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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Co-operatives Bill 2009
CONTENTS
Part 1 -- Preliminary
Division 1 -- Introductory
1. Short title 2
2. Commencement 2
3. Objects of this Act 2
4. Terms used in this Act 3
Division 2 -- Qualified privilege
5. Qualified privilege 8
Division 3 -- The co-operative principles
6. Co-operative principles 8
7. Interpretation to promote co-operative principles 10
Division 4 -- Application of Corporations Act
to co-operatives
8. Definitions 10
9. Excluded matter 11
10. Applying the Corporations legislation to
co-operatives 12
11. Modifications to applied provisions 14
Part 2 -- Formation
Division 1 -- Types of co-operatives
12. Types of co-operatives 15
13. Distributing co-operatives 15
14. Non-distributing co-operatives 15
Division 2 -- Formation meeting
15. Formation meeting 16
024--1B page i
Co-operatives Bill 2009
Contents
Division 3 -- Approval of disclosure statement
and rules
16. Approval of disclosure statement 17
17. Approval of rules 19
Division 4 -- Registration of proposed
co-operative
18. Application for registration of proposed
co-operative 20
19. Registration of co-operative 21
20. Incorporation and certificate of registration 22
Division 5 -- Registration of an existing
corporation
21. Existing corporation can be registered 23
22. Formation meeting and transitional provision 23
23. Application for registration 24
24. Requirements for registration 25
25. Transitional provision 26
26. Certificate of registration 26
27. Effect of registration 26
Division 6 -- Conversion of co-operative
28. Conversion of co-operative 27
Division 7 -- Reviews
29. Appeal against refusal to approve disclosure
statement 27
30. Appeal against refusal to approve draft rules 27
31. Appeal against refusal to register 28
32. Supreme Court's powers on appeal 28
Division 8 -- General
33. Acceptance of money by proposed co-operative 28
34. Issue of duplicate certificate 28
Part 3 -- Legal capacity and powers
Division 1 -- General powers
35. Effect of incorporation 29
36. Power to form companies and enter into joint
ventures 29
Division 2 -- Doctrine of ultra vires abolished
37. Interpretation 29
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Co-operatives Bill 2009
Contents
38. Doctrine of ultra vires abolished 30
39. Legal capacity 30
40. Restrictions on co-operatives in rules 31
Division 3 -- Persons having dealings with
co-operatives
41. Assumptions entitled to be made 31
42. Assumptions 32
43. Person who knows or ought to know is not entitled
to make assumptions 33
44. Lodgment of documents not to constitute
constructive knowledge 33
45. Effect of fraud 34
Division 4 -- Authentication and execution of
documents and confirmation of contracts
46. Common seal 34
47. Official seal 34
48. Authentication need not be under seal 35
49. Co-operative may authorise person to execute deed 35
50. Execution under seal 36
51. Contractual formalities 36
52. Other requirements as to consent or sanction not
affected 36
Division 5 -- Pre-registration contracts
53. Contracts before registration 36
54. Person may be released from liability but is not
entitled to indemnity 38
55. This Division replaces other rights and liabilities 38
Part 4 -- Membership
Division 1 -- General
56. Becoming a member 39
57. Members of co-operative group 39
58. Qualification for membership and transitional
provision 40
59. Membership may be joint 40
60. Members under 18 years of age 41
61. Representatives of corporations 41
62. Notification of shareholders and shareholdings 41
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Co-operatives Bill 2009
Contents
63. Circumstances in which membership ceases -- all
co-operatives 42
64. Additional circumstances in which membership
ceases -- co-operatives with share capital 43
65. Carrying on business with too few members 43
Division 2 -- Rights and liabilities of members
66. Rights of membership not exercisable until
registered etc. 44
67. Liability of members to co-operative 44
68. Co-operative to make information available to
person intending to become a member 45
69. Entry fees and regular subscriptions 45
70. Members etc. may be required to deal with
co-operative 46
71. Fines payable by members 47
72. Charge and set off of co-operative 47
73. Repayment of shares on resignation or expulsion 48
Division 3 -- Death of member
74. Meaning of interest 50
75. Transfer of share or interest on death of member 50
76. Transfer of small shareholdings and interests on
death 50
77. Value of shares and interests 51
78. Co-operative protected 51
Division 4 -- Disputes involving members
79. Grievance procedure 51
80. Application to Supreme Court 52
Division 5 -- Oppressive conduct of affairs
81. Interpretation 53
82. Application of Division 53
83. Who may apply for court order 53
84. Orders that the Supreme Court may make 54
85. Basis on which Supreme Court makes orders 55
86. Winding-up need not be ordered if oppressed
members prejudiced 55
87. Application of winding-up provisions 55
88. Changes to rules 56
89. Copy of order to be lodged with Registrar 56
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Co-operatives Bill 2009
Contents
Division 6 -- Proceedings on behalf of a
co-operative by members and others
90. Bringing, or intervening in, proceedings on behalf
of a co-operative 56
91. Applying for and granting leave 57
92. Substitution of another person for the person
granted leave 58
93. Effect of ratification by members 58
94. Leave to discontinue, compromise or settle
proceedings brought, or intervened in, with leave 59
95. General powers of the Supreme Court 59
96. Power of Supreme Court to make costs order 60
Part 5 -- Rules
97. Effect of rules 61
98. Content of rules 61
99. Purchase and inspection of copy of rules 62
100. False copies of rules 62
101. Model rules 62
102. Rules can only be altered in accordance with this
Act 63
103. Approval of alteration of rules 63
104. Alteration by special resolution 64
105. Alteration by resolution of board 64
106. Alteration does not take effect until registered 64
107. Appeal against refusal to approve alteration 65
108. Appeal against refusal to register 65
109. Supreme Court's powers on appeal 65
Part 6 -- Active membership
Division 1 -- Definitions
110. Meaning of active membership resolution 66
111. What is active membership 66
112. What are active membership provisions and
resolutions 66
Division 2 -- Rules to contain active
membership provisions
113. Number of primary activities required 67
114. Rules to contain active membership provisions 67
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Co-operatives Bill 2009
Contents
115. Factors and considerations for determining primary
activities etc. 67
116. Active membership provisions -- distributing
co-operatives 68
117. Regular subscription -- active membership of
non-distributing co-operative 68
Division 3 -- Active membership resolutions
118. Notice of meeting 69
119. Eligibility of directors to vote on proposal at board
meeting 69
Division 4 -- Cancellation of membership of
inactive or missing members
120. Cancellation of membership of inactive or missing
member 69
121. Share to be forfeited if membership cancelled 70
122. Failure to cancel membership -- offence by
director 70
123. Deferral of forfeiture by board 71
124. Cancellation of membership prohibited in certain
circumstances 71
125. Notice of intention to cancel membership 72
126. Order of Supreme Court against cancellation 72
127. Repayment of amounts due because of cancelled
membership 73
128. Interest on deposits, debentures and co-operative
capital units 75
129. Repayment of deposits, and redemption of
debentures and co-operative capital units 76
130. Register of cancelled memberships 76
Division 5 -- Entitlements of former members
of distributing co-operatives
131. Application of Division 77
132. Former shareholders to be taken to be shareholders
for certain purposes 77
133. Entitlements of former shareholders on mergers
etc. 78
134. Set off of amounts repaid etc. on forfeited shares 79
135. Regulations may exempt co-operatives from
provisions 80
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Co-operatives Bill 2009
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Part 7 -- Shares
Division 1 -- Nature of share
136. Nature of share in co-operative 81
Division 2 -- Disclosure
137. Disclosure to intending shareholders in distributing
co-operative 81
138. Content of disclosure statement to intending
shareholders 82
139. Exemptions for disclosure statements 82
Division 3 -- Issues of shares
140. Shares -- general 83
141. Application of Corporations Act for particular
share subscriptions 83
142. Minimum paid up amount 84
143. Shares not to be issued at a discount 84
144. Issue of shares at a premium 84
145. Joint ownership of shares 85
146. Members may be required to take up additional
shares 85
147. Bonus share issues 86
148. Restrictions on bonus shares 87
149. Notice about bonus shares 87
Division 4 -- Beneficial and non-beneficial
interest in shares
150. Direction to disclose 88
151. Disclosure by member of relevant interests and
instructions 88
152. Registration as trustee etc. on death of owner of
shares 90
153. Registration as administrator of estate on
incapacity of shareholder 90
154. Registration as Official Trustee in Bankruptcy 90
155. Liabilities of person registered as trustee or
administrator 91
156. Notice of trusts in register of members 91
157. No notice of trust except as provided by this
Division 91
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Co-operatives Bill 2009
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Division 5 -- Sale or transfer of shares
158. Sale or transfer of shares 92
159. Transfer on death of member 92
160. Restriction on total shareholding 92
161. Transfer not effective until registered 93
162. Non-members become members on registration 93
Division 6 -- Repurchase of shares
163. Purchase and repayment of shares 93
164. Deposit, debentures or co-operative capital units
instead of payment when share repurchased 94
165. Cancellation of shares 96
Part 8 -- Voting and meetings
Division 1 -- Voting entitlements
166. Application of Part to voting 97
167. Voting 97
168. Voting by proxy 97
169. Control of the right to vote 98
170. Effect of disposal of shares on voting rights 98
171. Effect of relevant share and voting interests on
voting rights 98
172. Rights of representatives 99
173. Other rights and duties of members not affected by
ineligibility to vote 99
174. Vote of disentitled member to be disregarded 99
Division 2 -- Resolutions
175. Decisions to be by ordinary resolution 99
176. Ordinary resolutions 100
177. Special resolutions 100
178. How majority obtained is ascertained 100
179. Declaration of passing of special resolution 101
180. Effect of special resolution 101
181. Lodgment of special resolution 101
182. Decision of Registrar on application to register
special resolution 102
Division 3 -- Resolution by circulated document
183. Application of Division 3 103
184. Resolution by circulation of document -- fewer
than 50 members 103
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Co-operatives Bill 2009
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Division 4 -- Postal ballots
185. Postal ballots 104
186. Special postal ballots 104
187. When a special postal ballot required 105
188. Holding of postal ballot on requisition 106
189. Expenses involved in postal ballots on requisition 107
Division 5 -- Meetings
190. Annual general meetings 107
191. Special general meetings 108
192. Notice of meetings 108
193. Quorum at meetings 108
194. Decision at meetings 108
195. Calling of general meeting on requisition 109
196. Minutes 110
Part 9 -- Management and
administration of co-operatives
Division 1 -- The Board
197. Board of directors 112
198. Election of directors 112
199. Qualification of directors 113
200. Disqualified persons 114
201. Meeting of the board of directors 116
202. Transaction of business outside meetings 117
203. Alternate directors 117
204. Delegation by board 117
205. Removal from and vacation of office 118
Division 2 -- Secretary
206. Secretary 119
Division 3 -- Duties and liabilities of directors,
officers and employees
207. Meaning of officer 119
208. Officers must act honestly 120
209. Standard of care and diligence required 120
210. Improper use of information or position 121
211. Recovery of damages by co-operative 122
212. Other duties and liabilities not affected 122
213. Application of Corporations Act concerning
indemnities and insurance for officers and auditors 123
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Co-operatives Bill 2009
Contents
214. Application of Corporations Act provisions
concerning officers of co-operatives 123
Division 4 -- Restrictions on directors and
officers
215. Directors' remuneration 124
216. Certain financial accommodation to officers
prohibited 124
217. Financial accommodation to directors and
associates 125
218. Restriction on directors of certain co-operatives
selling land to co-operative 127
219. Management contracts 127
Division 5 -- Declaration of interests
220. Declaration of interest 128
221. Declarations to be recorded in minutes 130
222. Division does not affect other laws or rules 130
223. Certain interests need not be declared 130
Division 6 -- Financial reports and audit
224. Meaning of control and entity 131
225. Requirements for financial records and financial
reports 131
226. Power of Registrar to grant exemptions 132
227. Disclosure by directors 133
228. Protection of auditors etc. 133
229. Financial year 134
Division 7 -- Registers, records and returns
230. Registers to be kept by co-operatives 134
231. Location of registers 135
232. Inspection of registers etc. 136
233. Use of information on registers 137
234. Notice of appointment etc. of directors and officers 138
235. Annual report to be lodged with Registrar 138
236. List of members to be provided at request of
Registrar 139
237. Special return to be given at request of Registrar 139
Division 8 -- Name and registered office
238. Name to include certain matter 140
239. Use of abbreviations 141
240. Name to appear on business documents etc. 142
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Co-operatives Bill 2009
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241. Change of name of co-operative 142
242. Restriction on use of word "co-operative" or
similar words 143
243. Registered office of co-operative 143
Part 10 -- Funds and property
Division 1 -- Power to raise money
244. Meaning of obtaining financial accommodation 145
245. Fund raising to be in accordance with Act and
regulations 145
246. Limits on deposit taking 145
247. Members etc. not required to see to application of
money 145
248. Registrar's directions about fundraising 146
249. Subordinated debt 146
250. Application of Corporations Act to issues of
debentures 147
251. Application of Corporations Act to particular
issues of debentures 148
252. Disclosure statement 149
253. Approval of board for transfer of debentures 150
254. Application of Corporations Act -- reissue of
redeemed debentures 150
255. Compulsory loan by member to co-operative 150
256. Interest payable on compulsory loan 151
Division 2 -- Co-operative capital units
257. General nature of co-operative capital units 152
258. Priority of CCU's on winding-up 153
259. Financial accommodation provisions apply to issue
of CCUs 153
260. CCUs to be issued to non-members 154
261. Minimum requirements for rules concerning CCUs 154
262. CCUs not to be issued unless terms of issue
approved by Registrar 154
263. Directors' duties concerning CCUs 155
264. Redemption of CCUs 156
265. Capital redemption reserve 156
266. Issue of shares in substitution for redemption 157
Division 3 -- Charges
267. Registration of charges 157
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Co-operatives Bill 2009
Contents
Division 4 -- Receivers and other controllers of
property of co-operatives
268. Receivers and other controllers of property of
co-operatives 157
Division 5 -- Disposal of surplus from activities
269. Retention of surplus for benefit of co-operative 158
270. Application for charitable purposes or members'
purposes 158
271. Distribution of surplus or reserves to members 158
272. Application of surplus to other persons 159
Division 6 -- Acquisition and disposal of assets
273. Acquisition and disposal of assets 159
Part 11 -- Restrictions on the
acquisition of interests
in co-operatives
Division 1 -- Restrictions on share and voting
interests
274. Application of Part 162
275. Notice required to be given of voting interest 162
276. Notice required to be given of substantial share
interest 162
277. Requirements for notices 163
278. Maximum permissible level of share interest 163
279. Transitional provision 164
280. Shares to be forfeited to remedy contravention 164
281. Powers of board in response to suspected
contravention 165
282. Powers of Supreme Court in relation to
contravention 166
283. Co-operative to notify Registrar of interest over
20% 166
284. Co-operative to keep register 167
285. Unlisted companies to provide list of shareholders
etc. 167
286. Excess share interest not to affect loan liability 168
287. Extent of operation of Division 168
288. Registrar may grant exemption from Division 169
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Division 2 -- Restrictions on certain share
offers
289. Share offers to which Division applies 169
290. Offer to be approved by special resolution using
special postal ballot 169
291. Some offers totally prohibited if they discriminate 169
292. Offers to be submitted to board first 170
293. Announcements of proposed takeovers concerning
proposed company 170
294. Additional disclosure requirements for offers
involving conversion to company 172
295. Consequences of prohibited offer 172
296. Registrar may grant exemptions 173
Part 12 -- Merger, transfer of
engagements, winding-up
Division 1 -- Mergers and transfers of
engagements
297. Application of Division 174
298. Mergers and transfers of engagements of local
co-operatives 174
299. Requirements before application can be made 174
300. Disclosure statement required 174
301. Making an application 176
302. Approval of merger 176
303. Approval of transfer of engagements 177
304. Transfer of engagements by direction of Registrar 177
Division 2 -- Transfer of incorporation
305. Application for transfer 178
306. Requirements before application can be made 179
307. Meaning of new body and transfer 179
308. New body ceases to be registered as co-operative 180
309. Transfer not to impose greater liability etc. 180
310. Effect of new certificate of registration 180
311. New body must give copy of new certificate of
registration or incorporation to Registrar 181
312. New body is a continuation of the co-operative 181
Division 3 -- Winding-up and deregistration
313. Methods of winding-up 181
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314. Winding-up on Registrar's certificate 181
315. Method of deregistration 182
316. Application of Corporations Act to winding-up and
deregistration 182
317. Restrictions on voluntary winding-up 184
318. Start of members' voluntary winding-up 184
319. Distribution of surplus -- non-distributing
co-operatives 184
320. Liquidator -- vacancy may be filled by Registrar 185
321. Review of liquidator's remuneration 185
322. Liability of member to contribute in a winding-up
where shares forfeited etc. 185
Division 4 -- Administration of co-operative --
application of Corporations Act
323. Application of Corporations Act to administration
of co-operative 186
Division 5 -- Appointment of administrator
324. Appointment of administrator 187
325. Effect of appointment of administrator 187
326. Revocation of appointment 188
327. Expenses of administration 189
328. Liabilities arising from administration 189
329. Additional powers of Registrar 190
330. Stay of proceedings 191
331. Administrator to report to Registrar 191
Division 6 -- Effect of merger etc. on property,
liabilities etc.
332. How this Division applies to a merger 191
333. How this Division applies to a transfer of
engagements 192
334. How this Division applies to a transfer of
incorporation 192
335. Effect of merger etc. on property, liabilities etc. 192
Division 7 -- Miscellaneous
336. Grounds for winding-up, transfer of engagements,
appointment of administrator 194
337. Application of Corporations Act for insolvent
co-operatives 195
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Co-operatives Bill 2009
Contents
Part 13 -- Arrangements and
reconstructions
Division 1 -- General requirements
338. Requirements for binding compromise or
arrangement 196
339. Supreme Court ordered meeting of creditors 197
340. Registrar to be given notice and opportunity to
make submissions 197
341. Results of 2 or more meetings 198
342. Persons disqualified from administering
compromise etc. 198
343. Application of Schedule 4 to person appointed 199
344. Application of Corporations Act to person
appointed 199
345. Copy of order to be attached to rules 199
346. Directors to arrange for reports 200
347. Power of Supreme Court to restrain further
proceedings 200
348. Supreme Court need not approve compromise or
arrangement takeovers 201
Division 2 -- Explanatory statements
349. Explanatory statement required to accompany
notice of meeting etc. 201
350. Requirements for explanatory statement 203
351. Contravention of Division -- offence by
co-operative 203
Division 3 -- Facilitating reconstructions and
mergers
352. Provisions for facilitating reconstructions and
mergers 204
Division 4 -- Acquisition of shares of dissenting
shareholders
353. Definitions 206
354. Schemes and contracts to which Division applies 206
355. Acquisition of shares pursuant to notice to
dissenting shareholder 206
356. Restrictions when excluded shares exceed 10% 207
357. Remaining shareholders may require acquisition 208
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Co-operatives Bill 2009
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358. Transfer of shares pursuant to compulsory
acquisition 209
359. Disposal of consideration for shares compulsorily
acquired 210
Division 5 -- Miscellaneous
360. Notification of appointment of scheme manager 211
361. Power of Supreme Court to require reports 211
362. Effect of out-of-jurisdiction compromise or
arrangement 212
363. Jurisdiction to be exercised in harmony with
Corporations Act jurisdiction 212
364. Registrar may appear etc. 212
Part 14 -- Mutual recognition
Division 1 -- Introductory
365. Definitions 213
366. What constitutes carrying on business 213
367. Co-operatives law 214
368. Excluded matter 215
Division 2 -- Mutual recognition of foreign
co-operatives
369. Operation of foreign co-operatives in this State 216
370. Authorisation to carry on business 217
371. Registration under Companies (Co-operative)
Act 1943 217
372. Notification to Registrar 217
373. Authorisation notices for participating
co-operatives 219
374. Authorisation notices for non-participating
co-operatives 219
375. Name of foreign co-operative 220
376. When foreign co-operative not authorised to carry
on business 220
377. Withdrawal of authority to carry on business 220
378. Appeals 221
379. Application of Act and regulations to foreign
co-operatives 222
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Division 3 -- General
380. Name and place of origin to appear on business
and other documents 222
381. Supply of information to participating Registrars 223
382. Registrar to be notified of changes 223
383. Cessation of business 223
384. Functions conferred on Registrar under
co-operatives law 224
Division 4 -- Winding-up of foreign
co-operatives in this State
385. Winding-up to relate to State activities 224
386. Supreme Court may order winding-up 224
387. Application of Corporations Act to winding-up of
foreign co-operatives 225
388. Outstanding property of foreign co-operative 226
Division 5 -- Mergers and transfers of
engagements
389. Definitions 226
390. Authority for merger or transfer of engagements 227
391. Requirements before application can be made 227
392. Disclosure statement required 228
393. Making an application 230
394. Approval of merger 230
395. Approval of transfer of engagements 231
396. Effect of merger or transfer of engagements 232
397. Division applies instead of certain other provisions
of this Act 234
Part 15 -- Supervision and protection
of co-operatives
Division 1 -- Supervision and protection
398. Definitions 235
399. Co-operative includes subsidiaries, foreign
co-operatives and co-operative ventures 235
400. Appointment of inspectors 236
401. Registrar and investigators have functions of
inspectors 236
402. Inspector's identity card 236
403. Production or display of inspector's identity card 237
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Co-operatives Bill 2009
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404. Powers of inspector 237
405. Inspector's appointment conditions 237
406. Entry of place 238
407. Consent to entry 238
408. Inspectors may require certain persons to appear,
answer questions and produce documents 239
409. Powers of inspectors on place entered 240
410. Functions of inspectors in relation to relevant
documents 240
411. Protection from incrimination 241
412. Warrants 242
413. Warrants -- applications made other than in
person 243
414. Entry with warrant 244
415. General powers after entering places 245
416. Power to seize evidence 246
417. Receipt for seized things 246
418. Return of seized things 246
419. Power to require name and address 247
420. False or misleading statements 248
421. Power to require production of documents 248
422. False or misleading documents 248
423. Obstruction of inspectors 249
424. Copies or extracts of records to be admitted in
evidence 249
425. Privilege 250
Division 2 -- Inquiries
426. Definitions 251
427. Appointment of investigators 252
428. Powers of investigators 253
429. Examination of involved person 253
430. Privilege 254
431. Offences by involved person 255
432. Offences relating to documents 255
433. Record of examination 256
434. Report of investigator 256
435. Proceedings following inquiry 258
436. Admission of investigator's report as evidence 258
437. Costs of inquiry 258
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Co-operatives Bill 2009
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Division 3 -- Prevention of fraud etc.
438. Falsification of records 259
439. Fraud or misappropriation 260
440. Offering or paying commission 260
441. Accepting commission 260
442. False statements in loan application etc. 261
Division 4 -- Miscellaneous powers of the
Registrar
443. Application for special meeting or inquiry 261
444. Holding of special meeting 262
445. Expenses of special meeting or inquiry 262
446. Power to hold special inquiry into co-operative 263
447. Special meeting following inquiry 263
448. Information and evidence 263
449. Extension or abridgment of time 263
450. Power of Registrar to intervene in proceedings 264
Part 16 -- Administration of this Act
Division 1 -- The Registrar
451. Registrar of Co-operatives 265
452. Deputy Registrar and other staff 265
453. Delegation by Registrar 266
454. Registers to be kept by Registrar 266
455. Keeping of registers 267
456. Disposal of records by Registrar 267
457. Inspection of registers 268
458. Approvals by Registrar 268
459. Lodgment of documents 269
460. Way of lodging 269
461. Power of Registrar to refuse to register or reject
documents 269
Division 2 -- Protection from liability
462. Particular persons protected from liability 270
Division 3 -- Evidence
463. Certificate of registration 271
464. Certificate evidence 271
465. Records kept by co-operatives 272
466. Minutes 272
467. Official certificates 272
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468. The Registrar and proceedings 273
469. Rules 273
470. Registers 273
Division 4 -- Enforceable undertakings
471. Undertakings following contravention of, or failure
to comply with, this Act 273
472. Register of undertakings 274
473. Enforcement orders 274
Part 17 -- Offences and proceedings
474. Offences by officers of co-operatives 277
475. Notice to be given of conviction for offence 277
476. Secrecy 277
477. False or misleading statements 280
478. Further offence for continuing failure to do
required act 280
479. Civil remedies 281
480. Injunctions 282
481. Proceedings for offences etc. 283
Part 18 -- General
482. Co-operative ceasing to exist 285
483. Service of documents on co-operative 285
484. Service on member of co-operative 286
485. Reciprocal arrangements 287
486. Translations of documents 287
487. Exemptions may be on conditions 287
488. Approval of forms 287
489. Regulation making power 288
490. Companies (Co-operative) Act 1943 repealed 288
491. Co-operative and Provident Societies Act 1903
repealed 288
Part 19 -- Transitional and savings
provisions
Division 1 -- Preliminary
492. Terms used in this Part 289
493. Interpretation Act 1984 not affected 289
494. Transitional regulations 289
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Co-operatives Bill 2009
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Division 2 -- Prohibition on registration under
former Act
495. Prohibition on registration under Companies
(Co-operative) Act 1943 or Co-operative and
Provident Societies Act 1903 290
Division 3 -- Transfer to incorporation under
this Act
496. Co-operative companies and registered societies to
register under this Act 291
497. Decision of Registrar to register co-operative
company or registered society 292
Division 4 -- General transitional provisions
498. Special resolutions, applications to the Court and
court orders 293
499. Inspections or inquiry 293
500. Acquisition of shares of shareholders dissenting
from scheme or contract approved by majority 294
501. Transitional provisions about active members 295
Division 5 -- Pending incorporation,
reconstruction or winding-up
502. Pending incorporation 295
503. Pending reconstruction 295
504. Pending wind-up 296
Part 20 -- Consequential
amendments
Division 1 -- Consequential amendments
commencing on registration of
Co-operative Bulk Handling Limited
505. Grain Marketing Act 2002 amended 297
506. Local Government Act 1995 amended 297
Division 2 -- Consequential amendments
commencing on commencement of this
Act
507. Civil Judgments Enforcement Act 2004 amended 298
508. Criminal Property Confiscation Act 2000 amended 298
509. Equal Opportunity Act 1984 amended 298
510. Taxi Act 1994 amended 299
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Co-operatives Bill 2009
Contents
511. Western Australian Treasury Corporation
Act 1986 amended 299
Division 3 -- Consequential amendments
commencing on repeal of former Acts
512. Civil Judgments Enforcement Act 2004 amended 299
513. Criminal Property Confiscation Act 2000 amended 300
514. Equal Opportunity Act 1984 amended 300
515. Housing Loan Guarantee Act 1957 amended 300
516. Local Government Act 1995 amended 300
517. Taxi Act 1994 amended 301
518. Western Australian Treasury Corporation
Act 1986 amended 301
Schedule 1 -- Matters for which rules
must make provision
1. Requirements for all co-operatives 302
2. Additional matters -- co-operatives with share
capital 303
3. Additional matters -- non-distributing
co-operatives 304
Schedule 2 -- Relevant interests,
associates, related bodies
Division 1 -- Relevant interests
1. Terminology used in this Schedule 305
2. Basic rules -- relevant interests 305
3. Control of corporation having power in relation to
a share 305
4. Control of 20% of voting power in corporation
having power in relation to a share 306
5. Deemed relevant interest in advance of
performance of agreement that will give rise to a
relevant interest 306
6. Control of corporation having a relevant interest by
virtue of clause 5 307
7. Matters not affecting application of Division 307
8. Corporation may have a relevant interest in its own
shares 308
9. Exclusions -- money lenders 308
page xxii
Co-operatives Bill 2009
Contents
10. Exclusions -- certain trustees 308
11. Exclusions -- instructions to securities dealer to
dispose of share 309
12. Exclusions -- honorary proxies 309
13. Exclusions -- holders of prescribed offices 309
14. Prescribed exclusions 309
15. Effect of Schedule 309
16. Relevant interest -- corporation other than
co-operative 310
Division 2 -- Associates
17. Effect of Part 310
18. Associates of a corporation 310
19. Matters relating to voting rights 310
20. General 311
21. Exclusions 312
Division 3 -- Related corporations
22. Related corporations 312
Schedule 3 -- Registration etc. of
charges
Division 1 -- Preliminary
1. Interpretation 313
2. Application to charges referred to in clause 17 314
3. Lodgment of documents 314
Division 2 -- Registration
Subdivision 1 -- Charges
4. Charges to which the Schedule applies 314
5. Excluded charges 315
6. Personal chattels 316
7. Book debts 316
8. Crops or stock 317
9. Deposit of documents of title 317
10. Charges on land or fixtures on land 317
11. Where other property is also charged 317
12. Effect of failure to lodge or give notice or
document 317
Subdivision 2 -- Notice of charge
13. Lodgment of notice of charge and copy of
instrument, and transitional provision 318
page xxiii
Co-operatives Bill 2009
Contents
14. Series of debentures 319
15. Operation of priority provisions in respect of issue
of debentures 319
16. Discounts 320
17. Acquisition of property subject to charge 320
Subdivision 3 -- Registration
18. Register of Co-operative Charges 321
19. Registration of documents relating to charge 321
20. Provisional registration if stamp duty not paid 322
21. Provisional registration if required particulars not
supplied 323
22. Effect of provisional registration 324
23. If 2 or more charges relate to the same property 325
24. Registration of assignment or variation of charge 325
25. Standard time for the purposes of this Subdivision 325
Subdivision 4 -- Certain charges void against
liquidator or administrator
26. Definitions 326
27. Certain charges void against liquidator or
administrator 326
28. Certain varied charges void against liquidator or
administrator 327
29. Supreme Court may extend required period 328
30. Certain later charges void 328
31. Effect of provisions on purchaser in good faith 329
Subdivision 5 -- Certain charges in favour of
persons void
32. Definitions 330
33. Charges in favour of certain persons void in certain
cases 330
34. Supreme Court may give leave for enforcement of
charge 331
35. Certain transactions excluded 331
Subdivision 6 -- Assignment, variation or
satisfaction of charges
36. Assignment and variation of charges 332
37. Satisfaction of, and release of property from,
charges 333
Subdivision 7 -- General
38. Lodgment of notices 333
page xxiv
Co-operatives Bill 2009
Contents
39. Lodgment offences 334
40. Co-operative to keep documents relating to charges 334
41. Co-operative to keep register, and transitional
provision 334
42. Certificates 336
43. Power of Supreme Court to rectify register of
charges 337
44. Registrar may exempt from compliance with
certain requirements of Division 337
Division 3 -- Order of priority
Subdivision 1 -- General
45. Definitions 338
46. Priorities of charges 339
Subdivision 2 -- Priority rules
47. General priority rules in relation to registered
charges 340
48. General priority rule in relation to unregistered
charges 341
49. Special priority rules 341
Schedule 4 -- Receivers, and other
controllers, of property of
co-operatives
1. Interpretation 343
2. Application of Schedule 344
3. Persons not to act as receivers 344
4. Supreme Court may declare whether controller is
validly acting 345
5. Liability of controller 346
6. Liability of controller under pre-existing
agreement about property used by co-operative 346
7. Powers of receiver 348
8. Controller's duty of care in exercising power of
sale 350
9. Supreme Court may authorise managing controller
to dispose of property despite prior charge 350
10. Receiver's power to carry on co-operative's
business during winding-up 351
page xxv
Co-operatives Bill 2009
Contents
11. Controller's duties in relation to financial
institution accounts and financial records 352
12. Managing controller to report within 2 months
about co-operative's affairs 353
13. Reports by receiver 354
14. Supervision of controller 355
15. Controller may apply to Supreme Court 356
16. Power of Supreme Court to fix receiver's
remuneration 356
17. Controller has qualified privilege in certain cases 358
18. Notification of matters relating to controller 358
19. Statement that receiver appointed or other
controller acting 359
20. Officers to report to controller about co-operative's
affairs 360
21. Controller may require reports 362
22. Controller may inspect records 363
23. Lodging controller's accounts 363
24. Payment of certain debts, out of property subject to
floating charge, in priority to claims under charge 365
25. Enforcement of controller's duty to make returns 367
26. Supreme Court may remove controller for
misconduct 367
27. Supreme Court may remove redundant controller 367
28. Effect of clauses 26 and 27 368
Schedule 5 -- Applied co-operatives
provisions
1. Provisions applicable to participating co-operatives 369
2. Provisions applicable to non-participating
co-operatives 369
Schedule 6 -- Modifications to
Corporations Act
1. Modifications to winding-up provisions 371
Defined Terms
page xxvi
Western Australia
LEGISLATIVE ASSEMBLY
Co-operatives Bill 2009
A Bill for
An Act to provide a legislative framework for the formation,
registration and management of co-operatives and for related
purposes.
