11 12 71. Part 9 Division 6 deleted 13 Delete Part 9 Division 6. 14 72. Part 9 Division 7 heading replaced 15 Delete the heading to Part 9 Division 7 and insert: 16 17 Division 7 -- Registers, books and returns 18 19 73. Section 230 amended 20 (1) In section 230(1): 21 (a) in paragraphs (b) and (c) delete "co-operative capital 22 units" and insert: 23 24 CCUs 25 26 (b) in paragraph (e) delete "co-operative capital units," and 27 insert: 28 29 CCUs, 30 page 61 Co-operatives Amendment Bill 2015 s. 74 1 (c) delete paragraph (i). 2 (2) After section 230(2) insert: 3 4 (3) Despite The Criminal Code section 23B(2), it is 5 immaterial for the purposes of subsection (1) that any 6 event occurred by accident. 7 8 74. Section 232 amended 9 (1) In section 232(1): 10 (a) delete paragraph (d) and insert: 11 12 (d) a copy of the most recent annual return of the 13 co-operative under section 244ZB; 14 (ea) a copy of the most recent financial information 15 reported to members of the co-operative under 16 Part 10A; 17 18 (b) in paragraph (f) delete "co-operative capital units" and 19 insert: 20 21 CCUs 22 23 (2) After section 232(7) insert: 24 25 (8) The rules of a co-operative may provide for the 26 availability or non-availability for inspection by 27 members of -- 28 (a) minutes of board meetings; and 29 (b) minutes of meetings of committees to which the 30 board's functions have been delegated under 31 section 204(1). page 62 Co-operatives Amendment Bill 2015 s. 75 1 (9) Minutes referred to in subsection (8) are not available 2 for inspection by members otherwise than in 3 accordance with rules referred to in that subsection. 4 5 75. Section 233 amended 6 (1) In section 233(1)(c) delete "co-operative capital units" and 7 insert: 8 9 CCUs 10 11 (2) After section 233(4) insert: 12 13 (5) The use or disclosure of information referred to in 14 subsection (1)(a) or (b) in the circumstances referred to 15 in subsection (1)(c), (d) or (e) is authorised by this Act. 16 17 76. Section 234 amended 18 (1) In section 234(1) delete "or a subsidiary of the co-operative,". 19 (2) At the end of section 234(1) insert: 20 21 Penalty for this subsection: a fine of $2 000. 22 23 (3) In section 234(2) delete the Penalty. 24 (4) After section 234(2) insert: 25 26 (3) Despite The Criminal Code section 23B(2), it is 27 immaterial for the purposes of subsection (1) that any 28 event occurred by accident. 29 page 63 Co-operatives Amendment Bill 2015 s. 77 1 77. Section 235 deleted 2 Delete section 235. 3 78. Section 236 amended 4 (1) In section 236 delete "A co-operative" and insert: 5 6 (1) A co-operative 7 8 (2) At the end of section 236 insert: 9 10 (2) Despite The Criminal Code section 23B(2), it is 11 immaterial for the purposes of subsection (1) that any 12 event occurred by accident. 13 14 79. Section 237 amended 15 After section 237(2) insert: 16 17 (3) Despite The Criminal Code section 23B(2), it is 18 immaterial for the purposes of subsection (2) that any 19 event occurred by accident. 20 21 80. Section 238 amended 22 Delete section 238(9) and insert: 23 24 (9) The regulations may exempt or provide for the 25 exemption of specified entities or kinds of entities from 26 subsection (7). 27 page 64 Co-operatives Amendment Bill 2015 s. 81 1 81. Section 240 replaced 2 Delete section 240 and insert: 3 4 240. Name to appear on business documents etc. 5 (1) In this section -- 6 business document, of a co-operative, means a 7 document that is issued, signed or endorsed by or on 8 behalf of the co-operative and is -- 9 (a) a business letter, statement of account, invoice 10 or order for goods or services; or 11 (b) a bill of exchange, promissory note, cheque or 12 other negotiable instrument; or 13 (c) a receipt or letter of credit issued by the 14 co-operative; or 15 (d) a document belonging to a class prescribed by 16 the regulations as a class of business document. 17 (2) A co-operative must ensure its name appears in legible 18 characters -- 19 (a) on each seal of the co-operative; and 20 (b) in all its business documents. 21 Penalty for this subsection: a fine of $2 000. 22 (3) An officer of a co-operative or a person on its behalf 23 must not -- 24 (a) use any seal of the co-operative; or 25 (b) sign or authorise to be signed on behalf of the 26 co-operative a business document of the 27 co-operative, 28 in or on which the co-operative's name does not appear 29 in legible characters. 30 Penalty for this subsection: a fine of $2 000. page 65 Co-operatives Amendment Bill 2015 s. 82 1 (4) A director of a co-operative must not knowingly 2 authorise or permit a contravention of this section. 3 Penalty for this subsection: a fine of $2 000. 4 (5) Despite The Criminal Code section 23B(2), it is 5 immaterial for the purposes of subsection (2) that any 6 event occurred by accident. 7 8 82. Section 241 amended 9 After section 241(7) insert: 10 11 (8) A co-operative that is given a direction under 12 subsection (7) must comply with the direction. 13 Penalty for this subsection: a fine of $500. 14 (9) Despite The Criminal Code section 23B(2), it is 15 immaterial for the purposes of subsection (8) that any 16 event occurred by accident. 17 18 83. Section 242 amended 19 Delete section 242(2) and insert: 20 21 (2) The regulations may exempt or provide for the 22 exemption of specified entities or kinds of entities from 23 subsection (1). 24 25 84. Section 243 amended 26 After section 243(3) insert: 27 28 (4) The Registrar may, by order published in the Gazette, 29 exempt a small co-operative, a class of small page 66 Co-operatives Amendment Bill 2015 s. 85 1 co-operatives or all small co-operatives from 2 subsection (2). 3 (5) An exemption may be granted unconditionally or 4 subject to conditions. 5 (6) Despite The Criminal Code section 23B(2), it is 6 immaterial for the purposes of subsections (1), (2) and 7 (3) that any event occurred by accident. 8 9 85. Part 10A inserted 10 After section 243 insert: 11 12 Part 10A -- Financial reports and audit 13 Division 1 -- Preliminary 14 244A. Terms used 15 (1) In this Part -- 16 accounting standard has the meaning given in 17 section 244ZZB; 18 audit means -- 19 (a) an audit conducted for the purposes of this Act; 20 or 21 (b) a review of a financial report conducted for the 22 purposes of this Act; 23 auditing standard has the meaning given in 24 section 244ZZB; 25 consolidated entity means a co-operative together with 26 all the entities it is required by the accounting standards 27 to include in consolidated financial statements; 28 directors' declaration has the meaning given in 29 section 244K(4); page 67 Co-operatives Amendment Bill 2015 s. 85 1 financial report means an annual financial report or a 2 half-year financial report prepared by the co-operative 3 under this Part (and see section 244K); 4 financial statements has the meaning given in 5 section 244K(2); 6 notes to the financial statements has the meaning 7 given in section 244K(3). 8 (2) Terms used in this Part have the same meaning as they 9 have in the Corporations Act and in particular in 10 Chapter 2M of the Corporations Act. 11 (3) Without limiting subsection (2), a reference in this Part 12 to an entity that a co-operative controls is a reference to 13 an entity that the co-operative controls within the 14 meaning of the Corporations Act section 50AA. 15 244B. General modifications to applied provisions of the 16 Corporations Act Chapter 2M 17 If a provision of this Part declares a matter to be an 18 applied Corporations legislation matter for the 19 purposes of the Corporations (Ancillary Provisions) 20 Act 2001 Part 3 (the declaratory provision) in relation 21 to any provisions of the Corporations legislation (the 22 applied provisions), the declaratory provision is taken 23 to specify the following modifications -- 24 (a) a reference in the applied provisions to a listed 25 company is to be read as a reference to a 26 co-operative; 27 (b) a reference in the applied provisions to a small 28 proprietary company is to be read as a reference 29 to a small co-operative; 30 (c) any other modifications, within the meaning of 31 the Corporations (Ancillary Provisions) 32 Act 2001 Part 3, that are prescribed by the 33 regulations. page 68 Co-operatives Amendment Bill 2015 s. 85 1 Division 2 -- Financial records 2 244C. Obligation to keep financial records 3 (1) A co-operative must keep written financial records 4 that -- 5 (a) correctly record and explain its transactions and 6 financial position and performance; and 7 (b) would enable true and fair financial statements 8 to be prepared and audited. 9 Penalty for this subsection: a fine of $2 500. 10 (2) The obligation to keep financial records of transactions 11 extends to transactions undertaken as trustee. 12 (3) The co-operative must retain the financial records for 13 7 years after the transactions covered by the records are 14 completed. 15 Penalty for this subsection: a fine of $2 500. 16 (4) Despite The Criminal Code section 23B(2), it is 17 immaterial for the purposes of subsections (1) and (3) 18 that any event occurred by accident. 19 244D. Language requirements 20 (1) The financial records may be kept in any language. 21 (2) A co-operative must ensure that an English translation 22 of financial records not kept in English is made 23 available within a reasonable time to a person who -- 24 (a) is entitled to inspect the records; and 25 (b) asks for the English translation. 26 Penalty for this subsection: a fine of $2 500. 27 (3) Despite The Criminal Code section 23B(2), it is 28 immaterial for the purposes of subsection (2) that any 29 event occurred by accident. page 69 Co-operatives Amendment Bill 2015 s. 85 1 244E. Physical format 2 (1) A co-operative must ensure that, if financial records are 3 kept in electronic form, they are to be convertible into 4 hard copy. 5 Penalty for this subsection: a fine of $2 500. 6 (2) If financial records are kept in electronic form, the 7 co-operative must ensure that a hard copy is made 8 available within a reasonable time to a person who is 9 entitled to inspect the records. 10 Penalty for this subsection: a fine of $2 500. 11 (3) Despite The Criminal Code section 23B(2), it is 12 immaterial for the purposes of subsections (1) and (2) 13 that any event occurred by accident. 14 244F. Place where records are kept 15 (1) A co-operative may decide where to keep the financial 16 records. 17 (2) If financial records about particular matters are kept 18 outside the State, the co-operative must ensure that 19 sufficient written information about those matters is 20 kept in the State to enable true and fair financial 21 statements to be prepared. 22 Penalty for this subsection: a fine of $2 500. 23 (3) If financial records about particular matters are kept 24 outside the State, the co-operative must give the 25 Registrar written notice in the form approved by the 26 Registrar of the place where the information is kept. 27 Penalty for this subsection: a fine of $2 500. 28 (4) The Registrar may direct a co-operative to produce 29 specified financial records that are kept outside the 30 State. page 70 Co-operatives Amendment Bill 2015 s. 85 1 (5) The co-operative must comply with a direction under 2 subsection (4). 3 Penalty for this subsection: a fine of $2 000. 4 (6) A direction under subsection (4) must -- 5 (a) be in writing; and 6 (b) specify a place in the State where the records 7 are to be produced (the place must be 8 reasonable in the circumstances); and 9 (c) specify a day (at least 14 days after the day on 10 which the direction is given) by which the 11 records are to be produced. 12 (7) Despite The Criminal Code section 23B(2), it is 13 immaterial for the purposes of subsections (2), (3) and 14 (5) that any event occurred by accident. 15 244G. Director access 16 (1) A director of a co-operative has a right of access to the 17 financial records at all reasonable times. 18 (2) On application by a director, the Supreme Court may 19 authorise a person to inspect the financial records on 20 the director's behalf. 21 (3) A person authorised to inspect records may make 22 copies of the records unless the Supreme Court orders 23 otherwise. 24 (4) The Supreme Court may make any other orders it 25 considers appropriate, including either or both of the 26 following -- 27 (a) an order limiting the use that a person who 28 inspects the records may make of information 29 obtained during the inspection; page 71 Co-operatives Amendment Bill 2015 s. 85 1 (b) an order limiting the right of a person who 2 inspects the records to make copies in 3 accordance with subsection (3). 4 Division 3 -- Annual financial reports and directors' 5 reports generally 6 244H. Who has to prepare annual financial reports and 7 directors' reports 8 (1) A large co-operative must prepare a financial report 9 and a directors' report in accordance with this Part for 10 each financial year. 11 (2) A small co-operative must prepare a financial report 12 and a directors' report if and as directed under 13 section 244I or 244J. 14 (3) A small co-operative that is not the subject of a 15 direction under either section 244I or 244J -- 16 (a) is not required to prepare reports in accordance 17 with this Part; and 18 (b) must comply with the requirements (if any) of 19 the regulations regarding the preparation and 20 provision of reports to members. 21 244I. Small co-operative: direction by members 22 (1) Members with at least 5% of the votes in a small 23 co-operative may give the co-operative a direction 24 to -- 25 (a) prepare a financial report or directors' report or 26 both for a financial year in accordance with all 27 or specified requirements of this Part; and 28 (b) report to members in accordance with the 29 direction. page 72 Co-operatives Amendment Bill 2015 s. 85 1 (2) The small co-operative must comply with the direction. 2 Penalty for this subsection: a fine of $1 000. 3 (3) Despite The Criminal Code section 23B(2), it is 4 immaterial for the purposes of subsection (2) that any 5 event occurred by accident. 6 (4) The direction must be -- 7 (a) signed by all members giving the direction; and 8 (b) made no later than 12 months after the end of 9 the financial year concerned. 10 (5) The direction may specify all or any of the 11 following -- 12 (a) that the financial report does not have to 13 comply with some or all of the accounting 14 standards; 15 (b) that a directors' report or a part of that report 16 need not be prepared in accordance with this 17 Part; 18 (c) that the financial report is to be audited or 19 reviewed. 20 (6) If the direction specifies that the financial report is to 21 be audited or reviewed, the direction may specify that 22 the audit or review is to be conducted -- 23 (a) in accordance with the Corporations 24 Act Part 2M.3 Division 3 (as applying under 25 section 244U); or 26 (b) in accordance with requirements prescribed by 27 the regulations. 28 (7) The direction must specify the date by which the 29 co-operative must report to members. 30 (8) The date must be a reasonable one in view of the nature 31 of the direction. page 73 Co-operatives Amendment Bill 2015 s. 85 1 (9) Despite anything else in this Part, the date by which the 2 small co-operative is to report to members is the date 3 specified in the direction. 4 244J. Small co-operative: direction by Registrar 5 (1) The Registrar may give a small co-operative a direction 6 to comply with all or specified requirements of this 7 Division and Divisions 4, 5, 7, 8, 9 and 10 for a 8 financial year (including any requirement that is 9 expressed to apply to a large co-operative). 10 (2) The small co-operative must comply with the direction. 11 Penalty for this subsection: a fine of $1 000. 12 (3) Despite The Criminal Code section 23B(2), it is 13 immaterial for the purposes of subsection (2) that any 14 event occurred by accident. 15 (4) The direction may specify any or all of the matters 16 referred to in section 244I(5) or (6). 17 (5) The direction may be general or may specify the 18 particular requirements that the co-operative is required 19 to comply with. 20 (6) The direction must specify the date by which the 21 co-operative must report to members under 22 section 244V or lodge documents with the Registrar 23 under section 244ZC, as the case requires. 24 (7) The date specified in a direction must be a reasonable 25 one in view of the nature of the direction. 26 (8) The direction must -- 27 (a) be in writing; and 28 (b) specify the financial year concerned; and 29 (c) be made no later than 6 years after the end of 30 that financial year. page 74 Co-operatives Amendment Bill 2015 s. 85 1 (9) Despite anything else in this Part, the date by which the 2 small co-operative is to report to members or lodge 3 documents with the Registrar is the date specified in 4 the direction. 5 Division 4 -- Annual financial reports 6 244K. Contents of annual financial report 7 (1) The financial report for a financial year consists of -- 8 (a) the financial statements for the year; and 9 (b) the notes to the financial statements; and 10 (c) the directors' declaration about the statements 11 and notes. 12 (2) The financial statements for the year are -- 13 (a) the financial statements in relation to the entity 14 that are required by the accounting standards; 15 and 16 (b) if the accounting standards require financial 17 statements in relation to a consolidated 18 entity -- the financial statements in relation to 19 the consolidated entity required by the 20 accounting standards. 21 (3) The notes to the financial statements are -- 22 (a) disclosures required by the regulations; and 23 (b) notes required by the accounting standards; and 24 (c) any other information necessary to give a true 25 and fair view (see section 244M). 26 (4) The directors' declaration is a declaration by the 27 directors -- 28 (a) whether, in the directors' opinion, there are 29 reasonable grounds to believe that the page 75 Co-operatives Amendment Bill 2015 s. 85 1 co-operative will be able to pay its debts as and 2 when they become due and payable; and 3 (b) whether, in the directors' opinion, the financial 4 statements and notes are in accordance with this 5 Act, including -- 6 (i) section 244L; and 7 (ii) section 244M; 8 and 9 (c) if the co-operative has quoted securities -- that 10 the directors have been given the declarations 11 required by the Corporations Act section 295A 12 (as applying under section 244O). 13 (5) The directors' declaration must -- 14 (a) be made in accordance with a resolution of the 15 directors; and 16 (b) specify the date on which the declaration is 17 made; and 18 (c) be signed by a director. 19 244L. Compliance with accounting standards and 20 regulations 21 (1) The financial report for a financial year must comply 22 with the accounting standards. 23 (2) However, a small co-operative's financial report does 24 not have to comply with particular accounting 25 standards if -- 26 (a) the report is prepared in response to a direction 27 under section 244I or 244J; and 28 (b) the direction specifies that the report does not 29 have to comply with those accounting 30 standards. page 76 Co-operatives Amendment Bill 2015 s. 85 1 (3) The financial report must comply with any further 2 requirements in the regulations. 3 244M. True and fair view 4 (1) The financial statements and notes for a financial year 5 must give a true and fair view of -- 6 (a) the financial position and performance of the 7 co-operative; and 8 (b) if consolidated financial statements are 9 required -- the financial position and 10 performance of the consolidated entity. 11 (2) This section does not affect the obligation under 12 section 244L for a financial report to comply with 13 accounting standards. 14 244N. Audit of financial report 15 (1) A large co-operative must have the financial report for 16 a financial year audited in accordance with the 17 Corporations Act Part 2M.3 Division 3 (as applying 18 under section 244U) and obtain an auditor's report. 19 (2) A small co-operative's financial report for a financial 20 year does not have to be audited if -- 21 (a) the report is prepared in response to a direction 22 under section 244I or 244J; and 23 (b) the direction did not ask for the financial report 24 to be audited. 25 (3) If a small co-operative's financial report for a financial 26 year is prepared in response to a direction under 27 section 244I or 244J and the direction asked for the 28 financial report to be audited -- 29 (a) in accordance with the Corporations Act 30 Part 2M.3 Division 3 (as applying under 31 section 244U); or page 77 Co-operatives Amendment Bill 2015 s. 85 1 (b) in some other specified manner, 2 the co-operative must have the financial report audited 3 as directed and obtain an auditor's report. 4 (4) If a small co-operative's financial report for a financial 5 year is prepared in response to a direction under 6 section 244I or 244J and the direction asked for the 7 financial report to be audited without specifying the 8 manner in which the audit is to be conducted, the 9 co-operative must have the financial report audited in 10 accordance with the Corporations Act Part 2M.3 11 Division 3 (as applying under section 244U) and obtain 12 an auditor's report. 13 244O. Application of Corporations Act to co-operatives 14 with quoted securities: declaration about financial 15 statements by certain officers 16 A co-operative with quoted securities is declared to be 17 an applied Corporations legislation matter for the 18 purposes of the Corporations (Ancillary Provisions) 19 Act 2001 Part 3 in relation to the Corporations Act 20 section 295A. 21 Division 5 -- Annual directors' reports 22 244P. Annual directors' report 23 (1) A co-operative must prepare a directors' report for 24 each financial year. 25 (2) The directors' report must include -- 26 (a) the general information required by -- 27 (i) section 244Q; and page 78 Co-operatives Amendment Bill 2015 s. 85 1 (ii) for co-operatives with quoted 2 securities -- the Corporations Act 3 section 299A (as applying under 4 section 244S); 5 and 6 (b) the specific information required by -- 7 (i) section 244R; and 8 (ii) for co-operatives with quoted 9 securities --the Corporations Act 10 section 300 and 300A (as applying 11 under section 244S); 12 and 13 (c) a copy of the auditor's declaration under the 14 Corporations Act section 307C (as applying 15 under section 244U) in relation to the audit for 16 the financial year. 17 (3) If the financial report for a financial year includes 18 additional information under section 244K(3)(c) 19 (information included to give a true and fair view of 20 financial position and performance), the directors' 21 report for the financial year must also -- 22 (a) set out the directors' reasons for forming the 23 opinion that the inclusion of that additional 24 information was necessary to give the true and 25 fair view required by section 244M; and 26 (b) specify where that additional information can 27 be found in the financial report. 