The Parliament of Western Australia enacts as follows:
page 1
Co-operatives Bill 2009
Part 1 Preliminary
Division 1 Introductory
s. 1
1 Part 1 -- Preliminary
2 Division 1 -- Introductory
3 1. Short title
4 This is the Co-operatives Act 2009.
5 2. Commencement
6 This Act comes into operation as follows --
7 (a) sections 1 and 2 -- on the day after assent day;
8 (b) the rest of the Act, other than sections 490 and 491, and
9 Part 20 Divisions 1 and 3 -- on a day fixed by
10 proclamation;
11 (c) sections 490 and 491, and Part 20 Division 3 -- on the
12 last day of the period of 2 years after the day fixed under
13 paragraph (a);
14 (d) Part 20 Division 1 -- on the day that Co-operative Bulk
15 Handling Limited becomes registered under this Act.
16 3. Objects of this Act
17 The objects of this Act are to --
18 (a) enable the formation, registration and operation of
19 co-operatives; and
20 (b) promote co-operative philosophy, principles, practices
21 and objectives; and
22 (c) protect the interests of co-operatives, their members and
23 the public in the operations and activities of
24 co-operatives; and
25 (d) ensure that the directors of co-operatives are accountable
26 for their actions and decisions to the members of
27 co-operatives; and
28 (e) encourage and facilitate self-management by
29 co-operatives at all levels; and
page 2
Co-operatives Bill 2009
Preliminary Part 1
Introductory Division 1
s. 4
1 (f) encourage the development, integration and
2 strengthening of co-operatives at local, regional,
3 national and international levels by supporting and
4 fostering State and national peak organisations and
5 co-operative instrumentalities.
6 4. Terms used in this Act
7 (1) In this Act --
8 active member has the meaning given to that term in
9 section 111;
10 active membership provision has the meaning given to that term
11 in section 112;
12 agreement means an agreement, arrangement or
13 understanding --
14 (a) whether formal or informal or partly formal and partly
15 informal; and
16 (b) whether written or oral or partly written and partly oral;
17 and
18 (c) whether or not having legal or equitable force and
19 whether or not based on legal or equitable rights;
20 alter, in relation to the rules of a co-operative, includes to add
21 to, substitute or rescind;
22 associate has the meaning given to that term in Schedule 2
23 Division 2;
24 board means the board of directors of a co-operative and in
25 circumstances where a person or committee is exercising a
26 power of the board delegated under the rules of a co-operative,
27 includes that person or committee;
28 chief executive officer, of a co-operative or a subsidiary of a
29 co-operative, means the principal executive officer of the
30 co-operative or subsidiary for the time being, by whatever name
31 called, and whether or not that officer is a director or the
32 secretary;
page 3
Co-operatives Bill 2009
Part 1 Preliminary
Division 1 Introductory
s. 4
1 constitution, of a co-operative, includes the articles of
2 association, memorandum, rules and other constituent
3 documents;
4 co-operative means a body registered under this Act as a
5 co-operative;
6 co-operative capital unit has the meaning given to that term in
7 section 257(1);
8 co-operative group means a co-operative that has a membership
9 as described in section 57;
10 corporation has the meaning given to that term in the
11 Corporations Act;
12 Corporations Act means the Commonwealth Corporations
13 Act 2001;
14 debenture means a document issued by a co-operative that
15 evidences or acknowledges indebtedness of the co-operative in
16 respect of money that is or may be deposited with or lent to the
17 co-operative, whether constituting a charge on property of the
18 co-operative or not, and includes a unit of a debenture, except
19 that it does not include --
20 (a) a cheque, order for the payment of money or bill of
21 exchange; or
22 (b) a promissory note having a face value of not less than
23 $50 000; or
24 (c) any other document of a class that is prescribed by the
25 regulations as exempt from this definition;
26 deed of arrangement means a deed of company arrangement in
27 force under the Corporations Act Part 5.3A as that Part applies
28 under this Act or a deed of that type as varied and in force from
29 time to time;
30 deposit taking co-operative means a co-operative that is
31 permitted under section 246 to accept money on deposit;
32 distributing co-operative means a co-operative as described in
33 section 13;
page 4
Co-operatives Bill 2009
Preliminary Part 1
Introductory Division 1
s. 4
1 eligible member means a person considered by the board of a
2 co-operative to be eligible to become a member of that
3 co-operative;
4 financial records includes --
5 (a) invoices, receipts, orders for the payment of money,
6 bills of exchange, cheques, promissory notes and
7 vouchers;
8 (b) documents of prime entry;
9 (c) working papers and other documents needed to
10 explain --
11 (i) the methods by which financial statements are
12 made up; and
13 (ii) adjustments to be made in preparing financial
14 statements;
15 financial report means an annual financial report or a half-year
16 financial report prepared under the Corporations Act Chapter
17 2M;
18 financial services business has the meaning given to that term
19 in the Corporations Act section 761A;
20 financial services licensee has the meaning given to that term in
21 the Corporations Act section 761A;
22 financial statements means annual financial statements under
23 the Corporations Act section 295 or half-year financial
24 statements applying under the Corporations Act section 303;
25 foreign co-operative means a corporation that is registered,
26 incorporated or formed under, or subject to, a law in force
27 outside this State, including outside Australia, that regulates
28 co-operatives or organisations having attributes the same as or
29 similar to co-operatives except that it does not include --
30 (a) a body incorporated under the Corporations Act or under
31 another law of the Commonwealth; or
32 (b) an authorised deposit-taking institution as defined in the
33 Commonwealth Banking Act 1959 section 5;
page 5
Co-operatives Bill 2009
Part 1 Preliminary
Division 1 Introductory
s. 4
1 inspector means a person appointed as an inspector under
2 Part 15;
3 model rules means the model rules prescribed by the regulations
4 under section 101;
5 mortgage includes lien, charge or other security over property;
6 non-distributing co-operative means a co-operative as
7 described in section 14;
8 officer, of a co-operative, means --
9 (a) a director or secretary of the co-operative; or
10 (b) a person who is concerned, or takes part, in the
11 management of the co-operative, whether or not as a
12 director; or
13 (c) a receiver and manager, appointed under a power
14 contained in an instrument, of property of the
15 co-operative; or
16 (d) an administrator of a deed of arrangement executed by
17 the co-operative; or
18 (e) a liquidator or provisional liquidator appointed in a
19 voluntary winding-up of the co-operative; or
20 (f) an administrator of the co-operative appointed under --
21 (i) the Corporations Act Part 5.3A as applying under
22 this Act; or
23 (ii) Part 12 Division 5 of this Act;
24 or
25 (g) a trustee or other person administering a compromise or
26 arrangement made between the co-operative and another
27 person;
28 primary activity, of a co-operative, means an activity stated in
29 the rules of the co-operative to be a primary activity of the
30 co-operative;
31 records includes books, financial records, financial statements,
32 minutes, registers, deeds, writings, documents and other sources
33 of information compiled, recorded or stored in written form or
page 6
Co-operatives Bill 2009
Preliminary Part 1
Introductory Division 1
s. 4
1 on microfilm, or by electronic process, or in any other manner
2 or by any other means;
3 Registrar means the Registrar of Co-operatives under
4 section 451;
5 related corporation has the meaning given to that term in
6 Schedule 2 Division 3;
7 relevant interest in --
8 (a) a right to vote has the meaning given to that term in
9 Schedule 2 Division 1 clause 2(1); and
10 (b) a share has the meaning given to that term in Schedule 2
11 Division 1 clause 2(2);
12 rules, of a co-operative, means the rules of the co-operative for
13 the time being applying under this Act;
14 seal, of a co-operative, means the common seal or official seal
15 of the co-operative;
16 share means share in the share capital of a co-operative;
17 subsidiary has the meaning given to that term in the
18 Corporations Act;
19 surplus, in relation to a co-operative, means the excess of
20 income over expenditure after making proper allowance for
21 taxation expense, for depreciation in value of the property of the
22 co-operative and for future contingencies;
23 transfer day, for a particular transferred co-operative, means the
24 day on which that co-operative became registered under this
25 Act;
26 transferred co-operative means a co-operative that immediately
27 before the commencement of this Act was registered as a
28 co-operative company under the Companies (Co-operative)
29 Act 1943 or as a registered society under the Co-operative and
30 Provident Societies Act 1903.
page 7
Co-operatives Bill 2009
Part 1 Preliminary
Division 2 Qualified privilege
s. 5
1 (2) A reference in this Act to the Corporations Act or a provision of
2 the Corporations Act applying under this Act (or a part of this
3 Act) is a reference to that Act or provision to the extent that it is
4 declared to apply to a matter for the purposes of the
5 Corporations (Ancillary Provisions) Act 2001 Part 3 as a law of
6 this State.
7 Division 2 -- Qualified privilege
8 5. Qualified privilege
9 (1) If this Act provides that a person has qualified privilege for an
10 act, matter or thing, the person, in relation to the act, matter or
11 thing --
12 (a) has qualified privilege in proceedings for defamation;
13 and
14 (b) is not, in the absence of malice on the person's part,
15 liable to an action for defamation at the suit of a person.
16 (2) In subsection (1) --
17 malice includes ill-will to the person concerned or any other
18 improper motive.
19 (3) Neither this section nor a provision of this Act that provides as
20 mentioned in subsection (1) limits or affects any right, privilege
21 or immunity that a person has, apart from this section or such a
22 provision, as a defendant in proceedings, or an action, for
23 defamation.
24 Division 3 -- The co-operative principles
25 6. Co-operative principles
26 The co-operative principles are the principles set out in the
27 following Table.
page 8
Co-operatives Bill 2009
Preliminary Part 1
The co-operative principles Division 3
s. 6
1 Table of co-operative principles
Principle
1. Voluntary and open membership
A co-operative is a voluntary organisation, open to all
persons able to use its services and willing to accept the
responsibilities of membership, without gender, social,
racial, political or religious discrimination.
2. Democratic member control
A co-operative is a democratic organisation controlled by its
members, who actively participate in setting policies and
making decisions. Members serving as elected
representatives are accountable to the membership. In
co-operatives other than co-operative groups members have
equal voting rights (one member, one vote). Co-operative
groups are organised in a democratic manner.
3. Member economic participation
Members contribute equitably to, and democratically control,
the capital of their co-operative. Usually, at least part of that
capital is the common property of the co-operative. Usually,
members receive limited compensation, if any, for capital
subscribed as a condition of membership. Members of a
co-operative allocate surplus to be used for any or all of the
purposes of --
(a) developing the co-operative, possibly by setting up
reserves, at least part of which are indivisible; and
(b) benefiting members in proportion to their
transactions with the co-operative; and
(c) supporting other activities approved by the
membership.
4. Autonomy and independence
A co-operative is an autonomous, self-help organisation
controlled by its members. If a co-operative enters into
agreements with other organisations, including governments,
or raises capital from external sources, it does so on terms
that ensure democratic control by its members and maintain
its autonomy.
page 9
Co-operatives Bill 2009
Part 1 Preliminary
Division 4 Application of Corporations Act to co-operatives
s. 7
Principle
5. Education, training and information
A co-operative provides education and training for its
members, elected representatives, managers and employees
so they can contribute effectively to the development of the
co-operative. A co-operative informs the general public,
particularly young people and opinion leaders, about the
nature and benefits of co-operatives.
6. Co-operation among co-operatives
Co-operatives serve their members most effectively and
strengthen the co-operative movement by working together
through local, national, regional and international structures.
7. Concern for the community
Co-operatives, while focusing on member needs, work for
the sustainable development of their communities through
policies accepted by their members.
1 7. Interpretation to promote co-operative principles
2 In the interpretation of a provision of this Act, a construction
3 that would promote co-operative principles is to be preferred to
4 a construction that would not promote co-operative principles.
5 Division 4 -- Application of Corporations Act to co-operatives
6 8. Definitions
7 In this Division --
8 company has the meaning given to that term in the Corporations
9 Act section 9;
10 Corporations legislation means the Corporations legislation to
11 which the Corporations Act Part 1.1A applies;
12 excluded Corporations legislation provision means any
13 provision of the Corporations legislation that does not apply to
14 co-operatives as a law of the Commonwealth.
page 10
Co-operatives Bill 2009
Preliminary Part 1
Application of Corporations Act to co-operatives Division 4
s. 9
1 9. Excluded matter
2 (1) A co-operative is declared to be an excluded matter for the
3 purposes of the Corporations Act section 5F in relation to the
4 whole of the Corporations legislation other than to the extent
5 specified in subsection (2).
6 (2) Subsection (1) does not exclude the application of the following
7 provisions of the Corporations legislation to co-operatives to the
8 extent that the provisions would otherwise be applicable to
9 them --
10 (a) provisions relating to a matter that the regulations
11 provide is not to be excluded from the operation of the
12 Corporations legislation;
13 (b) provisions relating to the role of a co-operative in the
14 formation of a company;
15 (c) provisions relating to the registration of a co-operative
16 as a company under the Corporations Act Chapter 5B;
17 (d) provisions relating to substantial shareholdings, by or
18 involving a co-operative, in a company;
19 (e) provisions conferring or imposing functions on a
20 co-operative as a member, or former member, of a
21 corporation;
22 (f) provisions relating to dealings by a co-operative in
23 financial products of a corporation, other than financial
24 products of the co-operative itself;
25 (g) provisions conferring or imposing functions on a
26 co-operative in its dealings with a corporation, not being
27 dealings in financial products of the co-operative;
28 (h) provisions relating to financial products of a
29 co-operative, other than shares in, co-operative capital
30 units in, debentures of or deposits with a co-operative;
31 (i) provisions relating to financial markets and participants
32 in financial markets;
page 11
Co-operatives Bill 2009
Part 1 Preliminary
Division 4 Application of Corporations Act to co-operatives
s. 10
1 (j) provisions relating to financial services licensees whose
2 licence covers dealing in, or providing advice about,
3 financial products;
4 (k) provisions relating to carrying on a financial services
5 business;
6 (l) provisions relating to financial statements, and audits of
7 financial statements, of financial services licensees
8 whose licence covers dealing in, or providing advice
9 about, financial products;
10 (m) provisions relating to clients of financial services
11 licensees whose licence covers dealing in, or providing
12 advice about, financial products;
13 (n) provisions relating to registers of interests in financial
14 products.
15 (3) To remove doubt it is declared that subsection (1) does not
16 operate to exclude the operation of the following provisions of
17 the Corporations Act, except in relation to shares in,
18 co-operative capital units in, debentures of, or deposits with, a
19 co-operative --
20 (a) Part 1.2A;
21 (b) Chapter 2L;
22 (c) Chapter 6CA;
23 (d) Chapter 6D;
24 (e) Part 7.10.
25 (4) If a co-operative is directed by an order of the Supreme Court
26 under section 84(i) to become registered as a company under the
27 Corporations Act, the provisions referred to in subsection (2)(c)
28 apply to the extent necessary for the co-operative to be
29 registered as a company under Chapter 5B of that Act.
30 10. Applying the Corporations legislation to co-operatives
31 (1) The regulations may declare a matter relating to co-operatives to
32 be an applied Corporations legislation matter for the purposes of
page 12
Co-operatives Bill 2009
Preliminary Part 1
Application of Corporations Act to co-operatives Division 4
s. 10
1 the Corporations (Ancillary Provisions) Act 2001 Part 3 in
2 relation to any excluded Corporations legislation provision or
3 provisions, with any modifications that are specified in the
4 declaration.
5 (2) Without limiting subsection (1), any such regulations may --
6 (a) specify modifications to the definitions and other
7 interpretative provisions of the Corporations legislation
8 relevant to any excluded Corporations legislation
9 provision that is the subject of the declaration; and
10 (b) provide for ASIC to exercise a function under any
11 excluded Corporations legislation provision that is the
12 subject of the declaration, but only if --
13 (i) ASIC is to exercise the function under an
14 agreement referred to in section 11(8) or (9A)(b)
15 of the new ASIC Act; and
16 (ii) ASIC is authorised to exercise that function
17 under section 11 of the new ASIC Act;
18 and
19 (c) specify that a reference to ASIC in an excluded
20 Corporations legislation provision that is the subject of
21 the declaration is to be a reference to another person;
22 and
23 (d) identify an excluded Corporations legislation provision
24 to which the declaration relates by reference to the
25 provision as in force at a particular time; and
26 (e) specify a court (other than the Supreme Court) to
27 exercise a function conferred on a court or the Court by
28 an excluded Corporations legislation provision to which
29 the declaration relates.
30 (3) Words and expressions used in this section and also in the
31 Corporations (Ancillary Provisions) Act 2001 Part 3 have the
32 same meanings in this section as they have in that Part.
page 13
Co-operatives Bill 2009
Part 1 Preliminary
Division 4 Application of Corporations Act to co-operatives
s. 11
1 11. Modifications to applied provisions
2 (1) If a provision of this Act or the regulations declares a matter to
3 be an applied Corporations legislation matter for the purposes of
4 the Corporations (Ancillary Provisions) Act 2001 Part 3 (the
5 declaratory provision) in relation to any provisions of the
6 Corporations legislation (the applied provisions), the
7 declaratory provision is taken to specify the following
8 modifications --
9 (a) a reference in the applied provisions to articles or a
10 memorandum of association or a constitution or
11 replaceable rules is to be read as a reference to rules;
12 (b) a cross-reference in the applied provisions to another
13 provision of the Corporations Act is, if that
14 cross-reference is not appropriate (because for example
15 the provision cross-referred to is not among the applied
16 provisions), to be read as a cross-reference to the
17 equivalent provision of this Act;
18 (c) a reference in the applied provisions to the Gazette is to
19 be read as a reference to the Western Australian
20 Government Gazette;
21 (d) a reference in the applied provisions to the
22 Commonwealth is to be read as a reference to this State;
23 (e) any of the applied provisions that are not relevant to
24 co-operatives or that are incapable of application to
25 co-operatives are to be ignored;
26 (f) modifications prescribed under a regulation under
27 subsection (2).
28 (2) The regulations may prescribe the modifications that are
29 necessary or desirable for the effective operation of the applied
30 provisions.
page 14
Co-operatives Bill 2009
Formation Part 2
Types of co-operatives Division 1
s. 12
1 Part 2 -- Formation
2 Division 1 -- Types of co-operatives
3 12. Types of co-operatives
4 (1) A body may be registered under this Act as a co-operative.
5 (2) A co-operative may be either --
6 (a) a distributing co-operative; or
7 (b) a non-distributing co-operative.
8 13. Distributing co-operatives
9 (1) A distributing co-operative must have a share capital.
10 (2) A distributing co-operative is a co-operative whose rules allow
11 it to give returns or distributions on surplus or share capital.
12 (3) A distributing co-operative must have a membership of --
13 (a) for a co-operative group, 2 or more co-operatives; and
14 (b) for any other distributing co-operative --
15 (i) if a lesser number than 5 is prescribed by the
16 regulations, at least that number of active
17 members; or
18 (ii) otherwise, 5 or more active members.
19 14. Non-distributing co-operatives
20 (1) A non-distributing co-operative is a co-operative whose rules
21 prohibit it from giving returns or distributions on surplus or
22 share capital to members, other than the nominal value of
23 shares, if any, at winding-up.
24 (2) A non-distributing co-operative may or may not have a share
25 capital.
26 (3) A non-distributing co-operative must have a membership of --
27 (a) for a co-operative group, 2 or more co-operatives; and
page 15
Co-operatives Bill 2009
Part 2 Formation
Division 2 Formation meeting
s. 15
1 (b) for any other non-distributing co-operative --
2 (i) if a lesser number than 5 is prescribed by the
3 regulations, at least that number of active
4 members; or
5 (ii) otherwise, 5 or more active members.
6 Division 2 -- Formation meeting
7 15. Formation meeting
8 (1) Before a proposed co-operative, other than an existing
9 corporation, can be registered, a formation meeting must be held
10 in accordance with this section.
11 (2) At the formation meeting --
12 (a) a person must act as chairman, and a person must be
13 specified to act as secretary; and
14 (b) in the case of a proposed distributing co-operative, a
15 disclosure statement approved under section 16 must be
16 presented to the meeting; and
17 (c) the proposed rules of the co-operative approved under
18 section 17 in respect of the proposed co-operative, must
19 be agreed to by two-thirds of the eligible members
20 attending the meeting; and
21 (d) the eligible members attending the meeting must sign
22 the application for membership; and
23 (e) the eligible members attending the meeting must elect
24 the first directors of the proposed co-operative in
25 accordance with the proposed rules; and
26 (f) the eligible members attending the meeting must
27 authorise a person --
28 (i) to apply to the Registrar for registration of the
29 proposed co-operative; and
30 (ii) to do anything necessary to have the proposed
31 co-operative registered.
page 16
Co-operatives Bill 2009
Formation Part 2
Approval of disclosure statement and rules Division 3
s. 16
1 (3) The formation meeting must be held by --
2 (a) for a co-operative group, not less than 2 suitably
3 qualified co-operatives; and
4 (b) for any other co-operative, not less than 5 persons, or if
5 a lesser number than 5 is prescribed by the regulations,
6 not less than the prescribed number of persons, suitably
7 qualified to be members of the proposed co-operative.
8 (4) For the purposes of subsection (3), a person or a co-operative is
9 suitably qualified to be a member if --
10 (a) there are reasonable grounds to believe the person or
11 co-operative will be an active member of the proposed
12 co-operative; and
13 (b) for an individual, the person has attained the age of 18;
14 and
15 (c) the person satisfies any other requirements for
16 membership set out in the proposed rules.
17 (5) Each co-operative forming a proposed co-operative group may
18 be represented at the formation meeting by one person.
19 Division 3 -- Approval of disclosure statement and rules
20 16. Approval of disclosure statement
21 (1) A draft disclosure statement of a proposed distributing
22 co-operative must be submitted to the Registrar at least 35 days
23 (or a shorter period the Registrar may allow in a particular case)
24 before the formation meeting is due to be held.
25 (2) The draft disclosure statement submitted under subsection (1)
26 must be accompanied by a written statement specifying the date
27 on which the formation meeting is due to be held.
28 (3) The disclosure statement must contain the information
29 necessary to ensure that eligible members are adequately
30 informed of the nature and extent of a person's financial
page 17
Co-operatives Bill 2009
Part 2 Formation
Division 3 Approval of disclosure statement and rules
s. 16
1 involvement or liability as a member of the co-operative
2 including so far as applicable --
3 (a) the estimated costs of formation; and
4 (b) the active membership provisions of the proposed
5 co-operative; and
6 (c) the rights and liabilities attaching to shares in the
7 proposed co-operative; and
8 (d) the capital required for the co-operative at the time of
9 formation; and
10 (e) the projected income and expenditure of the
11 co-operative for its first year of operation; and
12 (f) information about any pre-registration contractual
13 obligations of the co-operative under Part 3 Division 5;
14 and
15 (g) any other information that the Registrar directs.
16 (4) The disclosure statement cannot include a statement purporting
17 to be made by an expert or to be based on a statement made by
18 an expert unless --
19 (a) the expert has given, and has not withdrawn, the
20 expert's written consent to the submission of the
21 disclosure statement with the statement included in the
22 form and context in which it is included; and
23 (b) there appears in the disclosure statement a statement that
24 the expert has given, and has not withdrawn, the
25 expert's consent.
26 (5) The Registrar may --
27 (a) approve the draft statement as submitted; or
28 (b) amend the draft statement, or require a stated
29 amendment of the draft, and then approve the amended
30 statement; or
31 (c) approve a different statement to that submitted; or
32 (d) refuse to approve the statement; or
page 18
Co-operatives Bill 2009
Formation Part 2
Approval of disclosure statement and rules Division 3
s. 17
1 (e) require the person submitting the disclosure statement to
2 give the Registrar any additional information the
3 Registrar reasonably requires, and then act under
4 paragraph (a), (b), (c) or (d).
5 (6) The Registrar may approve a disclosure statement with or
6 without conditions.
7 (7) Subject to subsection (8), the Registrar approves of a disclosure
8 statement by giving written notice of the approval of the
9 statement to the person who submitted the draft statement to the
10 Registrar.
11 (8) The Registrar is taken to have approved the disclosure statement
12 as submitted to the Registrar unless at least 5 days before the
13 date specified in the written statement submitted under
14 subsection (2), the Registrar gives written notice to the person
15 who submitted the draft statement that the Registrar --
16 (a) has approved an amended or different disclosure
17 statement; or
18 (b) is still considering the matter; or
19 (c) refuses to approve the disclosure statement.
20 17. Approval of rules
21 (1) A draft of the rules proposed for the co-operative (including
22 active membership provisions in accordance with Part 6) must
23 be submitted to the Registrar at least 35 days (or a shorter
24 period the Registrar may allow in a particular case) before the
25 formation meeting is due to be held.
26 (2) The draft rules submitted under subsection (1) must be
27 accompanied by a written statement specifying the date on
28 which the formation meeting is due to be held.
29 (3) The proposed rules must --
30 (a) be in accordance with section 98; and
31 (b) be in a form that may reasonably be approved.
page 19
Co-operatives Bill 2009
Part 2 Formation
Division 4 Registration of proposed co-operative
s. 18
1 (4) The Registrar may --
2 (a) approve the proposed rules as submitted; or
3 (b) approve different proposed rules to those submitted; or
4 (c) refuse to approve the proposed rules.
5 (5) Subject to subsection (6), the Registrar approves proposed rules
6 by giving written notice of that approval to the person who
7 submitted the proposed rules to the Registrar.
8 (6) The Registrar is taken to have approved the proposed rules as
9 submitted to the Registrar unless at least 5 days before the date
10 specified in the written statement submitted under
11 subsection (2), the Registrar gives written notice to the person
12 who submitted the proposed rules that the Registrar --
13 (a) has approved different proposed rules to those
14 submitted; or
15 (b) is still considering the matter; or
16 (c) refuses to approve the proposed rules.
17 Division 4 -- Registration of proposed co-operative
18 18. Application for registration of proposed co-operative
19 (1) An application for registration as a co-operative, other than an
20 application by a corporation under Division 5, must --
21 (a) be made in the form approved by the Registrar; and
22 (b) be accompanied by the fee prescribed by the regulations;
23 and
24 (c) be signed by --
25 (i) for a co-operative group, at least 2 directors
26 elected at the formation meeting; and
27 (ii) for any other proposed co-operative, at least 5, or
28 if a lesser number than 5 is prescribed under a
29 regulation, at least the prescribed number of,
page 20
Co-operatives Bill 2009
Formation Part 2
Registration of proposed co-operative Division 4
s. 19
1 suitably qualified members, including 2 directors
2 elected at the formation meeting;
3 and
4 (d) be accompanied by --
5 (i) a copy of the proposed rules, certified in writing
6 by the chairman and secretary for the formation
7 meeting to have been agreed to at the formation
8 meeting in accordance with section 15(2)(c); and
9 (ii) in the case of a proposed distributing
10 co-operative, a copy of the disclosure statement,
11 certified in writing by the chairman and secretary
12 for the formation meeting to have been presented
13 to that meeting as required by section 15(2)(b);
14 and
15 (iii) a statement listing the name, address, occupation
16 and place and date of birth of each person elected
17 at the formation meeting in accordance with
18 section 15(2)(e) to be a director of the proposed
19 co-operative and containing a certificate signed
20 by the chairman and secretary verifying that
21 those persons were elected; and
22 (iv) a certificate signed by the chairman and secretary
23 verifying that a specified person is the person
24 authorised under section 15(2)(f); and
25 (v) any other particulars that the Registrar may
26 require.
27 (2) The application must be lodged with the Registrar within
28 2 months after closure of the formation meeting for the
29 proposed co-operative or within the extended period that the
30 Registrar may allow.
31 19. Registration of co-operative
32 (1) When an application is made under this Division for registration
33 of a proposed co-operative, the Registrar must register the
page 21
Co-operatives Bill 2009
Part 2 Formation
Division 4 Registration of proposed co-operative
s. 20
1 co-operative and its rules if satisfied that the requirements
2 referred to in subsection (2) have been met.
3 (2) The requirements for registration of a co-operative under this
4 Division are that --
5 (a) the proposed rules of the proposed co-operative must be
6 those approved by the Registrar under section 17; and
7 (b) the requirements of this Act must have been complied
8 with in relation to the proposed co-operative and
9 compliance must be likely to continue; and
10 (c) the proposed co-operative must be designed to function
11 in accordance with the co-operative principles or, if it is
12 not designed to function entirely in accordance with the
13 co-operative principles, the Registrar must be satisfied
14 that there are special reasons why the co-operative
15 should be registered under this Act; and
16 (d) there must be no reasonable cause for refusing
17 registration of the proposed co-operative.
18 (3) If the Registrar is not satisfied that the requirements for
19 registration of the co-operative have been met the Registrar may
20 refuse to register the co-operative and its rules.
21 (4) The Registrar must give to the applicant written notice of the
22 refusal and the reasons for the refusal.
23 20. Incorporation and certificate of registration
24 (1) The incorporation of the co-operative takes effect on the
25 registration of the co-operative.
26 (2) On the registration of the co-operative, the Registrar must issue
27 a certificate of registration.
page 22
Co-operatives Bill 2009
Formation Part 2
Registration of an existing corporation Division 5
s. 21
1 Division 5 -- Registration of an existing corporation
2 21. Existing corporation can be registered
3 A corporation may apply to the Registrar to be registered as a
4 co-operative under this Act, if the corporation is --
5 (a) incorporated or registered or deemed to be registered
6 under the Corporations Act; or
7 (b) incorporated or registered under any other Act relating
8 to the incorporation or registration of bodies corporate.
9 22. Formation meeting and transitional provision
10 (1) Before applying for registration as a co-operative, a corporation
11 must pass a special resolution in accordance with its constitution
12 approving of --
13 (a) the proposed registration; and
14 (b) any alterations of its existing constitution necessary to
15 enable the corporation to comply with this Act.
16 (2) At the meeting to pass the special resolution --
17 (a) the proposed rules of the proposed co-operative
18 approved under section 17, and including active
19 membership provisions in accordance with Part 6, must
20 also be passed by special resolution; and
21 (b) in the case of a proposed distributing co-operative, a
22 disclosure statement approved under section 16 must be
23 presented to the meeting.
24 (3) For a corporation that on registration under this Division will be
25 a transferred co-operative, the requirement to pass a special
26 resolution approving the proposed registration and the proposed
27 rules is satisfied if the resolution complies with
28 section 177(1)(a) or (b), and (3).
page 23
Co-operatives Bill 2009
Part 2 Formation
Division 5 Registration of an existing corporation
s. 23
1 23. Application for registration
2 (1) An application for registration under this Division must be --
3 (a) in the form approved by the Registrar; and
4 (b) accompanied by the fee prescribed by the regulations;
5 and
6 (c) accompanied by --
7 (i) a written declaration, signed no more than
8 28 days before the application for registration by
9 the directors or the committee of management of
10 the corporation, stating that at a meeting of the
11 directors or committee they formed the opinion
12 that the corporation will be able to pay its debts
13 as they fall due; and
14 (ii) a report in the form approved by the Registrar as
15 to the affairs of the corporation and showing its
16 assets and liabilities, made up to the latest
17 practicable date before the application; and
18 (iii) a copy of the constitution of the corporation in
19 force at the date of the application; and
20 (iv) 2 copies of the proposed rules of the
21 co-operative, certified in writing by the directors
22 or the committee of management to have been
23 approved under section 22(2) by special
24 resolution; and
25 (v) in the case of a proposed distributing
26 co-operative, a copy of the disclosure statement
27 presented to the meeting held under section 22,
28 certified in writing by the directors or committee
29 of management of the corporation to have been
30 presented to that meeting; and
31 (vi) a list containing the name, address, occupation
32 and place and date of birth of each director; and
33 (vii) evidence to the satisfaction of the Registrar of
34 the incorporation of the existing corporation; and
page 24
Co-operatives Bill 2009
Formation Part 2
Registration of an existing corporation Division 5
s. 24
1 (viii) any other particulars that the Registrar may
2 require.
3 (2) For a corporation that on registration under this Division will be
4 a transferred co-operative, an application need only comprise
5 the requirements of subsection (1)(a), (c)(iv) and (viii).
6 24. Requirements for registration
7 (1) When an application is made for registration as a co-operative
8 under this Division, the Registrar must register the corporation
9 as a co-operative under this Act and register its rules under this
10 Act if the Registrar is satisfied that the requirements for
11 registration of the co-operative have been met.
12 (2) The requirements for registration as a co-operative under this
13 Division are as follows --
14 (a) the proposed rules of the proposed co-operative must be
15 the proposed rules approved by the Registrar under
16 section 17;
17 (b) the requirements of this Act must have been complied
18 with in relation to the proposed co-operative and
19 compliance must be likely to continue;
20 (c) there must be no reasonable cause for refusing
21 registration of the proposed co-operative.
22 (3) If the Registrar is not satisfied that the requirements for
23 registration of the co-operative have been met, the Registrar
24 may refuse to register the co-operative and its rules and must
25 give to the applicant written notice of the refusal and the reasons
26 for the refusal.
27 (4) If the Registrar has decided under this section to register a
28 corporation under this Act, the corporation must notify the
29 authority responsible for registering the corporation under the
30 law under which it was previously registered of that decision.
31 (5) Despite anything to the contrary in this Division, the registration
32 of a corporation as a co-operative does not take effect until the
page 25
Co-operatives Bill 2009
Part 2 Formation
Division 5 Registration of an existing corporation
s. 25
1 corporation ceases to be registered under the law under which it
2 was previously registered.
3 (6) The corporation must notify the Registrar in writing within
4 7 days after ceasing to be registered under that other law.
5 25. Transitional provision
6 (1) This section applies to a corporation that, on registration under
7 this Division, will be a transferred co-operative.
8 (2) Section 24(4) to (6) does not apply to the corporation.
9 (3) If the Registrar decides to register the corporation, the Registrar
10 must ensure that the corporation ceases to be registered under
11 the old Act.
12 26. Certificate of registration
13 (1) On the registration of a corporation as a co-operative, the
14 Registrar must --
15 (a) issue a certificate of registration to the corporation; and
16 (b) publish notice of the issue of the certificate in the
17 Gazette.
18 (2) The corporate name of a corporation registered as a co-operative
19 is the name approved by the Registrar, as specified in the
20 certificate of registration issued by the Registrar.