28 (4) The directors' report must -- 29 (a) be made in accordance with a resolution of the 30 directors; and 31 (b) specify the date on which the report is made; 32 and 33 (c) be signed by a director. page 79 Co-operatives Amendment Bill 2015 s. 85 1 (5) A small co-operative does not have to comply with 2 subsection (1) for a financial year if -- 3 (a) it is preparing financial statements for that year 4 in response to a direction under section 244I or 5 244J; and 6 (b) the direction specified that a directors' report 7 need not be prepared. 8 244Q. Annual directors' report: general information 9 (1) The directors' report for a financial year must -- 10 (a) contain a review of operations during the year 11 of the entity reported on and the results of those 12 operations; and 13 (b) give details of any significant changes in the 14 entity's state of affairs during the year; and 15 (c) state the entity's principal activities during the 16 year and any significant changes in the nature 17 of those activities during the year; and 18 (d) give details of any matter or circumstance that 19 has arisen since the end of the year that has 20 significantly affected, or may significantly 21 affect -- 22 (i) the entity's operations in future 23 financial years; or 24 (ii) the results of those operations in future 25 financial years; or 26 (iii) the entity's state of affairs in future 27 financial years; 28 and 29 (e) refer to likely developments in the entity's 30 operations in future financial years and the 31 expected results of those operations; and page 80 Co-operatives Amendment Bill 2015 s. 85 1 (f) if the entity's operations are subject to any 2 particular and significant environmental 3 regulation under a law of the Commonwealth or 4 of a State or Territory -- give details of the 5 entity's performance in relation to 6 environmental regulation. 7 (2) The entity reported on is -- 8 (a) the co-operative (if consolidated financial 9 statements are not required); or 10 (b) the consolidated entity (if consolidated 11 financial statements are required). 12 (3) The directors' report may omit material that would 13 otherwise be included under subsection (1)(e) if it is 14 likely to result in unreasonable prejudice to -- 15 (a) the co-operative; or 16 (b) if consolidated financial statements are 17 required -- the consolidated entity or any entity 18 (including the co-operative) that is part of the 19 consolidated entity. 20 (4) If material is omitted, the directors' report must say so. 21 244R. Annual directors' report: specific information 22 (1) The directors' report for a financial year must include 23 details of -- 24 (a) dividends or distributions paid to members 25 during the year; and 26 (b) dividends or distributions recommended or 27 declared for payment to members, but not paid, 28 during the year; and 29 (c) the name of each person who has been a 30 director of the co-operative at any time during 31 or since the end of the year and the period for 32 which they were a director; and page 81 Co-operatives Amendment Bill 2015 s. 85 1 (d) the name of each person who -- 2 (i) is an officer of the co-operative at any 3 time during the year; and 4 (ii) was a partner in an audit firm, or a 5 director of an audit company, that is an 6 auditor of the co-operative for the year; 7 and 8 (iii) was such a partner or director at a time 9 when the audit firm or the audit 10 company undertook an audit of the 11 co-operative; 12 and 13 (e) options that are -- 14 (i) granted over unissued shares or 15 unissued interests during or since the 16 end of the year; and 17 (ii) granted to any of the directors or any of 18 the 5 most highly remunerated officers 19 of the co-operative (other than the 20 directors); and 21 (iii) granted to them as part of their 22 remuneration (see subsections (4) to 23 (6)); and 24 (f) unissued shares or interests under option as at 25 the day the report is made (see subsections (4) 26 and (6)); and 27 (g) shares or interests issued during or since the 28 end of the year as a result of the exercise of an 29 option over unissued shares or interests (see 30 subsections (4) and (7)); and 31 (h) indemnities given and insurance premiums paid 32 during or since the end of the year for a person 33 who is or has been an officer or auditor (see 34 subsections (8) and (9)). page 82 Co-operatives Amendment Bill 2015 s. 85 1 (2) Details do not have to be included in the directors' 2 report under this section if they are included in the 3 co-operative's financial report for the financial year. 4 (3) If subsection (2) is relied on to not include in the 5 directors' report for a financial year details that would 6 otherwise be required to be included in that report 7 under the Corporations Act section 300(11B) or 8 (11C)(b) (as applying under section 244S), that report 9 must specify, in the section headed "Non-audit 10 services", where those details may be found in the 11 co-operative's financial report for the financial year. 12 (4) Subsections (1)(e) to (g) cover -- 13 (a) options over unissued shares and interests of 14 the co-operative; and 15 (b) if consolidated financial statements are 16 required -- options over unissued shares and 17 interests of any entity forming part of the 18 consolidated entity. 19 (5) The details of an option granted are -- 20 (a) the entity granting the option; and 21 (b) the name of the person to whom the option is 22 granted; and 23 (c) the number and class of shares or interests over 24 which the option is granted. 25 (6) The details of unissued shares or interests under option 26 are -- 27 (a) the entity that will issue shares or interests 28 when the options are exercised; and 29 (b) the number and classes of those shares or 30 interests; and 31 (c) the issue price, or the method of determining 32 the issue price, of those shares or interests; and page 83 Co-operatives Amendment Bill 2015 s. 85 1 (d) the expiry date of the options; and 2 (e) any rights that the option holders have under 3 the options to participate in any share issue or 4 interest issue of the co-operative or any other 5 entity. 6 (7) The details of shares or interests issued as a result of 7 the exercise of an option are -- 8 (a) the entity issuing the shares or interests; and 9 (b) the number of shares or interests issued; and 10 (c) if the entity has different classes of shares or 11 interests -- the class to which each of those 12 shares or interests belongs; and 13 (d) the amount unpaid on each of those shares or 14 interests; and 15 (e) the amount paid, or agreed to be considered as 16 paid, on each of those shares or interests. 17 (8) The directors' report for a co-operative must include 18 details of -- 19 (a) any indemnity that is given to a current or 20 former officer or auditor against a liability, or 21 any relevant agreement under which an officer 22 or auditor may be given an indemnity of that 23 kind; and 24 (b) any premium that is paid, or agreed to be paid, 25 for insurance against a current or former 26 officer's or auditor's liability for legal costs. 27 (9) The details required under subsection (8) are -- 28 (a) for an officer -- their name or the class of 29 officer to which they belong or belonged; and 30 (b) for an auditor -- their name; and 31 (c) the nature of the liability; and page 84 Co-operatives Amendment Bill 2015 s. 85 1 (d) for an indemnity given -- the amount the 2 co-operative paid and any other action the 3 co-operative took to indemnify the officer or 4 auditor; and 5 (e) for an insurance premium -- the amount of the 6 premium. 7 (10) The directors' report need not give details of the nature 8 of the liability covered by, or the amount of the 9 premium payable under, a contract of insurance to the 10 extent that the disclosure of those details is prohibited 11 by the insurance contract. 12 (11) The report for a co-operative must also include details 13 of -- 14 (a) each directors' qualifications, experience and 15 special responsibilities; and 16 (b) the number of meetings of the board of 17 directors held during the year and each 18 director's attendance at those meetings; and 19 (c) the number of meetings of each board 20 committee held during the year and each 21 director's attendance at those meetings; and 22 (d) the qualifications and experience of each 23 person who is the secretary of the co-operative 24 as at the end of the year. 25 (12) The report for a co-operative must also include the 26 following details of any application for leave under 27 Part 4 Division 6 made in respect of the 28 co-operative -- 29 (a) the applicant's name; 30 (b) a statement as to whether leave was granted. 31 (13) The report for a co-operative must also include the 32 following details of any proceedings that a person has page 85 Co-operatives Amendment Bill 2015 s. 85 1 brought or intervened in on behalf of the co-operative 2 with leave under Part 4 Division 6 -- 3 (a) the person's name; 4 (b) the names of the parties to the proceedings; 5 (c) sufficient information to enable members to 6 understand the nature and status of the 7 proceedings (including the cause of action and 8 any orders made by the court). 9 244S. Application of Corporations Act to co-operatives 10 with quoted securities: additional information to be 11 provided in annual directors' report 12 A co-operative with quoted securities is declared to be 13 an applied Corporations legislation matter for the 14 purposes of the Corporations (Ancillary Provisions) 15 Act 2001 Part 3 in relation to the Corporations Act 16 section 299A, 300(11) to (11E) and 300A. 17 Division 6 -- Half-year financial report and 18 directors' report 19 244T. Application of Corporations Act to co-operatives 20 that are disclosing entities: half-year financial 21 reports and directors' reports 22 A co-operative that is a disclosing entity is declared to 23 be an applied Corporations legislation matter for the 24 purposes of the Corporations (Ancillary Provisions) 25 Act 2001 Part 3 in relation to the Corporations Act 26 Part 2M.3 Division 2. page 86 Co-operatives Amendment Bill 2015 s. 85 1 Division 7 -- Audit and auditor's report 2 244U. Application of Corporations Act: audit and 3 auditor's report 4 A co-operative is declared to be an applied 5 Corporations legislation matter for the purposes of the 6 Corporations (Ancillary Provisions) Act 2001 Part 3 in 7 relation to the Corporations Act Part 2M.3 Division 3, 8 subject to the following modifications -- 9 (a) a reference in section 308(3AA) to a company 10 limited by guarantee is to be read as a reference 11 to a small co-operative; 12 (b) a reference in section 311(5) to section 344 is to 13 be read as a reference to section 244ZZO of this 14 Act. 15 Division 8 -- Annual financial reporting to members 16 244V. Annual financial reporting to members 17 (1) A large co-operative must report to members for a 18 financial year by providing either of the following in 19 accordance with subsection (5) or (9) -- 20 (a) all of the following reports -- 21 (i) the financial report for the year; 22 (ii) the directors' report for the year; 23 (iii) the auditor's report on the financial 24 report; 25 (b) a concise report for the year that complies with 26 subsection (3). 27 Penalty for this subsection: a fine of $1 000. 28 (2) Subject to any direction under section 244I or 244J, a 29 small co-operative must provide financial reports to page 87 Co-operatives Amendment Bill 2015 s. 85 1 members for a financial year that comply with any 2 requirements prescribed by the regulations. 3 Penalty for this subsection: a fine of $1 000. 4 (3) A concise report of a large co-operative for a financial 5 year consists of -- 6 (a) a concise financial report for the year drawn up 7 in accordance with accounting standards 8 applying for the purposes of this paragraph; and 9 (b) the directors' report for the year; and 10 (c) a statement by the auditor -- 11 (i) that the financial report has been 12 audited; and 13 (ii) whether, in the auditor's opinion, the 14 concise financial report complies with 15 the accounting standards applying for 16 the purposes of paragraph (a); 17 and 18 (d) a copy of any qualification in, and of any 19 statements included in the emphasis of matter 20 section of, the auditor's report on the financial 21 report; and 22 (e) a statement that the report is a concise report 23 and that the full financial report and auditor's 24 report will be sent to the member free of charge 25 if the member asks for them. 26 (4) If the accounting standards applying for the purposes 27 of subsection (3)(a) require a discussion and analysis to 28 be included in a concise financial report -- 29 (a) the auditor must report on whether the 30 discussion and analysis complies with the 31 requirements that the accounting standards lay 32 down for the discussion and analysis; and page 88 Co-operatives Amendment Bill 2015 s. 85 1 (b) the auditor does not otherwise need to audit the 2 statements made in the discussion and analysis. 3 (5) A co-operative may provide the reports, or a concise 4 report, for a financial year by doing all of the 5 following -- 6 (a) sending, to each member who has made the 7 election referred to in subsection (6)(a) -- 8 (i) a hard copy of the reports or the concise 9 report; or 10 (ii) if the member has elected to receive the 11 reports, or the concise report, as an 12 electronic copy in accordance with 13 subsection (6)(c) -- an electronic copy 14 of the reports, or the concise report; 15 (b) making a copy of the reports, or the concise 16 report, readily accessible on a website; 17 (c) directly notifying, in writing, all members who 18 did not make the election referred to in 19 subsection (6)(a) that the copy is accessible on 20 the website, and specifying the direct address 21 on the website where the reports, or the concise 22 report, may be accessed. 23 (6) For the purposes of subsection (5)(a), a co-operative 24 must, on at least one occasion, directly notify in writing 25 each member that -- 26 (a) the member may elect to receive, free of 27 charge, a copy of the reports for each financial 28 year, or a copy of the concise report for each 29 financial year; and 30 (b) if the member does not so elect -- the member 31 may access the reports, or the concise report, on 32 a specified website; and 33 (c) if the member does so elect and the 34 co-operative offers to send the report either as a page 89 Co-operatives Amendment Bill 2015 s. 85 1 hard copy or an electronic copy -- the member 2 may elect to receive the copy as either a hard 3 copy or an electronic copy. 4 Penalty for this subsection: a fine of $1 000. 5 (7) An election made under subsection (6) is a standing 6 election for each financial year until the member 7 changes the member's election. 8 (8) A member may, for the purposes of subsection (5)(c) 9 or (6), be notified by electronic means only if the 10 member has previously nominated that means as one 11 by which the member may be notified. 12 (9) A co-operative may provide the reports, or the concise 13 report, by sending each member -- 14 (a) a hard copy of the reports or the concise report; 15 or 16 (b) an electronic copy of the reports, or the concise 17 report, if the member has nominated that means 18 as one by which the member may be sent the 19 reports or the concise report. 20 (10) A co-operative is not required to provide the reports, or 21 the concise report, to a member who has made a 22 request under section 244X(1)(a). 23 (11) Despite The Criminal Code section 23B(2), it is 24 immaterial for the purposes of subsections (1), (2) and 25 (6) that any event occurred by accident. 26 244W. Deadline for reporting to members 27 (1) A large co-operative that is not a disclosing entity must 28 report to members under section 244V within 5 months 29 after the end of the financial year. page 90 Co-operatives Amendment Bill 2015 s. 85 1 (2) A large co-operative that is a disclosing entity must 2 report to members under section 244V on or before the 3 earlier of -- 4 (a) the day that is 21 days before the next annual 5 general meeting of the co-operative; or 6 (b) 5 months after the end of the financial year. 7 Note for this subsection: This is a civil penalty provision (see section 482A). 8 (3) A small co-operative that is required to report to 9 members under section 244V must do so on or before 10 the day that is 14 days before the next annual general 11 meeting of the co-operative. 12 244X. Member's choices for annual financial information 13 (1) A member may request the co-operative -- 14 (a) not to send them the material required by 15 section 244V; or 16 (b) to send them a full financial report and the 17 directors' report and auditor's report. 18 (2) A request under subsection (1) may be a standing 19 request or for a particular financial year. 20 (3) The member is not entitled to a report for a financial 21 year earlier than the one before the financial year in 22 which the request is made. 23 (4) The co-operative must comply with a request under 24 subsection (1)(b) by the later of -- 25 (a) the day that is 7 days after the request; or 26 (b) the day by which the co-operative is required to 27 report to members under section 244V. 28 Penalty for this subsection: a fine of $1 000. 29 (5) When sending a full financial report, directors' report 30 and auditor's report, the co-operative must do so free page 91 Co-operatives Amendment Bill 2015 s. 85 1 of charge unless the member has already received a 2 copy of them free of charge. 3 Penalty for this subsection: a fine of $1 000. 4 (6) Despite The Criminal Code section 23B(2), it is 5 immaterial for the purposes of subsections (4) and (5) 6 that any event occurred by accident. 7 244Y. Consideration of reports at annual general meeting 8 (1) The directors of a co-operative must lay before the 9 annual general meeting -- 10 (a) in the case of a large co-operative -- each of 11 the following reports for the last financial year 12 that ended before the annual general meeting -- 13 (i) the financial report; 14 (ii) the directors' report; 15 (iii) the auditor's report; 16 or 17 (b) in the case of a small co-operative -- any report 18 for the last financial year that ended before the 19 annual general meeting that the co-operative is 20 required to provide to members before the date 21 of the meeting under section 244V or a 22 direction under section 244I or 244J. 23 Penalty for this subsection: a fine of $1 000. 24 (2) Despite The Criminal Code section 23B(2), it is 25 immaterial for the purposes of subsection (1) that any 26 event occurred by accident. 27 244ZA. Application of Corporations Act: additional 28 reporting by debenture issuers 29 (1) A co-operative is declared to be an applied 30 Corporations legislation matter for the purposes of the 31 Corporations (Ancillary Provisions) Act 2001 Part 3 in page 92 Co-operatives Amendment Bill 2015 s. 85 1 relation to the Corporations Act section 318, subject to 2 the modification set out in subsection (2). 3 (2) A reference in section 318(2) or (3) to a debenture 4 holder is to be read as a reference to a debenture holder 5 who is not a member of the co-operative. 6 Division 9 -- Lodging reports and returns with 7 Registrar 8 244ZB. Lodgment of annual returns with the Registrar 9 (1) A co-operative must lodge an annual return with the 10 Registrar for each financial year in accordance with 11 this section. 12 Penalty for this subsection: a fine of $1 000. 13 (2) The contents of the annual return are to be as 14 prescribed by the regulations. 15 (3) Subject to subsection (4), the return must be lodged 16 within 28 days after the day on which the next annual 17 general meeting of the co-operative after the end of the 18 financial year is held in accordance with section 190. 19 (4) If, at the end of the 5-month period referred to in 20 section 190(3)(a), a co-operative to which that section 21 applies has not held its next annual general meeting 22 and no further time has been allowed under 23 section 190(3)(b) for the holding of that meeting, the 24 return must be lodged within 28 days after the end of 25 that 5-month period. 26 (5) Despite The Criminal Code section 23B(2), it is 27 immaterial for the purposes of subsection (1) that any 28 event occurred by accident. page 93 Co-operatives Amendment Bill 2015 s. 85 1 244ZC. Lodgment of financial reports etc. with Registrar 2 (1) A large co-operative that has to prepare or obtain a 3 report for a financial year under Divisions 3 to 5 4 (including a concise report referred to in section 244V) 5 must lodge that report with the Registrar in accordance 6 with this section. 7 Penalty for this subsection: a fine of $2 500. 8 (2) Subject to subsection (3), the return must be lodged 9 within 28 days after the day on which the next annual 10 general meeting of the co-operative after the end of the 11 financial year is held in accordance with section 190. 12 (3) If, at the end of the 5-month period referred to in 13 section 190(3)(a), a co-operative to which that section 14 applies has not held its next annual general meeting 15 and no further time has been allowed under 16 section 190(3)(b) for the holding of that meeting, the 17 return must be lodged within 28 days after the end of 18 that 5-month period. 19 (4) Despite The Criminal Code section 23B(2), it is 20 immaterial for the purposes of subsection (1) that any 21 event occurred by accident. 22 244ZD. Lodgment of half-year reports with the Registrar 23 (1) A co-operative that has to prepare or obtain a report for 24 a half-year under Division 6 must lodge the report with 25 the Registrar within 75 days after the end of the 26 half-year. 27 Penalty for this subsection: a fine of $2 500. 28 (2) Despite The Criminal Code section 23B(2), it is 29 immaterial for the purposes of subsection (1) that any 30 event occurred by accident. page 94 Co-operatives Amendment Bill 2015 s. 85 1 244ZE. Registrar's power to require lodgment 2 (1) The Registrar may give a co-operative a direction to 3 lodge with the Registrar a copy of reports prepared or 4 obtained by it under Divisions 3 to 6, and the 5 co-operative must comply with the direction. 6 Penalty for this subsection: a fine of $1 000. 7 (2) Despite The Criminal Code section 23B(2), it is 8 immaterial for the purposes of subsection (1) that any 9 event occurred by accident. 