21 27. Effect of registration
22 (1) The corporation is taken to be incorporated under this Act on its
23 registration.
24 (2) Except as expressly provided in this Act, the registration and
25 incorporation of the corporation as a co-operative does not
26 prejudice any right of a member in respect of any shares held at
27 the time of registration and incorporation.
28 (3) The change of registration and incorporation does not affect the
29 identity of the corporation which is taken to be the same body
page 26
Co-operatives Bill 2009
Formation Part 2
Conversion of co-operative Division 6
s. 28
1 after registration as a co-operative as it was before and no act,
2 matter or thing is affected by the change.
3 Division 6 -- Conversion of co-operative
4 28. Conversion of co-operative
5 (1) A co-operative may, by alteration of its rules, convert from --
6 (a) a co-operative with share capital to a co-operative
7 without share capital or vice versa; or
8 (b) a distributing co-operative to a non-distributing
9 co-operative or vice versa.
10 (2) An alteration of the rules for the conversion of a co-operative
11 with share capital to a co-operative without share capital cannot
12 be passed until at least 2 weeks after a notice has been published
13 in a newspaper circulating generally in the district in which the
14 registered office of the co-operative is situated advising of the
15 proposal to submit the proposed alteration to members of the
16 co-operative.
17 (3) An alteration of the rules for the conversion of a co-operative
18 must be approved by special resolution passed by means of a
19 special postal ballot.
20 Division 7 -- Reviews
21 29. Appeal against refusal to approve disclosure statement
22 The person who submitted a draft disclosure statement to the
23 Registrar under this Act may appeal to the Supreme Court
24 against a failure of the Registrar to approve the statement.
25 30. Appeal against refusal to approve draft rules
26 The person who submitted draft rules to the Registrar under this
27 Act may appeal to the Supreme Court against a failure of the
28 Registrar to approve the rules.
page 27
Co-operatives Bill 2009
Part 2 Formation
Division 8 General
s. 31
1 31. Appeal against refusal to register
2 The applicant for registration of a proposed co-operative under
3 this Part may appeal to the Supreme Court against a failure of
4 the Registrar to register the co-operative.
5 32. Supreme Court's powers on appeal
6 The Supreme Court may make any order it considers
7 appropriate to dispose of an appeal under this Division.
8 Division 8 -- General
9 33. Acceptance of money by proposed co-operative
10 (1) A proposed co-operative that, or a person on a proposed
11 co-operative's behalf who, accepts money for the proposed
12 co-operative before the proposed co-operative is registered must
13 hold that money on trust until the co-operative is registered.
14 (2) If a co-operative is not registered within the period of 3 months
15 after the acceptance of money under subsection (1), the
16 proposed co-operative or the person who accepted the money on
17 its behalf must refund the money to the person who paid it.
18 Penalty: a fine of $6 000.
19 34. Issue of duplicate certificate
20 The Registrar must issue a duplicate certificate of registration
21 if --
22 (a) the Registrar is satisfied that the original certificate is
23 lost or destroyed; and
24 (b) the fee prescribed by the regulations is paid.
page 28
Co-operatives Bill 2009
Legal capacity and powers Part 3
General powers Division 1
s. 35
1 Part 3 -- Legal capacity and powers
2 Division 1 -- General powers
3 35. Effect of incorporation
4 As a corporation, a co-operative --
5 (a) has perpetual succession; and
6 (b) has a common seal; and
7 (c) may sue and be sued in its corporate name; and
8 (d) subject to this Act, is capable of taking, purchasing,
9 leasing, holding, selling and disposing of real and
10 personal property; and
11 (e) may do and suffer all acts and things that corporations
12 may by law do and suffer and that are necessary or
13 expedient.
14 36. Power to form companies and enter into joint ventures
15 Without limiting any other provision of this Act, a co-operative
16 has power --
17 (a) to form or participate in the formation of a corporation
18 or unit trust; and
19 (b) to acquire interests in and sell or otherwise dispose of
20 interests in corporations, unit trusts and joint ventures;
21 and
22 (c) to form or enter into a partnership, joint venture or other
23 association with other persons or bodies.
24 Division 2 -- Doctrine of ultra vires abolished
25 37. Interpretation
26 In this Division --
27 (a) a reference to the doing of an act by a co-operative
28 includes a reference to the making of an agreement by
page 29
Co-operatives Bill 2009
Part 3 Legal capacity and powers
Division 2 Doctrine of ultra vires abolished
s. 38
1 the co-operative and a reference to a transfer of property
2 to or by the co-operative; and
3 (b) a reference to legal capacity includes a reference to
4 powers.
5 38. Doctrine of ultra vires abolished
6 (1) The objects of this Division are --
7 (a) to provide that the doctrine of ultra vires does not apply
8 to co-operatives; and
9 (b) without affecting the validity of a co-operative's
10 dealings with others, to ensure that the co-operative's
11 officers and members give effect to the provisions of the
12 co-operative's rules relating to the primary activities or
13 powers of the co-operative.
14 (2) This Division is to be construed and have effect in accordance
15 with subsection (1).
16 39. Legal capacity
17 (1) A co-operative has, both within and outside this State, the legal
18 capacity of an individual.
19 (2) Without limiting subsection (1), a co-operative has, both within
20 and outside this State, power --
21 (a) to issue and allot fully or partly paid shares in the
22 co-operative; and
23 (b) to issue debentures of, and co-operative capital units in,
24 the co-operative; and
25 (c) to distribute any of the property of the co-operative
26 among the members, in kind or otherwise; and
27 (d) to give security by charging uncalled capital; and
28 (e) to grant a charge on property of the co-operative; and
29 (f) to procure the co-operative to be registered or
30 recognised as a corporation in any place outside this
31 State; and
page 30
Co-operatives Bill 2009
Legal capacity and powers Part 3
Persons having dealings with co-operatives Division 3
s. 40
1 (g) to do any other act that it is authorised to do by any
2 other law, including a law of a place outside this State.
3 (3) Subsections (1) and (2) have effect in relation to a
4 co-operative --
5 (a) if the co-operative's rules contain an express or implied
6 restriction on, or an express or implied prohibition of,
7 the exercise by the co-operative of any of its powers,
8 despite that restriction or prohibition; and
9 (b) if the rules of the co-operative contain a provision
10 stating the objects of the co-operative, despite that fact.
11 (4) The fact that the doing of an act by a co-operative would not be,
12 or is not, in its best interests does not affect its legal capacity to
13 do the act.
14 40. Restrictions on co-operatives in rules
15 (1) A co-operative's rules may contain an express restriction on, or
16 an express prohibition of, the exercise by the co-operative of a
17 power of the co-operative.
18 (2) The exercise of a power or the doing of an act in contravention
19 of subsection (1) is not invalid merely because of the
20 contravention.
21 (3) A co-operative's rules may set out the object of that
22 co-operative.
23 (4) The exercise of a power or the doing of an act in contravention
24 of subsection (3) is not invalid merely because of the
25 contravention.
26 Division 3 -- Persons having dealings with co-operatives
27 41. Assumptions entitled to be made
28 (1) A person is entitled to make the assumptions in section 42 in
29 relation to --
30 (a) dealings with a co-operative; and
page 31
Co-operatives Bill 2009
Part 3 Legal capacity and powers
Division 3 Persons having dealings with co-operatives
s. 42
1 (b) dealings with a person who has, or purports to have,
2 directly or indirectly acquired title to property from a
3 co-operative.
4 (2) If a person is entitled to assume a matter, the co-operative or
5 anyone referred to in subsection (1)(b) is not entitled to assert in
6 proceedings in relation to the dealings that the matter is
7 incorrect.
8 42. Assumptions
9 (1) A person may assume that the co-operative's rules have been
10 complied with.
11 (2) A person may assume that anyone who appears, from
12 information provided by the co-operative that is available to the
13 public from the Registrar, to be a director or officer of the
14 co-operative --
15 (a) has been properly appointed; and
16 (b) has authority to exercise the powers and perform the
17 duties customarily exercised or performed by a director
18 or officer of a similar co-operative.
19 (3) A person may assume that anyone who is held out by the
20 co-operative to be an officer or agent of the co-operative --
21 (a) has been properly appointed; and
22 (b) has authority to exercise the powers and to perform the
23 duties customarily exercised or performed by that kind
24 of officer or agent of a similar co-operative.
25 (4) A person may assume that anyone who is, or may be assumed to
26 be, an officer or agent of the co-operative who has authority to
27 issue a document or a certified copy of a document on its behalf
28 also has authority to warrant that the document is genuine or is a
29 true copy.
30 (5) A person may assume that a document has been duly executed
31 by the co-operative if it is signed by 2 people, one of whom is,
32 or may be assumed to be, a director of the co-operative, and the
page 32
Co-operatives Bill 2009
Legal capacity and powers Part 3
Persons having dealings with co-operatives Division 3
s. 43
1 other is, or may be assumed to be, a director or the secretary of
2 the co-operative.
3 (6) A person may assume that a document has been duly executed
4 by the co-operative if --
5 (a) the co-operative's seal appears to have been fixed to the
6 document in accordance with Division 4; and
7 (b) the fixing of the seal appears to be witnessed by
8 2 people, one of whom is, or may be assumed to be, a
9 director of the co-operative, and the other is, or may be
10 assumed to be, a director or the secretary of the
11 co-operative.
12 (7) A person may assume that the officers and agents of the
13 co-operative properly perform their duties to the co-operative.
14 43. Person who knows or ought to know is not entitled to make
15 assumptions
16 This Division does not entitle a person to make an assumption,
17 and does not prevent an assertion being made in relation to an
18 assumption if --
19 (a) the person has actual knowledge that the assumption is
20 not correct; or
21 (b) the person's connection or relationship with the
22 co-operative is such that the person ought to know that
23 the assumption is not correct.
24 44. Lodgment of documents not to constitute constructive
25 knowledge
26 (1) A person is not considered to have knowledge of a
27 co-operative's rules, any of the contents of a co-operative's
28 rules, a document, the contents of a document, or any
29 particulars, merely because of either or both of the following --
30 (a) the rules, the document or the particulars have been
31 lodged with the Registrar;
page 33
Co-operatives Bill 2009
Part 3 Legal capacity and powers
Division 4 Authentication and execution of documents and confirmation
of contracts
s. 45
1 (b) the rules, the document or the particulars are referred to
2 in any other document that has been lodged with the
3 Registrar, or lodged with a person under a previous law
4 corresponding to a provision of this Act.
5 (2) Subsection (1) does not apply in relation to a document, or in
6 relation to the contents of a document, that has been lodged
7 under Part 10 Division 3 to the extent that the document relates
8 to a charge that is registrable under that Division or law.
9 (3) Despite subsection (1), a member of a co-operative is taken to
10 have knowledge of the rules of the co-operative.
11 45. Effect of fraud
12 (1) A person's entitlement under this Division to make an
13 assumption is not affected merely by the fact that a person --
14 (a) has acted or is acting fraudulently in relation to the
15 dealing or acquisition or purported acquisition of title to
16 property to which the assumption relates; or
17 (b) has forged a document that appears to have been sealed
18 on behalf of a co-operative.
19 (2) A person is not entitled to make an assumption if the person has
20 actual knowledge of the fraudulent action or forgery referred to
21 in subsection (1).
22 Division 4 -- Authentication and execution of documents and
23 confirmation of contracts
24 46. Common seal
25 A document or proceeding requiring authentication by a
26 co-operative may be authenticated under the common seal of the
27 co-operative.
28 47. Official seal
29 (1) A co-operative may, if authorised by its rules, have, for use in
30 place of its common seal outside the State where its common
page 34
Co-operatives Bill 2009
Legal capacity and powers Part 3
Authentication and execution of documents and confirmation Division 4
of contracts
s. 48
1 seal is kept, one or more official seals, each of which must be a
2 facsimile of the common seal of the co-operative with the
3 addition on its face of the name of every place where it is to be
4 used.
5 (2) The person affixing an official seal must, in writing signed by
6 the person, certify on the document to which it is affixed the
7 date on which and the place at which it is affixed.
8 (3) A document sealed with an official seal is taken to be sealed
9 with the common seal of the co-operative.
10 48. Authentication need not be under seal
11 A document or proceeding requiring authentication by a
12 co-operative may be authenticated by the signature of two
13 people, one of whom is a director of the co-operative and one of
14 whom is a director or the secretary of the co-operative and need
15 not be authenticated under the seal of the co-operative.
16 49. Co-operative may authorise person to execute deed
17 (1) A co-operative may, by writing under its common seal,
18 empower a person, either generally or in relation to a specified
19 matter, as its agent or attorney (authorised attorney) to execute
20 deeds on its behalf.
21 (2) A deed signed by an authorised attorney on behalf of the
22 co-operative and under the seal of the attorney, or under the
23 appropriate official seal of the co-operative, binds the
24 co-operative and has effect as if it were under the common seal
25 of the co-operative.
26 (3) The authority of an authorised attorney, as between the
27 co-operative and a person dealing with the attorney, continues
28 during the period, if any, specified in the instrument conferring
29 the authority or, if no period is specified, until notice of the
30 revocation or termination of the authority of the attorney has
31 been given to the person dealing with the attorney.
page 35
Co-operatives Bill 2009
Part 3 Legal capacity and powers
Division 5 Pre-registration contracts
s. 50
1 50. Execution under seal
2 A contract or other document executed, or purporting to have
3 been executed, under the seal of a co-operative is not invalid
4 merely because a person attesting the affixing of the seal was in
5 any way, whether directly or indirectly, interested in the
6 contract or other document or in the matter to which the contract
7 or other document relates.
8 51. Contractual formalities
9 (1) So far as concerns the formalities of making, varying or
10 discharging a contract, a person acting under the express or
11 implied authority of a co-operative may make, vary or discharge
12 a contract in the name of, or on behalf of, the co-operative as if
13 that contract were made, varied or discharged by an individual.
14 (2) The making, varying or discharging of a contract under
15 subsection (1) is effectual in law and binds the co-operative and
16 other parties to the contract.
17 (3) This section does not prevent a co-operative from making,
18 varying or discharging a contract under its seal.
19 52. Other requirements as to consent or sanction not affected
20 This Division does not affect the operation of a law that requires
21 some consent or sanction to be obtained, or some procedure to
22 be complied with, in relation to the making, varying or
23 discharging of a contract.
24 Division 5 -- Pre-registration contracts
25 53. Contracts before registration
26 (1) If a person enters into, or purports to enter into, a contract on
27 behalf of, or for the benefit of, a proposed co-operative, the
28 co-operative becomes bound by the contract and entitled to its
29 benefit if the co-operative, or a co-operative that is reasonably
30 identifiable with it, is registered and ratifies the contract --
31 (a) within a reasonable period after the contract is entered
32 into; or
page 36
Co-operatives Bill 2009
Legal capacity and powers Part 3
Pre-registration contracts Division 5
s. 53
1 (b) within any period agreed to by the parties to the
2 contract.
3 (2) The person is released from any liability under the
4 pre-registration contract if the co-operative enters into another
5 contract in substitution for it --
6 (a) within a reasonable period after the pre-registration
7 contract is entered into; or
8 (b) within any period agreed to by the parties to the
9 pre-registration contract.
10 (3) The person is liable to pay damages to each other party to the
11 pre-registration contract if the co-operative is not registered, or
12 the co-operative is registered but does not ratify the contract or
13 enter into a substitute for it --
14 (a) within a reasonable period after the contract is entered
15 into; or
16 (b) within the period agreed to by the parties to the contract.
17 (4) The maximum amount of damages the person is liable to pay to
18 a party is the amount the co-operative would be liable to pay to
19 the party if the co-operative had been registered and had ratified
20 the contract and then completely failed to perform it.
21 (5) If proceedings are brought to recover damages under
22 subsection (3) because the co-operative is registered but does
23 not ratify the pre-registration contract or enter into a substitute
24 for it, the court may do anything that it thinks just in the
25 circumstances, including ordering the co-operative --
26 (a) to pay all or part of the damages that the person is liable
27 to pay; or
28 (b) to transfer property that the co-operative received
29 because of the contract to a party to the contract; or
30 (c) to pay an amount to a party to the contract.
page 37
Co-operatives Bill 2009
Part 3 Legal capacity and powers
Division 5 Pre-registration contracts
s. 54
1 (6) If the co-operative ratifies the pre-registration contract but fails
2 to perform all or part of it, the court may order the person to pay
3 all or part of the damages that the co-operative is ordered to pay.
4 54. Person may be released from liability but is not entitled to
5 indemnity
6 (1) Any of the parties to the pre-registration contract may release
7 the person who entered into, or purported to enter into, the
8 contract from any liability in relation to that contract.
9 (2) The release must be in writing.
10 (3) The party giving the release is not entitled to recover damages
11 under section 53 from the person.
12 (4) Despite any rule of law or equity, the person does not have a
13 right of indemnity against the co-operative in respect of the
14 person's liability under this Division even if the person was
15 acting, or purporting to act, as trustee for the co-operative.
16 55. This Division replaces other rights and liabilities
17 This Division replaces any rights or liabilities anyone would
18 otherwise have in relation to the pre-registration contract.
page 38
Co-operatives Bill 2009
Membership Part 4
General Division 1
s. 56
1 Part 4 -- Membership
2 Division 1 -- General
3 56. Becoming a member
4 (1) On the registration of a co-operative, the persons who signed the
5 application for registration become members of the
6 co-operative.
7 (2) Other persons may be admitted as members of the co-operative
8 as provided by its rules.
9 (3) A person under 18 years of age may be admitted as a member of
10 the co-operative unless the rules of the co-operative provide
11 otherwise.
12 (4) A corporation is not, merely because it is a corporation,
13 disqualified from being a member of a co-operative unless the
14 co-operative's rules provide that corporations are disqualified
15 from being members.
16 (5) If 2 or more co-operatives merge, the members of the merged
17 co-operative are --
18 (a) the members of the merging co-operatives; and
19 (b) other persons admitted as members of the merged
20 co-operative in accordance with its rules.
21 57. Members of co-operative group
22 (1) The members of a co-operative group are --
23 (a) the co-operatives by which the co-operative group is
24 formed; and
25 (b) any other co-operative, admitted to membership in
26 accordance with the rules of the co-operative group; and
27 (c) any other corporation or other body admitted to
28 membership in accordance with subsection (2).
page 39
Co-operatives Bill 2009
Part 4 Membership
Division 1 General
s. 58
1 (2) A corporation or other body, not being a co-operative, may be
2 admitted to membership of the co-operative group if --
3 (a) it is incorporated or registered under any other law,
4 whether or not a law of this State; and
5 (b) in the opinion of the board of the co-operative group, it
6 is designed to function in accordance with co-operative
7 principles; and
8 (c) it is eligible to be admitted to membership in accordance
9 with the rules of the co-operative group.
10 58. Qualification for membership and transitional provision
11 (1) Subject to subsection (3), a person is not qualified to be
12 admitted to membership of a co-operative unless --
13 (a) there are reasonable grounds for believing that the
14 person will be an active member of the co-operative;
15 and
16 (b) the person is otherwise eligible under the rules of the
17 co-operative.
18 (2) The rules of a co-operative must contain provisions that --
19 (a) impose a duty on all persons who become members to
20 be active members; and
21 (b) explain the consequences of failing to be or ceasing to
22 be an active member.
23 (3) A person who was a member of a co-operative immediately
24 before that co-operative became a transferred co-operative is
25 qualified to be admitted to membership of the co-operative
26 despite the absence of reasonable grounds for believing that the
27 person will be an active member of the co-operative.
28 59. Membership may be joint
29 Membership of a co-operative may be individual and, unless the
30 rules of the co-operative provide otherwise, may be joint.
page 40
Co-operatives Bill 2009
Membership Part 4
General Division 1
s. 60
1 60. Members under 18 years of age
2 (1) A member of a co-operative is not entitled to avoid any
3 obligation or liability as a member under any contract, deed or
4 other document entered into as a member on any ground
5 relating to minority.
6 (2) A person under 18 years of age is not competent to hold an
7 office in a co-operative.
8 (3) A member of a co-operative who is under 18 years of age is
9 entitled to vote.
10 (4) This section applies only to individuals.
11 61. Representatives of corporations
12 (1) If a corporation is a member of a co-operative, it may by
13 instrument served on the co-operative appoint a person to
14 represent it in relation to its membership.
15 (2) The power to appoint a representative is subject to any
16 restriction imposed by the rules of the co-operative as to the
17 entitlement of a person to represent a corporation.
18 (3) A person is not qualified to be appointed the representative of a
19 company that is not a listed corporation (within the meaning of
20 the Corporations Act) unless the person is an officer, member or
21 employee of the company.
22 62. Notification of shareholders and shareholdings
23 On the request of the board of directors of the co-operative, a
24 corporation that is a corporate member must provide the board
25 of directors of the co-operative with --
26 (a) a list of the names of all the shareholders of the
27 corporation and the number of shares held by each
28 shareholder; or
page 41
Co-operatives Bill 2009
Part 4 Membership
Division 1 General
s. 63
1 (b) in the case of a corporation without share capital, a list
2 of the members of the corporation,
3 within 7 days of the request.
4 Penalty: a fine of $2 000.
5 63. Circumstances in which membership ceases -- all
6 co-operatives
7 (1) A person ceases to be a member of a co-operative in each of
8 the following circumstances and as otherwise provided by
9 this Act --
10 (a) if the member's membership is cancelled under Part 6;
11 (b) if the member is expelled or resigns in accordance with
12 the rules of the co-operative;
13 (c) if --
14 (i) the individual member becomes bankrupt or the
15 corporate member becomes insolvent; or
16 (ii) the member's property becomes subject to
17 control under the law relating to bankruptcy,
18 unless provision is made to the contrary in the rules of
19 the co-operative;
20 (d) on death;
21 (e) if the contract of membership is rescinded on the ground
22 of misrepresentation or mistake;
23 (f) in the case of a member that is a corporation, if the body
24 is deregistered.
25 (2) On the death of a member, the member's estate remains liable
26 under section 67 as the member until the member's personal
27 representative or some other person is registered in the
28 member's place.
page 42
Co-operatives Bill 2009
Membership Part 4
General Division 1
s. 64
1 64. Additional circumstances in which membership
2 ceases -- co-operatives with share capital
3 In the case of a co-operative that has a share capital, in addition
4 to the circumstances in section 63, a member ceases to be a
5 member in each of the following circumstances --
6 (a) the member's total shareholding is transferred to another
7 person in accordance with the rules of the co-operative,
8 and the transferee is registered as holder;
9 (b) the member's total shareholding is forfeited in
10 accordance with this Act or the rules of the co-operative;
11 (c) the member's total shareholding is sold by the
12 co-operative under a power conferred by the rules of the
13 co-operative, and the purchaser is registered as holder;
14 (d) the member's total shareholding is purchased by the
15 co-operative in accordance with this Act;
16 (e) the amount paid up to the stated nominal value on the
17 member's shares is repaid to the member in accordance
18 with the rules of the co-operative.
19 65. Carrying on business with too few members
20 (1) A person who is a director of a co-operative commits an offence
21 if the person knowingly allows the co-operative to continue to
22 carry on business with fewer than the minimum number of
23 members for more than 28 days after the number of members
24 falls below the minimum number.
25 Penalty: a fine of $2 000.
26 (2) Each person who is found guilty of an offence under
27 subsection (1) is also liable to satisfy all obligations of the
28 co-operative incurred after the 28 days referred to in
29 subsection (1), and may be sued without any other member
30 being joined in the action.
31 (3) The minimum number of members allowed is --
32 (a) for a co-operative group, 2; or
page 43
Co-operatives Bill 2009
Part 4 Membership
Division 2 Rights and liabilities of members
s. 66
1 (b) for any other co-operative, 5, or if a lesser number is
2 prescribed by the regulations, the prescribed number.
3 (4) The Registrar may, by written notice, extend and further extend
4 in a particular case the period of 28 days referred to in
5 subsection (1).
6 (5) An application for an extension must be made --
7 (a) in a form approved by the Registrar; and
8 (b) before the period to be extended ends.
9 Division 2 -- Rights and liabilities of members
10 66. Rights of membership not exercisable until registered etc.
11 (1) A member of a co-operative is not entitled to exercise any rights
12 of membership until --
13 (a) the member's name appears as a member in the register
14 of members, directors and shares referred to in
15 section 230(1)(a); and
16 (b) the member has made a payment to the co-operative for
17 membership or acquired a share or interest that is
18 provided for in the rules of the co-operative.
19 (2) The board of a co-operative must ensure that the name of a
20 person admitted to membership is recorded as a member in the
21 register of members, directors and shares within 28 days after
22 the person is admitted to membership.
23 Penalty: a fine of $2 000.
24 67. Liability of members to co-operative
25 (1) A member of a co-operative is not, as a member, under any
26 personal liability to the co-operative, except as provided by this
27 Division.
28 (2) A member of a co-operative with a share capital is liable to the
29 co-operative for the amount, if any, unpaid on the shares held by
page 44
Co-operatives Bill 2009
Membership Part 4
Rights and liabilities of members Division 2
s. 68
1 the member together with any charges payable by the member
2 to the co-operative as required by the rules of the co-operative.
3 (3) A member of a co-operative without a share capital is liable to
4 the co-operative for any charges payable by the member to the
5 co-operative as required by the rules of the co-operative.
6 68. Co-operative to make information available to person
7 intending to become a member
8 (1) The board of a co-operative must give written notice to each
9 person intending to become a member of the co-operative and
10 eligible to do so that the person may request to either inspect at
11 the co-operative's nearest office, or be sent --
12 (a) a consolidated copy of the rules of the co-operative; and
13 (b) a copy of all special resolutions applicable to the
14 member and passed by the members of the co-operative
15 since its last annual general meeting, except special
16 resolutions providing for an alteration of the rules of the
17 co-operative; and
18 (c) a copy of the last annual report of the co-operative under
19 section 235.
20 (2) If a person who has received notice under this section makes a
21 request referred to in subsection (1), the co-operative must
22 comply with that request.
23 69. Entry fees and regular subscriptions
24 (1) The rules of a co-operative may --
25 (a) require the payment by members of entry fees and
26 regular subscriptions; and
27 (b) provide for the repayment of those fees and
28 subscriptions on a person ceasing to be a member.
29 (2) The calculation of the amount of a particular member's regular
30 subscription may be based on the amount of business the
31 member does with the co-operative.
page 45
Co-operatives Bill 2009
Part 4 Membership
Division 2 Rights and liabilities of members
s. 70
1 (3) A co-operative must give a person intending to become a
2 member written notice of entry fees or regular subscriptions
3 payable by the member to the co-operative.
4 (4) A person who becomes a member of a co-operative is not liable
5 to pay entry fees or regular subscriptions except --
6 (a) those fees or subscriptions of which the person was
7 given written notice before becoming a member; and
8 (b) any regular subscriptions that may be imposed in
9 accordance with the rules and of which the member has
10 been given notice.
11 70. Members etc. may be required to deal with co-operative
12 (1) The rules of a co-operative may contain provisions that require
13 a member to have specified dealings with the co-operative for a
14 fixed period and to enter into a contract for that purpose.
15 (2) A co-operative may, if authorised by its rules, make a contract
16 with a member containing provisions that require the member to
17 have specified dealings with the co-operative for a fixed period.
18 (3) In particular, the provisions of the rules or a contract may
19 require a member --
20 (a) to sell products through or to the co-operative; or
21 (b) to obtain supplies or services through or from the
22 co-operative; or
23 (c) to pay to the co-operative a stated amount as liquidated
24 damages for any failure to comply with a requirement
25 authorised by this section.
26 (4) An amount required to be paid to the co-operative as liquidated
27 damages is, for the purposes of section 72, a debt payable by the
28 member to the co-operative.
29 (5) A contract authorised by this section is binding on the
30 co-operative and all other parties even though, but for this Act,
31 the contract would be invalid as being in restraint of trade.
page 46
Co-operatives Bill 2009
Membership Part 4
Rights and liabilities of members Division 2
s. 71
1 (6) Rules authorised by this section are authorised even though, but
2 for this section, the rules might be invalid as being in restraint of
3 trade.
4 71. Fines payable by members
5 (1) A co-operative may impose a fine on a member for an
6 infringement of the rules of the co-operative if the rules of the
7 co-operative so provide.
8 (2) A fine imposed under subsection (1) cannot exceed the
9 maximum fine fixed by the rules in accordance with section 98.
10 (3) A fine cannot be imposed unless --
11 (a) notice of intention to impose the fine and the reason for
12 it has been given to the member; and
13 (b) the member has been given a reasonable opportunity to
14 appear before the board in person (with or without
15 witnesses) or to send to the board a written statement to
16 show cause why the fine should not be imposed.
17 (4) The co-operative may set off the whole or any part of the fine
18 against an amount payable to the member for produce delivered
19 by the member to the co-operative, but no part of the fine is to
20 be set off against any advance that, in accordance with the rules
21 of the co-operative, is payable to the member from the
22 co-operative, for produce so delivered.
23 72. Charge and set off of co-operative
24 (1) A co-operative has, in relation to a debt payable by a member or
25 former member to the co-operative, a charge on each of the
26 following --
27 (a) the share or interest in the capital and the credit balance
28 and deposits of the member or former member;
29 (b) any rebate, bonus, dividend or interest payable to the
30 member or former member;
page 47
Co-operatives Bill 2009
Part 4 Membership
Division 2 Rights and liabilities of members
s. 73
1 (c) any entry fees and regular subscriptions required to be
2 repaid to a member when the member ceases to be a
3 member.
4 (2) The co-operative may set off any amount paid on account of
5 that share or other thing, or any amount credited or payable to
6 the member or former member, in or towards payment of the
7 debt.
8 (3) The charge created by this section may be enforced by the
9 appropriation by the co-operative of the thing that is subject to
10 the charge, but only after at least 7 days notice has been given to
11 the member or former member.
12 (4) Any share in respect of which capital has been so appropriated
13 must be cancelled.
14 73. Repayment of shares on resignation or expulsion
15 (1) When a member resigns from a co-operative or is expelled from
16 a co-operative under its rules, the co-operative must --
17 (a) within 12 months after the date of resignation or
18 expulsion, repay to the former member an amount (the
19 repayable amount) made up of the amount paid up to
20 the stated nominal value of the shares held by the
21 member at the resignation or expulsion date, less any
22 amount owed by the member to the co-operative at the
23 resignation or expulsion date under the rules of the
24 co-operative or any contract or otherwise; or
25 (b) in the case of a transferred co-operative the rules of
26 which state how to calculate the repayable amount
27 owing to a former member at the time of resignation or
28 expulsion, within 3 years after the date of resignation or
29 expulsion, repay to the former member an amount in
30 accordance with those rules; or
page 48
Co-operatives Bill 2009
Membership Part 4
Rights and liabilities of members Division 2
s. 73
1 (c) within 12 months after the date of resignation or
2 expulsion, apply the repayable amount under
3 subsection (2) if --
4 (i) the board considers repayment would adversely
5 affect the financial position of the co-operative;
6 or
7 (ii) the board and the former member agree.
8 (2) The repayable amount may be applied in one of the following
9 ways --
10 (a) the co-operative may appropriate the amount as a
11 donation to the co-operative, but only if the former
12 member consents in writing to the donation;
13 (b) if the co-operative is a deposit taking co-operative, the
14 co-operative may apply the amount as a deposit by the
15 former member with the co-operative, subject to the
16 requirements of section 128 as to interest on the deposit;
17 (c) the co-operative may issue debentures or co-operative
18 capital units to the former member in satisfaction of the
19 amount.
20 (3) If the balance sheet of the co-operative last issued before the
21 resignation or expulsion of a member of the co-operative
22 disclosed a loss or deficiency or a significant change in the
23 financial position or prospects of the co-operative is
24 subsequently reported prior to the resignation or expulsion, the
25 paid up value of the member's shares may, for the purposes of
26 calculating the repayable amount, be reduced as described in
27 subsection (4).
28 (4) The paid up value of the member's shares may be reduced by an
29 amount that bears to the amount of the loss or deficiency so
30 disclosed the same proportion as the number of shares held by
31 the member bore to the total number of shares held by all
32 members of the co-operative as at the date of resignation or
33 expulsion of the member.
page 49
Co-operatives Bill 2009
Part 4 Membership
Division 3 Death of member
s. 74
1 (5) Shares for which capital has been repaid under subsection (1)(a)
2 or applied under subsection (1)(c) must be cancelled.
3 Division 3 -- Death of member
4 74. Meaning of interest
5 In this Division --
6 interest, of a deceased member in a co-operative, includes --
7 (a) the member's membership; and
8 (b) any credit balance due to the member; and
9 (c) any loan from or to or deposit with the co-operative; and
10 (d) any surplus arising on the sale by the co-operative as
11 mortgagee of any property mortgaged by the deceased to
12 the co-operative;
13 transfer, of an interest, includes the payment of money.
14 75. Transfer of share or interest on death of member
15 Subject to sections 76 and 159, on the death of a member, the
16 board must transfer the deceased member's share or interest in
17 the co-operative to --
18 (a) the personal representative of the deceased member; or
19 (b) the person that the deceased's personal representative
20 specifies in an application made to the co-operative
21 within 3 months after the death of the member.