10 (3) The direction must -- 11 (a) be made in writing; and 12 (b) specify the period or periods concerned; and 13 (c) be made no later than 6 years after the end of 14 the period or periods; and 15 (d) specify the date by which the documents have 16 to be lodged. 17 (4) The date specified under subsection (3)(d) must be at 18 least 14 days after the date on which the direction is 19 given. 20 244ZF. Relodgment if financial report or directors' reports 21 amended after lodgment 22 (1) If a financial report or directors' report is amended 23 after it is lodged with the Registrar, the co-operative 24 must -- 25 (a) lodge the amended report with the Registrar 26 within 14 days after the amendment; and 27 (b) give a copy of the amended report free of 28 charge to any member who asks for it. 29 Penalty for this subsection: a fine of $1 000. page 95 Co-operatives Amendment Bill 2015 s. 85 1 (2) If the amendment is a material one, the co-operative 2 must also notify members as soon as practicable of -- 3 (a) the nature of the amendment; and 4 (b) the right to obtain a copy of the amended report 5 under subsection (1). 6 Penalty for this subsection: a fine of $1 000. 7 (3) Despite The Criminal Code section 23B(2), it is 8 immaterial for the purposes of subsections (1) and (2) 9 that any event occurred by accident. 10 Division 10 -- Special provisions about consolidated 11 financial statements 12 244ZG. Application of Corporations Act: special provisions 13 about consolidated financial statements 14 A co-operative is declared to be an applied 15 Corporations legislation matter for the purposes of the 16 Corporations (Ancillary Provisions) Act 2001 Part 3 in 17 relation to the Corporations Act Part 2M.3 Division 6. 18 Division 11 -- Financial years and half years 19 244ZH. Financial year 20 (1) The financial year of a co-operative ends on the day in 21 each year that is provided for by the rules of the 22 co-operative. 23 (2) In the case of a co-operative registered under Part 2 24 Division 4, the first financial year of a co-operative 25 may extend from the date of its registration to a date 26 not more than 18 months after its registration. 27 (3) In the case of a co-operative registered under Part 2 28 Division 5, the first financial year of the co-operative is 29 to be a period not extending beyond a date that is 30 18 months after the end of the co-operative's last page 96 Co-operatives Amendment Bill 2015 s. 85 1 financial year before the co-operative registered under 2 this Act. 3 (4) On an alteration of the rules of a co-operative 4 amending its financial year, the alteration may provide 5 either -- 6 (a) that the current financial year (as at the date of 7 the amendment) is to be extended for not more 8 than 6 months; or 9 (b) that the next financial year is to be for a period 10 of more than one year but not more than 11 18 months. 12 (5) Without limitation, the regulations may make provision 13 for or with respect to requiring the adoption by a 14 co-operative of the same financial year for each entity 15 that the co-operative controls. 16 244ZI. Half-year 17 A half-year for a co-operative is the first 6 months of a 18 financial year, but the directors may determine that the 19 half-year is to be shorter or longer (but not by more 20 than 7 days). 21 Division 12 -- Auditors 22 Subdivision 1 -- General provisions relating to auditors 23 244ZJ. Application of Corporations Act: auditors 24 (1) A co-operative is declared to be an applied 25 Corporations legislation matter for the purposes of the 26 Corporations (Ancillary Provisions) Act 2001 Part 3 in 27 relation to the Corporations Act Part 2M.4 Divisions 1 28 to 4, subject to the following modifications -- 29 (a) Part 2M.4 Division 2 does not apply in relation 30 to an auditor appointed in circumstances set out 31 in section 244ZL(4) of this Act; page 97 Co-operatives Amendment Bill 2015 s. 85 1 (b) section 324BA is to be read as if the words 2 "Subject to section 324BD" were deleted; 3 (c) section 324BD and 324BE are taken to be 4 deleted. 5 (2) A co-operative with quoted securities is declared to be 6 an applied Corporations legislation matter for the 7 purposes of the Corporations (Ancillary Provisions) 8 Act 2001 Part 3 in relation to the Corporations Act 9 Part 2M.4 Division 5. 10 (3) A reference in the provisions of the Corporations Act 11 as applying under this section to a registered company 12 auditor is taken to be a reference to a registered 13 company auditor as defined in the Corporations Act 14 (and accordingly a reference in that term to a company 15 is not a reference to a co-operative). 16 Subdivision 2 -- Appointment of auditors 17 244ZK. Appointment of auditor of small co-operative 18 (1) The directors of a small co-operative may appoint an 19 auditor for the co-operative if an auditor has not been 20 appointed by the co-operative in general meeting. 21 (2) An auditor appointed under subsection (1) holds office, 22 subject to this Part, until the co-operative's next annual 23 general meeting. 24 244ZL. Initial appointment of auditor of a large 25 co-operative 26 (1) The directors of a large co-operative must appoint an 27 auditor of the co-operative in accordance with 28 subsection (2) within one month after the day on which 29 it is registered as a co-operative unless the co-operative 30 at a general meeting has appointed an auditor. page 98 Co-operatives Amendment Bill 2015 s. 85 1 (2) An auditor appointed under subsection (1) must be -- 2 (a) a registered company auditor; or 3 (b) a firm with at least one member who is a 4 registered company auditor and is ordinarily 5 resident in Australia; or 6 (c) an authorised audit company. 7 (3) Subject to this Part, an auditor appointed under 8 subsection (1) holds office until the co-operative's first 9 annual general meeting. 10 (4) If a transferred co-operative, before the commencement 11 of this Act, had appointed a person to be its auditor and 12 the person continues to be the co-operative's auditor, 13 the directors of the co-operative are taken to have 14 complied with subsection (1). 15 (5) Despite subsection (3) but subject to this Part, an 16 auditor appointed in the circumstances set out in 17 subsection (4) may continue to be the co-operative's 18 auditor until the position is permanently vacated. 19 (6) A director of a large co-operative must take all 20 reasonable steps to comply with, or to secure 21 compliance with, subsection (1). 22 Penalty for this subsection: a fine of $2 500, or 23 imprisonment for 6 months, or both. 24 244ZM. Annual appointment at annual general meeting of 25 auditor of large co-operative to fill vacancy 26 (1) A large co-operative must -- 27 (a) appoint an auditor of the co-operative at its first 28 annual general meeting; and page 99 Co-operatives Amendment Bill 2015 s. 85 1 (b) appoint an auditor of the co-operative to fill any 2 vacancy in the office of auditor at each 3 subsequent annual general meeting. 4 Penalty for this subsection: a fine of $2 500. 5 (2) An auditor appointed under subsection (1) holds office 6 until the auditor -- 7 (a) dies; or 8 (b) is removed, or resigns, from office in 9 accordance with section 244ZW; or 10 (c) ceases to be capable of acting as auditor 11 because of the Corporations Act Part 2M.4 12 Division 2 as applying under this Part; or 13 (d) ceases to be auditor under subsection (3), (4) or 14 (5). 15 (3) An individual auditor ceases to be auditor of a large 16 co-operative under this subsection if -- 17 (a) on a particular day (the start day), the 18 individual auditor -- 19 (i) informs the Registrar of a conflict of 20 interest situation in relation to the 21 co-operative under the Corporations Act 22 section 324CA(1A) as applying under 23 this Part; or 24 (ii) informs the Registrar of particular 25 circumstances in relation to the 26 co-operative under the Corporations Act 27 section 324CE(1A) as applying under 28 this Part; 29 and 30 (b) the individual auditor does not give the 31 Registrar a notice, before the notification day 32 (see subsection (6)), that that conflict of interest 33 situation has, or those circumstances have, page 100 Co-operatives Amendment Bill 2015 s. 85 1 ceased to exist before the end of the period (the 2 remedial period) of 21 days, or such longer 3 period as the Registrar approves in writing, 4 from the start day. 5 (4) An audit firm ceases to be auditor of a large 6 co-operative under this subsection if -- 7 (a) on a particular day (the start day), the Registrar 8 is -- 9 (i) informed of a conflict of interest 10 situation in relation to the co-operative 11 under the Corporations Act 12 section 324CB(1A) as applying under 13 this Part; or 14 (ii) informed of particular circumstances in 15 relation to the co-operative under the 16 Corporations Act section 324CF(1A) as 17 applying under this Part; 18 and 19 (b) the Registrar has not been given a notice on 20 behalf of the audit firm, before the notification 21 day (see subsection (6)), that that conflict of 22 interest situation has, or those circumstances 23 have, ceased to exist before the end of the 24 period (the remedial period) of 21 days, or such 25 longer period as the Registrar approves in 26 writing, from the start day. 27 (5) An audit company ceases to be auditor of a large 28 co-operative under this subsection if -- 29 (a) on a particular day (the start day), the Registrar 30 is -- 31 (i) informed of a conflict of interest 32 situation in relation to the co-operative 33 under the Corporations Act page 101 Co-operatives Amendment Bill 2015 s. 85 1 section 324CB(1A) or 324CC(1A), as 2 applying under this Part; or 3 (ii) informed of particular circumstances in 4 relation to the co-operative under the 5 Corporations Act section 324CF(1A) or 6 324CG(1A) or (5A), as applying under 7 this Part; 8 and 9 (b) the Registrar has not been given a notice on 10 behalf of the audit company, before the 11 notification day (see subsection (6)), that that 12 conflict of interest situation has, or those 13 circumstances have, ceased to exist before the 14 end of the period (the remedial period) of 15 21 days, or such longer period as the Registrar 16 approves in writing, from the start day. 17 (6) For the purposes of subsections (3)(b), (4)(b) and 18 (5)(b), the notification day is -- 19 (a) the last day of the remedial period; or 20 (b) such later day as the Registrar approves in 21 writing (whether before or after the remedial 22 period ends). 23 (7) A director of a large co-operative must take all 24 reasonable steps to comply with, or to secure 25 compliance with, subsection (1). 26 Penalty for this subsection: a fine of $2 500, or 27 imprisonment for 6 months, or both. 28 (8) If an audit firm ceases to be the auditor of a large 29 co-operative under subsection (2) at a particular time, 30 each member of the firm who -- 31 (a) is taken to have been appointed as an auditor of 32 the co-operative under the Corporations Act page 102 Co-operatives Amendment Bill 2015 s. 85 1 section 324AB(1) or 324AC(4), as applying 2 under this Part; and 3 (b) is an auditor of the co-operative immediately 4 before that time, 5 ceases to be an auditor of the co-operative at that time. 6 244ZN. Appointment by directors or annual general 7 meeting of auditor of large co-operative to fill 8 casual vacancy 9 (1) If -- 10 (a) a vacancy occurs in the office of auditor of a 11 large co-operative; and 12 (b) the vacancy is not caused by the removal of an 13 auditor from office; and 14 (c) there is no surviving or continuing auditor of 15 the co-operative, 16 the directors must, within one month after the vacancy 17 occurs, appoint an auditor to fill the vacancy unless the 18 co-operative at a general meeting has appointed an 19 auditor to fill the vacancy. 20 (2) An auditor appointed under subsection (1) holds office, 21 subject to this Part, until the co-operative's next annual 22 general meeting. 23 (3) A director of a large co-operative must take all 24 reasonable steps to comply with, or to secure 25 compliance with, subsection (1). 26 Penalty for this subsection: a fine of $2 500, or 27 imprisonment for 6 months, or both. page 103 Co-operatives Amendment Bill 2015 s. 85 1 244ZO. Appointment to replace auditor removed from 2 office 3 (1) This section deals with the situation in which an 4 auditor of a co-operative is removed from office at a 5 general meeting in accordance with section 244ZW. 6 (2) The co-operative may, at that general meeting (without 7 adjournment), by special resolution immediately 8 appoint an individual, firm or company as auditor of 9 the co-operative if a copy of the notice of nomination 10 has been sent to the individual, firm or company under 11 section 244ZU(4). 12 (3) The general meeting of a co-operative may be 13 adjourned if a special resolution under 14 subsection (2) -- 15 (a) is not passed; or 16 (b) could not be passed merely because a copy of 17 the notice of nomination has not been sent to an 18 individual, firm or company under 19 section 244ZU(4). 20 (4) At a meeting adjourned under subsection (3), the 21 co-operative may by ordinary resolution appoint an 22 individual, firm or company as auditor of the 23 co-operative if -- 24 (a) a member of the co-operative gives the 25 co-operative notice of the nomination of the 26 individual, firm or company for appointment as 27 auditor; and 28 (b) the co-operative receives the notice at least 14 29 clear days before the day to which the meeting 30 is adjourned. page 104 Co-operatives Amendment Bill 2015 s. 85 1 (5) The day to which the general meeting is adjourned 2 must be -- 3 (a) not earlier than 20 days after the day of the 4 meeting; and 5 (b) not later than 30 days after the day of the 6 meeting. 7 (6) Subject to this Part, an auditor appointed under 8 subsection (2) or (4) holds office until the 9 co-operative's next annual general meeting. 10 244ZP. Registrar to be notified of appointment of auditor 11 A large co-operative must notify the Registrar, in the 12 form approved by the Registrar, of the appointment, by 13 the co-operative or directors of the co-operative, of an 14 auditor of the co-operative within 28 days after the date 15 of the appointment. 16 Penalty: a fine of $2 000. 17 244ZQ. Registrar may appoint auditor of large co-operative 18 if auditor removed but not replaced 19 (1) This section deals with the situation in which a large 20 co-operative fails to appoint an auditor under 21 section 244ZO(2) or (4) (the auditor replacement 22 failure). 23 (2) The co-operative must give the Registrar written notice 24 of the auditor replacement failure within the period of 25 7 days commencing on the day of the auditor 26 replacement failure (the notification period). 27 (3) If the co-operative gives the Registrar the notice 28 required by subsection (2), the Registrar must appoint 29 an auditor of the co-operative as soon as practicable 30 after receiving the notice. page 105 Co-operatives Amendment Bill 2015 s. 85 1 (4) If the co-operative does not give the Registrar the 2 notice required by subsection (2), the Registrar may 3 appoint an auditor of the co-operative at any time -- 4 (a) after the end of the notification period; and 5 (b) before the Registrar receives notice of the 6 auditor replacement failure from the 7 co-operative. 8 (5) If the co-operative -- 9 (a) does not give the Registrar the notice required 10 by subsection (2); and 11 (b) gives the Registrar notice of the auditor 12 replacement failure after the end of the 13 notification period, 14 the Registrar must appoint an auditor of the 15 co-operative as soon as practicable after receiving the 16 notice. 17 (6) Subject to this Part, an auditor appointed under this 18 section holds office until the co-operative's next annual 19 general meeting. 20 (7) Subsections (3), (4) and (5) have effect subject to 21 section 244ZS. 22 244ZR. Registrar's general power to appoint auditor of 23 large co-operative 24 (1) The Registrar may appoint an auditor of a large 25 co-operative if -- 26 (a) the co-operative does not appoint an auditor 27 when required by this Act to do so; and 28 (b) a member of the co-operative applies to the 29 Registrar in writing for the appointment of an 30 auditor under this section. 31 (2) Subsection (1) has effect subject to section 244ZS. page 106 Co-operatives Amendment Bill 2015 s. 85 1 (3) An individual, firm or company appointed as auditor of 2 a co-operative under subsection (1) holds office, 3 subject to this Part, until the next annual general 4 meeting of the co-operative. 5 244ZS. Restrictions on Registrar's powers to appoint 6 auditor of large co-operative 7 (1) The Registrar may appoint an individual, firm or 8 company as auditor of a co-operative under 9 section 244ZQ or 244ZR only if the individual, firm or 10 company consents to being appointed. 11 (2) The Registrar must not appoint an auditor of a 12 co-operative under section 244ZQ or 244ZR if -- 13 (a) there is another auditor of the co-operative (the 14 continuing auditor); and 15 (b) the Registrar is satisfied that the continuing 16 auditor is able to carry out the responsibilities 17 of auditor alone; and 18 (c) the continuing auditor agrees to continue as 19 auditor. 20 (3) The Registrar must not appoint an auditor of a 21 co-operative under section 244ZQ or 244ZR if -- 22 (a) the co-operative does not give the Registrar the 23 notice required by section 244ZQ(2) before the 24 end of the notification period; and 25 (b) the Registrar has already appointed an auditor 26 of the co-operative under section 244ZQ after 27 the end of the notification period. 28 244ZT. Remaining auditors may act during vacancy 29 While a vacancy in the office of auditor of a 30 co-operative continues, the surviving or continuing 31 auditor or auditors (if any) may act as auditors of the 32 co-operative. page 107 Co-operatives Amendment Bill 2015 s. 85 1 244ZU. Nomination of auditor 2 (1) Subject to this section, a co-operative may appoint an 3 individual, firm or company as auditor of the 4 co-operative at its annual general meeting only if a 5 member of the co-operative gives the co-operative 6 written notice of the nomination of the individual, firm 7 or company for appointment as auditor -- 8 (a) before the meeting was convened; or 9 (b) not less than 21 days before the meeting. 10 (2) Subsection (1) does not apply if an auditor is removed 11 from office at the annual general meeting. 12 (3) If a co-operative purports to appoint an individual, firm 13 or company as auditor of the co-operative in 14 contravention of subsection (1) -- 15 (a) the purported appointment is of no effect; and 16 (b) the co-operative is guilty of an offence. 17 Penalty for this subsection: a fine of $2 500. 18 (4) If a member gives a co-operative notice of the 19 nomination of an individual, firm or company for 20 appointment as auditor of the co-operative, the 21 co-operative must send a copy of the notice to -- 22 (a) each individual, firm or company nominated; 23 and 24 (b) each auditor of the co-operative; and 25 (c) each person entitled to receive notice of general 26 meetings of the co-operative. 27 (5) Subsection (4) applies whether the appointment is to be 28 made at a meeting or an adjourned meeting referred to 29 in section 244ZO or at an annual general meeting. 30 (6) The copy of the notice of nomination must be sent -- 31 (a) not less than 7 days before the meeting; or page 108 Co-operatives Amendment Bill 2015 s. 85 1 (b) at the time notice of the meeting is given. 2 244ZV. Auditor's consent to appointment 3 (1) A co-operative or the directors of a co-operative must 4 not appoint an individual, firm or company as auditor 5 of the co-operative unless that individual, firm or 6 company -- 7 (a) has consented, before the appointment, to act as 8 auditor; and 9 (b) has not withdrawn that consent before the 10 appointment is made. 11 (2) For the purposes of this section, a consent, or the 12 withdrawal of a consent, must be given by written 13 notice to the co-operative or the directors. 14 (3) A notice under subsection (1) given by a firm must be 15 signed by a member of the firm who is a registered 16 company auditor both -- 17 (a) in the firm name; and 18 (b) in his or her own name. 19 (4) A notice under subsection (1) given by a company 20 must be signed by a director or senior manager of the 21 company both -- 22 (a) in the company's name; and 23 (b) in his or her own name. 24 (5) If a co-operative or the directors of a co-operative 25 appoint an individual, firm or company as auditor of a 26 co-operative in contravention of subsection (1) -- 27 (a) the purported appointment is of no effect; and 28 (b) the co-operative is guilty of an offence. 29 Penalty for this subsection: a fine of $2 500. page 109 Co-operatives Amendment Bill 2015 s. 85 1 Subdivision 3 -- Removal and resignation of auditors 2 244ZW. Removal and resignation of auditors 3 (1) An auditor of a co-operative may be removed from 4 office by resolution of the co-operative at a general 5 meeting of which notice under subsection (2) has been 6 given, but not otherwise. 7 (2) Notice of intention to move the resolution must be 8 given to the co-operative at least 2 months before the 9 meeting is to be held. 10 (3) However, if the co-operative calls a meeting after the 11 notice of intention is given under subsection (2), the 12 meeting may pass the resolution even though the 13 meeting is held less than 2 months after the notice of 14 intention is given. 15 (4) Where notice under subsection (2) of a resolution to 16 remove an auditor is received by a co-operative, it must 17 as soon as possible send a copy of the notice to the 18 auditor and lodge a copy of the notice with the 19 Registrar. 20 (5) Within 7 days after receiving a copy of the notice, the 21 auditor may make representations in writing, not 22 exceeding a reasonable length, to the co-operative and 23 request that, before the meeting at which the resolution 24 is to be considered, a copy of the representations be 25 sent by the co-operative at its expense to every member 26 of the co-operative to whom notice of the meeting is 27 sent. 28 (6) Unless the Registrar on the application of the 29 co-operative otherwise orders, the co-operative must 30 send a copy of the representations in accordance with 31 the auditor's request, and the auditor may, without 32 prejudice to his or her right to be heard orally or, where 33 a firm is the auditor, to have a member of the firm page 110 Co-operatives Amendment Bill 2015 s. 85 1 heard orally on its behalf, require that the 2 representations be read out at the meeting. 3 (7) An auditor of a co-operative may, by notice in writing 4 given to the co-operative, resign as auditor of the 5 co-operative if -- 6 (a) the auditor has, by notice in writing given to the 7 Registrar, applied for consent to the resignation 8 and stated the reasons for the application and, at 9 or about the same time as the notice was given 10 to the Registrar, notified the co-operative in 11 writing of the application to the Registrar; and 12 (b) the consent of the Registrar has been given. 13 (8) The Registrar must, as soon as practicable after 14 receiving a notice from an auditor under subsection (7), 15 notify the auditor and the co-operative whether the 16 Registrar consents to the resignation of the auditor. 17 (9) A statement made by an auditor in an application to the 18 Registrar under subsection (7) or in answer to an 19 inquiry by the Registrar relating to the reasons for the 20 application -- 21 (a) is not admissible in evidence in any civil or 22 criminal proceedings against the auditor; and 23 (b) may not be made the ground of a prosecution, 24 action or suit against the auditor, 25 and a certificate by the Registrar that the statement was 26 made in the application or in the answer to the inquiry 27 by the Registrar is conclusive evidence that the 28 statement was so made. 29 (10) Subject to subsection (11), the resignation of an auditor 30 takes effect on whichever of the following occurs 31 last -- 32 (a) the day (if any) specified for the purpose in the 33 notice of resignation; page 111 Co-operatives Amendment Bill 2015 s. 85 1 (b) the day on which the Registrar gives its consent 2 to the resignation; 3 (c) the day (if any) fixed by the Registrar for the 4 purpose. 5 (11) The resignation of an auditor of a small co-operative 6 does not require the consent of the Registrar under 7 subsection (7), and takes effect on whichever of the 8 following is later -- 9 (a) the day (if any) specified for the purpose in the 10 notice of resignation; or 11 (b) the day on which the notice is received by the 12 co-operative. 13 (12) Where, on the retirement or withdrawal from a firm of 14 a member, the firm will no longer be capable, by 15 reason of the provisions of the Corporations Act 16 section 324BB(1)(b)(i) or (2)(b)(i) (as applying under 17 this Part), of acting as auditor of a co-operative, the 18 member so retiring or withdrawing is (if not 19 disqualified from acting as auditor of the co-operative) 20 taken to be the auditor of the co-operative until he or 21 she obtains the consent of the Registrar to his or her 22 retirement or withdrawal. 23 (13) Within 14 days after the removal from office of an 24 auditor of a co-operative, or the receipt of a notice of 25 resignation from an auditor of a co-operative, the 26 co-operative must -- 27 (a) lodge with the Registrar a notice of the removal 28 or resignation in the form approved by the 29 Registrar; and 30 (b) where there is a trustee for the holders of 31 debentures or CCUs of the co-operative -- give 32 to the trustee a copy of the notice lodged with 33 the Registrar. page 112 Co-operatives Amendment Bill 2015 s. 85 1 244ZX. Effect of winding-up on office of auditor 2 An auditor of a co-operative ceases to hold office if -- 3 (a) a special resolution is passed for the voluntary 4 winding-up of the co-operative; or 5 (b) a certificate winding-up the co-operative is 6 given by the Registrar; or 7 (c) if paragraph (a) or (b) does not apply -- an 8 order is made by the Supreme Court for the 9 winding-up of the co-operative. 10 Subdivision 4 -- Auditors' fees and expenses 11 244ZY. Fees and expenses of auditors 12 The reasonable fees and expenses of an auditor of a 13 co-operative are payable by the co-operative. 14 Subdivision 5 -- Protection of auditors 15 244ZZA. Protection of auditors 16 (1) An auditor of a co-operative has qualified privilege in 17 relation to -- 18 (a) a statement that the auditor makes, orally or in 19 writing, in the course of his or her duties as 20 auditor; or 21 (b) the giving of notice, or the sending of copies of 22 financial reports or other reports, to the 23 Registrar under this Act. 24 (2) A person has qualified privilege in relation to -- 25 (a) the publishing of a document prepared by an 26 auditor in the course of the auditor's duties and 27 required by or under this Act to be lodged with 28 the Registrar, whether or not the document has 29 been lodged; or page 113 Co-operatives Amendment Bill 2015 s. 85 1 (b) the publishing of a statement made by an 2 auditor referred to in subsection (1). 3 (3) This section does not limit or affect a right, privilege or 4 immunity that an auditor or other person has, apart 5 from this section, as defendant in proceedings for 6 defamation. 7 Division 13 -- Accounting and auditing standards 8 244ZZB. Accounting and auditing standards 9 (1) A reference in this Part (including provisions of the 10 Corporations Act applying under this Part) to 11 accounting or auditing standards is a reference to -- 12 (a) the accounting or auditing standards made for 13 the purposes of the Corporations Act, except as 14 provided by paragraphs (b) and (c); or 15 (b) the accounting or auditing standards referred to 16 in paragraph (a) but as modified by the 17 regulations; or 18 (c) the accounting or auditing standards prescribed 19 by or determined under the regulations in 20 substitution for all or any accounting or 21 auditing standards referred to in paragraph (a). 22 (2) If an accounting or auditing standard referred to in 23 subsection (1)(a) applies for the purposes of a 24 particular provision of the Corporations Act, the 25 accounting or auditing standard is (subject to 26 subsection (1)(b) and (c)) taken to apply for the 27 purposes of the corresponding provision of this Act (if 28 any). 29 (3) The regulations may provide that an accounting or 30 auditing standard referred to in subsection (1)(a) does 31 not apply for the purposes of -- 32 (a) this Act; or page 114 Co-operatives Amendment Bill 2015 s. 85 1 (b) a particular provision of this Act; or 2 (c) a particular aspect or application of this Act, 3 and may do so without substituting another accounting 4 or auditing standard. 5 244ZZC. Interpretation of accounting and auditing 6 standards 7 In interpreting an accounting or auditing standard, 8 unless the contrary intention appears -- 9 (a) expressions used in the standard have the same 10 meanings as they have in this Part or in the 11 Corporations Act Chapter 2M, as the case 12 requires; and 13 (b) the provisions of Part 1 Division 1 of this Act 14 or the Corporations Act Part 1.2 apply as if the 15 standard's provisions were provisions of this 16 Part or the Corporations Act Chapter 2M, as the 17 case requires. 18 Division 14 -- Exemptions and modifications 19 244ZZD. Exemptions: individual co-operatives 20 (1) On an application made in accordance with 21 subsection (4) in relation to a co-operative, the 22 Registrar may, by order published in the Gazette, 23 exempt any of the following from compliance with all 24 or specified requirements of the target provisions 25 referred to in subsection (2) -- 26 (a) the directors; 27 (b) the co-operative; 28 (c) the auditor. 29 (2) For the purposes of subsection (1), the target provisions 30 are Divisions 2 to 12 of this Part, including provisions 31 of the Corporations Act (as applying under any of the page 115 Co-operatives Amendment Bill 2015 s. 85 1 provisions of those Divisions), but not including the 2 Corporations Act Part 2M.4 Division 4 as so applying. 3 (3) The exemption may -- 4 (a) be expressed to be subject to conditions; and 5 (b) be indefinite or limited to a specified period; 6 and 7 (c) if indefinite, be expressed to commence on a 8 specified date. 9 (4) The application must be -- 10 (a) authorised by a resolution of the directors; and 11 (b) in writing and signed by a director; and 12 (c) lodged with the Registrar. 13 (5) The Registrar must give the applicant written notice of 14 the granting, revocation or suspension of the 15 exemption. 16 244ZZE. Exemptions: classes of co-operatives 17 (1) The Registrar may, by order published in the Gazette in 18 respect of a specified class of co-operatives, exempt 19 any of the following from compliance with all or 20 specified requirements of the target provisions referred 21 to in subsection (2) -- 22 (a) directors; 23 (b) the co-operatives themselves; 24 (c) auditors of the co-operatives. 25 (2) For the purposes of subsection (1), the target provisions 26 are Divisions 2 to 12 of this Part, including provisions 27 of the Corporations Act (as applying under any of the 28 provisions of those Divisions), but not including the 29 Corporations Act Part 2M.4 Division 4 as so applying. page 116 Co-operatives Amendment Bill 2015 s. 85 1 (3) The exemption may -- 2 (a) be expressed to be subject to conditions; and 3 (b) be indefinite or limited to a specified period; 4 and 5 (c) if indefinite, be expressed to commence on a 6 specified date. 7 244ZZF. Exemptions: criteria for exemptions for individual 8 co-operatives or classes of co-operatives 9 (1) To grant an exemption under section 244ZZD or 10 244ZZE, the Registrar must be satisfied that complying 11 with the relevant requirements of the target provisions 12 would -- 13 (a) make the financial report or other reports 14 misleading; or 15 (b) be inappropriate in the circumstances; or 16 (c) impose unreasonable burdens. 17 (2) In deciding for the purposes of subsection (1) whether 18 the audit requirements for a small co-operative, or a 19 class of small co-operatives, would impose an 20 unreasonable burden on the co-operative or 21 co-operatives, the Registrar is to have regard to -- 22 (a) the expected costs of complying with the audit 23 requirements; and 24 (b) the expected benefits of having the co-operative 25 or co-operatives comply with the audit 26 requirements; and 27 (c) any practical difficulties that the co-operative 28 or co-operatives face in complying effectively 29 with the audit requirements (in particular, any 30 difficulties that arise because a financial year is 31 the first one for which the audit requirements 32 apply or because the co-operative or page 117 Co-operatives Amendment Bill 2015 s. 85 1 co-operatives are likely to move frequently 2 between the small and large co-operative 3 categories from one financial year to another); 4 and 5 (d) any unusual aspects of the operation of the 6 co-operative or co-operatives during the 7 financial year concerned; and 8 (e) any other matters that the Registrar considers 9 relevant. 10 (3) In assessing expected benefits under subsection (2), the 11 Registrar is to take account of -- 12 (a) the number of creditors and potential creditors; 13 and 14 (b) the position of creditors and potential creditors 15 (in particular, their ability to independently 16 obtain financial information about the 17 co-operative or co-operatives); and 18 (c) the nature and extent of the liabilities of the 19 co-operative or co-operatives. 20 244ZZG. Exemptions: non-auditor members and former 21 members of audit firms, and former employees of 22 audit companies 23 (1) On an application made in accordance with 24 subsection (4) by any of the following, the Registrar 25 may, by order published in the Gazette, exempt the 26 applicant from all or specified requirements of the 27 target provisions referred to in subsection (2) -- 28 (a) a member of the firm who is not a registered 29 company auditor; 30 (b) a person who has ceased to be -- 31 (i) a member of an audit firm; or 32 (ii) a director of an audit company; or page 118 Co-operatives Amendment Bill 2015 s. 85 1 (iii) a professional employee of an audit 2 company. 3 (2) For the purposes of subsection (1), the target provisions 4 are the provisions of the Corporations Act Part 2M.4 5 Division 3 (as applying under Division 12 of this Part). 6 (3) The exemption may -- 7 (a) be expressed to be subject to conditions; and 8 (b) be indefinite or limited to a specified period; 9 and 10 (c) if indefinite, be expressed to commence on a 11 specified date. 12 (4) The application must be -- 13 (a) in writing and signed by the applicant; and 14 (b) lodged with the Registrar. 15 (5) The Registrar must give the applicant written notice of 16 the granting, revocation or suspension of the 17 exemption. 18 244ZZH. Exemptions: classes of non-auditor members 19 (1) The Registrar may, by order published in the Gazette in 20 respect of a specified class of audit firms or audit 21 companies, exempt any of the following from all or 22 specified requirements of the target provisions referred 23 to in subsection (2) -- 24 (a) members of firms who are not registered 25 company auditors; 26 (b) persons who have ceased to be -- 27 (i) members of audit firms; or 28 (ii) directors of audit companies; or 29 (iii) professional employees of audit 30 companies. page 119 Co-operatives Amendment Bill 2015 s. 85 1 (2) For the purposes of subsection (1), the target provisions 2 are the provisions of the Corporations Act Part 2M.4 3 Division 3 (as applying under Division 12 of this Part). 4 (3) The exemption may -- 5 (a) be expressed to be subject to conditions; and 6 (b) be indefinite or limited to a specified period; 7 and 8 (c) if indefinite, be expressed to commence on a 9 specified date. 10 244ZZI. Exemptions: criteria for exemptions for non-auditor 11 members etc. 12 To grant an exemption under section 244ZZG or 13 244ZZH, the Registrar must be satisfied that 14 complying with the relevant requirements of the target 15 provisions would -- 16 (a) make the financial report or other reports 17 misleading; or 18 (b) be inappropriate in the circumstances; or 19 (c) impose unreasonable burdens. 20 244ZZJ. Exemptions from regulations 21 (1) The Registrar may, by order published in the Gazette, 22 exempt -- 23 (a) a specified co-operative, a specified person or 24 firm proposed to be appointed as an auditor, or 25 a specified director or auditor of a co-operative; 26 or 27 (b) a specified class of co-operatives, a specified 28 class of persons or firms proposed to be 29 appointed as auditors, or a specified class of 30 directors or auditors of co-operatives, 31 from compliance with a provision of regulations made 32 for the purposes of this Part. page 120 Co-operatives Amendment Bill 2015 s. 85 1 (2) The exemption may -- 2 (a) be expressed to be subject to conditions; and 3 (b) be indefinite or limited to a specified period; 4 and 5 (c) if indefinite, be expressed to commence on a 6 specified date. 7 244ZZK. Registrar's power to modify the operation of 8 section 324DA of Corporations Act 9 (1) On an application made in accordance with this 10 section, the Registrar may -- 11 (a) declare that the Corporations Act 12 section 324DA(1) (as applying under 13 Division 12 of this Part) applies to a registered 14 company auditor, in relation to the audit of an 15 audited body or a class of audited bodies, as if 16 the references in that subsection to 5 successive 17 financial years were references to -- 18 (i) 6 successive financial years; or 19 (ii) 7 successive financial years; 20 or 21 (b) declare that the Corporations Act 22 section 324DA(2) (as applying under 23 Division 12 of this Part) applies to a registered 24 company auditor, in relation to the audit of an 25 audited body or a class of audited bodies during 26 a particular period of 7 successive financial 27 years, as if the reference in that subsection to 5 28 out of 7 successive financial years were a 29 reference to 6 out of 7 successive financial 30 years. 31 (2) The following persons may apply for the declaration -- 32 (a) the registered company auditor; page 121 Co-operatives Amendment Bill 2015 s. 85 1 (b) a firm or company on whose behalf the 2 registered company auditor acts or would act in 3 relation to the audit or audits, 4 and if the application is made by a firm or company, 5 the declaration has effect only in relation to activities 6 undertaken by the registered company auditor on 7 behalf of that firm or company. 8 (3) The application must be -- 9 (a) in writing; and 10 (b) signed by the applicant; and 11 (c) lodged with the Registrar. 12 (4) If the application is made by a registered company 13 auditor who engages, or is to engage, in audit activities 14 on behalf of a firm or company, the application must 15 include the firm's or company's written consent to the 16 application. 17 (5) If the application is made by a firm or company in 18 relation to a registered company auditor, the 19 application must include the registered company 20 auditor's written consent to the application. 21 (6) To make a declaration under subsection (1), the 22 Registrar must be satisfied that, without the 23 modification, the Corporations Act Part 2M.4 24 Division 4 (as applying under Division 12 of this Part) 25 would impose an unreasonable burden on -- 26 (a) a registered company auditor; or 27 (b) a firm or company that is applying for the 28 declaration; or 29 (c) the audited body or bodies in relation to which 30 the application was made. 31 (7) In deciding for the purposes of subsection (6) whether, 32 without the modification, the Corporations Act page 122 Co-operatives Amendment Bill 2015 s. 85 1 Part 2M.4 Division 4 (as applying under Division 12 of 2 this Part) would impose an unreasonable burden on a 3 person referred to in that subsection, the Registrar is to 4 have regard to -- 5 (a) the nature of the audited body or bodies, 6 including whether the activity in which the 7 audited body or bodies engage is such that 8 specialist knowledge about that activity is 9 necessary to carry out the audit properly; and 10 (b) the availability of other registered company 11 auditors capable of providing satisfactory audit 12 services for the audited body or bodies; and 13 (c) any other matters which the Registrar considers 14 relevant. 15 (8) The Registrar must give the applicant written notice of 16 the making, revocation or suspension of the 17 declaration. 18 244ZZL. Auditor to notify co-operative of declaration 19 (1) If a registered company auditor plays a significant role 20 in the audit of a co-operative in reliance on a 21 declaration by the Registrar under section 244ZZK, the 22 auditor must give the co-operative written notice of the 23 declaration. 24 Penalty for this subsection: a fine of $500. 25 (2) The notice must specify -- 26 (a) the name of the registered company auditor; 27 and 28 (b) the additional financial years for which the 29 registered company auditor is, because of the 30 declaration under section 244ZZK, eligible to 31 play a significant role in the audit of the 32 co-operative. page 123 Co-operatives Amendment Bill 2015 s. 85 1 (3) The notice must be given -- 2 (a) as soon as practicable after the declaration is 3 made if the auditor has been appointed before 4 the declaration is made; or 5 (b) before the auditor is appointed if the declaration 6 is made before the auditor is appointed. 7 244ZZM. Amendment, suspension or revocation of 8 exemption 9 (1) The Registrar may, by order published in the Gazette, 10 amend, suspend or revoke an exemption granted under 11 this Division. 12 (2) The power to suspend or revoke an exemption granted 13 under section 244ZZD, 244ZZE, 244ZZG or 244ZZH 14 can be exercised if the Registrar is satisfied that the 15 criteria for the grant of the exemption are no longer 16 satisfied. 17 Division 15 -- Miscellaneous 18 244ZZN. Disclosure by directors 19 The directors of a co-operative must make the 20 disclosures about the affairs of the co-operative and of 21 an entity that the co-operative controls that are required 22 by the regulations. 23 Penalty: a fine of $2 000. 24 244ZZO. Contravention by directors of a provision of this 25 Part 26 (1) A director of a co-operative contravenes this subsection 27 if they fail to take all reasonable steps to comply with 28 or to secure compliance with -- 29 (a) section 244I, 244J, 244V(1) or (2), 244W(2), 30 244ZB, 244ZC, 244ZD, 244ZE or 244ZF; or page 124 Co-operatives Amendment Bill 2015 s. 86 1 (b) the Corporations Act section 318 as applying 2 under section 244ZA of this Act. 3 Note for this subsection: This is a civil penalty provision (see section 482A). 4 (2) A person commits an offence if they contravene 5 subsection (1) and the contravention is dishonest. 6 Penalty for this subsection: a fine of $200 000, or 7 imprisonment for 5 years, or both. 8 9 86. Section 250 amended 10 (1) Delete section 250(1)(a) to (c) and insert: 11 12 (a) sections 111AS and 283I are taken to be 13 deleted; 14 15 (2) After section 250(2) insert: 16 17 (3A) The following provisions of the Corporations Act, as 18 they apply under this section, are civil penalty 19 provisions under this Act and are not civil penalty 20 provisions under that Act -- 21 (a) section 674(2) and (2A); 22 (b) section 675(2) and (2A); 23 (c) section 1041A; 24 (d) section 1041B(1); 25 (e) section 1041C(1); 26 (f) section 1041D; 27 (g) section 1043A(1) and (2). 28 29 87. Section 251 deleted 30 Delete section 251. page 125 Co-operatives Amendment Bill 2015 s. 88 1 88. Section 252 amended 2 (1) In section 252(2) delete "73(2) or 127(1)." and insert: 3 4 73(2), 127(2) or 164(1). 5 6 (2) After section 252(2) insert: 7 8 (3A) Before issuing to a person debentures to which this 9 section applies, a co-operative must -- 10 (a) inform the person in writing that the person is 11 entitled to receive a disclosure statement on 12 request to the co-operative; and 13 (b) give the person a disclosure statement if the 14 person requests it. 15 16 (3) In section 252(3) delete "Before issuing to a person debentures 17 to which this section applies, that person may request a 18 disclosure statement," and insert: 19 20 For the purposes of subsection (3A), the disclosure statement is 21 a statement, 22 23 (4) After section 252(4) insert: 24 25 (5) The Registrar may, by order published in the Gazette, 26 exempt a co-operative or class of co-operatives from 27 complying with this section. 28 (6) An exemption may be granted unconditionally or 29 subject to conditions. 30 page 126 Co-operatives Amendment Bill 2015 s. 89 1 89. Sections 253A and 253B inserted 2 After section 252 insert: 3 4 253A. Restrictions on advertising and publicity 5 (1) A person must not -- 6 (a) advertise; or 7 (b) publish a statement that directly or indirectly 8 refers to, 9 an offer, or intended offer, of debentures in a 10 co-operative unless a disclosure statement relating to 11 the debentures is approved by the Registrar under 12 section 252. 13 Penalty for this subsection: a fine of $1 000. 14 (2) A person does not contravene subsection (1) by 15 publishing an advertisement or statement if they 16 publish it in the ordinary course of business of -- 17 (a) publishing a newspaper or a magazine; or 18 (b) broadcasting by radio or television, 19 and the person did not know and had no reason to 20 suspect that its publication would amount to a 21 contravention of that subsection. 