22 76. Transfer of small shareholdings and interests on death
23 (1) Subject to section 159, if the total value of a deceased member's
24 shares or interest in a co-operative is less than $10 000 (or such
25 other amount as may be prescribed), the board may, on the basis
26 of such evidence as it considers sufficient, transfer the shares or
27 interest in accordance with whichever of the following
28 paragraphs is appropriate --
29 (a) if the member or person dies testate, to the person who
30 appears to the board to be entitled to the shares or
page 50
Co-operatives Bill 2009
Membership Part 4
Disputes involving members Division 4
s. 77
1 interest under the will of the deceased member or
2 person;
3 (b) if the member or person dies intestate, to any person
4 who appears to the board to be entitled to obtain a grant
5 of administration of the estate of the deceased and that
6 person must then hold the shares or interest on the same
7 trusts as if he or she had obtained that grant.
8 (2) A transfer cannot be made under this section after evidence has
9 been produced to the co-operative of the grant of letters of
10 administration of the estate, or probate of the will, of the
11 deceased member.
12 77. Value of shares and interests
13 The value of the shares or interest of a deceased member must
14 be determined for the purposes of this Division in accordance
15 with the rules of the co-operative.
16 78. Co-operative protected
17 Any transfer of property made by the board of a co-operative in
18 accordance with this Division is valid and effectual against any
19 demand made on the co-operative by any other person.
20 Division 4 -- Disputes involving members
21 79. Grievance procedure
22 (1) The rules of a co-operative must set out a grievance procedure
23 for dealing with any dispute under the rules --
24 (a) between a member and another member; and
25 (b) between a member and the co-operative.
26 (2) A member may appoint any person to act on behalf of the
27 member in the grievance procedure.
28 (3) The grievance procedure must allow for natural justice to be
29 applied.
page 51
Co-operatives Bill 2009
Part 4 Membership
Division 4 Disputes involving members
s. 80
1 (4) In this section and section 80 --
2 member includes any person who was a member not more than
3 6 months before the dispute occurred.
4 80. Application to Supreme Court
5 (1) The Supreme Court may, on the application of a member of a
6 co-operative, or a co-operative, make an order declaring and
7 enforcing --
8 (a) the rights or obligations of members of the co-operative
9 between themselves; or
10 (b) the rights or obligations of the co-operative and any
11 member between themselves.
12 (2) An order may be made under this section whether or not a right
13 of a proprietary nature is involved and whether or not the
14 applicant has an interest in the property of the co-operative.
15 (3) The Supreme Court may refuse to make an order on the
16 application or may make an order for costs against a party,
17 whether successful or not, if the Court is of the opinion that --
18 (a) the issue raised in the application is trivial; or
19 (b) having regard to the importance of the issue, the nature
20 of the co-operative, any other available method of
21 resolving the issue, the costs involved, lapse of time,
22 acquiescence or any other relevant circumstance, it was
23 unreasonable to make the application; or
24 (c) the unreasonable or improper conduct of a party --
25 (i) has been responsible for the making of the
26 application; or
27 (ii) has added to the cost of the proceedings.
page 52
Co-operatives Bill 2009
Membership Part 4
Oppressive conduct of affairs Division 5
s. 81
1 Division 5 -- Oppressive conduct of affairs
2 81. Interpretation
3 In this Division, a reference to a member of a co-operative
4 includes, in the case of a co-operative that has a share capital, a
5 reference to a person to whom a share in the co-operative has
6 been transmitted by will or by operation of law.
7 82. Application of Division
8 This Division does not apply in respect of anything done under
9 Part 6.
10 83. Who may apply for court order
11 The following persons may apply to the Supreme Court for an
12 order under this Division --
13 (a) the Registrar;
14 (b) a member who believes that the affairs of the
15 co-operative are being conducted in a way that is --
16 (i) oppressive or unfairly prejudicial to, or unfairly
17 discriminatory against, a member; or
18 (ii) contrary to the interests of the members as a
19 whole;
20 (c) a member who believes that an act or omission, or a
21 proposed act or omission, by or on behalf of the
22 co-operative, or a resolution, or a proposed resolution,
23 of members, was or would be --
24 (i) oppressive or unfairly prejudicial to, or unfairly
25 discriminatory against, a member; or
26 (ii) contrary to the interests of the members as a
27 whole.
page 53
Co-operatives Bill 2009
Part 4 Membership
Division 5 Oppressive conduct of affairs
s. 84
1 84. Orders that the Supreme Court may make
2 On application under this Division, the Supreme Court may
3 make any order that it considers appropriate including (without
4 being limited to) one or more of the following orders --
5 (a) an order that the Registrar appoint an administrator of
6 the co-operative;
7 (b) an order that the co-operative be wound-up;
8 (c) an order for regulating the conduct of affairs of the
9 co-operative in the future;
10 (d) an order for the repayment of the member's shares in
11 accordance with the provisions of this Act for repayment
12 of share capital;
13 (e) an order for the purchase of the shares of any member
14 by the co-operative and for the reduction accordingly of
15 the co-operative's capital;
16 (f) an order directing the co-operative to institute,
17 prosecute, defend or discontinue specified proceedings,
18 or authorising a member or members of the co-operative
19 to institute, prosecute, defend or discontinue specified
20 proceedings in the name and on behalf of the
21 co-operative;
22 (g) an order appointing a receiver or a receiver and manager
23 of property of the co-operative;
24 (h) an order restraining a person from engaging in specified
25 conduct or from doing a specified act or thing;
26 (i) an order directing a co-operative to become registered as
27 a company under the Corporations Act;
28 (j) an order requiring a person to do a specified act or thing;
29 (k) an order as to costs.
page 54
Co-operatives Bill 2009
Membership Part 4
Oppressive conduct of affairs Division 5
s. 85
1 85. Basis on which Supreme Court makes orders
2 The Supreme Court may make an order under this Division if it
3 considers that --
4 (a) the affairs of a co-operative are being conducted in a
5 way that is --
6 (i) oppressive or unfairly prejudicial to, or unfairly
7 discriminatory against, a member (the oppressed
8 member), whether or not in the capacity of a
9 member; or
10 (ii) contrary to the interests of the members as a
11 whole;
12 or
13 (b) an act or omission, or a proposed act or omission, by or
14 on behalf of a co-operative, or a resolution, or a
15 proposed resolution, of members of a co-operative, was
16 or would be --
17 (i) oppressive or unfairly prejudicial to, or unfairly
18 discriminatory against, a member (the oppressed
19 member), whether or not in the capacity of a
20 member; or
21 (ii) contrary to the interests of the members as a
22 whole.
23 86. Winding-up need not be ordered if oppressed members
24 prejudiced
25 The Supreme Court need not make an order under this Division
26 for the winding-up of a co-operative if the Court considers that
27 the winding-up of the co-operative would unfairly prejudice an
28 oppressed member.
29 87. Application of winding-up provisions
30 If an order that a co-operative be wound-up is made under this
31 Division, the provisions of this Act relating to the winding-up of
32 co-operatives apply, with any changes that are necessary, as if
page 55
Co-operatives Bill 2009
Part 4 Membership
Division 6 Proceedings on behalf of a co-operative by members and
others
s. 88
1 the order had been made on an application filed in the Supreme
2 Court by the co-operative.
3 88. Changes to rules
4 (1) If an order under this Division makes an alteration to the rules
5 of a co-operative --
6 (a) the alteration has effect as if it had been properly made
7 by special resolution of the co-operative; and
8 (b) the co-operative cannot (despite any other provisions of
9 this Act) without the leave of the Supreme Court make
10 any further alteration to the rules inconsistent with the
11 provisions of the order.
12 (2) On receiving a copy of an order altering the rules of a
13 co-operative the Registrar must register the alteration.
14 89. Copy of order to be lodged with Registrar
15 An applicant for an order under this Division must lodge an
16 office copy of the order with the Registrar within 14 days after
17 it is made.
18 Penalty: a fine of $1 000.
19 Division 6 -- Proceedings on behalf of a co-operative by
20 members and others
21 90. Bringing, or intervening in, proceedings on behalf of a
22 co-operative
23 (1) A person may bring proceedings on behalf of a co-operative, or
24 intervene in proceedings to which a co-operative is a party for
25 the purpose of taking responsibility on behalf of the
26 co-operative for those proceedings, or for a particular step in
27 those proceedings (for example, compromising or settling
28 them), if --
29 (a) the person is --
30 (i) a member, former member, or person entitled to
31 be registered as a member, of the co-operative or
32 of a related corporation; or
page 56
Co-operatives Bill 2009
Membership Part 4
Proceedings on behalf of a co-operative by members and Division 6
others
s. 91
1 (ii) an officer or former officer of the co-operative;
2 or
3 (iii) the Registrar;
4 and
5 (b) the person is acting with leave granted under section 91.
6 (2) Proceedings brought on behalf of a co-operative may be brought
7 in the co-operative's name.
8 91. Applying for and granting leave
9 (1) A person referred to in section 90(1)(a) may apply to the
10 Supreme Court for leave to bring, or to intervene in,
11 proceedings.
12 (2) The Supreme Court may grant the application if it is satisfied
13 that --
14 (a) it is probable that the co-operative will not itself bring
15 the proceedings, or properly take responsibility for
16 them, or for a step in them; and
17 (b) the applicant is acting in good faith; and
18 (c) it is in the best interests of the co-operative that the
19 applicant be granted leave; and
20 (d) if the applicant is applying for leave to bring
21 proceedings, there is a serious question to be tried; and
22 (e) either --
23 (i) at least 14 days before making the application,
24 the applicant gave written notice to the
25 co-operative of the intention to apply for leave
26 and of the reasons for applying; or
27 (ii) it is appropriate to grant leave even if
28 subparagraph (i) is not satisfied.
page 57
Co-operatives Bill 2009
Part 4 Membership
Division 6 Proceedings on behalf of a co-operative by members and
others
s. 92
1 92. Substitution of another person for the person granted leave
2 (1) Any of the following persons may apply to the Supreme Court
3 for an order that they be substituted for a person to whom leave
4 has been granted under section 91 --
5 (a) a member, former member, or person entitled to be
6 registered as a member, of the co-operative or a related
7 corporation;
8 (b) an officer, or former officer, of the co-operative;
9 (c) the Registrar.
10 (2) The application may be made whether or not the other person
11 has already brought the proceedings or made the intervention.
12 (3) The Supreme Court may make the order if it is satisfied that --
13 (a) the applicant is acting in good faith; and
14 (b) in all the circumstances, it is appropriate to make the
15 order.
16 (4) An order substituting one person for another person has the
17 effect that --
18 (a) the grant of leave is taken to have been made in favour
19 of the substituted person; and
20 (b) if the other person has already brought the proceedings
21 or intervened, the substituted person is taken to have
22 brought those proceedings or to have made that
23 intervention.
24 93. Effect of ratification by members
25 (1) A ratification or approval of conduct by members of a
26 co-operative --
27 (a) does not prevent a person from bringing or intervening
28 in proceedings with leave under section 91 or from
29 applying for leave under that section; and
30 (b) does not have the effect that proceedings brought or
31 intervened in with leave under section 91 must be
page 58
Co-operatives Bill 2009
Membership Part 4
Proceedings on behalf of a co-operative by members and Division 6
others
s. 94
1 decided in favour of the defendant, or that an application
2 for leave under that section must be refused.
3 (2) The Supreme Court may take into account a ratification or an
4 approval of the conduct by members of a co-operative in
5 deciding what order or judgment (including as to damages) to
6 make in proceedings brought or intervened in with leave under
7 section 91 or in relation to an application for leave under that
8 section.
9 (3) In taking a ratification or approval into account under
10 subsection (2), the Supreme Court may have regard to --
11 (a) how well-informed about the conduct the members were
12 when deciding whether to ratify or approve that conduct;
13 and
14 (b) whether the members who ratified or approved the
15 conduct were acting for proper purposes.
16 94. Leave to discontinue, compromise or settle proceedings
17 brought, or intervened in, with leave
18 Proceedings brought, or intervened in, with leave cannot be
19 discontinued, compromised or settled without the leave of the
20 Supreme Court.
21 95. General powers of the Supreme Court
22 (1) The Supreme Court may make any order, and give any
23 direction, that it thinks just in relation to proceedings brought or
24 intervened in with leave, or in relation to an application for
25 leave, including --
26 (a) interim orders; and
27 (b) directions about the conduct of the proceedings,
28 including requiring mediation; and
29 (c) an order directing the co-operative, or an officer of the
30 co-operative, to do, or not to do, any act; and
page 59
Co-operatives Bill 2009
Part 4 Membership
Division 6 Proceedings on behalf of a co-operative by members and
others
s. 96
1 (d) an order appointing an independent person to
2 investigate, and report to the Supreme Court, on --
3 (i) the financial affairs of the co-operative; or
4 (ii) the facts or circumstances that gave rise to that
5 cause of action the subject of the proceedings; or
6 (iii) the costs incurred in the proceedings and the
7 person granted leave.
8 (2) A person appointed by the Supreme Court under
9 subsection (1)(d) is entitled, on giving reasonable notice to the
10 co-operative, to inspect and make copies of any books of the
11 co-operative for any purpose connected with their appointment.
12 96. Power of Supreme Court to make costs order
13 At any time, the Supreme Court may, in relation to proceedings
14 brought or intervened in with leave under section 91 or an
15 application for leave under that section, make any orders it
16 thinks just about the costs of the person who applied for or was
17 granted leave, of the co-operative or of any other party to the
18 proceedings or application, including an order requiring
19 indemnification for costs.
page 60
Co-operatives Bill 2009
Rules Part 5
s. 97
1 Part 5 -- Rules
2 97. Effect of rules
3 (1) The rules of a co-operative have the effect of a contract under
4 seal --
5 (a) between the co-operative and each member; and
6 (b) between the co-operative and each director, the secretary
7 and the chief executive officer of the co-operative; and
8 (c) between a member and each other member.
9 (2) Under the contract, each of those persons agrees to observe and
10 perform the provisions of the rules as in force for the time being
11 so far as those provisions apply to that person.
12 98. Content of rules
13 (1) The rules of a co-operative must state or otherwise make
14 provision for the matters specified in Schedule 1.
15 (2) The rules must be divided into paragraphs numbered
16 consecutively.
17 (3) The rules may state the objects of the co-operative.
18 (4) The rules may incorporate any provision of the model rules.
19 (5) The rules may provide for the co-operative to impose a fine,
20 payable to the co-operative, on a member for an infringement of
21 the rules.
22 (6) If the rules provide for the imposition of a fine, the rules must
23 specify the maximum fine that may be imposed on a member.
24 (7) The maximum fine fixed by the rules cannot be more than an
25 amount prescribed by the regulations as the maximum fine.
26 (8) The rules may contain other provisions not inconsistent with
27 this Act.
page 61
Co-operatives Bill 2009
Part 5 Rules
s. 99
1 99. Purchase and inspection of copy of rules
2 (1) A member is entitled to obtain from a co-operative a copy of its
3 rules on payment of the amount required by the rules of the
4 co-operative or, if the rules do not prescribe an amount, on
5 payment of $5.
6 (2) The amount required by the rules cannot be more than the fee
7 prescribed by the regulations for obtaining a copy of the rules
8 from the Registrar.
9 (3) A person is entitled to obtain from the Registrar a copy of the
10 rules of a co-operative on payment of the fee prescribed by the
11 regulations.
12 100. False copies of rules
13 (1) A person who gives to a member of a co-operative or to a
14 person intending or applying to become a member of a
15 co-operative a copy of any rules or any alterations of rules,
16 other than those which have been duly registered, representing
17 that they are binding on the members of the co-operative is
18 guilty of an offence.
19 Penalty: a fine of $1 000.
20 (2) A person who alters any of the rules of a co-operative after they
21 have been registered and circulates them representing that they
22 have been duly registered when they have not been is guilty of
23 an offence.
24 Penalty: a fine of $1 000.
25 101. Model rules
26 (1) The regulations may prescribe model rules.
27 (2) The model rules may make provision for any matter for which
28 the rules of a co-operative may make provision.
page 62
Co-operatives Bill 2009
Rules Part 5
s. 102
1 102. Rules can only be altered in accordance with this Act
2 The rules of a co-operative cannot be altered except in
3 accordance with this Act.
4 103. Approval of alteration of rules
5 (1) A proposed alteration of the rules of a co-operative must be
6 approved by the Registrar before the resolution altering the rules
7 is passed by the co-operative or the board of the co-operative.
8 (2) A draft of the proposed alteration must be submitted to the
9 Registrar at least 21 days (or a shorter period the Registrar may
10 allow in a particular case) before --
11 (a) the notice of the proposed special resolution altering the
12 rules is due to be given to the members by the
13 co-operative; or
14 (b) the resolution is due to be passed by the board of the
15 co-operative.
16 (3) The proposed alteration submitted under subsection (2) must be
17 accompanied by a written statement specifying the date on
18 which the notice is due to be given to members or the resolution
19 is due to be passed by the board, as the case may be.
20 (4) The proposed alteration must --
21 (a) be in accordance with section 98; and
22 (b) be made in a form approved by the Registrar; and
23 (c) be accompanied by a statement setting out the reasons
24 for the alteration.
25 (5) The Registrar may --
26 (a) approve the proposed alteration as submitted; or
27 (b) approve a different alteration to that submitted; or
28 (c) refuse to approve the proposed alteration.
page 63
Co-operatives Bill 2009
Part 5 Rules
s. 104
1 (6) Subject to subsection (7), the Registrar approves a proposed
2 alteration by giving written notice of the approval to the
3 co-operative.
4 (7) The Registrar is taken to have approved a proposed alteration as
5 submitted to the Registrar unless at least 5 days before the date
6 specified in the written statement submitted under
7 subsection (3), the Registrar gives written notice to the
8 co-operative that the Registrar --
9 (a) has approved a different alteration to that submitted; or
10 (b) has refused to approve the proposed alteration; or
11 (c) is still considering the matter.
12 104. Alteration by special resolution
13 The rules of a co-operative must be altered by special resolution
14 unless this Act provides otherwise.
15 105. Alteration by resolution of board
16 (1) The rules of a co-operative may be altered by a resolution
17 passed by the board if the alteration does no more than give
18 effect to a requirement, restriction or prohibition imposed under
19 the authority of this Act.
20 (2) If the rules of a co-operative are altered under this section, the
21 co-operative must cause the alteration to be notified in writing
22 to its members as soon as practicable after the alteration takes
23 effect and in any event not later than the day when notice is
24 given to the members of the next annual general meeting of the
25 co-operative after the alteration takes effect.
26 106. Alteration does not take effect until registered
27 (1) An alteration of the rules of a co-operative does not take effect
28 unless and until it is registered by the Registrar.
29 (2) An application for registration of an alteration must --
30 (a) be made in a form approved by the Registrar; and
page 64
Co-operatives Bill 2009
Rules Part 5
s. 107
1 (b) be made within 28 days, or a shorter or longer period
2 prescribed by the regulations, after the resolution to alter
3 the rules is passed; and
4 (c) be accompanied by a consolidated copy of the rules of
5 the co-operative, including the alteration.
6 (3) The Registrar must register the alteration unless --
7 (a) the Registrar is satisfied that the alteration is contrary to
8 this Act; or
9 (b) the Registrar has other reasonable cause to refuse to
10 register the alteration.
11 (4) A certificate of registration of an alteration of the rules of a
12 co-operative given by the Registrar is, in favour of any person
13 advancing money to the co-operative on the faith of the
14 certificate or in favour of any guarantor of that advance,
15 evidence that the alteration in the rules was properly made.
16 107. Appeal against refusal to approve alteration
17 A co-operative may appeal to the Supreme Court against a
18 failure of the Registrar to approve an alteration of its rules.
19 108. Appeal against refusal to register
20 A co-operative may appeal to the Supreme Court against a
21 failure of the Registrar to register an alteration of its rules.
22 109. Supreme Court's powers on appeal
23 The Supreme Court may make any order it considers
24 appropriate to dispose of an appeal under section 107 or 108.
page 65
Co-operatives Bill 2009
Part 6 Active membership
Division 1 Definitions
s. 110
1 Part 6 -- Active membership
2 Division 1 -- Definitions
3 110. Meaning of active membership resolution
4 In this Part --
5 active membership resolution has the meaning given in
6 section 112(2).
7 111. What is active membership
8 For the purposes of this Act, a member of a co-operative is an
9 active member of the co-operative if the member --
10 (a) uses or supports an activity of, or maintains a
11 relationship or an arrangement with, the co-operative,
12 for carrying on a primary activity of the co-operative, in
13 the way and to the extent that the rules of the
14 co-operative provide is sufficient to establish active
15 membership; or
16 (b) maintains any other relationship or arrangement with the
17 co-operative for carrying on a primary activity of the
18 co-operative that the regulations provide is sufficient to
19 establish active membership.
20 112. What are active membership provisions and resolutions
21 (1) Active membership provisions in the rules of a co-operative are
22 provisions in the rules that state --
23 (a) which of the activities of the co-operative are the
24 primary activities of the co-operative; and
25 (b) the way in which and the extent to which a member of
26 the co-operative must use or support an activity of, or
27 maintain a relationship or an arrangement with, the
28 co-operative for carrying on a primary activity of the
29 co-operative, in order to establish active membership of
30 the co-operative.
page 66
Co-operatives Bill 2009
Active membership Part 6
Rules to contain active membership provisions Division 2
s. 113
1 (2) An active membership resolution is a resolution that would, if
2 given effect to, make or amend active membership provisions in
3 the rules of a co-operative.
4 Division 2 -- Rules to contain active membership provisions
5 113. Number of primary activities required
6 A co-operative must have at least one primary activity.
7 114. Rules to contain active membership provisions
8 The board of a co-operative must ensure that the rules of the
9 co-operative contain active membership provisions in
10 accordance with this Part.
11 115. Factors and considerations for determining primary
12 activities etc.
13 (1) The board of a co-operative must ensure that the relevant factors
14 and considerations are taken into account in deciding --
15 (a) which of the activities of a co-operative are its primary
16 activities; and
17 (b) the way and extent to which a member is required to use
18 or support an activity of, or maintain a relationship or an
19 arrangement with, a co-operative, for carrying on a
20 primary activity of the co-operative, in order to establish
21 active membership of the co-operative.
22 (2) The relevant factors and considerations are --
23 (a) the primary activity or, if more than one, the primary
24 activities taken together must form the basic purpose for
25 which the co-operative exists and a significant
26 contribution to the business of the co-operative; and
27 (b) the way and extent of the required utilisation, support,
28 relationship or arrangement should be reasonable when
29 considered in relation to the activities of the
30 co-operative as a whole; and
page 67
Co-operatives Bill 2009
Part 6 Active membership
Division 2 Rules to contain active membership provisions
s. 116
1 (c) any other factors and considerations that are prescribed
2 by the regulations.
3 (3) The regulations may --
4 (a) provide for the matters to be taken into account in
5 deciding whether an activity makes a significant
6 contribution to the business of the co-operative; and
7 (b) specify minimum percentages of turnover, minimum
8 amounts of income or minimum amounts of business
9 necessary to constitute that significant contribution.
10 (4) Nothing in this section limits the right of active members other
11 than the board of the co-operative to propose an active
12 membership resolution.
13 116. Active membership provisions -- distributing co-operatives
14 The only active membership provisions that are permitted to be
15 contained in the rules of a distributing co-operative are --
16 (a) provisions requiring a member to use an activity of the
17 co-operative for carrying on a primary activity specified
18 in the provisions to establish active membership; and
19 (b) any other active membership provisions that the
20 Registrar may approve.
21 117. Regular subscription -- active membership of
22 non-distributing co-operative
23 (1) Active membership provisions for a non-distributing
24 co-operative may provide that the payment of a regular
25 subscription by a member of the co-operative, to be applied to a
26 primary activity of the co-operative, is sufficient to establish
27 active membership of the co-operative.
28 (2) A member of a co-operative who would, on payment of the
29 subscription, be an active member of a co-operative is taken to
30 be an active member until the subscription is payable.
page 68
Co-operatives Bill 2009
Active membership Part 6
Active membership resolutions Division 3
s. 118
1 Division 3 -- Active membership resolutions
2 118. Notice of meeting
3 (1) At least 21 days notice must be given to members of a
4 co-operative of a meeting at which an active membership
5 resolution is to be proposed.
6 (2) The notice must, in addition to the other matters required under
7 this Act to be stated --
8 (a) contain the full text of the proposed resolution; and
9 (b) contain a copy of section 120.
10 119. Eligibility of directors to vote on proposal at board meeting
11 If the board of a co-operative is meeting to consider a proposal
12 to submit an active membership resolution to a meeting of the
13 co-operative all the directors are eligible to vote on that
14 proposal at the meeting of the board.
15 Division 4 -- Cancellation of membership of inactive or
16 missing members
17 120. Cancellation of membership of inactive or missing member
18 (1) In this section --
19 required period, in relation to a co-operative, means --
20 (a) 3 years; or
21 (b) a shorter period if specified in the rules of the
22 co-operative.
23 (2) Subject to subsection (3), sections 123 and 124, the board of a
24 co-operative must declare the membership of a member
25 cancelled if --
26 (a) the whereabouts of the member are not presently known
27 to the co-operative and have not been known to the
page 69
Co-operatives Bill 2009
Part 6 Active membership
Division 4 Cancellation of membership of inactive or missing members
s. 121
1 co-operative for at least the required period before that
2 time; or
3 (b) the member is not presently an active member of the
4 co-operative and has not been an active member of the
5 co-operative at any time during the required period
6 immediately before that time.
7 (3) Subsection (2) applies to a member only if he or she was a
8 member of the co-operative throughout the required period.
9 (4) Whether a member was an active member at a particular time in
10 the past is to be decided by reference to the active membership
11 provisions in force at that time.
12 (5) The board's declaration under this section has the effect of
13 cancelling the membership concerned.
14 (6) A person may apply to the Supreme Court for an order under
15 section 126 in relation to the cancellation of the person's
16 membership under this section.
17 121. Share to be forfeited if membership cancelled
18 (1) If a co-operative has a share capital, the board of the
19 co-operative must declare the shares of a member to be forfeited
20 at the same time as the member's membership is cancelled
21 under section 120.
22 (2) The board's declaration has the effect of forfeiting the shares
23 concerned.
24 (3) Nothing in this section affects the operation of section 127.
25 122. Failure to cancel membership -- offence by director
26 If the board of a co-operative fails to cancel the membership of
27 a member as required by this Part, a director of the co-operative
28 who did not use all due diligence to prevent the failure commits
29 an offence.
30 Penalty: a fine of $2 000.
page 70
Co-operatives Bill 2009
Active membership Part 6
Cancellation of membership of inactive or missing members Division 4
s. 123
1 123. Deferral of forfeiture by board
2 (1) The board of a co-operative may by resolution defer
3 cancellation of a member's membership for a period of up to
4 12 months (the deferral period) --
5 (a) if the board has reasonable grounds to believe that a
6 member has ceased to be an active member because of
7 unusual circumstances that prevent the member
8 fulfilling his or her active membership obligations; or
9 (b) if --
10 (i) the board thinks that during the deferral period
11 an active membership resolution may be put to
12 the members of the co-operative; and
13 (ii) the effect of the resolution would be relevant to
14 the question of whether the member is an active
15 member.
16 (2) The board of the co-operative must review the resolution to
17 defer within the deferral period to determine if a further
18 resolution should be made under subsection (1).
19 124. Cancellation of membership prohibited in certain
20 circumstances
21 Unless the regulations otherwise provide, the board of a
22 co-operative must not declare the membership of a member to
23 be cancelled under this Part --
24 (a) if the co-operative is insolvent; or
25 (b) if the co-operative is under administration under the
26 Corporations Act Part 5.3A as applying under this Act;
27 or
28 (c) if a compromise or an arrangement is being
29 administered in relation to the co-operative; or
30 (d) if the co-operative is in the course of being wound-up;
31 or
page 71
Co-operatives Bill 2009
Part 6 Active membership
Division 4 Cancellation of membership of inactive or missing members
s. 125
1 (e) if an appointment of a receiver, whether or not a receiver
2 and manager, of any property of the co-operative is in
3 force; or
4 (f) if the co-operative has, for the purposes of being
5 registered as a company under the Corporations Act,
6 lodged with the Registrar a copy of the entry made in
7 the minute book of the co-operative under section 185;
8 or
9 (g) in other circumstances as may be prescribed by the
10 regulations.
11 125. Notice of intention to cancel membership
12 (1) Unless subsection (2) applies, the board of a co-operative must
13 ensure that notice of its intention to declare the membership of a
14 member to be cancelled is given to the member not less than
15 28 days prior to the day of the cancellation.
16 (2) Notice is not required to be given under this section if --
17 (a) the member's whereabouts are unknown to the
18 co-operative; or
19 (b) the amount required to be repaid to the member in
20 relation to the cancelled membership, whether because
21 of the cancellation of shares or otherwise, does not
22 exceed the amount prescribed by the regulations, or if an
23 amount is not prescribed, $100.
24 126. Order of Supreme Court against cancellation
25 (1) If the Supreme Court is satisfied that the cancellation of a
26 member's membership under section 120 was or would be
27 unreasonable, the Court may by order direct that the
28 membership should not have been cancelled or should not be
29 cancelled.
page 72
Co-operatives Bill 2009
Active membership Part 6
Cancellation of membership of inactive or missing members Division 4
s. 127
1 (2) While an order is in force under this section --
2 (a) the membership concerned is not required to be
3 cancelled and any shareholding of the member is not
4 required to be forfeited; and
5 (b) the person whose membership was cancelled is entitled
6 to be reinstated as a member of the co-operative with all
7 the rights and entitlements, including any shareholding,
8 attaching to or arising from the former membership.
9 (3) Reinstatement of a member under this section is to be effected
10 in accordance with the directions of the Supreme Court.
11 127. Repayment of amounts due because of cancelled
12 membership
13 (1) If the membership of a member of a co-operative is cancelled
14 under this Part, the co-operative must --
15 (a) within 12 months after the date of cancellation, repay to
16 the former member an amount (the repayable amount)
17 made up of the amount paid up to the stated nominal
18 value of the shares forfeited by the member at the time
19 of cancellation less any amount owed by the member to
20 the co-operative at that time under the rules of the
21 co-operative or any contract or otherwise; or
22 (b) in the case of a transferred co-operative the rules of
23 which state how to calculate the repayable amount
24 owing to a former member at the time of cancellation of
25 membership, within 3 years after the date of
26 cancellation, repay to the former member an amount in
27 accordance with those rules; or
28 (c) within 12 months after the date of cancellation, apply
29 the repayable amount under subsection (2) if --
30 (i) the board considers that repayment would
31 adversely affect the financial position of the
32 co-operative; or
33 (ii) the board and the former member agree.
page 73
Co-operatives Bill 2009
Part 6 Active membership
Division 4 Cancellation of membership of inactive or missing members
s. 127
1 (2) The repayable amount may be applied in one of the following
2 ways --
3 (a) if the co-operative is a deposit-taking co-operative, the
4 co-operative may apply the amount as a deposit by the
5 former member with the co-operative, subject to the
6 requirements of section 128 as to interest on the deposit;
7 (b) the co-operative may issue debentures or co-operative
8 capital units to the former member in satisfaction of the
9 amount;
10 (c) the co-operative may appropriate the amount as a
11 donation to the co-operative, but only if the former
12 member consents in writing to the donation.
13 (3) If the balance sheet of the co-operative last issued before the
14 cancellation of a member's membership disclosed a loss or
15 deficiency or a significant change in the financial position or
16 prospects of the co-operative is subsequently reported prior to
17 the loss or deficiency, the paid up value of the member's shares
18 may, for the purposes of calculating the repayable amount, be
19 reduced as described in subsection (4).
20 (4) The paid up value of the member's shares may be reduced by an
21 amount that bears to the amount of the loss or deficiency so
22 disclosed the same proportion as the number of shares held by
23 the member bore to the total number of shares held by all
24 members of the co-operative at the time of cancellation.
25 (5) If the former member is subsequently readmitted to
26 membership, any amount held by the co-operative under this
27 section must, if the member so requests, be applied towards the
28 cost of admission to membership, including any subscription for
29 share capital.
30 (6) Despite subsection (2)(c), if --
31 (a) the co-operative cannot, after taking all reasonable
32 action, find the former member; and
page 74
Co-operatives Bill 2009
Active membership Part 6
Cancellation of membership of inactive or missing members Division 4
s. 128
1 (b) the payment due is less than the amount prescribed by
2 the regulations, or if an amount is not prescribed, $100,
3 the co-operative may appropriate the payment as a donation to
4 the co-operative.
5 128. Interest on deposits, debentures and co-operative capital
6 units
7 (1) This section applies when --
8 (a) the amount payable to a former member under
9 section 73 or 127 is applied as a deposit with the
10 co-operative; or
11 (b) the co-operative allots or issues debentures or
12 co-operative capital units to the former member in
13 satisfaction of that amount.
14 (2) The deposit, debenture or co-operative capital unit bears interest
15 during any period --
16 (a) in the case of a co-operative with share capital --
17 (i) at the rate, or if there is more than one rate, at the
18 higher or highest rate, of dividend payable for
19 that period on the share capital of the
20 co-operative; or
21 (ii) if the rate of dividend payable for that period has
22 not been determined, at the rate, or the higher or
23 highest rate, payable for the immediately
24 preceding period for which a rate has been
25 decided; or
26 (iii) if a rate of dividend has never been determined
27 in relation to the share capital of the
28 co-operative, at the rate that the board of the
29 co-operative considers reasonable;
30 or
page 75
Co-operatives Bill 2009
Part 6 Active membership
Division 4 Cancellation of membership of inactive or missing members
s. 129
1 (b) in the case of a co-operative without share capital, at the
2 rate that the board of the co-operative considers
3 reasonable; or
4 (c) if the rules provide for a rate to be payable that is higher
5 than the rate applicable under paragraph (a) or (b), at
6 that higher rate.