22 (3) Despite The Criminal Code section 23B(2), it is 23 immaterial for the purposes of subsection (1) that any 24 event occurred by accident. 25 253B. Application money to be held on trust 26 (1) If a person offers debentures for issue under a 27 disclosure statement, the person must hold -- 28 (a) all application money received from people 29 applying for debentures under the disclosure 30 statement; and page 127 Co-operatives Amendment Bill 2015 s. 90 1 (b) all other money paid by them on account of the 2 debentures before they are issued, 3 in trust under this section for the applicants until the 4 debentures are issued or the money is returned to the 5 applicants. 6 Penalty for this subsection: a fine of $2 500, or 7 imprisonment for 6 months, or both. 8 (2) If the application money needs to be returned to an 9 applicant, the person must return the money as soon as 10 practicable. 11 Penalty for this subsection: a fine of $2 500, or 12 imprisonment for 6 months, or both. 13 (3) Despite The Criminal Code section 23B(2), it is 14 immaterial for the purposes of subsections (1) and (2) 15 that any event occurred by accident. 16 17 90. Section 254 amended 18 In section 254 delete "section 124(1)(b) or" and insert: 19 20 section 21 22 91. Section 255 amended 23 (1) In section 255(1) delete "the co-operative." and insert: 24 25 the co-operative passed by a special postal ballot. 26 27 (2) In section 255(3)(c) delete "special resolution," and insert: 28 29 special resolution by a special postal ballot, 30 page 128 Co-operatives Amendment Bill 2015 s. 92 1 92. Section 257 amended 2 In section 257(1) delete "co-operative capital unit (CCU) is" 3 and insert: 4 5 co-operative capital unit is 6 7 93. Section 261 amended 8 Delete section 261(a) and insert: 9 10 (a) either (as specified in the rules) -- 11 (i) each holder of a CCU is entitled to one 12 vote only at a meeting of the holders of 13 CCUs; or 14 (ii) each holder of a CCU is entitled to one 15 vote per CCU held at a meeting of the 16 holders of CCUs; 17 18 94. Section 271 amended 19 Delete section 271(3) and insert: 20 21 (3) The amount of a rebate payable to a member under 22 subsection (2)(a) may be applied -- 23 (a) in payment for the issue to the member of 24 bonus shares, with the consent of the member; 25 or 26 (b) as a loan to the co-operative -- 27 (i) with the consent of the member; or 28 (ii) if the rules of the co-operative authorise 29 the amount of a rebate payable to a 30 member under subsection (2)(a) to be 31 applied as a loan to the co-operative. page 129 Co-operatives Amendment Bill 2015 s. 95 1 (4) The amount of a dividend payable to a member under 2 subsection (2)(c) may be applied -- 3 (a) in payment for the issue to the member of 4 bonus shares, with the consent of the member; 5 or 6 (b) as a loan to the co-operative -- 7 (i) with the consent of the member; or 8 (ii) if the rules of the co-operative authorise 9 the amount of a dividend payable to a 10 member under subsection (2)(c) to be 11 applied as a loan to the co-operative. 12 (5) A loan to the co-operative authorised by the rules (as 13 referred to in subsection (3)(b)(ii) or (4)(b)(ii)) is 14 repayable at call and must bear interest at a rate not 15 lower than the rate prescribed by the regulations. 16 17 95. Section 273 amended 18 (1) In section 273(2): 19 (a) delete "Unless otherwise provided by the rules, a" and 20 insert: 21 22 A 23 24 (b) in paragraph (c) delete "activities." and insert: 25 26 activities; 27 page 130 Co-operatives Amendment Bill 2015 s. 95 1 (c) after paragraph (c) insert: 2 3 (d) dispose of an asset, if the disposal would 4 result -- 5 (i) in the co-operative ceasing to carry on 6 an activity referred to in 7 subsection (3A); or 8 (ii) in the ability of the co-operative to carry 9 on an activity referred to in 10 subsection (3A) being substantially 11 impaired. 12 13 (2) After section 273(2) insert: 14 15 (3A) Subsection (2)(d) applies to an activity of a 16 co-operative if -- 17 (a) the activity is a primary activity of the 18 co-operative; and 19 (b) under rules of the co-operative referred to in 20 section 111(a) or regulations made for the 21 purposes of section 111(b), the use or support 22 of the activity, or the maintenance of a 23 relationship or an arrangement with the 24 co-operative for carrying on the activity, can be 25 sufficient to establish active membership of the 26 co-operative. 27 page 131 Co-operatives Amendment Bill 2015 s. 96 1 (3) In section 273(3) delete "an offence unless the person satisfies 2 the court that he or she used all due diligence to prevent the 3 contravention by the co-operative." and insert: 4 5 an offence, if the person -- 6 (a) was in a position to influence the conduct of the 7 co-operative in relation to the commission of 8 the offence by it; and 9 (b) did not use all due diligence to prevent the 10 commission of the offence by it. 11 12 (4) After section 273(4) insert: 13 14 (5) An exemption may be granted unconditionally or 15 subject to conditions. 16 17 96. Section 284 amended 18 Delete section 284(3) and insert: 19 20 (3) The register must be open for inspection by a member 21 of the co-operative in accordance with section 232. 22 23 97. Section 288 amended 24 (1) In section 288 delete "The Registrar" and insert: 25 26 (1) The Registrar 27 page 132 Co-operatives Amendment Bill 2015 s. 98 1 (2) At the end of section 288 insert: 2 3 (2) An exemption may be granted unconditionally or 4 subject to conditions. 5 6 98. Section 289 amended 7 (1) In section 289: 8 (a) delete "This Division" and insert: 9 10 (1) This Division 11 12 (b) in paragraph (d) delete "offer." and insert: 13 14 offer; 15 16 (c) after paragraph (d) insert: 17 18 (e) an offer that would lead to the offeror having a 19 substantial share interest in the co-operative, or 20 to a substantial change taking place in a 21 substantial share interest the offeror has in the 22 co-operative, were the offeror to be registered 23 (immediately after the offer is made) as the 24 holder of the shares that are the subject of the 25 offer. 26 27 (2) At the end of section 289 insert: 28 29 (2) In subsection (1)(e), substantial share interest and 30 substantial change have the same meanings as they 31 have in section 276. 32 page 133 Co-operatives Amendment Bill 2015 s. 99 1 99. Section 290 replaced 2 Delete section 290 and insert: 3 4 290. Requirements to be satisfied before offer can be 5 made 6 (1) A person must not make an offer to which this Division 7 applies unless the making of the offer has been 8 approved -- 9 (a) by special resolution passed by a special postal 10 ballot; and 11 (b) by the Registrar. 12 (2) Despite subsection (1), an offer referred to in 13 section 289(1)(e) can be made even if it has not been 14 approved as referred to in subsection (1) if it is made in 15 circumstances stated in, and in accordance with the 16 requirements of, the regulations. 17 18 100. Section 291 amended 19 In section 291 delete "289(a) to (d)" and insert: 20 21 289(1)(a) to (e) 22 23 101. Section 293 amended 24 (1) In section 293(2) delete the Penalty and insert: 25 26 Penalty for this subsection: a fine of $20 000, or 27 imprisonment for 5 years, or both. 28 page 134 Co-operatives Amendment Bill 2015 s. 102 1 (2) In section 293(3) delete the Penalty and insert: 2 3 Penalty for this subsection: a fine of $10 000, or 4 imprisonment for 2 years, or both. 5 6 102. Section 296 amended 7 (1) In section 296 delete "The Registrar" and insert: 8 9 (1) The Registrar 10 11 (2) At the end of section 296 insert: 12 13 (2) An exemption may be granted unconditionally or 14 subject to conditions. 15 16 103. Section 300 amended 17 Delete section 300(5) and insert: 18 19 (5) The Registrar may grant an approval or an exemption 20 under this section unconditionally or subject to 21 conditions. 22 23 104. Section 306 amended 24 (1) After section 306(1) insert: 25 26 (2A) An application cannot be made under section 305 in 27 respect of a co-operative without share capital 28 unless -- 29 (a) the application is made at least 2 weeks after a 30 notice has been published in a newspaper 31 circulating generally in the district in which the page 135 Co-operatives Amendment Bill 2015 s. 105 1 registered office of the co-operative is situated 2 advising of the proposal to submit the proposed 3 special resolution to members of the 4 co-operative; and 5 (b) either -- 6 (i) in the case where the new body will 7 have share capital -- all the members of 8 the co-operative will have an equal 9 shareholding; or 10 (ii) in any case -- the Registrar approves in 11 writing the making of the application. 12 13 (2) Delete section 306(3) and insert: 14 15 (3) The Registrar may, by order published in the Gazette, 16 exempt a co-operative from compliance with a 17 provision of this section or section 186 in relation to a 18 matter to which this section applies. 19 (4) An exemption may be granted unconditionally or 20 subject to conditions. 21 22 105. Section 309 amended 23 After section 309(4) insert: 24 25 (5) If -- 26 (a) section 131(2) applies to rules of a 27 co-operative; and 28 (b) those rules provide for a period shorter than 29 2 years to apply for the purposes of each of 30 section 132(1)(a), (b) and (c) and 31 section 133(1), 32 subsection (2) of this section applies in relation to the 33 co-operative as if the reference in that subsection to page 136 Co-operatives Amendment Bill 2015 s. 106 1 2 years were a reference to the shorter period that 2 applies for the purposes of each of section 132(1)(a), 3 (b) and (c) and section 133(1) under those rules. 4 5 106. Section 315 amended 6 In section 315 delete "in the same way and in the same 7 circumstances as a company under the Corporations Act may be 8 deregistered." and insert: 9 10 under -- 11 (a) the Corporations Act as applying under 12 section 316; or 13 (b) section 482. 14 15 107. Section 316 replaced 16 Delete section 316 and insert: 17 18 316. Application of Corporations Act to winding-up and 19 deregistration 20 (1) This section does not apply to the winding-up of a 21 co-operative on the certificate of the Registrar under 22 section 314. 23 (2) The winding-up or deregistration of a co-operative, and 24 a deregistered co-operative, are declared to be applied 25 Corporations legislation matters for the purposes of the 26 Corporations (Ancillary Provisions) Act 2001 Part 3 in 27 relation to the provisions of the Corporations Act 28 Parts 5.4, 5.4A, 5.4B, 5.5, 5.6 and 5A.1, subject to the 29 modifications set out in Schedule 6 Division 1. page 137 Co-operatives Amendment Bill 2015 s. 107 1 (3) Despite any other provisions of this Act -- 2 (a) a copy of the special resolution for the 3 voluntary winding-up of a co-operative referred 4 to in the Corporations Act section 491(2)(a) as 5 applying under this section is to be filed with 6 the Registrar -- 7 (i) within the period referred to in that 8 paragraph (and not the period of 28 days 9 referred to in section 181(2) of this 10 Act); or 11 (ii) within a longer period approved by the 12 Registrar; 13 and 14 (b) the form of a notice or account required to be 15 given or lodged by a liquidator under the 16 Corporations Act section 496, 497, 537 or 539 17 as applying under this section is the form 18 required under the section concerned but with 19 any necessary modifications (and not a form 20 approved under this Act); and 21 (c) the quorum for the meeting referred to in the 22 Corporations Act section 509 as applying under 23 this section is the quorum referred to in that 24 section (and not a quorum determined under 25 section 193 of this Act); and 26 (d) the time when a voluntary winding-up is taken 27 to commence is to be determined under the 28 Corporations Act section 513B as applying 29 under this section and is not affected by 30 section 180 of this Act. 31 (4) The provisions of the Corporations Act applying under 32 this section have effect subject to any other sections of 33 this Part. 34 page 138 Co-operatives Amendment Bill 2015 s. 108 1 108. Section 317 amended 2 Delete section 317(2) and (3) and insert: 3 4 (2) When a special postal ballot referred to in 5 subsection (1)(b) is held, the members may, by means 6 of the same ballot, by simple majority -- 7 (a) appoint one or more liquidators to wind up the 8 affairs and distribute the assets of the 9 co-operative; and 10 (b) fix the remuneration to be paid to the liquidator. 11 (3) The Registrar may, by order published in the Gazette, 12 exempt a co-operative or class of co-operatives from 13 compliance with a provision of this section or 14 section 186. 15 (4) An exemption may be granted unconditionally or 16 subject to conditions. 17 18 109. Section 322 amended 19 After section 322(4) insert: 20 21 (5) If -- 22 (a) section 131(2) applies to rules of a 23 co-operative; and 24 (b) those rules provide for a period shorter than 25 2 years to apply for the purposes of each of 26 section 132(1)(a), (b) and (c) and 27 section 133(1), 28 subsections (1) and (2) of this section apply in relation 29 to the co-operative as if a reference in those 30 subsections to 2 years were a reference to the shorter 31 period that applies for the purposes of each of page 139 Co-operatives Amendment Bill 2015 s. 110 1 section 132(1)(a), (b) and (c) and section 133(1) under 2 those rules. 3 4 110. Part 12 Division 4 heading replaced 5 Delete the heading to Part 12 Division 4 and insert: 6 7 Division 4 -- Administration 8 9 111. Part 12 Division 4 Subdivision 1 inserted 10 At the beginning of Part 12 Division 4 insert: 11 12 Subdivision 1 -- Introductory 13 323A. Operation of this Division 14 This Division provides 2 methods for the 15 administration of a co-operative, as follows -- 16 (a) administration under the Corporations Act as 17 applying under Subdivision 2; 18 (b) administration under Subdivision 3. 19 20 112. Part 12 Division 4 Subdivision 2 heading inserted 21 Before section 323 insert: 22 23 Subdivision 2 -- Administration under Corporations Act 24 25 113. Section 323 amended 26 In section 323: 27 (a) delete paragraph (a); page 140 Co-operatives Amendment Bill 2015 s. 114 1 (b) delete paragraph (c) and insert: 2 3 (ca) a reference in section 436D to "section 436A, 4 436B or 436C" is to be read as including a 5 reference to section 324 of this Act; 6 (cb) a reference in section 436E(4)(a) or 448B to an 7 administrator is to be read as not including a 8 reference to an administrator appointed under 9 section 324 of this Act; 10 (cc) a reference in section 440D(2)(b) to prescribed 11 proceedings is to be read as a reference to 12 proceedings prescribed by regulations under 13 this Act; 14 (cd) section 444GA is taken to include a provision 15 to the effect that the section has effect subject 16 to Part 7 Division 5 of this Act; 17 (ce) section 446B is taken to be deleted; 18 (c) the reference in section 600H(2) to a 19 compromise or arrangement under Part 5.1 is to 20 be read as a reference to a compromise or 21 arrangement under Part 13 of this Act; 22 23 114. Section 324A inserted 24 After section 323 insert: 25 26 324A. Appointment of administrator by Registrar in case 27 of insolvency 28 (1) The Registrar may appoint a person as an administrator 29 for the purposes of the Corporations Act Part 5.3A (as 30 applying under this Subdivision) if the Registrar is of 31 the opinion that the co-operative is insolvent or likely 32 to become insolvent at some future time. page 141 Co-operatives Amendment Bill 2015 s. 115 1 (2) The person appointed by the Registrar must be a 2 registered liquidator (as defined in the Corporations 3 Act section 9), but the Registrar may appoint a person 4 who is not a registered liquidator if the Registrar forms 5 the view that the likely costs of administration by a 6 registered liquidator are excessive taking into account 7 the known assets of the co-operative and the expected 8 extent of debt of the co-operative. 9 115. Part 12 Division 5 heading replaced 10 Delete the heading to Part 12 Division 5 and insert: 11 12 Subdivision 3 -- Administration: alternative procedure 13 14 116. Section 324B inserted 15 Before section 324 insert: 16 17 324B. Operation of this Division 18 (1) The provisions of the Corporations Act applying under 19 Subdivision 2 do not apply to the appointment of an 20 administrator under this Subdivision or to an 21 administrator so appointed. 22 (2) This Subdivision does not apply to the appointment of 23 an administrator under section 324A or to an 24 administrator so appointed. 25 26 117. Section 325 amended 27 In section 325(3) delete "Division." and insert: 28 29 Subdivision. 30 page 142 Co-operatives Amendment Bill 2015 s. 118 1 118. Section 326 amended 2 In section 326(4) delete " records." and insert: 3 4 books. 5 6 119. Section 336 amended 7 In section 336(1)(b) delete "co-operative under Division 5;" and 8 insert: 9 10 co-operative by the Registrar under Division 4 Subdivision 3; 11 12 120. Section 337 amended 13 (1) In section 337(1): 14 (a) delete paragraph (a); 15 (b) in paragraph (b) delete "290, as applied under 16 section 225 of this Act, is to be read with any 17 modifications prescribed by the regulations;" and insert: 18 19 290 is to be read as a reference to the appropriate 20 provision of Part 10A Division 2 of this Act; 21 22 (c) after paragraph (b) insert: 23 24 (ca) section 588G is to be read as if item 2 of the 25 table to section 588G(1A) were deleted; page 143 Co-operatives Amendment Bill 2015 s. 120 1 (cb) section 588G is to be read as if item 3 of the 2 table to section 588G(1A) read as follows -- repaying share when the capital obligation to repay share capital is effective receiving the when the resignation of a resignation is member under effective the rules of the co-operative expelling a when the member expulsion occurs 3 (cc) section 588G is to be read as if a reference 4 (however expressed) in item 4 or 5 of the table 5 to section 588G(1A) to redeemable preference 6 shares were a reference to CCUs; 7 (cd) a reference (however expressed) in 8 section 588V or 588W to a corporation that is 9 the holding company of a company is to be read 10 as if -- 11 (i) the reference to a corporation were a 12 reference to a co-operative; and 13 (ii) the reference to "the holding company" 14 were a reference to that co-operative; 15 and 16 (iii) the reference to "a company" were a 17 reference to a company that is a 18 subsidiary of that co-operative (and 19 accordingly that reference to a company page 144 Co-operatives Amendment Bill 2015 s. 121 1 is not to be read as a reference to a 2 co-operative); 3 (ce) a reference in section 588Z(b) to 23 June 1993 4 is to be read as a reference to 5 1 September 2010; 6 7 (2) Delete section 337(2) and insert: 8 9 (2) The Corporations Act section 588G(2) as applying 10 under this section is a civil penalty provision under this 11 Act and is not a civil penalty provision under that Act. 12 13 121. Section 344 amended 14 In section 344: 15 (a) in paragraph (b) delete "person; and" and insert: 16 17 person. 18 19 (b) delete paragraph (c). 20 122. Section 346 amended 21 After section 346(2) insert: 22 23 (3) Despite The Criminal Code section 23B(2), it is 24 immaterial for the purposes of subsection (2) that any 25 event occurred by accident. 26 27 123. Section 359 amended 28 Delete section 359(3)(b) and (c). page 145 Co-operatives Amendment Bill 2015 s. 124 1 124. Part 14 heading replaced 2 Delete the heading to Part 14 and insert: 3 4 Part 14 -- Participating co-operatives 5 6 125. Section 365 deleted 7 Delete section 365. 8 126. Section 366 amended 9 (1) In section 366(1): 10 (a) delete "Part, a foreign co-operative" and insert: 11 12 Part and without limiting the definition of carry on 13 business in section 4 in its application to a participating 14 co-operative, a participating co-operative 15 16 (b) in paragraph (b) delete "State; or" and insert: 17 18 State. 19 20 (c) delete paragraph (c). 21 (2) Delete section 366(2). 22 127. Section 367 deleted 23 Delete section 367. page 146 Co-operatives Amendment Bill 2015 s. 128 1 128. Section 368 amended 2 (1) In section 368(1) delete "foreign co-operative authorised under 3 this Part to carry on business in this State" and insert: 4 5 participating co-operative 6 7 (2) In section 368(2): 8 (a) delete "foreign co-operatives" and insert: 9 10 participating co-operatives 11 12 (b) in paragraph (g) delete "co-operative capital units" and 13 insert: 14 15 CCUs 16 17 (3) In section 368(3) delete "foreign" and insert: 18 19 participating 20 21 129. Part 14 Division 2 heading replaced 22 Delete the heading to Part 14 Division 2 and insert: 23 24 Division 2 -- Participating co-operatives carrying on 25 business in this State 26 page 147 Co-operatives Amendment Bill 2015 s. 130 1 130. Section 370 amended 2 (1) In section 370(1) delete "after notifying the Registrar in 3 accordance with section 372 that the participating co-operative 4 intends to carry on business in this State." and insert: 5 6 unless it ceases to be so authorised under section 376. 7 8 (2) In section 370(2) delete "State." and insert: 9 10 jurisdiction. 11 12 (3) Delete section 370(3). 13 131. Sections 372 to 374 replaced 14 Delete sections 372 to 374 and insert: 15 16 372. Existing foreign co-operatives 17 (1) This section applies to a body that -- 18 (a) immediately before the commencement of the 19 Co-operatives Amendment Act 2015 20 section 130 is, or is taken under section 371 to 21 be, a foreign co-operative authorised under this 22 Part to carry on business in this State; and 23 (b) is not registered or incorporated under a 24 corresponding co-operatives law. 25 (2) The co-operative is taken to be a participating 26 co-operative authorised under this Part to carry on 27 business in this State, and this Part applies with all 28 necessary modifications. 29 page 148 Co-operatives Amendment Bill 2015 s. 132 1 132. Section 376 amended 2 In section 376: 3 (a) delete "foreign co-operative" and insert: 4 5 participating co-operative 6 7 (b) in paragraph (b) delete "section 377; or" and insert: 8 9 section 377. 10 11 (c) delete paragraphs (c) and (d). 