7 (3) A former member may agree to the rate of interest being less
8 than that which would otherwise be payable under this section
9 and may agree to no interest being paid.
10 (4) The following provisions of the Corporations Act, as applied by
11 section 250 of this Act, do not apply to an allotment or issue of
12 debentures or co-operative capital units under this section --
13 (a) Chapter 2L;
14 (b) Chapter 6D.
15 129. Repayment of deposits, and redemption of debentures and
16 co-operative capital units
17 (1) A deposit, debenture or co-operative capital unit to which an
18 amount payable to a former member is applied under this
19 Division or section 73(2) is to be repaid or redeemed, as the
20 case may be, as soon as repayment or redemption would not, in
21 the opinion of the board, adversely affect the financial position
22 of the co-operative.
23 (2) The deposit, debenture or co-operative capital unit must in any
24 case be repaid or redeemed within 10 years, or within any
25 shorter period that the rules of the co-operative may require,
26 after cancellation of the member's membership.
27 130. Register of cancelled memberships
28 A co-operative must keep a register stating the particulars, as
29 prescribed by the regulations, of persons whose membership has
30 been cancelled under this Part.
page 76
Co-operatives Bill 2009
Active membership Part 6
Entitlements of former members of distributing co-operatives Division 5
s. 131
1 Division 5 -- Entitlements of former members of
2 distributing co-operatives
3 131. Application of Division
4 (1) This Division only applies to distributing co-operatives.
5 (2) Sections 132, 133 and 134 apply to the extent they are not
6 inconsistent with the rules of each particular distributing
7 co-operative.
8 132. Former shareholders to be taken to be shareholders for
9 certain purposes
10 (1) Even though a person's shares in a co-operative have been
11 forfeited under this Part, the person is to be taken to be the
12 holder of shares in the co-operative (the same in all respects as
13 those that were forfeited) for the following purposes --
14 (a) the entitlements of a shareholder in relation to the
15 purchase of shares in the co-operative pursuant to an
16 offer described in section 289(a), (b) or (c) or the
17 purchase of all the shares in the co-operative, if the offer
18 or purchase occurs within 2 years after the person's
19 shares were forfeited;
20 (b) the entitlement of a shareholder when the co-operative
21 becomes registered as a company if the relevant special
22 resolution under section 306 is passed within 2 years
23 after the person's shares were forfeited;
24 (c) the entitlement of a shareholder to a distribution of
25 surplus in a winding-up of the co-operative that
26 commences within 2 years after the person's shares were
27 forfeited.
28 (2) Subsection (1)(a) does not apply to --
29 (a) an offer described in section 289(a) or (c) that is made
30 by another co-operative; or
31 (b) the purchase of all the shares in the co-operative by
32 another co-operative.
page 77
Co-operatives Bill 2009
Part 6 Active membership
Division 5 Entitlements of former members of distributing co-operatives
s. 133
1 (3) Subsection (1)(c) does not apply if the winding-up is for the
2 purposes of a merger under Part 12 Division 1.
3 (4) For the removal of doubt, it is declared that the entitlement
4 under subsection (1)(a) of a person whose shares have been
5 forfeited does not include an entitlement to vote on any matter.
6 (5) This section does not apply to a forfeited shareholding in a
7 co-operative if section 133 operates to require that forfeited
8 shareholding to be regarded as a forfeited shareholding in
9 another co-operative.
10 133. Entitlements of former shareholders on mergers etc.
11 (1) This section applies when a person's shares in a co-operative
12 (the original co-operative) are forfeited under this Part and
13 within 2 years after that forfeiture --
14 (a) the original co-operative becomes a subsidiary of
15 another co-operative (the new co-operative); or
16 (b) another co-operative (the new co-operative) is created as
17 a result of a merger under Part 12 Division 1 involving
18 the original co-operative; or
19 (c) the engagements of the original co-operative are
20 transferred to another co-operative (the new
21 co-operative) under Part 12 Division 1.
22 (2) A person referred to in subsection (1) is, for the purposes of the
23 operation of section 132, and the further operation of this
24 section, taken to have held shares in the new co-operative and as
25 having had those shares in the new co-operative forfeited under
26 this Part when the person's shares in the original co-operative
27 were forfeited.
28 (3) The extent of the forfeited shareholding in the new co-operative
29 is determined as follows --
30 (a) if the entitlement of active members of the original
31 co-operative in the circumstances concerned is solely an
32 entitlement to be allotted shares in the new co-operative,
33 the forfeited shareholding in the new co-operative is the
page 78
Co-operatives Bill 2009
Active membership Part 6
Entitlements of former members of distributing co-operatives Division 5
s. 134
1 shareholding to which the person would have been
2 entitled had the person's shares in the original
3 co-operative not been forfeited;
4 (b) in any other case, the forfeited shareholding in the new
5 co-operative is the shareholding that is the same in all
6 respects as the forfeited shareholding in the original
7 co-operative.
8 (4) The determination under subsection (3)(a) of the person's
9 shareholding in the new co-operative must be made --
10 (a) solely on the basis of the person's shareholding in the
11 original co-operative when the shares were forfeited or,
12 in a further operation of this section in respect of the
13 person, when the person was first to be regarded as
14 having a forfeited shareholding in the original
15 co-operative; and
16 (b) without regard to any additional shareholding in the
17 original co-operative to which the person would have
18 become entitled had the shares not been forfeited,
19 whether as a result of any bonus share issue or
20 otherwise.
21 134. Set off of amounts repaid etc. on forfeited shares
22 (1) If a person has an entitlement because of the operation of
23 section 133, the entitlement operates to end any liability of the
24 co-operative --
25 (a) to repay to the person under section 127 any amount for
26 the forfeited shares concerned; or
27 (b) in respect of a deposit held by the co-operative, or
28 debentures allotted or issued to the person, or
29 co-operative capital units issued under section 127 for
30 the forfeited shares concerned, except a liability to pay
31 interest that is payable but unpaid.
32 (2) If an amount has been repaid to a person under section 127
33 or 129, the amount repaid is to be set off against any entitlement
page 79
Co-operatives Bill 2009
Part 6 Active membership
Division 5 Entitlements of former members of distributing co-operatives
s. 135
1 of the person under section 132 for the forfeited shares
2 concerned.
3 (3) If the amount repaid cannot be set off against the entitlement
4 because the entitlement is not, or is only partly, an entitlement
5 to money, the entitlement is lost unless the person pays to the
6 co-operative the amount repaid to the person and does so within
7 the period required under subsection (4).
8 (4) If the circumstances referred to in subsection (3) arise, the
9 co-operative concerned must --
10 (a) give written notice of the matter by post to the person
11 concerned at the person's address last known to the
12 co-operative, specifying a period of not less than
13 28 days after the notice is given during which any
14 amount repaid must be paid to the co-operative; and
15 (b) publish a general notice to that effect in a newspaper
16 circulating generally in the district in which the
17 registered office of the co-operative is situated.
18 135. Regulations may exempt co-operatives from provisions
19 The regulations may exempt a co-operative from a provision of
20 this Division.
page 80
Co-operatives Bill 2009
Shares Part 7
Nature of share Division 1
s. 136
1 Part 7 -- Shares
2 Division 1 -- Nature of share
3 136. Nature of share in co-operative
4 (1) A share or other interest in a co-operative --
5 (a) is personal property; and
6 (b) is transferable or transmissible as provided by this Act
7 and the rules of the co-operative; and
8 (c) is, subject to the rules of the co-operative, capable of
9 devolution by will or by operation of law.
10 (2) Subject to subsection (1) --
11 (a) the laws applying to ownership of and dealing with
12 personal property apply to a share or other interest of a
13 member in a co-operative as they apply to other
14 property; and
15 (b) equitable interests in respect of a share or other interest
16 of a member in a co-operative may be created, dealt with
17 and enforced as in the case of other personal property.
18 Division 2 -- Disclosure
19 137. Disclosure to intending shareholders in distributing
20 co-operative
21 (1) An eligible person who intends to apply for shares in a
22 co-operative and is not already a shareholder in the co-operative
23 may request, from the board of the distributing co-operative, a
24 current disclosure statement that --
25 (a) has been approved by the Registrar under section 16(5);
26 or
27 (b) complies with section 138 and has been lodged by the
28 co-operative with the Registrar.
page 81
Co-operatives Bill 2009
Part 7 Shares
Division 2 Disclosure
s. 138
1 (2) The board of the distributing co-operative is to respond to a
2 request for a current disclosure statement within 7 days.
3 138. Content of disclosure statement to intending shareholders
4 (1) A disclosure statement given to a person under section 137 must
5 contain --
6 (a) a statement of the rights and liabilities attaching to
7 shares; and
8 (b) a statement that the person may request to either inspect
9 at the co-operative's nearest office, or be sent --
10 (i) the last annual report of the co-operative under
11 section 235(2); and
12 (ii) any other relevant information about the
13 financial position and prospects of the
14 co-operative if there has been a significant
15 change since the date of the last annual report;
16 and
17 (c) any other information the Registrar directs.
18 (2) If a person who has received a disclosure statement makes a
19 request under subsection (1)(b), the co-operative must comply
20 with that request within 7 days.
21 139. Exemptions for disclosure statements
22 (1) The Registrar may, by order published in the Gazette, exempt
23 the board of a distributing co-operative, or the boards of a class
24 of distributing co-operatives from a requirement under
25 section 137 or 138.
26 (2) An exemption under subsection (1) may be given only if the
27 Registrar is satisfied that compliance with the requirement
28 would be inappropriate in the circumstances or would impose an
29 unreasonable burden.
page 82
Co-operatives Bill 2009
Shares Part 7
Issues of shares Division 3
s. 140
1 Division 3 -- Issues of shares
2 140. Shares -- general
3 (1) The share capital of a co-operative varies in amount according
4 to the nominal value of shares from time to time subscribed.
5 (2) Shares are to be of a fixed amount which is to be specified in
6 the rules of the co-operative.
7 (3) A co-operative may have more than one class of shares
8 provided the shareholding and the rights of shareholders comply
9 with the co-operative principles.
10 (4) Subject to this Part and Part 4, shares must not be issued to a
11 non-member.
12 141. Application of Corporations Act for particular share
13 subscriptions
14 (1) If subsection (2) applies to shares of a co-operative, the shares
15 are declared to be applied Corporations legislation matters for
16 the Corporations (Ancillary Provisions) Act 2001 Part 3 in
17 relation to the Corporations Act sections 716(2), 722, 723(2),
18 724(1)(a) and (2)(a) and 734, subject to the following
19 modifications --
20 (a) the provisions apply as if a co-operative were a
21 company;
22 (b) a reference in the provisions to ASIC is to be read as a
23 reference to the Registrar;
24 (c) a reference in the provisions to a disclosure document is
25 to be read as a reference to a disclosure statement, of
26 any type, under this Act;
27 (d) a reference in the provisions to securities is to be read as
28 a reference to shares;
29 (e) any other modifications, within the meaning of the
30 Corporations (Ancillary Provisions) Act 2001 Part 3,
31 that are prescribed by the regulations.
page 83
Co-operatives Bill 2009
Part 7 Shares
Division 3 Issues of shares
s. 142
1 (2) Shares in a co-operative are subject to the declaration under
2 subsection (1) if --
3 (a) the shares are offered to persons who are not
4 shareholders in the co-operative; or
5 (b) the invitation is made to persons who are not
6 shareholders in the co-operative.
7 142. Minimum paid up amount
8 (1) A share in a co-operative other than a transferred co-operative
9 must not be allotted unless at least 10% of the nominal value of
10 the share has been paid.
11 (2) Any balance unpaid for shares at the time of allotment must be
12 paid in a way specified in the rules of the co-operative or
13 permitted by this Act.
14 (3) This section does not apply to a bonus share issued under
15 section 147 or 271.
16 143. Shares not to be issued at a discount
17 A co-operative must not issue shares at a discount.
18 144. Issue of shares at a premium
19 (1) A distributing co-operative may issue shares at a premium.
20 (2) A premium may be in the form of cash or other valuable
21 consideration.
22 (3) If a distributing co-operative issues shares for which it receives
23 a premium, an amount equal to the total amount or value of the
24 premiums on the shares must be transferred to a share premium
25 account.
26 (4) The share premium account is to be treated as paid up share
27 capital of the distributing co-operative and may be applied in
28 any one or more of the following ways --
29 (a) in paying up unissued shares to be issued to members of
30 the co-operative as fully paid bonus shares;
page 84
Co-operatives Bill 2009
Shares Part 7
Issues of shares Division 3
s. 145
1 (b) in paying up, in whole or in part, the balance unpaid on
2 shares previously issued to members of the co-operative;
3 (c) in the payment of dividends, if those dividends are
4 satisfied by the issue of shares to members of the
5 co-operative;
6 (d) in writing off the expenses incurred in establishing the
7 co-operative;
8 (e) in providing for the premium payable on redemption of
9 shares, debentures or co-operative capital units.
10 145. Joint ownership of shares
11 A share may be held by 2 or more persons jointly, unless the
12 rules of the co-operative provide otherwise.
13 146. Members may be required to take up additional shares
14 (1) The board of a distributing co-operative may require a member
15 to take up or subscribe for additional shares under a proposal
16 approved by a special resolution of the co-operative.
17 (2) The board of a distributing co-operative may deduct amounts in
18 payment for additional shares from money payable to members
19 for dealings with the co-operative, under a proposal approved
20 by a special resolution of the co-operative.
21 (3) A proposal to require a member to take up or subscribe for
22 additional shares must --
23 (a) be accompanied by a disclosure statement, approved by
24 the Registrar, that explains the purpose for which the
25 funds raised by the issue of the additional shares are to
26 be used; and
27 (b) clearly show the total number of additional shares to be
28 issued and the basis on which the shares are to be
29 apportioned among members; and
30 (c) be accompanied by a statement informing the member
31 that the member may inform the board by notice on or
32 before the date specified in the statement, being a date
page 85
Co-operatives Bill 2009
Part 7 Shares
Division 3 Issues of shares
s. 147
1 before the passing of the special resolution, that the
2 member resigns on the passing of the special resolution.
3 (4) A proposal to deduct amounts in payment for additional shares
4 from amounts payable to members for dealings with the
5 distributing co-operative must clearly show --
6 (a) the basis on which the deductions are to be made; and
7 (b) the time and way of making those deductions.
8 (5) A proposal approved under this section is binding on --
9 (a) all members of the distributing co-operative at the date
10 of the passing of the special resolution, other than a
11 member who has given a notice of resignation in
12 accordance with subsection (3)(c); and
13 (b) all persons who become members of the distributing
14 co-operative after that date and before the total number
15 of shares to be issued under the proposal has been
16 issued.
17 (6) Sections 16 (except subsection (3)) and 29 apply to the approval
18 of a disclosure statement under this section with any necessary
19 changes and in particular as if any reference in section 16 to a
20 formation meeting were a reference to the special resolution.
21 (7) This section does not apply to the issue of bonus shares to a
22 member under section 271(2).
23 147. Bonus share issues
24 (1) In addition to section 271(2) a distributing co-operative may
25 issue bonus shares to members of the co-operative if the assets
26 of the co-operative --
27 (a) have been sold at a profit; or
28 (b) have been revalued at a greater value than that disclosed
29 before the revaluation in the books of the co-operative.
30 (2) This section does not apply if the assets were acquired for resale
31 at a profit.
page 86
Co-operatives Bill 2009
Shares Part 7
Issues of shares Division 3
s. 148
1 148. Restrictions on bonus shares
2 Bonus shares issued under section 147 may be issued in
3 accordance with the rules of the co-operative, subject to the
4 following restrictions --
5 (a) each issue must have been approved by a special
6 resolution of the co-operative;
7 (b) they are to be issued as fully paid up shares with no
8 payment required to be made by a member of the
9 co-operative to whom they are issued;
10 (c) they are to be issued only for shares of the same class of
11 shares that are fully paid up as at the date of issue of the
12 bonus shares;
13 (d) the total nominal value of bonus shares issued by a
14 co-operative in any one year cannot be more than 20%,
15 or another percentage prescribed by the regulations, of
16 the nominal value of the issued share capital of the
17 co-operative immediately before the date of issue of the
18 bonus shares.
19 149. Notice about bonus shares
20 Notice of the meeting or postal ballot at which a resolution is to
21 be proposed as a special resolution for the purpose of approving
22 a bonus share issue must be accompanied by --
23 (a) a statement of the value of the assets concerned as
24 disclosed in the books of the co-operative before the sale
25 or revaluation; and
26 (b) if the issue arises from, or partly from, a sale of assets, a
27 statement of the price for which the assets were sold;
28 and
29 (c) if the issue arises from, or partly from, a revaluation of
30 assets, a certificate of value of the assets, being a
31 certificate given in relation to a valuation made not more
32 than 12 months before the date of the notice by a person
33 prescribed by the regulations or a person having
34 qualifications prescribed by the regulations; and
page 87
Co-operatives Bill 2009
Part 7 Shares
Division 4 Beneficial and non-beneficial interest in shares
s. 150
1 (d) particulars of acquisitions of shares in the co-operative
2 made within the 3 years immediately preceding the date
3 of the notice by or on behalf of each of its directors and
4 his or her spouse (or de facto partner) and the father,
5 mother, children, brothers and sisters of each such
6 director and spouse (or de facto partner); and
7 (e) a certificate signed by 2 directors of the co-operative
8 stating that to the best of their knowledge and belief the
9 issue of bonus shares would not be imprudent and that
10 no circumstances are known to them as to why the issue
11 should not take place.
12 Division 4 -- Beneficial and non-beneficial interest in shares
13 150. Direction to disclose
14 The board of a co-operative may direct a person to disclose
15 matters as described in section 151 if the person is --
16 (a) a member of the co-operative; or
17 (b) a person named in a disclosure made in response to a
18 previous direction under this section as having a relevant
19 interest in, or having given instructions about, shares in
20 the co-operative.
21 151. Disclosure by member of relevant interests and instructions
22 (1) A person given a direction under section 150 must, unless
23 subsection (2) applies, disclose to the board --
24 (a) full details of the person's relevant interest in the shares
25 of the co-operative (the relevant shares) and of the
26 circumstances that gave rise to the interest; and
27 (b) the name and address of each other person who has a
28 relevant interest in the relevant shares together with full
29 details of --
30 (i) the nature and extent of the interest; and
page 88
Co-operatives Bill 2009
Shares Part 7
Beneficial and non-beneficial interest in shares Division 4
s. 151
1 (ii) the circumstances that gave rise to the other
2 person's interest;
3 and
4 (c) the name and address of each person who has given the
5 person instructions about --
6 (i) the acquisition or disposal of the shares; or
7 (ii) the exercise of any voting or other rights attached
8 to the shares; or
9 (iii) any other matter relating to the shares,
10 together with full details of those instructions, including
11 the date or dates on which they were given.
12 Penalty: a fine of $3 000.
13 (2) A matter referred to in subsection (1)(b) or (c) need only be
14 disclosed to the extent to which the matter is ascertainable by
15 the person required to make the disclosure.
16 (3) The disclosure must be made within the period of 5 days after
17 the person is given the direction, unless within that period the
18 person applies in writing to the Registrar for an exemption from
19 compliance with the direction.
20 (4) The Registrar may, in writing, exempt a person from complying
21 with a direction if the Registrar believes the direction is
22 unjustified.
23 (5) If the Registrar refuses to give an exemption under
24 subsection (4), the disclosure required by the direction must be
25 made within the period of 5 days after the person receives
26 written notice of that refusal.
27 (6) A board that receives information from a person acting on a
28 direction given to the person by the board must pay to the
29 person the fee, if any, prescribed by the regulations.
page 89
Co-operatives Bill 2009
Part 7 Shares
Division 4 Beneficial and non-beneficial interest in shares
s. 152
1 152. Registration as trustee etc. on death of owner of shares
2 (1) A trustee, executor or administrator of the estate of a dead
3 person who was the registered holder of a share in a
4 co-operative may be registered as the holder of the share as
5 trustee, executor or administrator of that estate.
6 (2) A trustee, executor or administrator of the estate of a dead
7 person who was entitled in equity to a share in a co-operative
8 may, with the consent of the co-operative and of the registered
9 holder of the share, be registered as the holder of the share as
10 trustee, executor or administrator of that estate.
11 153. Registration as administrator of estate on incapacity of
12 shareholder
13 (1) This section applies to a person (the appointed person) who is
14 appointed under a law of a State or Territory relating to the
15 administration of the estates of persons who, through mental or
16 physical infirmity, are incapable of managing their affairs, to
17 administer the estate of another person (the incapable person).
18 (2) If the incapable person is the registered holder of a share in a
19 co-operative, the appointed person may be registered as the
20 holder of that share as administrator of the estate of the
21 incapable person.
22 (3) If the incapable person is entitled in equity to a share in a
23 co-operative, the appointed person may, with the consent of the
24 co-operative and of the registered holder of that share, be
25 registered as the holder of the share as administrator of the
26 estate of the incapable person.
27 154. Registration as Official Trustee in Bankruptcy
28 (1) This section applies when a share in a co-operative that is the
29 property of a bankrupt vests by force of the Bankruptcy
30 Act 1966 (Commonwealth) in the Official Trustee in
31 Bankruptcy.
page 90
Co-operatives Bill 2009
Shares Part 7
Beneficial and non-beneficial interest in shares Division 4
s. 155
1 (2) If the bankrupt is the registered holder of the share, the Official
2 Trustee may be registered as the holder of the share as the
3 Official Trustee in Bankruptcy.
4 (3) If the bankrupt is entitled in equity to the share, the Official
5 Trustee may, with the consent of the co-operative and of the
6 registered holder of the share, be registered as the holder of the
7 share as the Official Trustee in Bankruptcy.
8 155. Liabilities of person registered as trustee or administrator
9 (1) A person registered under section 152, 153 or 154 is, while so
10 registered, subject to the same liabilities in relation to the share
11 as those to which the person would have been subject if the
12 share had remained, or had been, registered in the name of the
13 dead person, the incapable person or the bankrupt.
14 (2) The person registered is subject to no other liabilities in relation
15 to the share.
16 156. Notice of trusts in register of members
17 Shares held by a trustee under a particular trust may, with the
18 consent of the co-operative, be marked in the register of
19 members, directors and shares referred to in section 230(1)(a) in
20 a way that identifies the shares as being held under the trust.
21 157. No notice of trust except as provided by this Division
22 Except as provided in this Division --
23 (a) no notice of a trust, whether express, implied or
24 constructive, is to be entered on a register or be
25 receivable by the Registrar; and
26 (b) no liabilities are affected by anything done under this
27 Division; and
28 (c) nothing done under this Division affects a co-operative
29 with notice of a trust.
page 91
Co-operatives Bill 2009
Part 7 Shares
Division 5 Sale or transfer of shares
s. 158
1 Division 5 -- Sale or transfer of shares
2 158. Sale or transfer of shares
3 (1) A share in a co-operative cannot be sold or transferred except --
4 (a) in accordance with Part 4 Division 3 and section 159, on
5 the death of a member; or
6 (b) to a person appointed to administer the estate of a
7 shareholder under a law relating to the administration of
8 the estates of persons who, through mental or physical
9 infirmity, are incapable of managing their affairs; or
10 (c) with the consent of the board, to any person if there are
11 reasonable grounds for believing that the person will be
12 an active member of the co-operative; or
13 (d) in accordance with Part 11 Division 2.
14 (2) A share in a co-operative cannot be sold or transferred except in
15 accordance with the rules of the co-operative.
16 159. Transfer on death of member
17 (1) Despite sections 75 and 76, on the death of a member, the
18 member's share in the co-operative may be transferred to a
19 person other than an administrator or executor with the consent
20 of the board of the co-operative.
21 (2) The board may only give its consent under subsection (1) if
22 there are reasonable grounds for believing that the person will
23 be an active member of the co-operative.
24 160. Restriction on total shareholding
25 The board of a co-operative must not consent under
26 section 158(1)(c) to the issue, sale or transfer of a share if, as a
27 result of the issue, sale or transfer, the nominal value of the
28 shares held by the purchaser or transferee would be more than
29 the maximum permissible level of share interest applying under
30 section 278.
page 92
Co-operatives Bill 2009
Shares Part 7
Repurchase of shares Division 6
s. 161
1 161. Transfer not effective until registered
2 A transferor of a share remains the holder of the share until the
3 transferee is noted as the holder of the share in the register of
4 members, directors and shares referred to in section 230(1)(a).
5 162. Non-members become members on registration
6 Where a share in a co-operative is transferred to a non-member
7 under this Part or Part 4, the transferee becomes a member of
8 the co-operative on the transferee being noted as a member in
9 the register of members, directors and shares referred to in
10 section 230(1)(a).
11 Division 6 -- Repurchase of shares
12 163. Purchase and repayment of shares
13 (1) The rules of a co-operative may authorise the co-operative to --
14 (a) purchase any share of a member in the co-operative at
15 the request of the member; and
16 (b) repay to a member, with the member's consent, all or
17 any part of the amount paid up to the stated nominal
18 value on any share held by the member when the
19 amount repaid is not required for the activities of the
20 co-operative.
21 (2) The amount paid by a co-operative under this section in
22 purchasing shares or repaying an amount paid up to the stated
23 nominal value on shares, or both, in any financial year of the
24 co-operative must not be more than the total of --
25 (a) 5% of the nominal value of the issued share capital of
26 the co-operative immediately before the start of that
27 financial year; and
28 (b) the amount of any additional share capital of the
29 co-operative subscribed for during that year.
30 (3) The members of a co-operative may by special resolution
31 exempt a co-operative from the operation of subsection (2) in
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Part 7 Shares
Division 6 Repurchase of shares
s. 164
1 relation to a particular financial year, either unconditionally or
2 on conditions.
3 (4) The amount paid for a share when it is repurchased may be an
4 amount decided by the board that is less than the nominal value
5 of the share but only --
6 (a) if the records of the co-operative disclose that the
7 amount paid is the net shareholder's equity per share in
8 the undertaking of the co-operative; or
9 (b) in accordance with the rules of the co-operative.
10 (5) This section does not apply if the member has resigned or has
11 been expelled from the co-operative or the member's
12 membership has been otherwise cancelled.
13 164. Deposit, debentures or co-operative capital units instead of
14 payment when share repurchased
15 (1) If a co-operative repurchases a share of a member, the
16 co-operative may instead of paying the purchase price to the
17 member --
18 (a) in the case of a deposit-taking co-operative, apply the
19 amount as an interest bearing deposit by the member
20 with the co-operative; or
21 (b) allot or issue debentures or co-operative capital units of
22 the co-operative to the member in satisfaction of the
23 amount.
24 (2) Subsection (1) applies only if --
25 (a) the board considers that payment of the repurchase price
26 would adversely affect the financial position of the
27 co-operative; or
28 (b) the board and the member so agree.
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Shares Part 7
Repurchase of shares Division 6
s. 164
1 (3) The deposit, debenture or co-operative capital unit bears interest
2 during any period --
3 (a) in the case of a co-operative with share capital --
4 (i) at the rate (or, if there is more than one rate, at
5 the higher or highest rate) of dividend payable
6 for that period on the share capital of the
7 co-operative; or
8 (ii) if the rate of dividend payable for that period has
9 not been decided, at the rate (or the higher or
10 highest rate) payable for the immediately
11 preceding period for which a rate has been
12 decided; or
13 (iii) if a rate of dividend has never been decided for
14 the share capital of the co-operative, at the rate
15 that the board of the co-operative considers
16 reasonable;
17 or
18 (b) in the case of a co-operative without share capital, at the
19 rate that the board of the co-operative considers
20 reasonable; or
21 (c) if the rules provide for a rate to be payable that is higher
22 than the rate applicable under paragraph (a) or (b), at the
23 higher rate.
24 (4) The deposit, debenture or co-operative capital unit must be
25 repaid to the member or redeemed, as the case may be, as soon
26 as repayment or redemption would not, in the opinion of the
27 board, adversely affect the financial position of the
28 co-operative.
29 (5) The deposit, debenture or co-operative capital unit must in any
30 case be repaid or redeemed within 10 years (or within any
31 shorter period that the rules of the co-operative require) after the
32 repurchase of the shares concerned.
page 95
Co-operatives Bill 2009
Part 7 Shares
Division 6 Repurchase of shares
s. 165
1 165. Cancellation of shares
2 (1) A co-operative must cancel any share purchased by or forfeited
3 to the co-operative in accordance with this Act or the rules of
4 the co-operative.
5 (2) Any shares held by a co-operative in itself at the time the
6 co-operative is registered under this Act are cancelled under this
7 section.
page 96
Co-operatives Bill 2009
Voting and meetings Part 8
Voting entitlements Division 1
s. 166
1 Part 8 -- Voting and meetings
2 Division 1 -- Voting entitlements
3 166. Application of Part to voting
4 The provisions of this Part applying to voting apply to voting on
5 all resolutions.
6 167. Voting
7 (1) The right to vote attaches to membership and not shareholding.
8 (2) Except as provided in subsections (3) and (4), each member has
9 only one vote at a meeting of the co-operative.
10 (3) If its rules so provide, a member of a co-operative group may
11 have the number of votes (up to 5) at a general meeting that is
12 specified in the rules.
13 (4) If the rules so provide, the chairman has a casting vote at a
14 board meeting or general meeting.
15 (5) In the case of joint membership --
16 (a) the joint members have only one vote between them;
17 and
18 (b) that vote may be exercised, subject to the grant of a
19 proxy or power of attorney, only by the joint member
20 determined in accordance with the rules.
21 168. Voting by proxy
22 (1) If the rules so provide, voting may be by proxy at a general
23 meeting.
24 (2) The instrument of proxy may state the way in which a proxy is
25 to vote on a particular resolution.
26 (3) The proxy must vote in the way authorised by an instrument of
27 proxy referred to in subsection (2).
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Co-operatives Bill 2009
Part 8 Voting and meetings
Division 1 Voting entitlements
s. 169
1 (4) The rules of a co-operative may limit the number of persons for
2 whom a person may act as a proxy on the same question.
3 (5) A person cannot exercise more than one proxy vote during a
4 vote on the same question unless the vote is conducted by poll
5 demanded under section 194.
6 169. Control of the right to vote
7 (1) Subject to subsection (3), a person must not directly or
8 indirectly control the exercise of the right to vote of a member.
9 Penalty: a fine of $12 000.
10 (2) If a person controls the exercise of the right to vote of a member
11 at a meeting of a co-operative --
12 (a) the vote of the member is invalid; and
13 (b) if the person is a member, the vote of the person is
14 invalid.
15 (3) Nothing in this section prevents --
16 (a) the exercise of a vote by means of a proxy or power of
17 attorney; or
18 (b) a director controlling the vote of a corporate member; or
19 (c) an agreed purchaser controlling a member's vote
20 pending settlement.
21 170. Effect of disposal of shares on voting rights
22 A member of a co-operative cannot vote if the member has sold
23 or transferred, or disposed of the beneficial interest in, the
24 member's shares, or has agreed to do so.
25 171. Effect of relevant share and voting interests on voting rights
26 (1) A member of a co-operative cannot vote if another person,
27 whether or not a member of the co-operative, has a relevant
28 interest in any share held by the member or in the right to vote
29 of the member.
page 98
Co-operatives Bill 2009
Voting and meetings Part 8
Resolutions Division 2
s. 172
1 (2) A member who cannot vote because of this section may apply to
2 the Registrar to review the matter.
3 (3) The Registrar may order that the member may vote if the
4 Registrar is satisfied in the circumstances of the case that loss of
5 the right to vote would be unjust or unreasonable, and the order
6 of the Registrar has effect accordingly.
7 172. Rights of representatives
8 A person appointed under this Act to represent a member of a
9 co-operative --
10 (a) is deemed to receive any notice of meetings given to the
11 member represented; and
12 (b) is entitled to exercise the same rights to vote as the
13 member represented.
14 173. Other rights and duties of members not affected by
15 ineligibility to vote
16 A provision of this Act that disentitles a member of a
17 co-operative to vote, either generally or in relation to a
18 particular matter, does not affect any other right, entitlement,
19 obligation or duty of the member as a member.
20 174. Vote of disentitled member to be disregarded
21 Any vote cast by or on behalf of a member of a co-operative
22 when not entitled to vote must be disregarded.
23 Division 2 -- Resolutions
24 175. Decisions to be by ordinary resolution
25 Unless this Act or the rules of the co-operative provide
26 otherwise, every question for decision by a co-operative must be
27 decided by ordinary resolution.
page 99
Co-operatives Bill 2009
Part 8 Voting and meetings
Division 2 Resolutions
s. 176
1 176. Ordinary resolutions
2 An ordinary resolution is a resolution of a co-operative that is
3 passed by a simple majority at a general meeting of the
4 co-operative or in a postal ballot of members.
5 177. Special resolutions
6 (1) A special resolution is a resolution of a co-operative that is
7 passed --
8 (a) by a two-thirds majority at a general meeting of
9 members; or
10 (b) by a two-thirds majority in a postal ballot, other than a
11 special postal ballot, of members; or
12 (c) by a three-quarters majority in a special postal ballot of
13 members.
14 (2) A special resolution may be passed by a postal ballot only if the
15 rules of the co-operative allow, or this Act requires, the special
16 resolution to be passed by postal ballot, including a special
17 postal ballot.
18 (3) A resolution is not taken to have been passed as a special
19 resolution unless not less than 21 days notice has been given to
20 the members of the co-operative stating --
21 (a) the intention to propose the special resolution; and
22 (b) the reasons for proposing the special resolution; and
23 (c) the effect of the special resolution being passed.
24 178. How majority obtained is ascertained
25 (1) A resolution is passed by a particular majority at a meeting if
26 that majority of the members of the co-operative who, being
27 entitled to do so, vote in person or, if proxies are allowed, by
28 proxy at the meeting vote in favour of the resolution.
29 (2) A resolution is passed by a particular majority in a postal ballot
30 if that majority of the members of the co-operative who, being
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Co-operatives Bill 2009
Voting and meetings Part 8
Resolutions Division 2
s. 179
1 entitled to do so, cast formal votes in the postal ballot vote in
2 favour of the resolution.
3 179. Declaration of passing of special resolution
4 (1) At a meeting of a co-operative for the purpose of passing a
5 special resolution, a declaration by the chairman of the meeting
6 that the resolution has been passed as a special resolution is
7 evidence of that fact.
8 (2) A declaration by the returning officer for a postal ballot to pass
9 a special resolution that the resolution has been passed as a
10 special resolution is evidence of that fact.
11 (3) Subsection (1) does not apply if a poll is taken at the meeting of
12 the co-operative.
13 180. Effect of special resolution
14 (1) A special resolution, other than a special resolution required to
15 be passed by special postal ballot, has effect from the date that it
16 is passed.
17 (2) A special resolution relating to anything for which a special
18 resolution is required to be passed by special postal ballot has
19 no effect until it is registered under section 182(1).
20 181. Lodgment of special resolution
21 (1) A co-operative must lodge 2 copies of each special resolution
22 passed by the co-operative with the Registrar in accordance with
23 this section for registration.
24 (2) The copies must --
25 (a) be lodged within 28 days after the passing of a special
26 resolution or a longer period allowed by the Registrar;
27 and
28 (b) be signed by a director, the secretary of the co-operative
29 or another authorised representative of the co-operative;
30 and
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Co-operatives Bill 2009
Part 8 Voting and meetings
Division 2 Resolutions
s. 182
1 (c) be accompanied by the lodgment fee prescribed by the
2 regulations.
3 (3) A co-operative and an officer of the co-operative must not
4 knowingly fail to lodge the required copies under this section.
5 Penalty: a fine of $2 000.
6 (4) This section and section 182 do not apply to a special resolution
7 altering the rules of a co-operative.
8 182. Decision of Registrar on application to register special
9 resolution
10 (1) If the Registrar is satisfied that the co-operative has complied
11 with this Act, and that a special resolution passed by special
12 postal ballot is not contrary to this Act, the Registrar must
13 register the special resolution.
14 (2) If the Registrar considers that the effect of a special resolution
15 lodged for registration would be in contravention of this Act or
16 any other law, the Registrar --
17 (a) may refuse to register the special resolution; and
18 (b) must give written notice to the co-operative that the
19 special resolution --
20 (i) in the case of a special resolution referred to in
21 section 180(2), has no effect; and
22 (ii) in any other case, has no effect as from the date
23 that it was passed.
24 (3) A certificate of registration of a special resolution given by the
25 Registrar is, in favour of any person advancing money to the
26 co-operative on the faith of the certificate or in favour of any
27 guarantor of that advance, evidence that the resolution was
28 properly passed.
page 102
Co-operatives Bill 2009
Voting and meetings Part 8
Resolution by circulated document Division 3
s. 183
1 Division 3 -- Resolution by circulated document
2 183. Application of Division 3
3 This Division applies to a resolution of a co-operative, including
4 a resolution appointing an officer or auditor or approving of or
5 agreeing to any act, matter or thing, if --
6 (a) the co-operative has fewer than 50 members; and
7 (b) the resolution is required or permitted under this Act or
8 the rules of the co-operative to be passed at a general
9 meeting of the co-operative.
10 184. Resolution by circulation of document -- fewer than
11 50 members
12 (1) If all the members of a co-operative have signed a document
13 that sets out the terms of a resolution and contains a statement
14 that they are in favour of the resolution, the resolution is taken
15 to have been passed at a general meeting of the co-operative.
16 (2) The meeting is taken to have been held --
17 (a) if all the members signed the document on the one day,
18 on that day and at the time the document was signed by
19 the last member to sign; or
20 (b) if the members signed the document on different days,
21 on the day, and at the time, the document was signed by
22 the last member to sign.
23 (3) The document need not exist as a single document, but may
24 exist in the form of 2 or more documents in identical terms.
25 (4) The document is taken to constitute a minute of the general
26 meeting.
27 (5) Anything attached to the document and signed by the members
28 signing the document is taken to have been laid before the
29 co-operative at the general meeting.
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Co-operatives Bill 2009
Part 8 Voting and meetings
Division 4 Postal ballots
s. 185
1 (6) The document is signed by all members of a co-operative only if
2 the document is signed by each person who was a member of
3 the co-operative at the time the document was signed by the last
4 member to sign.
5 (7) Nothing in this section affects or limits any rule of law about the
6 effectiveness of the assent of a member of a co-operative given
7 to a document, or to an act, matter or thing, otherwise than at a
8 general meeting of the co-operative.
9 Division 4 -- Postal ballots
10 185. Postal ballots
11 (1) A postal ballot may be conducted in the manner provided by the
12 rules of the co-operative and may, if the rules so allow,
13 incorporate one or more methods of electronic voting.
14 (2) On the declaration by the returning officer of the result of the
15 ballot, the secretary of the co-operative must make an entry in
16 the minute book of the co-operative showing --
17 (a) the number of formal votes cast in favour of the
18 proposal concerned; and
19 (b) the number of formal votes cast against the proposal;
20 and
21 (c) the number of informal votes cast.
22 186. Special postal ballots
23 (1) A special postal ballot is a postal ballot that is conducted as
24 required by this section.
25 (2) The ballot cannot be held less than 21 days after notice of the
26 ballot is given to members so as to enable sufficient time for a
27 meeting to discuss the proposal that is the subject of the ballot
28 to be convened and held (whether by the board or on the
29 requisition of members).
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Voting and meetings Part 8
Postal ballots Division 4
s. 187
1 (3) The co-operative must send to each member, along with any
2 other material required to be sent in connection with the postal
3 ballot, a disclosure statement approved by the Registrar and
4 containing information about --
5 (a) the financial position of the co-operative; and
6 (b) the interests of the directors of the co-operative in the
7 proposal with which the ballot is concerned, including
8 any interests of the directors in another organisation
9 concerned in the proposal; and
10 (c) any compensation or consideration to be paid to officers
11 or members of the co-operative in connection with the
12 proposal; and
13 (d) any other matters as the Registrar directs.
14 (4) If required by the Registrar, the disclosure statement is to be
15 accompanied by a report, made by an independent person
16 approved by the Registrar, about any matters that the Registrar
17 directs.
18 (5) Sections 16 (except subsection (3)) and 29 apply to the approval
19 of a disclosure statement under this section with any necessary
20 changes and in particular as if any reference in section 16 to a
21 formation meeting were a reference to the notice of the special
22 postal ballot.
23 187. When a special postal ballot required
24 In addition to any requirement of this Act, the rules of a
25 co-operative must require a special postal ballot to be conducted
26 for the purpose of passing a special resolution in relation to any
27 of the following matters relating to the co-operative --
28 (a) conversion of --
29 (i) a share capital co-operative to a non-share capital
30 co-operative or vice versa; or
31 (ii) a distributing co-operative to a non-distributing
32 co-operative or vice versa;
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Part 8 Voting and meetings
Division 4 Postal ballots
s. 188
1 (b) transfer of incorporation;
2 (c) an acquisition or disposal of assets referred to in
3 section 273;
4 (d) the maximum permissible level of share interest in the
5 co-operative;
6 (e) takeover;
7 (f) merger;
8 (g) transfer of engagements;
9 (h) members' voluntary winding-up.
10 188. Holding of postal ballot on requisition
11 (1) The board of a co-operative must conduct a postal ballot,
12 including a special postal ballot, for the passing of a special
13 resolution on the written requisition of such number of members
14 who together are able to cast at least 20%, or any lesser
15 percentage specified in the rules of the co-operative, of the total
16 number of votes able to be cast at a meeting of the co-operative.
17 (2) The following provisions apply to a requisition for a postal
18 ballot --
19 (a) it must state --
20 (i) the proposed special resolution to be voted on;
21 and
22 (ii) the reasons for the making of the special
23 resolution; and
24 (iii) the effect of the special resolution being passed;
25 (b) it must be signed by the requisitioning members, and
26 may consist of several documents in like form each
27 signed by one or more of the requisitioning members;
28 (c) it must be served on the co-operative by being lodged at
29 the registered office of the co-operative.
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Co-operatives Bill 2009
Voting and meetings Part 8
Meetings Division 5
s. 189
1 (3) The postal ballot must be conducted as soon as practicable and
2 in any case must be conducted within 2 months after the
3 requisition is served.
4 (4) If the special resolution for which the requisitioned postal ballot
5 is conducted is not passed, the co-operative may recover the
6 expenses of the postal ballot from the members who
7 requisitioned the postal ballot as a debt due to the co-operative.
8 (5) The members' liability under subregulation (4) is joint and
9 several.
10 189. Expenses involved in postal ballots on requisition
11 (1) All reasonable expenses incurred by a co-operative in and in
12 connection with preparing for and holding a special postal ballot
13 are to be considered to constitute the expenses of the postal
14 ballot for the purposes of section 188(4).
15 (2) Those expenses include (but are not limited to) the following
16 expenses --
17 (a) the cost of obtaining expert advice, including legal and
18 financial advice, and of commissioning expert reports;
19 (b) costs attributable to the use of staff of the co-operative
20 in connection with preparing for and holding the ballot;
21 (c) the cost of producing, printing and posting the ballot
22 papers and other material associated with the ballot;
23 (d) the cost of convening and holding a meeting under
24 section 186(2) at the request of the members who
25 requisitioned the postal ballot.
26 Division 5 -- Meetings
27 190. Annual general meetings
28 (1) In the case of a co-operative registered under Part 2 Division 4,
29 the first annual general meeting of the co-operative must be held
30 within 18 months after registration under this Act.
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Part 8 Voting and meetings
Division 5 Meetings
s. 191
1 (2) In the case of a co-operative registered under Part 2 Division 5,
2 the first annual general meeting of the co-operative must be held
3 within 18 months after the last annual general meeting held by
4 that co-operative before it was registered under this Act.
5 (3) The second or any later annual general meeting of a
6 co-operative must be held within --
7 (a) 5 months after the close of the financial year of the
8 co-operative; or
9 (b) a further time that may be allowed by the Registrar or is
10 prescribed by the regulations.
11 191. Special general meetings
12 A special general meeting of a co-operative may be called at
13 any time by the board of the co-operative.
14 192. Notice of meetings
15 The board must give each member at least 14 days notice of
16 each general meeting.
17 193. Quorum at meetings
18 (1) The quorum for a meeting of a co-operative must be specified in
19 the rules.
20 (2) An item of business cannot be transacted at a meeting of a
21 co-operative unless a quorum of members entitled to vote is
22 present during the transaction of that item.
23 194. Decision at meetings
24 (1) Unless subsection (4) requires it to be determined by a poll, a
25 question for decision at a general meeting is to be determined by
26 a show of hands.
27 (2) A proxy may exercise only one vote on a question determined
28 by a show of hands.
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Voting and meetings Part 8
Meetings Division 5
s. 195
1 (3) A proxy may exercise more than one vote on a question
2 determined by a poll.
3 (4) A question is to be determined by a poll if --
4 (a) 5 members, present in person at the meeting or
5 represented at the meeting by a proxy, demand the poll;
6 or
7 (b) the chairman directs that the question will be determined
8 by poll.
9 (5) In the case of an equality of votes, whether on a show of hands
10 or on a poll, the chairman of the meeting at which the show of
11 hands takes place or at which the poll is demanded may exercise
12 a casting vote if the rules so provide.
13 195. Calling of general meeting on requisition
14 (1) The board of a co-operative must convene a general meeting of
15 the co-operative on the written requisition of such number of
16 members who together are able to cast at least 20% (or any
17 lesser percentage specified in the rules of the co-operative) of
18 the total number of votes able to be cast at a meeting of the
19 co-operative.
20 (2) The following provisions apply to a requisition for a general
21 meeting --
22 (a) it must state the objects of the meeting;
23 (b) it must be signed by the requisitioning members, and
24 may consist of several documents in like form each
25 signed by one or more of the requisitioning members;
26 (c) it must be served on the co-operative by being lodged at
27 the registered office of the co-operative.
28 (3) The meeting must be called and held as soon as practicable and
29 in any case must be held within 2 months after the requisition is
30 served.
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Part 8 Voting and meetings
Division 5 Meetings
s. 196
1 (4) If the board does not call a meeting within 35 days after a
2 requisition is served, the following provisions apply --
3 (a) the requisitioning members, or any of them representing
4 at least half their total voting rights, may call the
5 meeting in the same way as nearly as possible as
6 meetings are called by the board;
7 (b) for that purpose they may request the co-operative to
8 supply a written statement setting out the names and
9 addresses of the persons entitled when the requisition
10 was served to receive notice of general meetings of the
11 co-operative;
12 (c) the board must send the requested statement to the
13 requisitioning members within 7 days after the request
14 for the statement is made;
15 (d) the meeting called by the requisitioning members must
16 be held not later than 3 months after the requisition is
17 served;
18 (e) any reasonable expenses incurred by the requisitioning
19 members because of the board's failure to call the
20 meeting must be paid by the co-operative;
21 (f) any amount required to be paid by the co-operative
22 under paragraph (e) must be retained by the co-operative
23 out of any money due from the co-operative by way of
24 fees or other remuneration in respect of their services to
25 such of the directors as were in default.
26 196. Minutes
27 (1) Minutes of --
28 (a) each general meeting; and
29 (b) each meeting of the board; and
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Voting and meetings Part 8
Meetings Division 5
s. 196
1 (c) each meeting of a committee to which the board's
2 functions have been delegated under section 204(1),
3 must be entered in the appropriate records within one month
4 after the meeting and confirmed at, and signed by the chairman
5 of, the next meeting.
6 (2) The minutes of each general meeting must be available for
7 inspection by members.
8 (3) Minutes must be kept in the English language.
page 111
Co-operatives Bill 2009
Part 9 Management and administration of co-operatives
Division 1 The Board
s. 197
1 Part 9 -- Management and administration
2 of co-operatives
3 Division 1 -- The Board
4 197. Board of directors
5 (1) Subject to this Act and the rules of the co-operative, the
6 business of a co-operative is to be managed by a board of
7 directors.
8 (2) The board of directors may exercise all the powers of the
9 co-operative that are not, by this Act or the rules of the
10 co-operative, required to be exercised by the co-operative in a
11 general meeting or by postal ballot.
12 (3) The acts of a director are valid despite any defect that may
13 afterwards be discovered in his or her appointment or
14 qualification.
15 198. Election of directors
16 (1) Except as provided in subsections (2), (3) and (4), the directors
17 of a co-operative are to be elected in the manner specified in the
18 rules of the co-operative.
19 (2) The first directors of --
20 (a) a co-operative formed under this Act are to be elected at
21 its formation meeting; and
22 (b) a co-operative that was a corporation incorporated under
23 another Act are to be the directors in office at the date of
24 registration under this Act.
25 (3) If authorised by the rules of the co-operative, a board of
26 directors may appoint a person to fill a casual vacancy in the
27 office of a director until the next annual general meeting.
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1 (4) A resolution passed at a general meeting of a co-operative
2 electing 2 or more directors is void unless --
3 (a) the meeting previously resolved that the nominations for
4 election could be voted on together; and
5 (b) no votes were cast against that previous resolution.
6 (5) Subsection (4) does not affect --
7 (a) a resolution to appoint directors by an amendment to the
8 co-operative's rules; or
9 (b) a ballot or poll to elect 2 or more directors if the ballot
10 or poll does not require members voting for one
11 candidate to vote for another specific candidate.
12 (6) For the purposes of subsection (5), a ballot or poll does not
13 require a member to vote for a candidate merely because the
14 member is required to express a preference among individual
15 candidates in order to cast a valid vote.
16 (7) A nomination for election or appointment to the office of a
17 director must give details of the qualifications and experience of
18 the person nominated.
19 (8) Unless this Act or the rules of a co-operative provides
20 otherwise, a director is eligible for re-election at the end of his
21 or her term of office.
22 199. Qualification of directors
23 (1) In this section --
24 member director means a director who is a person qualified to
25 be a director under subsection (2)(a).
26 (2) A person is not qualified to be a director of a co-operative
27 unless the person is --
28 (a) a member of the co-operative or a representative of a
29 corporation that is a member of the co-operative; or
30 (b) an employee of the co-operative or a person qualified as
31 provided by the rules.
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1 (3) The majority of directors must be member directors.
2 (4) Subsection (3) does not prevent the rules of a co-operative
3 requiring that a greater number of directors than a majority must
4 be member directors.
5 200. Disqualified persons
6 (1) A person must not act as a director or directly or indirectly take
7 part in or be concerned with the management of a co-operative
8 if the person --
9 (a) is the auditor of the co-operative or a partner, employee
10 or employer of the auditor; or
11 (b) has been convicted, whether before or after the
12 commencement of this section, within or outside this
13 State --
14 (i) on indictment of an offence relating to the
15 promotion, formation or management of a
16 corporation; or
17 (ii) of an offence involving fraud or dishonesty
18 punishable on conviction by imprisonment for
19 not less than 3 months; or
20 (iii) of an offence under the Corporations Act
21 section 184, 344, 590, 592, 670A or 728; or
22 (iv) of an offence under a provision of a previous law
23 of this State or of another State or Territory, with
24 which any of the provisions referred to in
25 subparagraph (iii) corresponds,
26 within 5 years after the conviction or, if sentenced to
27 imprisonment, after the person's release from prison,
28 except with the leave of the Supreme Court.
29 Penalty: a fine of $24 000 and imprisonment for 2 years.
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1 (2) A person must not act as a director or directly or indirectly take
2 part in or be concerned with the management of a co-operative
3 if the person --
4 (a) has been convicted of an offence under this Act, within
5 5 years after the conviction, except with leave of the
6 Supreme Court; or
7 (b) is disqualified from managing corporations under the
8 Corporations Act Part 2D.6; or
9 (c) is an insolvent under administration, as defined in the
10 Corporations Act section 9.
11 Penalty: a fine of $24 000 and imprisonment for 2 years.
12 (3) In proceedings for an offence against subsection (1), a
13 certificate by an authority prescribed by the regulations stating
14 that a person was released from prison on a specified date, is
15 evidence that the person was released from prison on that date.
16 (4) A person who intends to apply for leave of the Supreme Court
17 must give the Registrar at least 21 days notice of the person's
18 intention.
19 (5) The Supreme Court may grant leave subject to any condition or
20 limitation it considers appropriate.
21 (6) A person must comply with any condition or limitation subject
22 to which leave is granted.
23 Penalty: a fine of $24 000 and imprisonment for 2 years.
24 (7) On the application of the Registrar the Supreme Court may
25 revoke its leave.
26 (8) Subject to this section, a co-operative is declared to be an
27 applied Corporations legislation matter for the purposes of the
28 Corporations (Ancillary Provisions) Act 2001 Part 3 in relation
29 to the provisions of the Corporations Act Part 2D.6, subject to
30 the following modifications --
31 (a) a reference in the provisions to a corporation is to be
32 read as a reference to a co-operative;
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1 (b) a reference in the provisions to a company is to be read
2 as a reference to a co-operative;
3 (c) a reference in the provisions to ASIC is to be read as a
4 reference to the Registrar;
5 (d) any other modifications, within the meaning of the
6 Corporations (Ancillary Provisions) Act 2001 Part 3,
7 that are prescribed by the regulations.
8 201. Meeting of the board of directors
9 (1) In this section --
10 independent director means a director who is an employee of
11 the co-operative or a person qualified as provided by the rules;
12 member director has the meaning given to that term in
13 section 199(1).
14 (2) Meetings of the board of directors must be held at least once
15 every 3 months and may be held as often as may be necessary.
16 (3) A meeting of the board of directors may be called by a director
17 giving notice individually to every other director.
18 (4) The board of directors may hold meetings, or allow directors to
19 take part in its meetings by telephone, video link, or another
20 form of communication that allows reasonably
21 contemporaneous and continuous communication between the
22 directors taking part in the meeting.
23 (5) A quorum of a meeting of the board of directors is 50% of the
24 number of directors or a greater number of directors specified in
25 the rules of the co-operative.
26 (6) For a quorum, the member directors must outnumber the
27 independent directors by at least one, or, if a greater number is
28 stated in the rules of the co-operative, the greater number.
29 (7) The chairman of the board may be elected either by the board or
30 at a general meeting of the co-operative, and is to be elected,
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1 hold office, and retire, and may be removed from office, as
2 provided by the rules of the co-operative.
3 202. Transaction of business outside meetings
4 (1) The board of a co-operative may, if it considers appropriate,
5 transact any of its business by the circulation of papers among
6 all of the directors of the board.
7 (2) A resolution in writing approved in writing by a majority of the
8 directors of the board is taken to be a decision of the board.
9 (3) Separate copies of a resolution of the board may be signed by
10 the directors if the wording of the resolution and approval is
11 identical in each copy.
12 (4) For the purpose of approving a resolution under this section, the
13 chairman of the board and each director have the same voting
14 rights as they have at an ordinary meeting of the board.
15 (5) The resolution is approved when the last director required for
16 the majority signs.
17 (6) A resolution of a board must be recorded in the minutes of the
18 meetings of the board within 28 days after the resolution is
19 approved.
20 (7) Papers may be circulated among directors of the board for the
21 purposes of this section by facsimile or other transmission of the
22 information in the papers concerned.
23 203. Alternate directors
24 The rules of a co-operative may provide for an alternate director
25 to be appointed to act in the place of a director who is absent
26 from a meeting of the board.
27 204. Delegation by board
28 (1) If authorised by the rules of a co-operative, the board of the
29 co-operative may, by resolution, delegate the board's powers,
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1 other than this power of delegation, specified in the resolution
2 to --
3 (a) a director; or
4 (b) a committee of 2 or more directors; or
5 (c) a committee of members of the co-operative; or
6 (d) a committee of members of the co-operative and other
7 persons if members form the majority of persons on the
8 committee; or
9 (e) a committee of directors and other persons.
10 (2) The board may, by resolution, revoke wholly or in part a
11 delegation under this section.
12 (3) A function, the exercise of which has been delegated under this
13 section, may be exercised from time to time in accordance with
14 the terms of the delegation while the delegation remains
15 unrevoked.
16 (4) A delegation under this section may be made subject to
17 conditions or limitations as to the exercise of any of the
18 functions delegated, or as to time or circumstance.
19 (5) Despite any delegation under this section, the board may
20 continue to exercise all or any of the functions delegated.
21 205. Removal from and vacation of office
22 (1) The directors hold office and must retire, and may be removed
23 from office, as provided by the rules of the co-operative.
24 (2) A director vacates office in the circumstances, if any, provided
25 in the rules of the co-operative and in any of the following
26 cases --
27 (a) if the director is disqualified from being a director as
28 provided by section 200;
29 (b) if the director absents himself or herself from
30 3 consecutive ordinary meetings of the board without its
31 leave;
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1 (c) if the director resigns the office of director by written
2 notice given by the director to the co-operative;
3 (d) if the director is removed from office by special
4 resolution of the co-operative;
5 (e) if the person ceases to hold the qualification by reason
6 of which the person was qualified to be a director;
7 (f) if an administrator of the co-operative's affairs is
8 appointed under Part 12 Division 5.
9 Division 2 -- Secretary
10 206. Secretary
11 (1) A co-operative must have a secretary.
12 (2) The board of the co-operative is to appoint the secretary.
13 (3) The board may appoint a person to act as the secretary during
14 the absence or incapacity of the secretary.
15 (4) A person is not qualified to be appointed as, or to act as, the
16 secretary unless the person is an adult who ordinarily lives in
17 Australia.
18 Division 3 -- Duties and liabilities of directors, officers
19 and employees
20 207. Meaning of officer
21 In this Division --
22 officer of a co-operative means --
23 (a) a director or secretary of the co-operative; or
24 (b) a person who is concerned, or takes part, in the
25 management of the co-operative, whether or not as a
26 director; or
27 (c) a receiver, or receiver and manager, of property of the
28 co-operative, or another authorised person who enters
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1 into possession or assumes control of property of the
2 co-operative for the purpose of enforcing a charge; or
3 (d) an administrator of a deed of arrangement executed by
4 the co-operative; or
5 (e) a liquidator or provisional liquidator appointed in a
6 voluntary winding-up of the co-operative; or
7 (f) an administrator of the co-operative appointed under the
8 Corporations Act Part 5.3A as applying under this Act;
9 or
10 (g) a trustee or other person administering a compromise or
11 arrangement made between the co-operative and another
12 person or other persons.
13 208. Officers must act honestly
14 An officer of a co-operative must at all times act honestly in the
15 exercise of his or her powers and the discharge of the duties of
16 his or her office, both in the State and elsewhere.
17 Penalty:
18 (a) for a contravention committed with intent to deceive
19 or defraud the co-operative, members or creditors of
20 the co-operative or creditors of another person or for
21 another fraudulent purpose, a fine of $24 000 and
22 imprisonment for 2 years;
23 (b) in any other case, a fine of $6 000.
24 209. Standard of care and diligence required
25 (1) In the exercise of his or her powers and the discharge of his or
26 her functions, an officer of a co-operative must exercise the
27 degree of care and diligence that a reasonable person in a like
28 position in a co-operative would exercise in the co-operative's
29 circumstances.
30 Penalty: a fine of $2 000.
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1 (2) An officer is not liable to be convicted for a contravention of
2 this section if the co-operative has resolved by ordinary
3 resolution to forgive the contravention.
4 (3) An officer of a co-operative who makes a business judgment is
5 taken to meet the requirements of subsection (1), and their
6 equivalent duties at common law and in equity, in respect of the
7 judgment if the officer --
8 (a) makes the judgment in good faith for a proper purpose;
9 and
10 (b) does not have a material personal interest in the subject
11 matter of the judgment; and
12 (c) informs himself or herself about the subject matter of
13 the judgment to the extent he or she reasonably believes
14 to be appropriate; and
15 (d) rationally believes that the judgment is in the best
16 interests of the co-operative.
17 (4) The officer's belief that the judgment is in the best interests of
18 the co-operative is a rational one unless the belief is one that no
19 reasonable person in their position would hold.
20 210. Improper use of information or position
21 (1) An officer or employee or former officer or employee of a
22 co-operative or a member of a committee referred to in
23 section 204(1) must not make improper use of information
24 acquired by reason of his or her position as an officer or
25 employee or member to gain, directly or indirectly, an
26 advantage for himself or herself or for any other person or to
27 cause detriment to the co-operative.
28 (2) An officer or employee of a co-operative or a member of a
29 committee referred to in section 204(1) must not make improper
30 use of his or her position as an officer or employee or member,
31 to gain, directly or indirectly, an advantage for himself or
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1 herself or for any other person or to cause detriment to the
2 co-operative.
3 Penalty:
4 (a) for a contravention committed with intent to deceive
5 or defraud the co-operative, members or creditors of
6 the co-operative or creditors of another person or for
7 another fraudulent purpose, a fine of $24 000 and
8 imprisonment for 2 years;
9 (b) in any other case, a penalty not exceeding a fine of
10 $6 000.
11 211. Recovery of damages by co-operative
12 (1) If a person contravenes a provision of this Division in relation to
13 a co-operative, the co-operative may, whether or not the person
14 has been convicted of an offence for that contravention, recover
15 an amount from the person as a debt payable to the
16 co-operative.
17 (2) The amount that the co-operative is entitled to recover from the
18 person is --
19 (a) if the person or another person made a profit as a result
20 of the contravention, an amount equal to that profit; and
21 (b) if the co-operative has suffered loss or damage as a
22 result of the contravention, an amount equal to that loss
23 or damage.
24 212. Other duties and liabilities not affected
25 This Division has effect in addition to, and does not limit, a law
26 relating to the duty or liability of a person because of the
27 person's office or employment in relation to a co-operative and
28 does not prevent the institution of any civil proceeding for a
29 breach of a duty or for a liability of that type.
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1 213. Application of Corporations Act concerning indemnities and
2 insurance for officers and auditors
3 A co-operative is declared to be an applied Corporations
4 legislation matter for the purposes of the Corporations
5 (Ancillary Provisions) Act 2001 Part 3 in relation to the
6 Corporations Act sections 199A, (except 199A(2)(b)), 199B
7 and 199C, subject to the following modifications --
8 (a) a reference in the sections to a company is to be read as
9 a reference to a co-operative;
10 (b) a reference in the sections to ASIC is to be read as a
11 reference to the Registrar;
12 (c) a reference to section 183 is to be read as a reference to
13 section 210(1) of this Act;
14 (d) a reference to section 182 is to be read as a reference to
15 section 210(2) of this Act;
16 (e) any other modifications, within the meaning of the
17 Corporations (Ancillary Provisions) Act 2001 Part 3,
18 that are prescribed by the regulations.
19 214. Application of Corporations Act provisions concerning
20 officers of co-operatives
21 A co-operative is declared to be an applied Corporations
22 legislation matter for the purposes of the Corporations
23 (Ancillary Provisions) Act 2001 Part 3 in relation to the
24 Corporations Act sections 344, 589 to 598 and 1307, subject to
25 the following modifications --
26 (a) in section 344, "a company, registered scheme or
27 disclosing entity" is to be read as "a co-operative";
28 (b) a reference in the sections, other than section 344, to a
29 company is to be read as a reference to a co-operative;
30 (c) a reference in the sections to ASIC is to be read as a
31 reference to the Registrar;
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1 (d) any other modifications, within the meaning of the
2 Corporations (Ancillary Provisions) Act 2001 Part 3,
3 that are prescribed by the regulations.
4 Division 4 -- Restrictions on directors and officers
5 215. Directors' remuneration
6 A director of a co-operative must not receive remuneration for
7 services as a director other than fees, concessions and other
8 benefits that are approved at a general meeting of the
9 co-operative.
10 Penalty: a fine of $24 000 or imprisonment for 2 years.
11 216. Certain financial accommodation to officers prohibited
12 (1) An officer of a co-operative who is not a director of the
13 co-operative must not obtain financial accommodation from the
14 co-operative other than --
15 (a) with the approval of a majority of the directors; or
16 (b) under a scheme about providing financial
17 accommodation to officers that has been approved by a
18 majority of the directors.
19 Penalty: a fine of $24 000 or imprisonment for 2 years.
20 (2) For the purposes of this section, financial accommodation is
21 taken to be obtained by an officer of a co-operative if it is
22 obtained by --
23 (a) a proprietary company in which the officer is a
24 shareholder or director; or
25 (b) a trust of which the officer is a trustee or beneficiary; or
26 (c) a trust of which a corporation is trustee if the officer is a
27 director or other officer of the corporation.
28 (3) A co-operative must not give financial accommodation to an
29 officer of the co-operative if --
30 (a) by giving the financial accommodation, the officer
31 would contravene this section; and
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1 (b) the co-operative knows or should reasonably know of
2 the contravention.
3 Penalty: a fine of $50 000.
4 217. Financial accommodation to directors and associates
5 (1) In this section --
6 associate of a director means --
7 (a) the director's spouse (or de facto partner); or
8 (b) a person when acting in the capacity of trustee of a trust
9 under which --
10 (i) the director or director's spouse (or de facto
11 partner) has a beneficial interest; or
12 (ii) a corporation mentioned in paragraph (c) has a
13 beneficial interest;
14 or
15 (c) a corporation if --
16 (i) the director or director's spouse (or de facto
17 partner) has a material interest in shares in the
18 corporation; and
19 (ii) the nominal value of the shares is not less than
20 10% of the nominal value of the issued share
21 capital of the corporation.
22 (2) For the purposes of this section, a person has a material interest
23 in a share in a corporation if --
24 (a) the person has power to withdraw the share capital
25 subscribed for the share or to exercise control over the
26 withdrawal of the share capital; or
27 (b) the person has power to dispose of or to exercise control
28 over the disposal of the share; or
29 (c) the person has power to exercise or to control the
30 exercise of any right to vote conferred on the holder of
31 the share.
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1 (3) A co-operative must not provide financial accommodation to a
2 director, or to a person the co-operative knows or should
3 reasonably know is an associate of a director, unless the
4 accommodation is --
5 (a) approved under subsection (4); or
6 (b) given under a scheme approved under subsection (4); or
7 (c) provided on terms no more favourable to the director or
8 associate than the terms on which it is reasonable to
9 expect the co-operative would give if dealing with the
10 director or associate at arm's length in the same
11 circumstances.
12 Penalty: a fine of $50 000.
13 (4) For the purposes of subsection (3)(a) and (b), financial
14 accommodation or a scheme is approved if --
15 (a) it is approved by a resolution passed at a general
16 meeting; and
17 (b) the full details of the accommodation or scheme were
18 made available to members at least 21 days before the
19 meeting.
20 (5) A director or an associate of a director must not obtain financial
21 accommodation given in contravention of subsection (3).