12 Note: The heading to amended section 376 is to read: 13 When participating co-operative not authorised to carry on 14 business 15 133. Section 377 amended 16 (1) In section 377(1): 17 (a) delete "foreign co-operative" and insert: 18 19 participating co-operative 20 21 (b) delete paragraphs (b) to (d) and insert: 22 23 (b) that the co-operative has, after notice from the 24 Registrar, failed to comply with -- 25 (i) provisions of this Act or of a 26 corresponding co-operatives law 27 applicable to the co-operative; or 28 (ii) provisions of the rules of the 29 co-operative; 30 (c) that the co-operative has contravened a 31 direction given to it under section 380E. 32 page 149 Co-operatives Amendment Bill 2015 s. 134 1 (2) In section 377(4) delete "foreign co-operative" and insert: 2 3 participating co-operative 4 5 (3) In section 377(5) delete "foreign co-operative," and insert: 6 7 participating co-operative, 8 9 (4) After section 377(6) insert: 10 11 (7) The Registrar may, on application or otherwise, by 12 notice given to a participating co-operative, revoke a 13 decision of the Registrar to give a written notice to the 14 co-operative under subsection (5) withdrawing its 15 authority to carry on business in this State. 16 (8) If a notice is given to a participating co-operative under 17 subsection (7), the co-operative is taken to be 18 authorised to carry on business in this State on and 19 from the date the notice is given to the co-operative or 20 a later date specified in the notice. 21 22 134. Sections 378 and 379 replaced 23 Delete sections 378 and 379 and insert: 24 25 378. Appeal against Registrar's decision under s. 377(5) 26 A participating co-operative may appeal to the 27 Supreme Court against a decision of the Registrar to 28 give a written notice to the co-operative under 29 section 377(5) withdrawing its authority to carry on 30 business in this State. page 150 Co-operatives Amendment Bill 2015 s. 135 1 379. Application of Act and regulations to participating 2 co-operatives 3 (1) A participating co-operative that is authorised under 4 this Part to carry on business in this State must comply 5 with the provisions of this Act that are prescribed by 6 the regulations. 7 (2) The provisions prescribed for the purposes of 8 subsection (1) -- 9 (a) apply with all necessary modifications and any 10 modifications prescribed by the regulations; 11 and 12 (b) are in addition to the provisions of this Part and 13 any other provisions of this Act that are 14 expressed to apply to participating 15 co-operatives. 16 17 135. Section 380 replaced 18 Delete section 380 and insert: 19 20 380A. False copies of rules of participating co-operative 21 (1) A person who gives to a member of a participating 22 co-operative or to a person intending or applying to 23 become a member of a participating co-operative a 24 copy of any rules or any alterations of rules, other than 25 those which have been registered under the relevant 26 corresponding co-operatives law, representing that they 27 are binding on the members of the participating 28 co-operative is guilty of an offence. 29 Penalty for this subsection: a fine of $1 000. page 151 Co-operatives Amendment Bill 2015 s. 135 1 (2) A person who alters any of the rules of a participating 2 co-operative after they have been registered under the 3 relevant corresponding co-operatives law and circulates 4 them representing that they have been so registered 5 when they have not been is guilty of an offence. 6 Penalty for this subsection: a fine of $1 000. 7 380B. False copies of documents of participating 8 co-operatives 9 (1) A person who, in purported compliance with a 10 provision of the relevant corresponding co-operatives 11 law that corresponds to section 68 -- 12 (a) gives a person intending or applying to become 13 a member of a participating co-operative a 14 document as a copy of -- 15 (i) a special resolution of the co-operative; 16 or 17 (ii) the most recent financial information 18 reported to members of the co-operative 19 under Part 10A; 20 and 21 (b) knows or ought to know that, in a material 22 respect, it is not a true copy of the resolution or 23 information; and 24 (c) does not indicate to that person that it is not a 25 true copy, 26 is guilty of an offence. 27 Penalty for this subsection: a fine of $1 000. 28 (2) A person who, in purported compliance with a 29 provision of the relevant corresponding co-operatives 30 law that corresponds to section 68 -- 31 (a) makes available for inspection by a person 32 intending or applying to become a member of a page 152 Co-operatives Amendment Bill 2015 s. 135 1 participating co-operative a document as a copy 2 of -- 3 (i) a special resolution of the co-operative; 4 or 5 (ii) the most recent financial information 6 reported to members of the co-operative 7 under Part 10A; 8 and 9 (b) knows or ought to know that, in a material 10 respect, it is not a true copy of the resolution or 11 information; and 12 (c) does not indicate to that person that it is not a 13 true copy, 14 is guilty of an offence. 15 Penalty for this subsection: a fine of $1 000. 16 380C. Restrictions on advertising and publicity: shares in 17 participating co-operatives 18 (1) A person must not advertise, or publish a statement that 19 directly or indirectly refers to, an offer, or intended 20 offer, of shares in a participating co-operative that is a 21 distributing co-operative (within the meaning of the 22 relevant corresponding co-operatives law of another 23 jurisdiction) unless -- 24 (a) a current disclosure statement relating to the 25 shares is registered with the Registrar for the 26 other jurisdiction under a provision of that 27 corresponding co-operatives law that 28 substantially corresponds to section 137A; and 29 (b) any other applicable requirements specified in 30 regulations for the purposes of this section are 31 complied with. 32 Penalty for this subsection: a fine of $1 000. page 153 Co-operatives Amendment Bill 2015 s. 135 1 (2) Subsection (1) applies in relation to shares in a 2 distributing co-operative only if the shares are offered, 3 or intended to be offered, to persons who are not 4 shareholders in the co-operative. 5 (3) A person does not contravene subsection (1) by 6 publishing an advertisement or statement if they 7 publish it in the ordinary course of a business of -- 8 (a) publishing a newspaper or magazine; or 9 (b) broadcasting by radio or television, 10 and the person did not know and had no reason to 11 suspect that its publication would amount to a 12 contravention of that subsection. 13 (4) Despite The Criminal Code section 23B(2), it is 14 immaterial for the purposes of subsection (1) that any 15 event occurred by accident. 16 380D. Restrictions on advertising and publicity: 17 debentures or CCUs in participating co-operatives 18 (1) A person must not advertise, or publish a statement that 19 directly or indirectly refers to, an offer, or intended 20 offer, of debentures or CCUs in a participating 21 co-operative unless -- 22 (a) a disclosure statement relating to the debentures 23 or CCUs is approved under a provision of the 24 relevant corresponding co-operatives law of 25 another jurisdiction that corresponds to 26 section 252 by the Registrar for the other 27 jurisdiction; and 28 (b) any other applicable requirements specified in 29 regulations for the purposes of this section are 30 complied with. 31 Penalty for this subsection: a fine of $1 000. page 154 Co-operatives Amendment Bill 2015 s. 135 1 (2) A person does not contravene subsection (1) by 2 publishing an advertisement or statement if they 3 publish it in the ordinary course of a business of -- 4 (a) publishing a newspaper or magazine; or 5 (b) broadcasting by radio or television, 6 and the person did not know and had no reason to 7 suspect that its publication would amount to a 8 contravention of that subsection. 9 (3) Despite The Criminal Code section 23B(2), it is 10 immaterial for the purposes of subsection (1) that any 11 event occurred by accident. 12 380E. Registrar's directions about participating 13 co-operative obtaining financial accommodation 14 (1) The Registrar may, if the Registrar considers it is in the 15 interests of a participating co-operative's members, by 16 written notice served on the co-operative, give a 17 direction to the co-operative as to the way in which it is 18 to exercise its functions in connection with the 19 activities of the co-operative in obtaining financial 20 accommodation in this State. 21 (2) A direction under subsection (1) may make provision 22 for any one or more of the following matters -- 23 (a) requiring the co-operative to stop obtaining 24 financial accommodation or to stop obtaining 25 financial accommodation in a particular way; 26 (b) requiring the co-operative to repay in 27 accordance with the direction all or part of 28 financial accommodation obtained; 29 (c) requiring the co-operative to re-finance in a 30 specified way financial accommodation repaid 31 in accordance with the Registrar's direction; page 155 Co-operatives Amendment Bill 2015 s. 135 1 (d) the way in which the co-operative is permitted 2 to invest or use the proceeds of financial 3 accommodation it obtains. 4 (3) The Registrar must give the co-operative written notice 5 of the reasons for making the direction. 6 (4) Within 28 days of receiving the direction, the 7 co-operative may apply to the Supreme Court for a 8 review of that decision. 9 380. Name and place of origin to appear on business and 10 other documents of participating co-operative 11 (1) In this section -- 12 business document, of a participating co-operative, 13 means a document that is issued, signed or endorsed by 14 or on behalf of the co-operative and is -- 15 (a) a business letter, statement of account, invoice 16 or order for goods or services; or 17 (b) a bill of exchange, promissory note, cheque or 18 other negotiable instrument; or 19 (c) a receipt or letter of credit issued by the 20 co-operative; or 21 (d) a document belonging to a class prescribed by 22 the regulations as a class of business document. 23 (2) A participating co-operative must ensure its name, the 24 jurisdiction of its registration and any other information 25 prescribed by the regulations appear in legible 26 characters -- 27 (a) on each seal of the co-operative; and 28 (b) in all notices, advertisements and other official 29 publications of the co-operative; and 30 (c) in all its business documents. 31 Penalty for this subsection: a fine of $2 000. page 156 Co-operatives Amendment Bill 2015 s. 136 1 (3) An officer of a participating co-operative or a person 2 on its behalf must not -- 3 (a) use any seal of the co-operative; or 4 (b) issue or authorise the issue of a notice, 5 advertisement or other official publication of 6 the co-operative; or 7 (c) sign or authorise to be signed on behalf of the 8 co-operative any business document of the 9 co-operative, 10 in or on which the co-operative's name or place of 11 origin does not appear in legible characters. 12 Penalty for this subsection: a fine of $2 000. 13 (4) A director of a participating co-operative must not 14 knowingly authorise or permit a contravention of this 15 section. 16 Penalty for this subsection: a fine of $2 000. 17 (5) Despite The Criminal Code section 23B(2), it is 18 immaterial for the purposes of subsection (2) that any 19 event occurred by accident. 20 21 136. Section 381 amended 22 (1) In section 381: 23 (a) delete "The Registrar" and insert: 24 25 (1) The Registrar 26 page 157 Co-operatives Amendment Bill 2015 s. 137 1 (b) delete "public documents, held by the Registrar relating 2 to a co-operative, including a foreign co-operative." and 3 insert: 4 5 documents, held by the Registrar relating to a 6 co-operative or a participating co-operative. 7 8 (2) At the end of section 381 insert: 9 10 (2) Subsection (1) applies regardless of whether a 11 reciprocal arrangement referred to in section 485 exists 12 and regardless of the terms of such an arrangement. 13 14 137. Sections 382 and 383 deleted 15 Delete sections 382 and 383. 16 138. Section 384 amended 17 In section 384 delete "registrar by or under a co-operatives 18 law." and insert: 19 20 Registrar by or under a corresponding co-operatives law. 21 22 Note: The heading to amended section 384 is to read: 23 Functions conferred on Registrar under corresponding 24 co-operatives law 25 139. Section 385A inserted 26 At the end of Part 14 Division 3 insert: 27 28 385A. Registrar may exempt participating co-operatives 29 (1) The Registrar may, by order published in the Gazette, 30 exempt a participating co-operative or a class of page 158 Co-operatives Amendment Bill 2015 s. 140 1 participating co-operatives from any requirement of 2 this Act. 3 (2) An exemption under subsection (1) may be given only 4 if the Registrar considers that it is appropriate to do so 5 having regard to the corresponding co-operatives law 6 of each jurisdiction in which a participating 7 co-operative to which the exemption will apply is 8 registered. 9 (3) An exemption may be granted unconditionally or 10 subject to conditions. 11 12 140. Section 386 amended 13 (1) In section 386(1): 14 (a) delete "foreign co-operative" and insert: 15 16 participating co-operative 17 18 (b) delete paragraph (a). 19 (2) In section 386(2) and (3) delete "foreign co-operative" and 20 insert: 21 22 participating co-operative 23 24 141. Section 387 amended 25 (1) In section 387(1) delete "foreign co-operative" and insert: 26 27 participating co-operative 28 page 159 Co-operatives Amendment Bill 2015 s. 142 1 (2) In section 387(2) delete "Schedule 6." and insert: 2 3 Schedule 6 Division 2. 4 5 (3) In section 387(4) delete "foreign co-operative" and insert: 6 7 participating co-operative 8 9 Note: The heading to amended section 387 is to read: 10 Application of Corporations Act to winding-up of participating 11 co-operatives 12 142. Section 388 amended 13 (1) In section 388(1) delete "foreign co-operative" and insert: 14 15 participating co-operative 16 17 (2) In section 388(2) delete "the co-operative or" and insert: 18 19 the participating co-operative or 20 21 Note: The heading to amended section 388 is to read: 22 Outstanding property of participating co-operatives 23 143. Part 14 Division 5 heading replaced 24 Delete the heading to Part 14 Division 5 and insert: 25 26 Division 5 -- Mergers and transfers of engagements 27 affecting participating co-operatives 28 page 160 Co-operatives Amendment Bill 2015 s. 144 1 144. Section 389 amended 2 (1) In section 389 insert in alphabetical order: 3 4 assets means any legal or equitable estate or interest 5 (whether present or future and whether vested or 6 contingent) in real or personal property of any 7 description (including money) and includes securities, 8 choses in action and documents; 9 liabilities means liabilities, debts and obligations 10 (whether present or future and whether vested or 11 contingent); 12 13 (2) In section 389 in the definition of appropriate Registrar 14 paragraph (b) delete "co-operatives law of the participating 15 State" and insert: 16 17 corresponding co-operatives law of the participating jurisdiction 18 19 (3) In section 389 in the definition of State co-operative delete 20 "State, other than a foreign co-operative;" and insert: 21 22 State; 23 24 145. Section 390 amended 25 Delete section 390(2). 26 146. Section 391 amended 27 (1) Delete section 391(2). page 161 Co-operatives Amendment Bill 2015 s. 147 1 (2) In section 391(3)(b) delete "in the case of a merger or transfer 2 affecting a participating co-operative, the participating" and 3 insert: 4 5 the participating 6 7 147. Section 392 amended 8 (1) In section 392(1) delete "foreign co-operative" and insert: 9 10 participating co-operative 11 12 (2) In section 392(3): 13 (a) in paragraphs (a), (b) and (c) delete "foreign 14 co-operative" and insert: 15 16 participating co-operative 17 18 (b) in paragraph (f) delete "co-operatives law of the 19 participating State" and insert: 20 21 corresponding co-operatives law of the participating 22 jurisdiction 23 24 (3) In section 392(4) and (5) delete "foreign co-operative" and 25 insert: 26 27 participating co-operative 28 page 162 Co-operatives Amendment Bill 2015 s. 148 1 148. Section 393 amended 2 (1) In section 393(1) delete "Registrar for the participating State 3 concerned" and insert: 4 5 participating Registrar 6 7 (2) Delete section 393(2)(b). 8 149. Section 394 amended 9 (1) Delete section 394(1)(d) and (e) and insert: 10 11 (d) the certificate of registration of the participating 12 co-operative has been surrendered to the 13 Registrar for the participating jurisdiction 14 concerned; and 15 16 (2) In section 394(2) and (4) delete "co-operatives law of the 17 participating State" and insert: 18 19 corresponding co-operatives law of the participating jurisdiction 20 21 150. Section 395 amended 22 (1) Delete section 395(1)(d) and (e). 23 (2) In section 395(2) delete "co-operatives law of the participating 24 State" and insert: 25 26 corresponding co-operatives law of the participating jurisdiction 27 page 163 Co-operatives Amendment Bill 2015 s. 151 1 151. Section 396 amended 2 In section 396(1) delete the definitions of: 3 assets 4 liabilities 5 152. Part 15 Division 1A inserted 6 At the beginning of Part 15 insert: 7 8 Division 1A -- Examining a person about a 9 co-operative 10 398A. Application of Corporations Act: court-directed 11 examinations 12 A co-operative is declared to be an applied 13 Corporations legislation matter for the purposes of the 14 Corporations (Ancillary Provisions) Act 2001 Part 3 in 15 relation to the Corporations Act Part 5.9 Division 1. 16 17 153. Part 15 Division 1 heading replaced 18 Delete the heading to Part 15 Division 1 and insert: 19 20 Division 1 -- Supervision and inspection 21 22 154. Section 398 amended 23 (1) In section 398 delete "this Part -- " and insert: 24 25 this Division -- 26 page 164 Co-operatives Amendment Bill 2015 s. 155 1 (2) In section 398 delete the definition of chief executive officer 2 (DOCEP). 3 (3) In section 398 in the definition of relevant document delete 4 "records" and insert: 5 6 books 7 8 155. Section 399 amended 9 In section 399: 10 (a) delete "Part" and insert: 11 12 Division 13 14 (b) in paragraphs (a) and (b) delete "foreign co-operative;" 15 and insert: 16 17 participating co-operative; 18 19 (c) in paragraph (d) delete "foreign co-operative," and insert 20 21 participating co-operative, 22 23 Note: The heading to amended section 399 is to read: 24 Co-operative includes subsidiaries, participating co-operatives 25 and co-operative ventures 26 156. Section 400 amended 27 In section 400: 28 (a) in paragraph (a) delete "(DOCEP)" and insert: 29 30 of the department 31 page 165 Co-operatives Amendment Bill 2015 s. 157 1 (b) in paragraph (b) delete "(DOCEP)." and insert: 2 3 of the department. 4 5 157. Section 412 amended 6 (1) Delete section 412(4) and insert: 7 8 (4) The magistrate may issue the warrant only if satisfied 9 there are reasonable grounds -- 10 (a) for suspecting the affairs or activities of a 11 co-operative are being managed or conducted at 12 the place; or 13 (b) for suspecting there are relevant documents at 14 the place; or 15 (c) for suspecting -- 16 (i) there is a particular thing or activity that 17 may provide evidence of an offence 18 against this Act; and 19 (ii) that thing or activity is at the place, or 20 may be at the place, within the next 21 7 days. 22 23 (2) In section 412(5)(b) delete "the offence" and insert: 24 25 the suspected offence (if any) 26 27 158. Section 415 amended 28 In section 415(3) delete the Penalty and insert: 29 30 Penalty for this subsection: a fine of $2 000. 31 page 166 Co-operatives Amendment Bill 2015 s. 159 1 159. Section 419 amended 2 In section 419(5) delete the Penalty and insert: 3 4 Penalty for this subsection: a fine of $2 000. 5 6 160. Section 420 amended 7 In section 420(1) delete the Penalty and insert: 8 9 Penalty for this subsection: a fine of $12 000, or 10 imprisonment for one year, or both. 11 12 161. Section 421 amended 13 In section 421(2) delete the Penalty and insert: 14 15 Penalty for this subsection: a fine of $12 000, or 16 imprisonment for one year, or both. 17 18 162. Section 422 amended 19 In section 422(1) delete the Penalty and insert: 20 21 Penalty for this subsection: a fine of $12 000, or 22 imprisonment for one year, or both. 23 24 163. Section 423 amended 25 In section 423(2) delete the Penalty and insert: 26 27 Penalty for this subsection: a fine of $12 000, or 28 imprisonment for one year, or both. 29 page 167 Co-operatives Amendment Bill 2015 s. 164 1 164. Section 427 amended 2 (1) In section 427(1): 3 (a) delete "(DOCEP)" (1st occurrence) and insert: 4 5 of the department 6 7 (b) delete "(DOCEP)" (2nd occurrence). 8 (2) In section 427(2) delete "(DOCEP)" and insert: 9 10 of the department 11 12 165. Section 431 amended 13 In section 431(1) delete the Penalty and insert: 14 15 Penalty for this subsection: a fine of $24 000, or 16 imprisonment for 2 years, or both. 17 18 166. Section 432 amended 19 In section 432 delete the Penalty and insert: 20 21 Penalty: a fine of $12 000, or imprisonment for one 22 year, or both. 23 24 167. Section 438 replaced 25 Delete section 438 and insert: 26 27 438. Falsification of books 28 (1) An officer, former officer, employee, former employee, 29 member or former member of a co-operative who page 168 Co-operatives Amendment Bill 2015 s. 167 1 engages in conduct that results in the concealment, 2 destruction, mutilation or falsification of -- 3 (a) any securities of or belonging to the 4 co-operative; or 5 (b) any books affecting or relating to the affairs of 6 the co-operative; or 7 (c) any record required to be sent, kept or delivered 8 under this Act, 9 is guilty of an offence. 10 Penalty for this subsection: a fine of $10 000, or 11 imprisonment for 2 years, or both. 12 (2) Where matter that is used or intended to be used in 13 connection with the keeping of any books affecting or 14 relating to affairs of a co-operative is recorded or 15 stored in an illegible form by means of a mechanical 16 device, an electronic device or any other device, a 17 person who -- 18 (a) records or stores by means of that device matter 19 that the person knows to be false or misleading 20 in a material particular; or 21 (b) engages in conduct that results in the 22 destruction, removal or falsification of matter 23 that is recorded or stored by means of that 24 device, or has been prepared for the purpose of 25 being recorded or stored, or for use in 26 compiling or recovering other matter to be 27 recorded or stored by means of that device; or 28 (c) having a duty to record or store matter by 29 means of that device, fails to record or store 30 matter by means of that device -- 31 (i) with intent to falsify any entry made or 32 intended to be compiled, wholly or in page 169 Co-operatives Amendment Bill 2015 s. 168 1 part, from matter so recorded or stored; 2 or 3 (ii) knowing that the failure so to record or 4 store the matter will render false or 5 misleading in a material particular other 6 matter so recorded or stored, 7 is guilty of an offence. 8 Penalty for this subsection: a fine of $10 000, or 9 imprisonment for 2 years, or both. 10 (3) It is a defence to a charge arising under subsection (1) 11 or (2)(b) if the defendant proves that the defendant 12 acted honestly and that in all the circumstances the act 13 or omission constituting the offence should be excused. 14 15 168. Section 449 amended 16 In section 449(1) delete "co-operative by this Act, or" and 17 insert: 18 19 co-operative or a participating co-operative by this Act or by a 20 co-operative by 21 22 169. Section 452 amended 23 In section 452(1) delete the definition of department. 24 170. Section 454 amended 25 Delete section 454(1) and insert: 26 27 (1) The Registrar is to keep a register of co-operatives, in 28 addition to the Register of Co-operatives Charges 29 established under Schedule 3 clause 18. 30 page 170 Co-operatives Amendment Bill 2015 s. 171 1 171. Part 16 Division 4 deleted 2 Delete Part 16 Division 4. 3 172. Part 17 heading replaced 4 Delete the heading to Part 17 and insert: 5 6 Part 17 -- Legal proceedings and other matters 7 Division 1 -- Offences, enforcement and remedies 8 9 173. Section 474 deleted 10 Delete section 474. 11 174. Section 476 amended 12 (1) In section 476(4): 13 (a) delete paragraph (b) and insert: 14 15 (b) for the purposes of any proceedings under this 16 Act or a corresponding co-operatives law or of 17 an inquiry authorised by legislation of this State 18 or of another jurisdiction; or 19 20 (b) after paragraph (c) insert: 21 22 (da) under a requirement imposed under legislation 23 of this State or of another jurisdiction; or 24 25 (2) In section 476(5): 26 (a) after paragraph (a) insert: 27 28 (ba) the Registrar or a participating Registrar; or 29 page 171 Co-operatives Amendment Bill 2015 s. 175 1 (b) in paragraph (g) delete "State, or of a Territory, 2 administers a law of the State or Territory" and insert: 3 4 jurisdiction, administers a law of the jurisdiction 5 6 175. Section 478 amended 7 Delete section 478(5) and insert: 8 9 (5) The maximum penalty for the further offence is the 10 penalty worked out by multiplying $50 by the number 11 of days in the further offence period. 12 13 176. Section 480A inserted 14 After section 479 insert: 15 16 480A. Order against person concerned with co-operative 17 (1) In this section -- 18 eligible applicant, in relation to a co-operative, 19 means -- 20 (a) the Registrar; or 21 (b) a liquidator or provisional liquidator of the 22 co-operative; or 23 (c) an administrator of the co-operative; or 24 (d) an administrator of a deed executed by the 25 co-operative under the Corporations Act as 26 applying under section 323; or 27 (e) a person authorised in writing by the Registrar 28 to make an application under this section in 29 relation to the co-operative. page 172 Co-operatives Amendment Bill 2015 s. 176 1 (2) Subject to subsection (3), where, on application by an 2 eligible applicant, the Supreme Court is satisfied 3 that -- 4 (a) a person is guilty of fraud, negligence, default, 5 breach of trust or breach of duty in relation to a 6 co-operative; and 7 (b) the co-operative has suffered, or is likely to 8 suffer, loss or damage as a result of the fraud, 9 negligence, default, breach of trust or breach of 10 duty, 11 the court may make such order or orders as it thinks 12 appropriate against or in relation to the person 13 (including either or both of the orders specified in 14 subsection (4)) and may so make an order against or in 15 relation to a person even though the person may have 16 committed an offence in respect of the matter to which 17 the order relates. 18 (3) The Supreme Court must not make an order against a 19 person under subsection (2) unless the court has given 20 the person the opportunity -- 21 (a) to give evidence; and 22 (b) to call witnesses to give evidence; and 23 (c) to bring other evidence in relation to the 24 matters to which the application relates; and 25 (d) to employ, at the person's own expense, a legal 26 practitioner to put to the person, or to any other 27 witness, such questions as the court considers 28 just for the purpose of enabling the person to 29 explain or qualify any answers or evidence 30 given by the person. page 173 Co-operatives Amendment Bill 2015 s. 177 1 (4) The orders that may be made under subsection (2) 2 against a person include -- 3 (a) an order directing the person to pay money or 4 transfer property to the co-operative; and 5 (b) an order directing the person to pay to the 6 co-operative the amount of the loss or damage. 7 (5) Nothing in this section prevents any person from 8 instituting any other proceedings in relation to matters 9 in respect of which an application may be made under 10 this section. 11 12 177. Section 481 replaced 13 Delete section 481 and insert: 14 15 481A. Undertakings 16 (1) The Registrar may accept a written undertaking given 17 by a person in connection with a matter relating to a 18 contravention of this Act or where the Registrar has 19 reasonable grounds to believe there may be a 20 contravention of this Act. 21 (2) Without limiting subsection (1), the Registrar may 22 accept a written undertaking given by the person that 23 the person will do either or both of the following -- 24 (a) refrain from conduct that constitutes a 25 contravention of this Act; 26 (b) take action to prevent or remedy a 27 contravention of this Act. 28 (3) The person may withdraw or vary an undertaking at 29 any time, if the person has first obtained the consent of 30 the Registrar. page 174 Co-operatives Amendment Bill 2015 s. 177 1 (4) The consent of the Registrar is required for the 2 purposes of subsection (3) even if the undertaking 3 purports to authorise a withdrawal or variation of the 4 undertaking without that consent. 5 (5) If the Registrar accepts an undertaking given by a 6 person, the Registrar must not proceed against the 7 person in respect of the conduct specified in the 8 undertaking, unless it appears to the Registrar that the 9 person has contravened the undertaking. 10 (6) Subsection (5) does not apply to an application by the 11 Registrar for an order under section 481C. 12 481B. Offence of contravention of undertaking 13 A person who contravenes an undertaking accepted by 14 the Registrar commits an offence. 15 Penalty: a fine of $6 000. 16 481C. Enforcement order on application with consent of 17 person giving undertaking 18 (1) The Registrar, with the consent of the person who gave 19 an undertaking, may apply, at any time, to the Supreme 20 Court for an order directing the person to comply with 21 the undertaking. 22 (2) On an application under subsection (1), the Supreme 23 Court may by order direct the person to comply with 24 the undertaking. 25 (3) This section does not limit section 481D. 26 481D. Enforcement orders after contravention of 27 undertaking 28 (1) If the Supreme Court is satisfied, on the application of 29 the Registrar, that a person has contravened an page 175 Co-operatives Amendment Bill 2015 s. 177 1 undertaking accepted by the Registrar, the court may 2 make any or all of the following orders -- 3 (a) an order prohibiting the person from engaging 4 in specified conduct; 5 (b) an order directing the person to take specified 6 action to comply with the undertaking; 7 (c) an order directing the person to pay to the 8 Registrar an amount up to the amount of any 9 financial benefit that the person has obtained 10 directly or indirectly and that is reasonably 11 attributable to the contravention of the 12 undertaking; 13 (d) any order that the court considers appropriate 14 directing the person to compensate any other 15 person who has suffered loss, injury or damage 16 as a result of the contravention of the 17 undertaking; 18 (e) any other order that the court considers 19 appropriate. 20 (2) The Supreme Court may make an interim order under 21 subsection (1)(a) pending final determination of the 22 application. 23 (3) The Supreme Court may, on the application of the 24 Registrar or the person in respect of whom the order 25 was made, vary or discharge an order under 26 subsection (1)(a). 27 (4) An order under subsection (1)(a) may be made subject 28 to such conditions as the Supreme Court thinks 29 appropriate. 30 (5) The Supreme Court must not make an order under this 31 section (other than an interim order) unless satisfied on 32 the balance of probabilities that proper grounds for the 33 order have been established. page 176 Co-operatives Amendment Bill 2015 s. 177 1 (6) If a co-operative or other corporation is found to have 2 contravened an undertaking, each officer of the 3 co-operative or other corporation is taken to have so 4 breached the undertaking if the officer knowingly 5 authorised or permitted the breach, and the Supreme 6 Court may make, against the officer, all or any of the 7 orders specified in subsection (1) that the court thinks 8 appropriate. 9 481E. Copy of undertaking 10 The Registrar must give a copy of an undertaking 11 under section 481A to the person who gave the 12 undertaking. 13 481F. Registration of undertakings 14 (1) The Registrar must register each undertaking in the 15 register of co-operatives. 16 (2) The register of co-operatives must include the 17 following -- 18 (a) the name and address of the person who gave 19 the undertaking; 20 (b) the date of the undertaking; 21 (c) a copy of the undertaking. 22 (3) The Registrar may withhold information relating to an 23 undertaking from inclusion in the register of 24 co-operatives if the Registrar is satisfied that -- 25 (a) the information consists of personal details of 26 an individual not involved in a contravention or 27 possible contravention to which the undertaking 28 relates; or 29 (b) the information is commercial-in-confidence; 30 or page 177 Co-operatives Amendment Bill 2015 s. 177 1 (c) disclosure of the information would be against 2 the public interest. 3 (4) If information is withheld under this section from 4 inclusion in the register of co-operatives, the register 5 must include a statement that information has been 6 withheld in relation to the undertaking concerned and 7 of the grounds on which it has been withheld. 8 (5) For the purposes of this section, information is 9 commercial-in-confidence if -- 10 (a) its disclosure would place a person at a 11 substantial commercial disadvantage in relation 12 to present or potential contractual negotiations 13 or arrangements; or 14 (b) it is of a kind prescribed by the regulations as 15 being commercial-in-confidence. 16 481G. Double jeopardy 17 If -- 18 (a) an act or omission constitutes an offence under 19 this Act and under a corresponding 20 co-operatives law of a participating jurisdiction; 21 and 22 (b) the offender has been punished for that offence 23 under the corresponding co-operatives law of 24 the participating jurisdiction, 25 the offender is not liable to be punished for the offence 26 under this Act. 27 481H. Time limit for starting proceedings for offence 28 (1) In this section -- 29 relevant day means the day on which the 30 Co-operatives Amendment Act 2015 section 177 comes 31 into operation. page 178 Co-operatives Amendment Bill 2015 s. 178 1 (2) Proceedings for an offence under this Act that is 2 alleged to have been committed on or after the relevant 3 day can be instituted no later than 5 years after the 4 alleged commission of the offence. 5 (3) Proceedings for an offence under this Act that is 6 alleged to have been committed before the relevant day 7 can be instituted no later than 3 years after the alleged 8 commission of the offence. 9 481I. Authorisation to start proceedings for offence 10 Proceedings for an offence under this Act may be 11 started only by the Registrar or a person authorised in 12 writing by the Registrar to start the proceedings. 13 481. Proceedings for recovery of fine or penalty imposed 14 by rules 15 Proceedings for the recovery of any fine or penalty 16 imposed by the rules of a co-operative may be 17 instituted only by the co-operative. 18 19 178. Part 17 Divisions 2 and 3 inserted 20 At the end of Part 17 insert: 21 22 Division 2 -- Civil consequences of contravening civil 23 penalty provisions 24 482A. Terms used 25 In this Division -- 26 civil penalty provision means a provision referred to in 27 section 482B; 28 compensation order means an order under 29 section 482E; page 179 Co-operatives Amendment Bill 2015 s. 178 1 pecuniary penalty order means an order under 2 section 482D. 3 482B. Declarations of contravention 4 (1) If the Supreme Court is satisfied that a person has 5 contravened one of the following provisions, it must 6 make a declaration of contravention -- 7 (a) section 207(2); 8 (b) section 208(1); 9 (c) section 208(2); 10 (d) section 209(1); 11 (e) section 209(2); 12 (f) section 210(1); 13 (g) section 210(3); 14 (h) section 244ZZO(1); 15 (i) without limiting paragraph (h) -- 16 (i) section 244W(2); 17 (ii) the Corporations Act section 318 as 18 applying under section 244ZA of this 19 Act; 20 (j) any of the following provisions of the 21 Corporations Act relating to debentures as 22 applying under section 250 of this Act -- 23 (i) section 674(2); 24 (ii) section 674(2A); 25 (iii) section 675(2); 26 (iv) section 675(2A); 27 (v) section 1041A; 28 (vi) section 1041B(1); 29 (vii) section 1041C(1); 30 (viii) section 1041D; page 180 Co-operatives Amendment Bill 2015 s. 178 1 (ix) section 1043A(1); 2 (x) section 1043A(2); 3 (k) the Corporations Act section 588G(2) as 4 applying under section 337 of this Act. 5 (2) A declaration of contravention must specify the 6 following -- 7 (a) the court that made the declaration; 8 (b) the civil penalty provision that was 9 contravened; 10 (c) the person who contravened the provision; 11 (d) the conduct that constituted the contravention. 12 482C. Declaration of contravention is conclusive evidence 13 A declaration of contravention is conclusive evidence 14 of the matters referred to in section 482B(2). 15 482D. Pecuniary penalty orders 16 (1) The Supreme Court may order a person to pay a 17 pecuniary penalty of up to $200 000 if -- 18 (a) a declaration of contravention by the person has 19 been made under section 482B; and 20 (b) the contravention -- 21 (i) materially prejudices the interests of the 22 co-operative or its members; or 23 (ii) materially prejudices the co-operative's 24 ability to pay its creditors; or 25 (iii) is serious. 26 (2) The penalty is a civil debt payable to the Registrar on 27 behalf of the State. page 181 Co-operatives Amendment Bill 2015 s. 178 1 (3) The Registrar and the State may enforce the order as if 2 it were an order made in civil proceedings against the 3 person to recover a debt due from the person. 4 (4) The debt arising from the order is taken to be a 5 judgment debt. 6 482E. Compensation orders 7 (1) The Supreme Court may order a person to compensate 8 a co-operative for damage suffered by the co-operative 9 if -- 10 (a) the person has contravened a civil penalty 11 provision in relation to the co-operative; and 12 (b) the damage resulted from the contravention. 13 (2) The order must specify the amount of the 14 compensation. 15 (3) A compensation order may be made under this 16 section -- 17 (a) whether or not a declaration of contravention 18 has been made under section 482B; and 19 (b) whether or not the person has been convicted of 20 an offence for contravening the civil penalty 21 provision. 22 (4) In determining the damage suffered by the co-operative 23 for the purposes of making a compensation order, 24 profits made by any person resulting from the 25 contravention are to be included. 26 (5) A compensation order may be enforced as if it were a 27 judgment of the Supreme Court. page 182 Co-operatives Amendment Bill 2015 s. 178 1 482F. Who may apply for a declaration or order 2 (1) The Registrar may apply for a declaration of 3 contravention, a pecuniary penalty order or a 4 compensation order. 5 (2) The co-operative may apply for a compensation order. 6 (3) The co-operative may intervene in an application for a 7 declaration of contravention or a pecuniary penalty 8 order in relation to the co-operative. 9 (4) If a co-operative intervenes under subsection (3), the 10 co-operative is entitled to be heard on all matters other 11 than whether the declaration or order should be made. 12 (5) No person may apply for a declaration of 13 contravention, a pecuniary penalty order or a 14 compensation order unless permitted by this section. 15 (6) An application for a compensation order may be made 16 whether or not a declaration of contravention has been 17 made under section 482B. 18 482G. Time limit for application for a declaration or order 19 Proceedings for a declaration of contravention, a 20 pecuniary penalty order, or a compensation order, may 21 be started no later than 6 years after the contravention. 22 482H. Civil evidence and procedural rules for declarations 23 and civil penalty orders 24 The Supreme Court must apply the rules of evidence 25 and procedure for civil matters when hearing 26 proceedings for -- 27 (a) a declaration of contravention; or 28 (b) a pecuniary penalty order. page 183 Co-operatives Amendment Bill 2015 s. 178 1 482I. Civil proceedings after criminal proceedings 2 The Supreme Court must not make a declaration of 3 contravention or a pecuniary penalty order against a 4 person for a contravention if the person has been 5 convicted of an offence constituted by conduct that is 6 substantially the same as the conduct constituting the 7 contravention. 8 482J. Criminal proceedings during civil proceedings 9 (1) Proceedings for a declaration of contravention or 10 pecuniary penalty order against a person are stayed 11 if -- 12 (a) criminal proceedings are started or have already 13 been started against the person for an offence; 14 and 15 (b) the offence is constituted by conduct that is 16 substantially the same as the conduct alleged to 17 constitute the contravention. 18 (2) The proceedings for the declaration or order may be 19 resumed if the person is not convicted of the offence. 20 (3) If the person is convicted of the offence, the 21 proceedings for the declaration or order are dismissed. 22 482K. Criminal proceedings after civil proceedings 23 Criminal proceedings may be started against a person 24 for conduct that is substantially the same as conduct 25 constituting a contravention of a civil penalty provision 26 regardless of whether -- 27 (a) a declaration of contravention has been made 28 against the person; or 29 (b) a pecuniary penalty order has been made 30 against the person; or page 184 Co-operatives Amendment Bill 2015 s. 178 1 (c) a compensation order has been made against 2 the person; or 3 (d) the person has been disqualified from managing 4 co-operatives under Part 9 Division 2A. 5 482L. Evidence given in proceedings for penalty not 6 admissible in criminal proceedings 7 (1) Evidence of information given or evidence of 8 production of documents by an individual is not 9 admissible in criminal proceedings against the 10 individual if -- 11 (a) the individual previously gave the evidence or 12 produced the documents in proceedings for a 13 pecuniary penalty order against the individual 14 for a contravention of a civil penalty provision 15 (whether or not the order was made); and 16 (b) the conduct alleged to constitute the offence is 17 substantially the same as the conduct that was 18 claimed to constitute the contravention. 19 (2) Subsection (1) does not apply to a criminal proceeding 20 in respect of the falsity of the evidence given by the 21 individual in the proceedings for the pecuniary penalty 22 order. 23 482M. Relief from liability for contravention of civil 24 penalty provision 25 (1) In this section -- 26 eligible proceedings -- 27 (a) means proceedings for a contravention of a 28 civil penalty provision, including -- 29 (i) proceedings under section 482E; and page 185 Co-operatives Amendment Bill 2015 s. 178 1 (ii) proceedings under the Corporations Act 2 section 588M or 588W as applying 3 under section 337 of this Act; 4 and 5 (b) does not include proceedings for an offence, 6 except so far as the proceedings relate to the 7 question of whether the Supreme Court should 8 make an order under -- 9 (i) section 482E; or 10 (ii) the Corporations Act section 588K as 11 applying under section 337 of this Act. 12 (2) If -- 13 (a) eligible proceedings are brought against a 14 person; and 15 (b) in the proceedings it appears to the Supreme 16 Court that the person has, or may have, 17 contravened a civil penalty provision but 18 that -- 19 (i) the person has acted honestly; and 20 (ii) having regard to all the circumstances of 21 the case (including, where applicable, 22 those connected with the person's 23 appointment as an officer, or 24 employment as an employee, of a 25 co-operative), the person ought fairly to 26 be excused for the contravention, 27 the Supreme Court may relieve the person either 28 wholly or partly from a liability to which the person 29 would otherwise be subject, or that might otherwise be 30 imposed on the person, because of the contravention. 31 (3) In determining under subsection (2) whether a person 32 ought fairly to be excused for a contravention of the page 186 Co-operatives Amendment Bill 2015 s. 178 1 Corporations Act section 588G as applying under 2 section 337 of this Act, the matters to which regard is 3 to be had include, but are not limited to -- 4 (a) any action the person took with a view to 5 appointing an administrator of the co-operative; 6 and 7 (b) when that action was taken; and 8 (c) the results of that action. 9 (4) If a person thinks that eligible proceedings will or may 10 be begun against them, they may apply to the Supreme 11 Court for relief. 12 (5) On an application under subsection (4), the court may 13 grant relief under subsection (2) as if the eligible 14 proceedings had been begun in the court. 15 (6) For the purposes of subsection (2) as applying for the 16 purposes of a case tried by a judge with a jury -- 17 (a) a reference in that subsection to the Supreme 18 Court is a reference to the judge; and 19 (b) the relief that may be granted includes 20 withdrawing the case in whole or in part from 21 the jury and directing judgment to be entered 22 for the defendant on such terms as to costs as 23 the judge thinks appropriate. 