22 Penalty: a fine of $24 000 or imprisonment for 2 years.
23 (6) For the purposes of this section, a concessional rate of interest
24 for a borrower from a co-operative is a normal term only if the
25 borrower is entitled to the concession by being a member of a
26 class of borrowers from the co-operative specified in its rules as
27 being entitled to the concession.
28 (7) If a director of a co-operative or an associate of a director
29 accepts in payment of a debt owed by a member of the
30 co-operative to the director or associate, any proceeds of
31 financial accommodation provided to the member by the
32 co-operative, this section has effect as if the financial
33 accommodation has been provided to the director or associate.
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s. 218
1 (8) In this section, a reference to --
2 (a) the provision of financial accommodation to a director
3 or an associate of a director; or
4 (b) the obtaining of financial accommodation by a director
5 or an associate of a director; or
6 (c) a debt owed to a director or an associate of a director,
7 includes a reference to a provision of financial accommodation
8 to, or an obtaining of financial accommodation by, the director
9 or associate, or a debt owed to the director or associate, jointly
10 with another person.
11 218. Restriction on directors of certain co-operatives selling land
12 to co-operative
13 A director of a co-operative the primary activity of which is or
14 includes the acquisition of land in order to settle or retain people
15 on the land, must not sell land to the co-operative except under a
16 special resolution of the co-operative.
17 Penalty: a fine of $24 000 or imprisonment for 2 years.
18 219. Management contracts
19 (1) In this section --
20 management contract means a contract or other arrangement
21 under which --
22 (a) a person who is not an officer of the co-operative agrees
23 to perform the whole, or a substantial part, of the
24 functions of the co-operative, whether under the control
25 of the co-operative or not; or
26 (b) a co-operative agrees to perform the whole or a
27 substantial part of its functions --
28 (i) in a particular way; or
29 (ii) in accordance with the directions of any person;
30 or
31 (iii) subject to specified restrictions or conditions.
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1 (2) A co-operative must not enter into a management contract
2 unless that contract has first been approved by special
3 resolution.
4 (3) A management contract entered into in contravention of
5 subsection (2) is void.
6 Division 5 -- Declaration of interests
7 220. Declaration of interest
8 (1) A director of a co-operative who is or becomes in any way
9 (whether directly or indirectly) interested in a contract, or
10 proposed contract with the co-operative must declare the nature
11 and extent of the interest to the board of directors under this
12 section.
13 Penalty: a fine of $24 000 and imprisonment for 2 years.
14 (2) In the case of a proposed contract, the declaration must be
15 made --
16 (a) at the meeting of the board at which the question of
17 entering into the contract is first considered; or
18 (b) if the director was not at that time interested in the
19 proposed contract, at the next meeting of the board held
20 after the director becomes interested in the proposed
21 contract.
22 (3) If a director becomes interested in a contract with the
23 co-operative after it is made, the declaration must be made
24 at the next meeting of the board held after the director
25 becomes interested in the contract.
26 (4) For the purposes of this section, a general written notice given
27 to the board by a director to the effect that the director --
28 (a) is a member of a specified entity; and
29 (b) is to be regarded as interested in any contract that may,
30 after the giving of the notice, be made with the entity,
31 is a sufficient declaration.
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s. 220
1 (5) A director of a co-operative who holds an office or has an
2 interest in property whereby, whether directly or indirectly,
3 duties or interests might be created that could conflict with the
4 director's duties or interests as director must, under
5 subsection (6), declare at a meeting of the board of directors the
6 fact and the nature, character and extent of the conflict.
7 Penalty: a fine of $24 000 and imprisonment for 2 years.
8 (6) A declaration required by subsection (5) in relation to holding
9 an office or having an interest must be made by a person --
10 (a) if the person holds the office or has the interest when he
11 or she becomes a director, at the first meeting of the
12 board held after --
13 (i) the person becomes a director; or
14 (ii) the relevant facts as to holding the office or
15 having the interest come to the person's
16 knowledge,
17 whichever is the later; or
18 (b) if the person starts to hold the office or acquires the
19 interest after the person becomes a director, at the first
20 meeting of the board held after the relevant facts as to
21 holding the office or having the interest come to the
22 person's knowledge.
23 (7) If a director has made a declaration under this section, then
24 unless the board determines otherwise, the director cannot --
25 (a) be present during any deliberation of the board in
26 relation to the matter; or
27 (b) take part in any decision of the board in relation to the
28 matter.
29 (8) For the purposes of the making of a determination of the board
30 under subsection (7) in relation to a director who has made a
31 declaration under this section, the director cannot --
32 (a) be present during any deliberation of the board for the
33 purpose of making the determination; or
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1 (b) take part in the making by the board of the
2 determination.
3 221. Declarations to be recorded in minutes
4 Every declaration under this Division is to be recorded in the
5 minutes of the meeting at which it was made.
6 222. Division does not affect other laws or rules
7 Except as provided in section 223, this Division is in addition
8 to, and does not limit, the operation of a law or a provision in
9 the rules of the co-operative restricting a director from having
10 an interest in contracts with the co-operative or from holding
11 offices or possessing properties involving duties or interests in
12 conflict with his or her duties or interests as director.
13 223. Certain interests need not be declared
14 The interest in a contract or proposed contract that a director is
15 required by this Division to declare does not include an interest
16 in --
17 (a) a contract or proposed contract for a purchase of goods
18 and services by the director from the co-operative; or
19 (b) a lease of land to the director by the co-operative; or
20 (c) a contract or proposed contract for the sale of
21 commodities or animals by the director to the
22 co-operative; or
23 (d) a contract or proposed contract that, under the rules of
24 the co-operative, may be made between the co-operative
25 and a member; or
26 (e) a contract or proposed contract of a class of contracts
27 prescribed by the regulations,
28 but only if the contract is made in good faith, in the ordinary
29 course of the business of the co-operative, and on the terms that
30 are usual and proper in similar dealings between the
31 co-operative and its members.
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1 Division 6 -- Financial reports and audit
2 224. Meaning of control and entity
3 In this Division --
4 control has the same meaning in relation to a co-operative that it
5 has under the Corporations Act in relation to a corporation;
6 entity has the same meaning in relation to a co-operative that it
7 has under the Corporations Act in relation to a corporation.
8 225. Requirements for financial records and financial reports
9 (1) A co-operative is declared to be an applied Corporations
10 legislation matter for the purposes of the Corporations
11 (Ancillary Provisions) Act 2001 Part 3 in relation to the
12 provisions of the Corporations Act Part 2F.3, sections 249K
13 and 249V and Chapter 2M, subject to the following
14 modifications --
15 (a) a reference in the provisions to a company or to a public
16 company is to be read as a reference to a co-operative;
17 (b) a reference in the provisions to the Court is to be read as
18 a reference to the Supreme Court;
19 (c) a reference in the provisions to "prescribed" is to be read
20 as a reference to "approved by the Registrar";
21 (d) a reference in the provisions to ASIC is to be read as a
22 reference to the Registrar;
23 (e) an offence created in relation to the provisions is the
24 offence set out in subsection (2);
25 (f) any penalty for the offence referred to in paragraph (e) is
26 the penalty set out in subsection (2);
27 (g) a reference in sections 247A and 300(14) and (15) to the
28 Corporations Act section 237 is to be read as a reference
29 to section 91 of this Act;
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1 (h) a reference in section 300(8) to the Corporations Act
2 section 199A(2) or (3) is to be read as a reference to
3 section 213 of this Act;
4 (i) the provisions apply as if sections 247D, 291, 300(12)
5 and (13), 315(3) and (4), 323D(1) and (2), 323DA, 325
6 and Part 2M.1, Part 2M.4 Division 2, Part 2M.5 and
7 Part 2M.6 of the Corporations Act were omitted;
8 (j) a reference in Chapter 2M.3 to a small proprietary
9 company is to be read as a reference to a small
10 co-operative within a class prescribed by the regulations
11 for the purpose of this paragraph;
12 (k) any other modifications, within the meaning of the
13 Corporations (Ancillary Provisions) Act 2001 Part 3,
14 that are prescribed by the regulations.
15 (2) A co-operative must --
16 (a) keep financial records and prepare financial reports as
17 required under this Act; and
18 (b) ensure that the financial reports are audited in
19 accordance with this Act.
20 Penalty: a fine of $2 000.
21 (3) Without limiting the matters for which regulations under this
22 section may make provision, the regulations may make
23 provision for or in relation to the following --
24 (a) requiring the submission of financial reports to the
25 Australian Accounting Standards Board;
26 (b) requiring the adoption by a co-operative of the same
27 financial year for each entity that the co-operative
28 controls.
29 226. Power of Registrar to grant exemptions
30 The Registrar may, by order published in the Gazette,
31 exempt --
32 (a) a co-operative; or
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1 (b) a person or firm proposed to be appointed as an auditor
2 of a co-operative; or
3 (c) a director or auditor of a co-operative,
4 from compliance with a provision of a regulation made for the
5 purpose of this Part or with a provision of the Corporations Act
6 as that Act applies under section 225.
7 227. Disclosure by directors
8 The directors of a co-operative must make the disclosures about
9 the affairs of the co-operative and of any entity that the
10 co-operative controls that are required by the regulations.
11 Penalty: a fine of $2 000.
12 228. Protection of auditors etc.
13 (1) An auditor of a co-operative has qualified privilege in relation
14 to --
15 (a) a statement that the auditor makes, orally or in writing,
16 in the course of his or her duties as auditor; or
17 (b) the giving of notice, or the sending of copies of financial
18 reports or other reports, to the Registrar under this Act.
19 (2) A person has qualified privilege in relation to --
20 (a) the publishing of a document prepared by an auditor in
21 the course of the auditor's duties and required by or
22 under this Act to be lodged with the Registrar, whether
23 or not the document has been lodged; or
24 (b) the publishing of a statement made by an auditor
25 referred to in subsection (1).
26 (3) This section does not limit or affect a right, privilege or
27 immunity that an auditor or other person has, apart from this
28 section, as defendant in proceedings for defamation.
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1 229. Financial year
2 (1) The financial year of a co-operative ends on the day in each
3 year that is provided for by the rules of the co-operative.
4 (2) In the case of a co-operative registered under Part 2 Division 4,
5 the first financial year of the co-operative may extend from the
6 date of its registration to a date not more than 18 months after
7 registration.
8 (3) In the case of a co-operative registered under Part 2 Division 5,
9 the first financial year of the co-operative is to be a period not
10 extending beyond a date that is 18 months after the end of the
11 co-operative's last financial year before the co-operative
12 registered under this Act.
13 (4) On an alteration of the rules of a co-operative altering its
14 financial year, the alteration may provide either that the
15 financial year current at the date of alteration is to be extended
16 for a period not exceeding 6 months or that the financial year
17 next following the financial year that is so current is to be a
18 period exceeding 12 months but not exceeding 18 months.
19 Division 7 -- Registers, records and returns
20 230. Registers to be kept by co-operatives
21 (1) A co-operative must keep the following registers in accordance
22 with this section --
23 (a) a register of members, directors and shares, if any;
24 (b) a register of loans to, securities given by, debentures and
25 co-operative capital units issued by and deposits
26 received by the co-operative;
27 (c) a register of names of persons who have given loans or
28 deposits to, or who hold securities given by, or who hold
29 debentures or co-operative capital units issued by the
30 co-operative;
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1 (d) a register of loans made by or guaranteed by the
2 co-operative, and of any securities taken by the
3 co-operative;
4 (e) a register of holders of co-operative capital units, in
5 accordance with section 257(4);
6 (f) a co-operative register of charges, in accordance with
7 Schedule 3 clause 41;
8 (g) a register of memberships cancelled under Part 6, in
9 accordance with section 130;
10 (h) a register of notifiable interests, in accordance with
11 section 284;
12 (i) a register of undertakings, in accordance with
13 section 472(1);
14 (j) other registers prescribed by the regulations.
15 Penalty: a fine of $2 000.
16 (2) The registers must be kept in the way, and contain the
17 particulars, specified by this Act or prescribed by the
18 regulations.
19 231. Location of registers
20 (1) A register kept under this Division must be kept at --
21 (a) the co-operative's registered office; or
22 (b) an office at the co-operative's principal place of
23 business; or
24 (c) an office, whether of the co-operative or of someone
25 else, where the work involved in maintaining the
26 register is done; or
27 (d) another office approved by the Registrar.
28 (2) The office must be in this State.
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1 (3) The co-operative must lodge with the Registrar a notice of the
2 address at which the register is kept within 28 days after the
3 register is --
4 (a) established at an office that is not the co-operative's
5 registered office; or
6 (b) moved from one office to another.
7 232. Inspection of registers etc.
8 (1) A co-operative must have at the office where the registers are
9 kept and available during all reasonable hours for inspection by
10 a member free of charge the following --
11 (a) a copy of this Act and the regulations;
12 (b) a current copy of the rules of the co-operative and any
13 order under section 345;
14 (c) a copy of the minutes of each general meeting of the
15 co-operative;
16 (d) a copy of the last annual report of the co-operative under
17 section 235;
18 (e) the register of directors, members and shares;
19 (f) the register of names of persons who have given loans or
20 deposits to or hold securities, debentures or co-operative
21 capital units given or issued by the co-operative;
22 (g) other registers prescribed by the regulations.
23 (2) If a register is not kept on a computer, the person may inspect
24 the register itself.
25 (3) If the register is kept on a computer, the person may inspect a
26 hard copy of the information on the register unless the person
27 and the co-operative agree that the person can access the
28 information by computer.
29 (4) A member is entitled to make a copy of entries in a register
30 specified in subsection (1) and to do so free of charge unless the
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s. 233
1 rules of the co-operative require a fee to be paid, in which case
2 on payment of the required fee.
3 (5) The fee required by the rules cannot be more than the fee
4 prescribed for a copy of any entry in the register.
5 (6) A co-operative must --
6 (a) permit a member to inspect a document or make a copy
7 of a document that the member is entitled to inspect or
8 make under this section; and
9 (b) give the member all reasonable assistance to inspect the
10 document or make the copy.
11 Penalty: a fine of $2 000.
12 (7) A co-operative must have at the place where the registers are
13 kept and available during all reasonable hours for inspection by
14 any person such documents in relation to the co-operative as are
15 prescribed.
16 Penalty: a fine of $2 000.
17 233. Use of information on registers
18 (1) A person must not --
19 (a) use information about a person obtained from a register
20 kept under this Division to contact or send material to
21 the person; or
22 (b) disclose information of that kind knowing that the
23 information is likely to be used to contact or send
24 material to the person,
25 unless that use or disclosure of the information is --
26 (c) relevant to the holding of the directorship, membership,
27 shares, loans, securities, debentures, co-operative capital
28 units or deposits concerned or the exercise of the rights
29 attaching to them; or
30 (d) approved by the board; or
31 (e) necessary to comply with a requirement of this Act.
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1 (2) A person who contravenes subsection (1) is liable to
2 compensate anyone else who suffers loss or damage because of
3 the contravention.
4 (3) A person who makes a profit from a contravention of
5 subsection (1) owes a debt to the co-operative.
6 (4) The amount of the debt is the amount of the profit.
7 234. Notice of appointment etc. of directors and officers
8 (1) A co-operative must give notice to the Registrar in accordance
9 with this section of the appointment of a person as a director,
10 chief executive officer or secretary of the co-operative or a
11 subsidiary of the co-operative, and of the cessation of the
12 appointment.
13 (2) The notice must --
14 (a) be in the form approved by the Registrar; and
15 (b) be given within 28 days after the appointment or
16 cessation of appointment; and
17 (c) state the particulars, prescribed by the regulations, of the
18 appointment or cessation of appointment.
19 Penalty: a fine of $2 000.
20 235. Annual report to be lodged with Registrar
21 (1) For the purposes of subsection (2) the required period is --
22 (a) 28 days after the annual general meeting of the
23 co-operative; or
24 (b) if the annual general meeting of the co-operative is not
25 held within the period stated in section 190(3)(a),
26 28 days after the end of that period.
27 (2) A co-operative must lodge with the Registrar, within the
28 required period in each year, an annual report containing the
29 following --
30 (a) a notice in the form approved by the Registrar listing the
31 secretary, the directors and the chief executive officers
32 of the co-operative and of each subsidiary of the
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1 co-operative, as at the date that the annual report is
2 lodged with the Registrar;
3 (b) if the co-operative is required under section 225 to
4 prepare a financial report for its most recently ended
5 financial year, a copy of the financial report;
6 (c) a copy of the financial statements of each subsidiary of
7 the co-operative in relation to the most recently ended
8 financial year of the subsidiary, or a copy of the
9 consolidated financial statements for all subsidiaries of
10 the co-operative in relation to the most recently ended
11 financial year of the subsidiaries;
12 (d) a copy of any report by the auditors or directors of the
13 co-operative or subsidiary --
14 (i) prepared under section 225(2); or
15 (ii) on a financial report referred to in paragraph (b)
16 or a financial statement referred to in
17 paragraph (c);
18 (e) other particulars prescribed by the regulations.
19 Penalty: a fine of $2 000.
20 236. List of members to be provided at request of Registrar
21 A co-operative must, at the written request of the Registrar,
22 send to the Registrar, within the time and in the way that the
23 Registrar specifies, a full list of the members of the co-operative
24 and of each subsidiary of the co-operative, together with the
25 particulars with regard to those members that the Registrar
26 specifies in the request.
27 Penalty: a fine of $2 000.
28 237. Special return to be given at request of Registrar
29 (1) The Registrar may, by direction in writing, require a
30 co-operative to give to the Registrar a special return in the form,
31 within the time, and relating to the subject matter, specified by
32 the Registrar.
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Division 8 Name and registered office
s. 238
1 (2) The co-operative must comply with a direction under
2 subsection (1).
3 Penalty: a fine of $2 000.
4 Division 8 -- Name and registered office
5 238. Name to include certain matter
6 (1) The name of a co-operative may consist of words, numbers or a
7 combination of both.
8 (2) The name of a co-operative must include the word
9 "Co-operative" or "Cooperative" or the abbreviation "Co-op".
10 (3) Subject to subsection (4) the word "Limited" or the abbreviation
11 "Ltd" must be the last word of the name.
12 (4) The Registrar may approve the registration of a co-operative
13 without "Limited" or the abbreviation "Ltd" in its name, or alter
14 the registration of a co-operative by omitting "Limited" or the
15 abbreviation "Ltd" from its name, if its constitution --
16 (a) requires the co-operative to pursue charitable purposes
17 only and to apply its income in promoting those
18 purposes; and
19 (b) prohibits the co-operative making distributions to its
20 members and paying fees to its directors; and
21 (c) requires the directors to approve all other payments the
22 co-operative makes to directors.
23 (5) The co-operative must notify the Registrar as soon as
24 practicable if any of those requirements or prohibitions in its
25 constitution are not complied with or if its constitution is
26 modified to remove any of those requirements or prohibitions.
27 Penalty: a fine of $2 000.
28 (6) The Registrar may at any time by notice in writing to the
29 co-operative revoke an approval under subsection (4) but only
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s. 239
1 after giving the co-operative an opportunity to make
2 submissions to the Registrar on the matter.
3 (7) A corporation that is formed or incorporated under an Act other
4 than this Act must not register under the other Act by a name
5 that includes the word "Co-operative" or "Cooperative" or the
6 abbreviation "Co-op".
7 Penalty: a fine of $2 000.
8 (8) The Registrar cannot register as the name of a co-operative a
9 name that contains anything a regulation declares is an
10 unsuitable name, unless the Minister is satisfied the name is
11 suitable for registration in the circumstances of a particular case.
12 (9) Subsection (7) does not apply to a corporation that is allowed
13 under another Act to use the word "Co-operative" or
14 "Cooperative" or the abbreviation "Co-op" in its name.
15 239. Use of abbreviations
16 A description of a co-operative is not inadequate or incorrect
17 merely because of one or more of the following --
18 (a) the use of the abbreviation "Co-op" instead of the word
19 "Co-operative" or "Cooperative" in the co-operative's
20 name;
21 (b) the use of the abbreviation "Ltd" instead of the word
22 "Limited" in the co-operative's name;
23 (c) the use of the symbol "&" instead of the word "and" in
24 the co-operative's name;
25 (d) the use of any of those words instead of the
26 corresponding abbreviation or symbol in the
27 co-operative's name;
28 (e) the use of any abbreviation or elaboration of the name of
29 the co-operative that is approved in a particular case or
30 for a particular purpose by the Registrar in writing.
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1 240. Name to appear on business documents etc.
2 (1) A co-operative must ensure its name appears in legible
3 characters on its seal, and in any of the following documents
4 issued, signed or endorsed by or on behalf of the
5 co-operative --
6 (a) a bill of exchange, promissory note, cheque or other
7 negotiable instrument;
8 (b) a receipt or letter of credit issued by the co-operative;
9 (c) a document of a class prescribed by the regulations.
10 Penalty: a fine of $2 000.
11 (2) An officer of a co-operative or a person on its behalf must
12 not --
13 (a) use a seal of the co-operative; or
14 (b) sign or authorise to be signed on behalf of the
15 co-operative any document referred to in subsection (1),
16 in or on which the co-operative's name does not appear in
17 legible characters.
18 Penalty: a fine of $2 000.
19 (3) A director of a co-operative who knowingly authorises or
20 permits a contravention of this section is guilty of an offence.
21 Penalty: a fine of $2 000.
22 241. Change of name of co-operative
23 (1) A co-operative may by special resolution change its name to a
24 name approved by the Registrar.
25 (2) A change of name must be advertised as prescribed by the
26 regulations.
27 (3) A change of name does not take effect until --
28 (a) the Registrar has noted the change on the certificate of
29 registration of the co-operative; or
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s. 242
1 (b) the certificate of registration is surrendered to the
2 Registrar and a replacement certificate of registration is
3 issued in the new name.
4 (4) A change of name by a co-operative does not affect --
5 (a) the identity of the co-operative; or
6 (b) the exercise of a right, or the enforcement of an
7 obligation, by or against the co-operative or a person; or
8 (c) the continuation of legal proceedings by or against the
9 co-operative.
10 (5) Legal proceedings that might have been continued or started by
11 or against the co-operative in its former name may be continued
12 or started by or against the co-operative in its new name.
13 (6) The Registrar may refuse to approve a change of name if the
14 Registrar thinks the new name is unsuitable.
15 (7) The Registrar may direct a co-operative to change its name if
16 the Registrar considers the name is likely to be confused with
17 the name of a corporation or a registered business name.
18 242. Restriction on use of word "co-operative" or similar words
19 (1) A person other than a co-operative must not trade, or carry on
20 business, under a name or title containing the word
21 "Co-operative" or "Cooperative" or the abbreviation "Co-op" or
22 words importing a similar meaning.
23 Penalty: a fine of $2 000.
24 (2) Subsection (1) does not apply to a corporation referred to in
25 section 238(9).
26 243. Registered office of co-operative
27 (1) A co-operative must have a registered office.
28 Penalty: a fine of $2 000.
29 (2) A co-operative must, at the premises of its registered office,
30 publicly and conspicuously display a notice stating the name of
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s. 243
1 the co-operative and identifying the premises as its registered
2 office.
3 Penalty: a fine of $2 000.
4 (3) Within 28 days after changing the address of its registered
5 office, a co-operative must give the Registrar written notice of
6 the new address.
7 Penalty: a fine of $2 000.
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1 Part 10 -- Funds and property
2 Division 1 -- Power to raise money
3 244. Meaning of obtaining financial accommodation
4 A reference in this Division to the obtaining of financial
5 accommodation includes a reference to the obtaining of credit
6 and the borrowing or raising of money by any means.
7 245. Fund raising to be in accordance with Act and regulations
8 The regulations may impose requirements and restrictions on
9 the obtaining of financial accommodation, and the giving of
10 security in order to obtain financial accommodation, by a
11 co-operative.
12 246. Limits on deposit taking
13 A co-operative cannot accept money on deposit unless --
14 (a) the co-operative is authorised by its rules to accept
15 money on deposit and was authorised by its rules
16 immediately before the commencement of this section to
17 accept money on deposit; or
18 (b) the co-operative was a deposit-taking corporation
19 immediately before it became a co-operative and it is
20 authorised by its rules to accept money on deposit; or
21 (c) in the case of a merged co-operative, one or more of the
22 co-operatives involved in the merger was a
23 deposit-taking co-operative immediately before the
24 registration of the merged co-operative and the merged
25 co-operative is authorised by its rules to accept money
26 on deposit.
27 247. Members etc. not required to see to application of money
28 A member or other person from whom a co-operative obtains
29 financial accommodation is not required to see to its application
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1 and is not affected or prejudiced by the fact that in obtaining
2 that financial accommodation, the co-operative contravened a
3 provision of this Act or the rules of the co-operative.
4 248. Registrar's directions about fundraising
5 (1) The Registrar may, if the Registrar considers it is in the interests
6 of a co-operative's members, by written notice served on a
7 co-operative, give a direction to the co-operative as to the way
8 in which it is to exercise its functions in connection with the
9 activities of the co-operative in obtaining financial
10 accommodation.
11 (2) A direction under subsection (1) may make provision for any
12 one or more of the following matters --
13 (a) requiring the co-operative to stop obtaining financial
14 accommodation or to stop obtaining financial
15 accommodation in a particular way;
16 (b) requiring the co-operative to repay in accordance with
17 the direction all or part of financial accommodation
18 obtained;
19 (c) requiring the co-operative to re-finance in a specified
20 way financial accommodation repaid in accordance with
21 the Registrar's direction;
22 (d) the way in which the co-operative is permitted to invest
23 or use the proceeds of financial accommodation it
24 obtains.
25 (3) Within 28 days of receiving a direction, a co-operative may
26 apply to the Supreme Court for a review of that decision.
27 249. Subordinated debt
28 (1) In this section --
29 subordinated debt means debt incurred under an agreement
30 under which, in the event of the winding-up of the co-operative,
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1 a claim of the creditor against the co-operative in relation to the
2 debt is to rank in priority --
3 (a) equally with the claim of another creditor who is a party
4 to a similar agreement; and
5 (b) except as provided by paragraph (a), after the claims of
6 another creditor of the co-operative and before the
7 claims of members to repayment of share capital in the
8 co-operative.
9 (2) A co-operative may incur subordinated debt.
10 (3) An agreement under which subordinated debt is incurred has
11 effect despite the provisions of the Corporations Act Part 5.6
12 Division 6, as applied under Part 12 Division 3 of this Act.
13 250. Application of Corporations Act to issues of debentures
14 (1) Subject to subsection (2), the debentures of a co-operative are
15 declared to be applied Corporations legislation matters for the
16 purposes of the Corporations (Ancillary Provisions) Act 2001
17 Part 3 in relation to the provisions of Part 1.2A, Chapter 2L,
18 Chapter 6CA, Chapter 6D and Part 7.10 of the Corporations
19 Act, subject to the following modifications --
20 (a) the provisions apply as if a co-operative were a
21 company;
22 (b) a reference in the provisions to a corporation includes a
23 reference to a co-operative;
24 (c) a reference in the provisions to ASIC is to be read as a
25 reference to the Registrar;
26 (d) any other changes, within the meaning of the
27 Corporations (Ancillary Provisions) Act 2001 Part 3,
28 that are prescribed by the regulations.
29 (2) The provisions of the Corporations Act applying to the
30 debentures of a co-operative by this section do not apply to the
31 following --
32 (a) a loan to which section 255 applies;
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1 (b) an issue of debentures of a co-operative that is made --
2 (i) solely to members; or
3 (ii) solely to members and employees of the
4 co-operative; or
5 (iii) to a person who on becoming an inactive
6 member of the co-operative has had his or her
7 share capital converted to debt.
8 (3) Words used in this section that are not defined in this Act have
9 the same meanings as in the Corporations Act.
10 251. Application of Corporations Act to particular issues of
11 debentures
12 An issue of debentures to which section 252 applies is declared
13 to be an applied Corporations legislation matter for the
14 Corporations (Ancillary Provisions) Act 2001 Part 3 in relation
15 to the Corporations Act, sections 722 and 734, subject to the
16 following modifications --
17 (a) the provisions apply as if a co-operative were a
18 company;
19 (b) a reference in the provisions to a disclosure document is
20 to be read as a reference to a disclosure statement under
21 section 252;
22 (c) a reference in the provisions to securities is to be read as
23 a reference to debentures;
24 (d) a reference in the provisions to ASIC is to be read as a
25 reference to the Registrar;
26 (e) any other modifications, within the meaning of the
27 Corporations (Ancillary Provisions) Act 2001 Part 3 that
28 are prescribed under the regulations.
page 148
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Funds and property Part 10
Power to raise money Division 1
s. 252
1 252. Disclosure statement
2 (1) This section applies to the issue of debentures of a co-operative
3 if the issue is made --
4 (a) solely to members; or
5 (b) solely to members and employees of the co-operative.
6 (2) This section does not apply to the issue of debentures under
7 section 73(2) or 127(1).
8 (3) Before issuing to a person debentures to which this section
9 applies, that person may request a disclosure statement,
10 approved by the Registrar, and containing the information that
11 is reasonably necessary to enable a person to make an informed
12 assessment of the financial prospects of the co-operative,
13 including --
14 (a) the purpose for which the money raised by the
15 co-operative by the issue of debentures is to be used;
16 and
17 (b) the rights and liabilities attaching to the debentures; and
18 (c) the financial position of the co-operative; and
19 (d) the interests of the directors of the co-operative in the
20 issue of the debentures; and
21 (e) compensation or consideration to be paid to officers or
22 members of the co-operative in connection with the
23 issue of debentures; and
24 (f) other matters that the Registrar directs.
25 (4) Sections 16 (except subsection (3)) and 29 apply to the approval
26 of a disclosure statement under this section with any necessary
27 changes and, in particular, as if a reference in section 16 to a
28 formation meeting were a reference to the issue of debentures.
page 149
Co-operatives Bill 2009
Part 10 Funds and property
Division 1 Power to raise money
s. 253
1 253. Approval of board for transfer of debentures
2 A debenture of a co-operative cannot be sold or transferred
3 except with the consent of the board and in accordance with the
4 rules of the co-operative.
5 254. Application of Corporations Act -- reissue of redeemed
6 debentures
7 Debentures issued by a co-operative to any of its members or
8 employees are declared to be applied Corporations legislation
9 matters for the purposes of the Corporations (Ancillary
10 Provisions) Act 2001 Part 3 in relation to the Corporations Act
11 section 124(1)(b) or 563AAA as if a co-operative were a
12 company.
13 255. Compulsory loan by member to co-operative
14 (1) A co-operative may require its members to lend money, with or
15 without security, to the co-operative, in accordance with a
16 proposal approved by special resolution of the co-operative.
17 (2) The proposal cannot require a loan to be for a term of more than
18 7 years or another term prescribed by the regulations.
19 (3) The proposal must --
20 (a) be accompanied by a disclosure statement, approved by
21 the Registrar, that explains the purpose for which the
22 money raised by the co-operative under the proposal is
23 to be used, and includes any other information that the
24 Registrar directs; and
25 (b) show the total amount of the loan to be raised by the
26 co-operative and the basis on which the money required
27 to be lent by each member is to be calculated; and
28 (c) be accompanied by a statement informing the member
29 that the member may inform the board by notice on or
30 before the date specified in the statement, being a date
31 before the passing of the special resolution, that the
32 member resigns on the passing of the special resolution.
page 150
Co-operatives Bill 2009
Funds and property Part 10
Power to raise money Division 1
s. 256
1 (4) If the proposal allows, the board of the co-operative may, under
2 the terms of the proposal, deduct the money required to be lent
3 by a member to the co-operative from money payable from the
4 co-operative to the member for his or her dealings with the
5 co-operative.
6 (5) A proposal to deduct money referred to in subsection (4) must,
7 in addition to meeting the requirements of subsection (3),
8 show --
9 (a) the basis on which the money is to be deducted; and
10 (b) the time and way of making the deductions.
11 (6) When approved the proposal is binding on --
12 (a) all members of the co-operative at the date of passing of
13 the special resolution, other than a member who has
14 given a notice of resignation in accordance with
15 subsection (3)(c); and
16 (b) all persons who become members of the co-operative
17 after that date and before the total amount of the loan to
18 be raised under the proposal has been raised.
19 (7) Sections 16 (except subsection (3)) and 29 apply to the approval
20 of a disclosure statement under this section with any necessary
21 changes and in particular as if a reference in section 16 to a
22 formation meeting were a reference to the special resolution.
23 256. Interest payable on compulsory loan
24 (1) The rate of interest payable by a co-operative on a loan under
25 section 255 during a period is --
26 (a) in the case of a co-operative with share capital --
27 (i) the rate (or if there is more than one rate, the
28 higher or highest rate) of dividend payable for
29 the period on the share capital of the
30 co-operative; or
31 (ii) if the rate of dividend payable for the period has
32 not been determined, the rate (or the higher or
page 151
Co-operatives Bill 2009
Part 10 Funds and property
Division 2 Co-operative capital units
s. 257
1 highest rate) of dividend payable for the
2 immediately preceding period for which a rate
3 has been determined; or
4 (iii) if a rate of dividend has never been determined
5 for the share capital of the co-operative, the rate
6 that the board of the co-operative considers
7 reasonable;
8 or
9 (b) in the case of a co-operative without share capital, the
10 rate that the board of the co-operative considers
11 reasonable; or
12 (c) if the rules provide for a rate to be payable that is higher
13 than the rate applicable under paragraph (a) or (b), that
14 higher rate.