24 (7) Nothing in this section limits, or is limited by, 25 section 482N. 26 Division 3 -- Miscellaneous 27 482N. Power to grant relief 28 (1) If, in any civil proceeding against a person to whom 29 this section applies for negligence, default, breach of page 187 Co-operatives Amendment Bill 2015 s. 178 1 trust or breach of duty in a capacity as such a person, it 2 appears to the Supreme Court -- 3 (a) that the person is or may be liable in respect of 4 the negligence, default or breach but that the 5 person has acted honestly; and 6 (b) that, having regard to all the circumstances of 7 the case, including those connected with the 8 person's appointment, the person ought fairly to 9 be excused for the negligence, default or 10 breach, 11 the Supreme Court may relieve the person either 12 wholly or partly from liability on such terms as the 13 court thinks fit. 14 (2) Where a person to whom this section applies has 15 reason to apprehend that any claim will or might be 16 made against the person in respect of any negligence, 17 default, breach of trust or breach of duty in a capacity 18 as such a person -- 19 (a) the person may apply to the Supreme Court for 20 relief; and 21 (b) the Supreme Court has the same power to 22 relieve the person as it would have had under 23 subsection (1) if it had been a court before 24 which proceedings against the person for 25 negligence, default, breach of trust or breach of 26 duty had been brought. 27 (3) Where a case to which subsection (1) applies is being 28 tried by a judge with a jury, the judge after hearing the 29 evidence may -- 30 (a) if he or she is satisfied that the defendant ought 31 pursuant to that subsection to be relieved either 32 wholly or partly from the liability sought to be 33 enforced against the person, withdraw the case 34 in whole or in part from the jury; and page 188 Co-operatives Amendment Bill 2015 s. 178 1 (b) forthwith direct judgment to be entered for the 2 defendant on such terms as to costs or 3 otherwise as the judge thinks proper. 4 (4) This section applies to a person who is -- 5 (a) an officer or employee of a co-operative; or 6 (b) an auditor of a co-operative, whether or not the 7 person is an officer or employee of the 8 co-operative; or 9 (c) an expert in relation to a matter -- 10 (i) relating to a co-operative; and 11 (ii) in relation to which the civil proceeding 12 has been taken or the claim will or 13 might arise; 14 or 15 (d) a receiver, receiver and manager, liquidator or 16 other person appointed or directed by the 17 Supreme Court to carry out any duty under this 18 Act in relation to a co-operative. 19 482O. Irregularities 20 (1) In this section, unless the contrary intention appears -- 21 (a) a reference to a proceeding under this Act is a 22 reference to any proceeding whether a legal 23 proceeding or not; and 24 (b) a reference to a procedural irregularity includes 25 a reference to -- 26 (i) the absence of a quorum at a meeting of 27 a co-operative, at a meeting of directors 28 or creditors of a co-operative, or at a 29 joint meeting of creditors and members 30 of a co-operative; and 31 (ii) a defect, irregularity or deficiency of 32 notice or time. page 189 Co-operatives Amendment Bill 2015 s. 178 1 (2) A proceeding under this Act is not invalidated because 2 of any procedural irregularity unless the Supreme 3 Court is of the opinion that the irregularity has caused 4 or may cause substantial injustice that cannot be 5 remedied by any order of the court and by order 6 declares the proceeding to be invalid. 7 (3) A meeting held for the purposes of this Act, or a 8 meeting notice of which is required to be given in 9 accordance with the provisions of this Act, or any 10 proceeding at such a meeting, is not invalidated only 11 because of the accidental omission to give notice of the 12 meeting or the non-receipt by any person of notice of 13 the meeting, unless the Supreme Court, on the 14 application of the person concerned, a person entitled 15 to attend the meeting or the Registrar, declares 16 proceedings at the meeting to be void. 17 (4) A meeting held for the purposes of this Act, or a 18 meeting notice of which is required to be given in 19 accordance with the provisions of this Act, or any 20 proceeding at such a meeting, is not invalidated only 21 because of the inability of a person to access the notice 22 of meeting, unless the Supreme Court, on the 23 application of the person concerned, a person entitled 24 to attend the meeting or the Registrar, declares 25 proceedings at the meeting to be void. 26 (5) If a member does not have a reasonable opportunity to 27 participate in a meeting of members, or part of a 28 meeting of members, held at 2 or more venues, the 29 meeting will only be invalid on that ground if -- 30 (a) the Supreme Court is of the opinion that -- 31 (i) a substantial injustice has been caused 32 or may be caused; and 33 (ii) the injustice cannot be remedied by any 34 order of the Supreme Court; 35 and page 190 Co-operatives Amendment Bill 2015 s. 178 1 (b) the Supreme Court declares the meeting or 2 proceeding (or that part of it) invalid. 3 (6) Subject to the following provisions of this section but 4 without limiting the generality of any other provision 5 of this Act, the Supreme Court may, on application by 6 any interested person, make all or any of the following 7 orders, either unconditionally or subject to such 8 conditions as the court imposes -- 9 (a) an order declaring that any act, matter or thing 10 purporting to have been done, or any 11 proceeding purporting to have been instituted 12 or taken, under this Act or in relation to a 13 co-operative is not invalid by reason of any 14 contravention of a provision of this Act or a 15 provision of the constitution of a co-operative; 16 (b) an order directing the rectification of any 17 register kept by the Registrar under this Act; 18 (c) an order relieving a person in whole or in part 19 from any civil liability in respect of a 20 contravention of a kind referred to in 21 paragraph (a); 22 (d) an order extending the period for doing any act, 23 matter or thing or instituting or taking any 24 proceeding under this Act or in relation to a 25 co-operative (including an order extending a 26 period where the period concerned ended 27 before the application for the order was made) 28 or abridging the period for doing such an act, 29 matter or thing or instituting or taking such a 30 proceeding, 31 and may make such consequential or ancillary orders 32 as the court thinks fit. 33 (7) An order may be made under subsection (6)(a) or (c) 34 notwithstanding that the contravention referred to in page 191 Co-operatives Amendment Bill 2015 s. 178 1 the paragraph concerned resulted in the commission of 2 an offence. 3 (8) The Supreme Court must not make an order under this 4 section unless it is satisfied -- 5 (a) in the case of an order referred to in 6 subsection (6)(a) -- 7 (i) that the act, matter or thing, or the 8 proceeding, referred to in that paragraph 9 is essentially of a procedural nature; or 10 (ii) that the person or persons concerned in 11 or party to the contravention acted 12 honestly; or 13 (iii) that it is just and equitable that the order 14 be made; 15 and 16 (b) in the case of an order referred to in 17 subsection (6)(c) -- that the person subject to 18 the civil liability concerned acted honestly; and 19 (c) in every case -- that no substantial injustice has 20 been or is likely to be caused to any person. 21 482P. Civil proceedings not to be stayed 22 No civil proceedings under this Act are to be stayed 23 merely because the proceeding discloses, or arises out 24 of, the commission of an offence. 25 482Q. Standard of proof 26 Where, in proceedings other than proceedings for an 27 offence, it is necessary to establish, or for the court to 28 be satisfied, for any purpose relating to a matter arising 29 under this Act, that -- 30 (a) a person has contravened a provision of this 31 Act; or page 192 Co-operatives Amendment Bill 2015 s. 179 1 (b) default has been made in complying with a 2 provision of this Act; or 3 (c) an act or omission was unlawful by virtue of a 4 provision of this Act; or 5 (d) a person has been in any way, by act or 6 omission, directly or indirectly, knowingly 7 concerned in or party to a contravention of, or a 8 default in complying with, a provision of this 9 Act, 10 it is sufficient if the matter referred to in paragraph (a), 11 (b), (c) or (d) is established, or the court is so satisfied, 12 as the case may be, on the balance of probabilities. 13 14 179. Section 482 amended 15 In section 482(1) delete "section 315," and insert: 16 17 the provisions of the Corporations Act as applying under 18 section 316, 19 20 180. Section 483 amended 21 (1) Delete section 483(1) to (3) and insert: 22 23 (1) A document may be served on a co-operative or a 24 participating co-operative -- 25 (a) by posting it to the registered office of the 26 co-operative or participating co-operative; or 27 (b) by leaving it at the registered office of the 28 co-operative or participating co-operative with 29 a person who appears to have reached 16 years 30 of age; or page 193 Co-operatives Amendment Bill 2015 s. 180 1 (c) if a liquidator or administrator of the 2 co-operative or participating co-operative has 3 been appointed -- by post; or 4 (d) if a liquidator or administrator of the 5 co-operative or participating co-operative has 6 been appointed by the Registrar -- 7 (i) if the liquidator or administrator (as the 8 case may be) is registered with ASIC -- 9 by leaving it at the address of the office 10 of the liquidator or administrator (as the 11 case may be) in the most recent notice 12 of that address lodged with ASIC; or 13 (ii) if the liquidator or administrator (as the 14 case may be) is not registered with 15 ASIC -- by leaving it at the address of 16 the office of the liquidator or 17 administrator (as the case may be) in the 18 most recent notice of that address 19 lodged with the Registrar; 20 or 21 (e) if a liquidator or administrator of the 22 co-operative or participating co-operative has 23 been appointed by someone else -- by leaving 24 it at the address of the office of the liquidator or 25 administrator (as the case may be) in the most 26 recent notice of that address lodged with ASIC. 27 (2) For the purpose of serving a document under this 28 section by post, it is properly addressed if it is 29 addressed to the registered office of the co-operative or 30 the participating co-operative. 31 page 194 Co-operatives Amendment Bill 2015 s. 181 1 (2) In section 483(4) delete "foreign co-operative" and insert: 2 3 participating co-operative 4 5 181. Section 484 amended 6 After section 484(2) insert: 7 8 (3) Subsection (2) does not apply in relation to reports 9 provided to members under section 244V. 10 11 182. Section 485 amended 12 (1) Delete section 485(1) and insert: 13 14 (1) If a reciprocal arrangement with another jurisdiction or 15 country is in force, the Registrar -- 16 (a) may, at the request of the appropriate official of 17 the other jurisdiction or country, give the 18 official information or documents relating to a 19 co-operative or a participating co-operative; 20 and 21 (b) may ask the appropriate official of the other 22 jurisdiction or country to give the Registrar 23 documents or information relating to an 24 organisation that, under the arrangement, is an 25 organisation corresponding to a co-operative or 26 a participating co-operative. 27 28 (2) In section 485(2): 29 (a) delete "State or a Territory" and insert: 30 31 jurisdiction or country 32 page 195 Co-operatives Amendment Bill 2015 s. 183 1 (b) delete "State or the Territory" and insert: 2 3 jurisdiction or country 4 5 183. Section 487 replaced 6 Delete section 487 and insert: 7 8 487. Disclosure statements 9 A disclosure statement under this Act may only include 10 a statement by a person, or a statement said in the 11 disclosure statement to be based on a statement by a 12 person, if -- 13 (a) the person has consented to the statement being 14 included in the disclosure statement in the form 15 and context in which it is included; and 16 (b) the disclosure statement states that the person 17 has given this consent; and 18 (c) the person has not withdrawn this consent 19 before the disclosure statement is approved by, 20 or registered with, the Registrar. 21 22 184. Section 489A inserted 23 After section 488 insert: 24 25 489A. Approvals to be in writing 26 Unless otherwise provided, an approval by the 27 Registrar under this Act is to be given in writing. 28 page 196 Co-operatives Amendment Bill 2015 s. 185 1 185. Schedule 3 clause 1 amended 2 In Schedule 3 clause 1 in the definition of co-operative delete 3 "registered under Part 14;" and insert: 4 5 authorised to carry on business in this State under Part 14 before the 6 commencement of the Co-operatives Amendment Act 2015 7 section 130; 8 9 186. Schedule 3 clause 32 amended 10 In Schedule 3 clause 32 in the definition of officer delete "of a 11 foreign co-operative," and insert: 12 13 of a foreign co-operative authorised to carry on business in this State 14 under Part 14 before the commencement of the Co-operatives 15 Amendment Act 2015 section 130, 16 17 187. Schedule 3 clause 39 amended 18 In Schedule 3 clause 39(1) and (2) delete "Penalty:" and insert: 19 20 Penalty for this subclause: 21 22 188. Schedule 3 clause 41 amended 23 In Schedule 3 clause 41(7) delete "Penalty:" and insert: 24 25 Penalty for this subclause: 26 page 197 Co-operatives Amendment Bill 2015 s. 189 1 189. Schedule 4 clause 1 amended 2 (1) In Schedule 4 clause 1 delete the definition of property and 3 insert: 4 5 property, of a co-operative, means -- 6 (a) in the case of a co-operative to which section 372 7 applies -- property within Australia or an external 8 Territory; or 9 (b) otherwise -- property within or outside Australia; 10 11 (2) In Schedule 4 clause 1 in the definition of co-operative delete 12 "foreign co-operative registered under Part 14;" and insert: 13 14 participating co-operative; 15 16 (3) In Schedule 4 clause 1 in the definition of officer: 17 (a) delete "foreign co-operative," and insert: 18 19 participating co-operative, 20 21 (b) delete "foreign co-operative;" and insert: 22 23 participating co-operative; 24 25 190. Schedule 4 clause 20 amended 26 In Schedule 4 clause 20 in the definition of reporting officer 27 delete paragraphs (a) and (b) and insert: 28 29 (a) in the case of a co-operative -- a director or 30 secretary of the co-operative; or page 198 Co-operatives Amendment Bill 2015 s. 191 1 (b) in the case of a participating co-operative -- a local 2 agent of the participating co-operative. 3 4 191. Schedule 4 clause 22 amended 5 In Schedule 4 clause 22 delete "records" and insert: 6 7 books 8 9 Note: The heading to amended Schedule 4 clause 22 is to read: 10 Controller may inspect books 11 192. Schedule 4 clause 23 amended 12 In Schedule 4 clause 23(5) delete "records" and insert: 13 14 books 15 16 193. Schedule 5 deleted 17 Delete Schedule 5. 18 194. Schedule 6 amended 19 Delete the reference after the heading to Schedule 6 and insert: 20 21 [s. 316 and 387] 22 page 199 Co-operatives Amendment Bill 2015 s. 195 1 195. Schedule 6 Division 1 inserted 2 At the beginning of Schedule 6 insert: 3 4 Division 1 -- Modifications to Corporations Act provisions 5 applying under section 316 6 1A. Modifications to winding-up and deregistration 7 provisions: co-operatives 8 The Corporations Act Parts 5.4, 5.4A, 5.4B, 5.5, 5.6 and 9 5A.1 apply with the following modifications -- 10 (a) section 461(h) is to be read as if the words "ASIC 11 has stated in a report prepared under Division 1 of 12 Part 3 of the ASIC Act that, in its opinion:" were 13 deleted and the words "the Registrar has, because of 14 an inquiry held under the Co-operatives Act 2009 15 (Western Australia) Part 15 Division 2 or 4, stated 16 that:" were inserted; 17 (b) section 462(2)(h) does not apply; 18 (c) a reference in section 464 to an investigation under 19 the ASIC Act Part 3 Division 1 is to be read as a 20 reference to an investigation or inquiry under this 21 Act; 22 (d) section 470(3) is to be read as if the words "order, 23 and subsection 1274(2) applies in relation to the 24 document containing those particulars and to the 25 office copy as if they were documents lodged with 26 ASIC." were deleted and the word "order." were 27 inserted; 28 (e) section 495 is to be read as being subject to 29 section 317 of this Act; 30 (f) section 513B is to be read as if the following 31 paragraph were inserted after paragraph (d) -- 32 (da) if, when the resolution was passed, a 33 winding-up of the co-operative on the 34 certificate of the Registrar was already in page 200 Co-operatives Amendment Bill 2015 s. 195 1 progress -- on the date that certificate was 2 given; or 3 (g) section 516 is to be read as if "together with any 4 charges payable by the member to the co-operative 5 in accordance with the rules" were inserted after 6 "past member"; 7 (h) section 521 is to be read as being subject to 8 section 322 of this Act; 9 (i) section 542(3) is to be read as if -- 10 (i) in paragraph (c) the word "direct." were 11 deleted and the words "direct; and" 12 inserted; and 13 (ii) the following paragraph were inserted after 14 paragraph (c) -- 15 (d) for a winding-up on a certificate of 16 the Registrar under the 17 Co-operatives Act 2009 (Western 18 Australia) section 314 -- with the 19 consent of the Registrar. 20 (j) a reference in section 544 to dealing with money 21 under Part 9.7 is to be read as a reference to dealing 22 with money under the Corporations Act Part 9.7 as 23 applying under section 359 of this Act; 24 (k) a reference in section 565, 566 or 567 to 25 23 June 1993 is to be read as a reference to 26 1 September 2010; 27 (l) section 580 is to be read as if the definition of 28 external administration matter were deleted and the 29 following definition inserted -- 30 external administration matter means a matter 31 relating to a winding-up of a co-operative under the 32 Co-operatives Act 2009 (Western Australia) Part 12 33 Division 3 of or a participating co-operative under 34 Part 14 Division 4 of that Act. 35 (m) a reference in those Parts to a registered liquidator 36 is to be read as including a reference to a person page 201 Co-operatives Amendment Bill 2015 s. 196 1 approved or appointed by the Registrar as a 2 liquidator of a co-operative; 3 (n) a reference in those Parts to any provision of 4 Part 2F.1 is to be read as a reference to the 5 appropriate provision of Part 4 Division 5 of this 6 Act; 7 (o) those Parts are to be read subject to sections 67 8 and 322 of this Act for the purposes of determining 9 the liability of members and former members to 10 contribute on a winding-up of a co-operative; 11 (p) a reference in section 601AA or 601AB to ASIC 12 database is to be read as a reference to the register 13 of co-operatives kept under section 454 of this Act; 14 (q) section 601AB(1A) does not apply; 15 (r) a reference in section 601AC(1)(a) to 16 section 413(1)(d) is to be read as a reference to 17 section 352(3)(d) of this Act; 18 (s) a reference in section 601AE to crediting an amount 19 to a special account (within the meaning of the 20 Public Governance, Performance and 21 Accountability Act 2013 (Commonwealth)) is to be 22 read as a reference to crediting an amount to a 23 special purpose account (as defined in the Financial 24 Management Act 2006 section 3); 25 (t) any other modifications, within the meaning of the 26 Corporations (Ancillary Provisions) Act 2001 27 Part 3, that are prescribed by the regulations. 28 29 196. Schedule 6 Division 2 heading inserted 30 Before Schedule 6 clause 1 insert: 31 32 Division 2 -- Modifications to Corporations Act provisions 33 applying under section 387 34 page 202 Co-operatives Amendment Bill 2015 s. 197 1 197. Schedule 6 clause 1 amended 2 In Schedule 6 clause 1: 3 (a) delete paragraph (a); 4 (b) in paragraph (e) delete "foreign co-operative," and insert: 5 6 participating co-operative, 7 8 (c) in paragraph (h) delete "523 and 524" and insert: 9 10 523, 524 and 544 11 12 (d) after paragraph (k) insert: 13 14 (la) a reference in section 565, 566 or 567 to 15 23 June 1993 is to be read as a reference to 16 1 September 2010; 17 (lb) section 580 is to be read as if the definition of 18 external administration matter were deleted and the 19 following definition inserted -- 20 external administration matter means a matter 21 relating to a winding-up of a co-operative under the 22 Co-operatives Act 2009 (Western Australia) Part 12 23 Division 3 of or a participating co-operative under 24 Part 14 Division 4 of that Act. 25 26 (e) in paragraph (m) delete "76 and 331" and insert: 27 28 67 and 322 29 30 Note: The heading to amended Schedule 6 clause 1 is to read: 31 Modifications to winding-up provisions: participating 32 co-operatives page 203 Co-operatives Amendment Bill 2015 s. 198 1 198. Various references to "co-operative capital unit" amended 2 In the provisions listed in the Table: 3 (a) delete "co-operative capital unit" and insert: 4 5 CCU 6 7 (b) delete "co-operative capital units" and insert: 8 9 CCUs 10 11 Table s. 9(2)(h) and (3) s. 39(2)(b) s. 73(2)(c) s. 127(2)(b) s. 128(1)(b), (2) and s. 129(1) and (2) (4) s. 134(1)(b) s. 144(4)(e) s. 164(1)(b), (3), (4) s. 352(3)(b) and (5) 12 13 Notes: 14 1. The heading to amended section 128 is to read: 15 Interest on deposits, debentures and CCUs 16 2. The heading to amended section 129 is to read: 17 Repayment of deposits and redemption of debentures and CCUs 18 3. The heading to amended section 164 is to read: 19 Deposit, debentures or CCUs instead of payment when share 20 repurchased page 204 Co-operatives Amendment Bill 2015 s. 199 1 199. Various references to "foreign co-operative" amended 2 In the provisions listed in the Table: 3 (a) delete "foreign co-operative" (each occurrence) and 4 insert: 5 6 participating co-operative 7 8 (b) delete "foreign co-operatives" and insert: 9 10 participating co-operatives 11 12 Table s. 352(1) def. of s. 362(1) co-operative s. 369 s. 375 Heading to Part 14 s. 385(1) and (2) Division 4 s. 397(1) and (2) 13 Note: 14 1. The heading to amended section 369 is to read: 15 Operation of participating co-operatives in this State 16 2. The heading to amended section 375 is to read: 17 Name of participating co-operative page 205 Co-operatives Amendment Bill 2015 s. 200 1 200. Various penalties amended 2 In the provisions listed in the Table delete "Penalty:" and insert: 3 4 Penalty for this subsection: 5 6 Table s. 33(2) s. 65(1) s. 66(2) s. 100(1) and (2) s. 181(3) s. 216(3) s. 217(3) s. 230(1) s. 232(6) and (7) s. 236 s. 237(2) s. 238(5) and (7) s. 242(1) s. 243(1), (2) and (3) s. 273(2) and (3) s. 275(1) and (2) s. 276(1), (2) and (3) s. 304(8) s. 345(1) s. 346(2) s. 351(1) s. 402(3) s. 425(4) s. 430(3) s. 433(4) s. 439(1) and (2) 7 page 206 Co-operatives Amendment Bill 2015 s. 200 s. 441(1) s. 442(1) s. 476(2) s. 477(1), (2), (3) and (4)
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