15 (2) A member may agree to the rate of interest being less than the
16 rate that would otherwise be payable under this section and may
17 agree to no interest being paid.
18 Division 2 -- Co-operative capital units
19 257. General nature of co-operative capital units
20 (1) A co-operative capital unit (CCU) is an interest issued by a
21 co-operative conferring an interest in the capital, but not the
22 share capital, of the co-operative.
23 (2) A CCU --
24 (a) is personal property; and
25 (b) is transferable or transmissible as provided by this Act
26 and the rules of the co-operative, subject to the terms of
27 issue of the CCU; and
28 (c) is, subject to the rules of the co-operative, capable of
29 devolution by will or by operation of law.
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Co-operative capital units Division 2
s. 258
1 (3) Subject to subsection (2) --
2 (a) the laws applicable to ownership of and dealing with
3 personal property apply to a CCU as they apply to other
4 property; and
5 (b) equitable interests in respect of a CCU may be created,
6 dealt with and enforced as in the case of other personal
7 property.
8 (4) A transferor of a CCU remains the holder of the CCU until the
9 transfer is registered and the name of the transferee, and the
10 details of the transferee's CCU holding, are entered in the
11 register of CCU holders referred to in section 230(1).
12 (5) Despite any rule of law or equity to the contrary, a condition
13 subject to which a CCU is issued is not invalid merely because
14 the CCU is, by the condition, made irredeemable or redeemable
15 only on the happening of a contingency however remote or at
16 the end of a period however long.
17 258. Priority of CCU's on winding-up
18 (1) On a winding-up of a co-operative, a debt owed to a person as
19 the holder of a CCU issued by the co-operative is to rank for
20 priority of payment in accordance with the terms of issue of
21 the CCU.
22 (2) Such a debt may rank as a secured debt if it is secured but if it is
23 unsecured may not rank in priority to other unsecured debts.
24 (3) It may rank equally with or behind unsecured debts and, if the
25 debt ranks behind unsecured debts, may rank in priority to,
26 equally with or behind debts due to contributories.
27 259. Financial accommodation provisions apply to issue of CCUs
28 (1) The issuing of CCUs is to be considered to be the obtaining of
29 financial accommodation and accordingly Part 10 Division 1
30 applies to the issue of CCUs.
page 153
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Part 10 Funds and property
Division 2 Co-operative capital units
s. 260
1 (2) For the purposes of that Division, a CCU is to be considered to
2 be a debenture.
3 260. CCUs to be issued to non-members
4 CCUs may be issued to a person whether or not the person is a
5 member of the co-operative.
6 261. Minimum requirements for rules concerning CCUs
7 The rules of a co-operative that permit the co-operative to issue
8 CCUs must contain provision to the effect of the following
9 provisions and cannot contain provisions that are inconsistent
10 with the following provisions --
11 (a) each holder of a CCU is entitled to one vote per CCU
12 held at a meeting of the holders of CCUs;
13 (b) the rights of the holders of CCUs may be varied only in
14 the way and to the extent provided by their terms of
15 issue and only with the consent of at least 75% of those
16 holders of CCUs who, being entitled to do so, cast a
17 formal vote to accept the variation at a meeting;
18 (c) the holder of a CCU has, in the person's capacity as a
19 holder of a CCU, none of the rights or entitlements of a
20 member of the co-operative;
21 (d) the holder of a CCU is entitled to receive notice of all
22 meetings of the co-operative and all other documents in
23 the same manner as the holder of a debenture of the
24 co-operative.
25 262. CCUs not to be issued unless terms of issue approved by
26 Registrar
27 (1) A co-operative is not to issue CCUs unless --
28 (a) the terms of issue have been approved by a special
29 resolution of the co-operative; and
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Funds and property Part 10
Co-operative capital units Division 2
s. 263
1 (b) the issue is made pursuant to an offer accompanied by a
2 copy of a statement approved by the Registrar under
3 subsection (3); and
4 (c) the Registrar approves of the terms of the issue under
5 subsection (4).
6 (2) The terms of issue must include, but is not limited to including,
7 the following information --
8 (a) details of entitlement to repayment of capital;
9 (b) details of entitlement to participate in surplus assets and
10 profits;
11 (c) details of entitlement to interest on capital, including
12 whether interest is cumulative or non-cumulative;
13 (d) details of how capital and interest on capital are to rank
14 for priority of payment on a winding-up;
15 (e) whether there is a limit on the total holding of CCUs
16 that may be acquired by persons who are not members
17 of the co-operative and, if there is a limit, what the
18 limit is.
19 (3) The statement approved by the Registrar for the purposes of the
20 issue is to set out the terms of the issue, the rights of the holders
21 of CCUs, the terms of redemption and the manner of
22 transferability of CCUs.
23 (4) The Registrar is not to approve the terms of issue unless
24 satisfied that they will not result in a failure to comply with
25 co-operative principles and are not contrary to the rules of the
26 co-operative or this Act.
27 263. Directors' duties concerning CCUs
28 In discharging their duties, it is proper for the directors of a
29 co-operative to take into account that the holders of CCUs, in
30 their capacity as holders of CCUs, have none of the rights and
31 entitlements of, and are not entitled to be regarded as, members
32 of the co-operative.
page 155
Co-operatives Bill 2009
Part 10 Funds and property
Division 2 Co-operative capital units
s. 264
1 264. Redemption of CCUs
2 (1) The redemption of CCUs is not to be considered to be a
3 reduction in the share capital of the co-operative.
4 (2) A co-operative may redeem CCUs but only on the terms and in
5 the way that is provided by the terms of their issue and only if
6 they are fully paid up.
7 (3) CCUs may not be redeemed except out of --
8 (a) profits; or
9 (b) the proceeds of a fresh issue of shares, or an approved
10 issue of CCUs, made for the purpose of the redemption.
11 (4) An issue of CCUs is an approved issue for the purposes of
12 subsection (3) if there is the same entitlement to priority of
13 payment of capital and dividend in relation to shares in the
14 co-operative as there was for the redeemed CCUs.
15 (5) Any premium payable on redemption is to be provided for out
16 of profits or out of the share premium account or an account
17 created for that purpose.
18 265. Capital redemption reserve
19 (1) This section applies if CCUs are redeemed out of profits.
20 (2) Subsections (4) and (5) do not apply to a non-distributing
21 co-operative.
22 (3) Out of profits there is to be transferred to a reserve called the
23 capital redemption reserve a sum equal to the nominal amount
24 of the CCUs redeemed.
25 (4) The provisions of this Act relating to the reduction of share
26 capital of a co-operative apply as if the capital redemption
27 reserve were paid up share capital of the co-operative.
28 (5) The capital redemption reserve may be applied in paying up
29 unissued shares of the co-operative to be issued to members of
30 the co-operative as fully paid bonus shares.
page 156
Co-operatives Bill 2009
Funds and property Part 10
Charges Division 3
s. 266
1 266. Issue of shares in substitution for redemption
2 (1) If a co-operative has redeemed or is about to redeem CCUs held
3 by an active member of the co-operative, it may --
4 (a) issue shares to the member up to the sum of the nominal
5 value of the CCUs redeemed or to be redeemed, as if
6 those CCUs had never been issued; or
7 (b) pay up amounts unpaid on shares held by the member up
8 to the sum of the nominal value of the CCUs redeemed
9 or to be redeemed, as if those CCUs had never been
10 issued.
11 (2) This section applies only if the terms of issue of the CCUs
12 provide for the conversion of CCUs held by an active member
13 of the co-operative into shares of the co-operative.
14 Division 3 -- Charges
15 267. Registration of charges
16 Schedule 3 has effect but does not apply to --
17 (a) a mortgage, charge or encumbrance that is over specific
18 land and is registered under the Transfer of Land
19 Act 1893; or
20 (b) a mortgage, charge or encumbrance registered under the
21 Mining Act 1978; or
22 (c) a mortgage, charge or encumbrance registered under the
23 Bills of Sale Act 1899.
24 Division 4 -- Receivers and other controllers of property
25 of co-operatives
26 268. Receivers and other controllers of property of co-operatives
27 Schedule 4 has effect.
page 157
Co-operatives Bill 2009
Part 10 Funds and property
Division 5 Disposal of surplus from activities
s. 269
1 Division 5 -- Disposal of surplus from activities
2 269. Retention of surplus for benefit of co-operative
3 The board of a co-operative may resolve to retain all or part of
4 the surplus arising in a year from the business of the
5 co-operative to be applied for the benefit of the co-operative.
6 270. Application for charitable purposes or members' purposes
7 (1) A co-operative may apply a part of the surplus arising in a year
8 from the business of the co-operative for a charitable purpose.
9 (2) A distributing co-operative may apply a part of the surplus
10 arising in a year from the business of the co-operative towards
11 supporting an activity approved by the co-operative.
12 (3) The rules must limit the amount that may be applied under
13 subsection (1) or (2) to a specified proportion of the surplus.
14 (4) A co-operative may apply part of the surplus for a purpose and
15 to the extent authorised by rules.
16 271. Distribution of surplus or reserves to members
17 (1) In this section --
18 limited dividend means a dividend that is not more than the
19 amount prescribed by the regulations.
20 (2) A distributing co-operative may apply a part of the surplus
21 arising in any year from the business of the co-operative or a
22 part of the reserves of the co-operative by --
23 (a) distribution to members as a rebate in proportion to the
24 value of business done by each member with the
25 co-operative or to profits earned by the co-operative on
26 business done by each member with the co-operative; or
27 (b) the issue of bonus shares to members in proportion to
28 the value of business done by each member with the
29 co-operative, to profits earned by the co-operative on
30 business done by each member with the co-operative or
31 to shares held by the member; or
page 158
Co-operatives Bill 2009
Funds and property Part 10
Acquisition and disposal of assets Division 6
s. 272
1 (c) the issue to members of a limited dividend in proportion
2 to shares held by the member.
3 (3) The amount of a rebate or dividend payable to a member under
4 subsection (2)(a) or (c) may, with the consent of the member, be
5 applied --
6 (a) in payment for the issue to the member of bonus shares;
7 or
8 (b) as a loan to the co-operative.
9 272. Application of surplus to other persons
10 (1) A part of the surplus arising in a year from the business of a
11 distributing co-operative may be credited to a person who is not
12 a member, but is qualified to be a member, by way of rebate in
13 proportion to the value of business done by the person with the
14 co-operative or to the profit earned by the co-operative on
15 business done by the person with the co-operative, if --
16 (a) the person was a member when the business was done
17 and the membership has lapsed; or
18 (b) the person has applied for membership since the
19 business was done.
20 (2) Nothing in this section precludes the payment of a bonus to an
21 employee in accordance with the terms of his or her
22 employment.
23 Division 6 -- Acquisition and disposal of assets
24 273. Acquisition and disposal of assets
25 (1) In this section --
26 undertaking, of a co-operative, means all the assets of the
27 co-operative.
page 159
Co-operatives Bill 2009
Part 10 Funds and property
Division 6 Acquisition and disposal of assets
s. 273
1 (2) Unless otherwise provided by the rules, a co-operative must not
2 do any of the following things except as approved by special
3 resolution by means of a special postal ballot --
4 (a) sell, or lease as a going concern --
5 (i) the undertaking of the co-operative; or
6 (ii) a part of that undertaking that relates to its
7 primary activities and the value of which
8 represents the percentage prescribed by the
9 regulations or more of the total value of the
10 undertaking;
11 (b) acquire from or dispose of to a director or employee of
12 the co-operative, or a relative, within the meaning of the
13 Corporations Act, of a director or employee of the
14 co-operative or of the spouse (or de facto partner) of a
15 director or employee of the co-operative, property the
16 value of which represents the percentage prescribed by
17 the regulations, or more, of the total value of all the
18 assets of the co-operative that relate to its primary
19 activities;
20 (c) acquire an asset the value of which represents the
21 percentage prescribed by the regulations, or more, of the
22 total value of the assets of the co-operative, if the
23 acquisition would result in the co-operative starting to
24 carry on an activity that is not one of its primary
25 activities.
26 Penalty: a fine of $6 000.
27 (3) If a co-operative contravenes this section, each person who is a
28 member of the board of the co-operative is taken to have
29 committed an offence unless the person satisfies the court that
30 he or she used all due diligence to prevent the contravention by
31 the co-operative.
32 Penalty: a fine of $6 000.
page 160
Co-operatives Bill 2009
Funds and property Part 10
Acquisition and disposal of assets Division 6
s. 273
1 (4) The Registrar may, by order published in the Gazette, exempt a
2 co-operative from compliance with a provision of this section
3 and section 186 in relation to any matter to which this section
4 applies.
page 161
Co-operatives Bill 2009
Part 11 Restrictions on the acquisition of interests in co-operatives
Division 1 Restrictions on share and voting interests
s. 274
1 Part 11 -- Restrictions on the acquisition of interests
2 in co-operatives
3 Division 1 -- Restrictions on share and voting interests
4 274. Application of Part
5 This Part applies to --
6 (a) distributing co-operatives; and
7 (b) non-distributing co-operatives with a share capital.
8 275. Notice required to be given of voting interest
9 (1) A person, whether or not a member of the co-operative, must
10 give notice to a co-operative within 5 business days after
11 becoming aware that the person has a relevant interest in the
12 right to vote of a member of the co-operative.
13 Penalty: a fine of $2 000.
14 (2) A person, whether or not a member of the co-operative, who has
15 ceased to have a relevant interest in the right to vote of a
16 member of a co-operative must give notice to the co-operative
17 within 5 business days after becoming aware of the fact.
18 Penalty: a fine of $2 000.
19 (3) Section 171 provides for the effect of a person having a relevant
20 interest in the right to vote of a member of a co-operative.
21 276. Notice required to be given of substantial share interest
22 (1) A person must give notice to a co-operative within 5 business
23 days after becoming aware that the person has a substantial
24 share interest in the co-operative.
25 Penalty: a fine of $2 000.
26 (2) A person who has a substantial share interest in a co-operative
27 must give notice to the co-operative within 5 business days after
page 162
Co-operatives Bill 2009
Restrictions on the acquisition of interests in co-operatives Part 11
Restrictions on share and voting interests Division 1
s. 277
1 becoming aware that a substantial change has occurred in the
2 share interest.
3 Penalty: a fine of $2 000.
4 (3) A person who has ceased to have a substantial share interest in a
5 co-operative must give notice to the co-operative within
6 5 business days after becoming aware that the person has ceased
7 to have the interest.
8 Penalty: a fine of $2 000.
9 (4) A person has a substantial share interest in a co-operative if the
10 nominal value of the shares in the co-operative in which the
11 person has a relevant interest represents 5% or more of the
12 nominal value of the issued share capital of the co-operative.
13 (5) A substantial change takes place in a person's share interest in
14 a co-operative if there is an increase or decrease in the number
15 of shares in the co-operative in which the person has a relevant
16 interest and the increase or decrease represents at least 1% of
17 the nominal value of the issued share capital of the co-operative.
18 277. Requirements for notices
19 A notice required under this Division must --
20 (a) be in the form approved by the Registrar; and
21 (b) state the particulars, prescribed by the regulations, of the
22 interest or change being notified.
23 278. Maximum permissible level of share interest
24 (1) A person cannot have a relevant interest in shares of a
25 co-operative the nominal value of which is more than 20% of
26 the nominal value of the issued share capital of the co-operative.
27 (2) The Registrar, by order published in the Gazette, may specify a
28 maximum greater than 20% as the maximum permissible level
29 of share interest for the purposes of subsection (1) for a
30 particular co-operative.
page 163
Co-operatives Bill 2009
Part 11 Restrictions on the acquisition of interests in co-operatives
Division 1 Restrictions on share and voting interests
s. 279
1 (3) Unless an order under subsection (2) is in force, a co-operative,
2 by its rules, may specify a maximum less than 20% as the
3 maximum permissible level of share interest for the purposes of
4 subsection (1) for that co-operative.
5 (4) The maximum permissible level of share interest applying under
6 this section may be increased for a particular person by special
7 resolution of the co-operative concerned passed by a special
8 postal ballot.
9 (5) A resolution under subsection (4) does not have effect unless --
10 (a) it is approved by the Registrar; or
11 (b) the person concerned is another co-operative.
12 (6) The Registrar's approval of the resolution may be given on
13 conditions.
14 279. Transitional provision
15 (1) This section applies to a member of a transferred co-operative
16 whose relevant interest in the shares of that co-operative
17 immediately before the transfer day was more than the
18 maximum permissible level of share interest for the purposes of
19 section 278(1).
20 (2) The maximum permissible level of share interest for the
21 purposes of section 278(1) for the member is the level of the
22 member's relevant interest in the shares immediately before the
23 transfer day.
24 (3) In relation to a particular co-operative, this section ceases to
25 operate 6 months after the transfer day.
26 280. Shares to be forfeited to remedy contravention
27 (1) If a person has a relevant interest in a share of a co-operative in
28 contravention of this Division that is not remedied within
29 14 days of a notice of that contravention being issued by the
30 board, the board of the co-operative must declare to be forfeited
page 164
Co-operatives Bill 2009
Restrictions on the acquisition of interests in co-operatives Part 11
Restrictions on share and voting interests Division 1
s. 281
1 enough of the shares in which the person has a relevant interest
2 to remedy the contravention.
3 (2) The shares to be forfeited are --
4 (a) the shares nominated by the person for the purpose; or
5 (b) in the absence of such a nomination, the shares in which
6 the person has had a relevant interest for the shortest
7 time.
8 (3) A declaration of the board that shares are forfeited operates to
9 forfeit the shares concerned.
10 (4) On forfeiture of the shares, section 295(1)(b) ceases to apply in
11 relation to the contravention.
12 (5) Sections 127 to 129 apply to shares forfeited under this section
13 as if the shares had been forfeited under Part 6.
14 281. Powers of board in response to suspected contravention
15 (1) If the board of a co-operative is satisfied on reasonable grounds
16 that a person has contravened section 278 in relation to the
17 co-operative, the board may do either or both of the
18 following --
19 (a) refuse to register a share transfer involving the person;
20 (b) suspend a stated right or entitlement that a person has as
21 a member of the co-operative or attaching to any shares
22 of the co-operative in which the person has a relevant
23 interest.
24 (2) The board may request a person who it suspects has a relevant
25 interest in shares of the co-operative to give specified
26 information to the board about the interest.
27 (3) A failure by a person to comply with a request under
28 subsection (2) is a reasonable ground for being satisfied that the
29 person has contravened section 278.
page 165
Co-operatives Bill 2009
Part 11 Restrictions on the acquisition of interests in co-operatives
Division 1 Restrictions on share and voting interests
s. 282
1 282. Powers of Supreme Court in relation to contravention
2 (1) If a person has contravened section 278 in relation to a
3 co-operative, the Supreme Court may, on the application of the
4 co-operative or the Registrar, make any order it considers
5 appropriate.
6 (2) Without limiting subsection (1), an order may include --
7 (a) a remedial order; and
8 (b) for the purpose of securing compliance with any other
9 order made under this section, an order directing the
10 co-operative or any other person to do or refrain from
11 doing a specified act.
12 (3) An order may be made whether or not the contravention
13 continues.
14 (4) Proof to the satisfaction of the Supreme Court at the hearing of
15 an application that --
16 (a) a person has a relevant interest in a share of a
17 co-operative because an associate of the person has a
18 relevant interest in a share; and
19 (b) the associate became entitled to the relevant interest
20 within 6 months before the application was filed with
21 the Supreme Court,
22 is evidence that the associate was an associate of the person
23 from the time the person first had the relevant interest until the
24 date of the hearing.
25 283. Co-operative to notify Registrar of interest over 20%
26 (1) A co-operative must notify the Registrar in writing within
27 14 days after the board becomes aware that --
28 (a) a particular person has a relevant interest in shares of the
29 co-operative the nominal value of which is more than
30 20% of the nominal value of the issued share capital of
31 the co-operative; or
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Co-operatives Bill 2009
Restrictions on the acquisition of interests in co-operatives Part 11
Restrictions on share and voting interests Division 1
s. 284
1 (b) there has been a change in the number of shares in
2 which that person holds a relevant interest.
3 (2) The notification must give details of the relevant interest
4 concerned or of the change concerned.
5 284. Co-operative to keep register
6 (1) A co-operative must keep a register of notifiable interests.
7 (2) The co-operative must enter in the register in alphabetical order
8 the names of persons from whom the co-operative has received
9 notice under this Division together with the information
10 contained in the notice.
11 (3) The register must be open for inspection --
12 (a) by a member in accordance with section 232; and
13 (b) by any other person on payment of the fee (if any) that
14 the co-operative may require, being not more than the
15 maximum fee prescribed by the regulations.
16 285. Unlisted companies to provide list of shareholders etc.
17 (1) This section applies to a company, within the meaning of the
18 Corporations Act, that is not a listed corporation, within the
19 meaning of that Act.
20 (2) A company to which this section applies that is a member of a
21 co-operative must give to the co-operative a list showing --
22 (a) the name of each member of the company as at the end
23 of the financial year of the company and the number of
24 shares in the company held by each member; and
25 (b) the name of each person who has a relevant interest,
26 within the meaning of the Corporations Act, in a share
27 of the company together with details of the interest; and
28 (c) the name of each person who is an associate, within the
29 meaning of the Corporations Act, of the company.
page 167
Co-operatives Bill 2009
Part 11 Restrictions on the acquisition of interests in co-operatives
Division 1 Restrictions on share and voting interests
s. 286
1 (3) A list under subsection (2) must be given within 28 days after a
2 written request for the list is made to the company by the
3 co-operative or the Registrar.
4 (4) The details to be shown on the list are the details as at the date
5 specified in the request.
6 (5) The Registrar may make a request under subsection (3) if the
7 Registrar is of the opinion that the company is or may be
8 involved in a suspected contravention of a provision of this
9 Division.
10 286. Excess share interest not to affect loan liability
11 (1) This section applies if a co-operative has made a loan to a
12 member and the member had or has a relevant interest in shares
13 of the co-operative in contravention of this Division.
14 (2) Until the amount lent to the member has been repaid to the
15 co-operative, with any interest payable, the member is liable to
16 make to the co-operative the payments that the member would
17 be liable to make if all the shares concerned were lawfully held
18 by the member.
19 (3) Security for the repayment of the loan is not affected by a
20 contravention of this Division.
21 287. Extent of operation of Division
22 This Division --
23 (a) applies to all individuals, whether resident in this State
24 or in Australia or not and whether Australian citizens or
25 not, and to all bodies, whether incorporated or not, and
26 whether carrying on business in this State or in Australia
27 or not; and
28 (b) extends to acts done or omitted to be done outside this
29 State, whether in Australia or not.
page 168
Co-operatives Bill 2009
Restrictions on the acquisition of interests in co-operatives Part 11
Restrictions on certain share offers Division 2
s. 288
1 288. Registrar may grant exemption from Division
2 The Registrar may, by order published in the Gazette, exempt a
3 person from the operation of this Division.
4 Division 2 -- Restrictions on certain share offers
5 289. Share offers to which Division applies
6 This Division applies to the following offers to purchase shares
7 in a co-operative --
8 (a) an offer made as part of a proposal for, or that is
9 conditional on, the sale of the undertaking or part of the
10 undertaking, as a going concern, of the co-operative;
11 (b) an offer made as part of a proposal for, or that is
12 conditional on, the registration of the co-operative as a
13 company under the Corporations Act;
14 (c) an offer made as part of a proposal for, or that is
15 conditional on, the winding-up of the co-operative;
16 (d) an offer that would result in a contravention of
17 section 278 were the offeror to be registered,
18 immediately after the offer is made, as the holder of the
19 shares that are the subject of the offer.
20 290. Offer to be approved by special resolution using special
21 postal ballot
22 Any offer to which this Division applies must be approved by
23 special resolution by means of a special postal ballot.
24 291. Some offers totally prohibited if they discriminate
25 An offer referred to in section 289(a) to (d) cannot discriminate
26 between members who are active members and members who
27 are not active members.
page 169
Co-operatives Bill 2009
Part 11 Restrictions on the acquisition of interests in co-operatives
Division 2 Restrictions on certain share offers
s. 292
1 292. Offers to be submitted to board first
2 (1) Any proposal to make an offer to which this Division applies
3 must in the first instance be submitted to the board of the
4 co-operative.
5 (2) In order for the board to consider putting a proposed offer to a
6 special postal ballot, arrangements satisfactory to the board
7 must have been made for payment to the co-operative of the
8 expenses involved in holding the ballot.
9 (3) The board may require payment in advance under
10 subsection (2).
11 (4) A requisition for a special postal ballot for the purposes of this
12 Division cannot be served unless and until the board has had a
13 reasonable opportunity to consider the proposed offer
14 concerned.
15 (5) For the purposes of subsection (4), a period of 28 days is a
16 reasonable opportunity for considering a proposed offer but the
17 Registrar may extend that period in a particular case, whether
18 before or after the end of the 28 days, by written notice to the
19 co-operative.
20 293. Announcements of proposed takeovers concerning
21 proposed company
22 (1) This section applies to an offer to purchase shares in a
23 co-operative made as part of a proposal for, or that is
24 conditional on, the registration of the co-operative as a company
25 (the proposed company) under the Corporations Act.
26 (2) A person must not make a public announcement to the effect
27 that the person proposes, or that the person and another person
28 or other persons together propose, to make takeover offers, or to
29 cause a takeover announcement to be made, in relation to the
30 proposed company if --
31 (a) the person knows that the announcement is false or is
32 recklessly indifferent as to whether it is true or false; or
page 170
Co-operatives Bill 2009
Restrictions on the acquisition of interests in co-operatives Part 11
Restrictions on certain share offers Division 2
s. 293
1 (b) the person has no reasonable grounds for believing that
2 the person, or the person and the other person or
3 persons, will be able to perform obligations arising
4 under the scheme or announcement or under the
5 Corporations Act in relation to the scheme or
6 announcement if a substantial proportion of the offers or
7 the offers made under the announcement are accepted.
8 Penalty: a fine of $20 000 or imprisonment for 5 years.
9 (3) If a person makes a public announcement to the effect that the
10 person proposes, or that the person and another person or other
11 persons together propose, to make a takeover bid in relation to
12 the proposed company, the person must proceed to make a
13 takeover bid in relation to shares in the company in accordance
14 with the public announcement within 2 months after the day on
15 which the company is incorporated.
16 Penalty: a fine of $10 000 or imprisonment for 2 years.
17 (4) A person is not liable to be convicted of more than one offence
18 under subsection (3) for any one public announcement.
19 (5) A person who contravenes this section, whether or not the
20 person is convicted of an offence for the contravention, is liable
21 to pay compensation to a person who suffered loss as a result of
22 entering into a share transaction in reliance on the public
23 announcement concerned.
24 (6) The amount of that compensation is the difference between the
25 price of the shares at which the transaction was entered into and
26 the price of the shares at which the transaction would have been
27 likely to have been entered into if the person had not made the
28 public announcement.
29 (7) A person does not contravene subsection (3) and is not liable to
30 pay compensation for the contravention if it is proved that the
31 person could not reasonably have been expected to make the
32 takeover bid concerned --
33 (a) as a result of circumstances that existed when the public
34 announcement was made but of which the person had no
page 171
Co-operatives Bill 2009
Part 11 Restrictions on the acquisition of interests in co-operatives
Division 2 Restrictions on certain share offers
s. 294
1 knowledge and could not reasonably have been expected
2 to have knowledge; or
3 (b) as a result of a change in circumstances after the
4 announcement was made, other than a change in
5 circumstances caused directly or indirectly by the
6 person.
7 (8) Expressions used in this section have the same meanings as in
8 the Corporations Law section 746 as applying on
9 12 March 2000.
10 294. Additional disclosure requirements for offers involving
11 conversion to company
12 If an offer is part of a proposal for, or is conditional on, the
13 registration of the co-operative as a company under the
14 Corporations Act, the disclosure statement required to be sent to
15 members for the purposes of the special postal ballot relating to
16 the offer must contain the following additional information --
17 (a) full particulars of any proposal by which a director will
18 acquire a relevant interest in a share of the company to
19 be formed;
20 (b) other information that is material to the making of a
21 decision by a member whether or not to agree to the
22 making of the offer, being information that is within the
23 knowledge of the directors and has not previously been
24 disclosed to the members;
25 (c) other information that the Registrar directs.
26 295. Consequences of prohibited offer
27 (1) If a person makes an offer to purchase shares in a co-operative
28 in contravention of this Division --
29 (a) the person cannot be registered as the holder of the
30 shares concerned; and
page 172
Co-operatives Bill 2009
Restrictions on the acquisition of interests in co-operatives Part 11
Restrictions on certain share offers Division 2
s. 296
1 (b) if the transfer of the shares is registered, the person
2 cannot vote at a meeting of, or in a postal ballot
3 conducted by, the co-operative.
4 (2) A vote cast by or for a member when the member cannot vote
5 because of this section must be disregarded.
6 296. Registrar may grant exemptions
7 The Registrar may, by order published in the Gazette, exempt a
8 person or co-operative from compliance with a provision of this
9 Division and section 186 in relation to a matter to which this
10 Division applies.
page 173
Co-operatives Bill 2009
Part 12 Merger, transfer of engagements, winding-up
Division 1 Mergers and transfers of engagements
s. 297
1 Part 12 -- Merger, transfer of engagements,
2 winding-up
3 Division 1 -- Mergers and transfers of engagements
4 297. Application of Division
5 This Division does not apply to a merger or transfer of
6 engagements to which Part 14 applies.
7 298. Mergers and transfers of engagements of local co-operatives
8 Any 2 or more co-operatives may consolidate all or any of their
9 assets, liabilities and undertakings by way of merger or transfer
10 of engagements approved under this Division.
11 299. Requirements before application can be made
12 (1) Before co-operatives can apply for approval under this Division
13 of a merger or transfer of engagements, the proposed merger or
14 transfer must have been approved by each of the co-operatives
15 by --
16 (a) a special resolution passed by means of a special postal
17 ballot; or
18 (b) if permitted by subsection (2), a resolution of the board
19 of the co-operative.
20 (2) The proposed merger or transfer of engagements may be
21 approved by resolution of the board of a co-operative if the
22 Registrar consents to that procedure applying in the particular
23 case.
24 300. Disclosure statement required
25 (1) A special resolution by which members of a co-operative
26 approve a merger or transfer of engagements is not effective for
27 the purposes of this Division unless this section has been
28 complied with.
page 174
Co-operatives Bill 2009
Merger, transfer of engagements, winding-up Part 12
Mergers and transfers of engagements Division 1
s. 300
1 (2) Each co-operative must send to each of its members a disclosure
2 statement approved by the Registrar stating --
3 (a) the financial position of each co-operative concerned in
4 the proposed merger or transfer of engagements as
5 shown in financial statements that have been prepared as
6 at a date that is not more than 6 months before the date
7 of the statement; and
8 (b) any interest that any officer of each co-operative has in
9 the proposed merger or transfer of engagements; and
10 (c) any compensation or other consideration proposed to be
11 paid, or any other incentive proposed to be given, to any
12 officer or member of each co-operative in relation to the
13 proposed merger or transfer of engagements; and
14 (d) whether the proposal is a merger or transfer of
15 engagements and the reason for the merger or transfer of
16 engagements; and
17 (e) in the case of a transfer of engagements, whether it is a
18 total or partial transfer of engagements; and
19 (f) other information that the Registrar directs.
20 (3) The disclosure statement must be sent to the members of each
21 co-operative so that it will, in the ordinary course of post, reach
22 each member who is entitled to vote on the special resolution
23 not later than 21 days before the day on or before which the
24 ballot papers must be returned by members voting in the special
25 postal ballot.
26 (4) The Registrar may, by order published in the Gazette, exempt a
27 co-operative from complying with this section.
28 (5) The Registrar may approve a disclosure statement on any
29 conditions he or she considers appropriate.
page 175
Co-operatives Bill 2009
Part 12 Merger, transfer of engagements, winding-up
Division 1 Mergers and transfers of engagements
s. 301
1 301. Making an application
2 (1) An application for approval of a merger or transfer of
3 engagements under this Division must be made to the Registrar
4 in the way and form required by the Registrar.
5 (2) An application for approval of a merger must be accompanied
6 by 2 copies of the proposed rules of the merged co-operative
7 and any other particulars required by the Registrar.
8 302. Approval of merger
9 (1) The Registrar must approve a merger pursuant to an application
10 under this Division if satisfied that --
11 (a) this Division has been complied with in relation to the
12 application; and
13 (b) the proposed rules of the merged co-operative are
14 consistent with this Act and may reasonably be
15 approved; and
16 (c) the certificates of registration of the co-operatives have
17 been surrendered to the Registrar; and
18 (d) there is no good reason why the merged co-operative
19 and its rules should not be registered.
20 (2) On approving an application for merger, the Registrar must --
21 (a) cancel the registration of the co-operatives involved in
22 the merger; and
23 (b) register the merged co-operative and its rules; and
24 (c) issue to the merged co-operative a certificate of
25 registration under this Act.
26 (3) A merger takes effect on the issue of the certificate of
27 registration for the merged co-operative.
page 176
Co-operatives Bill 2009
Merger, transfer of engagements, winding-up Part 12
Mergers and transfers of engagements Division 1
s. 303
1 303. Approval of transfer of engagements
2 (1) The Registrar must approve a transfer of engagements pursuant
3 to an application under this Division if satisfied that --
4 (a) this Division has been complied with in relation to the
5 application; and
6 (b) the rules or proposed rules of the transferee co-operative
7 are adequate; and
8 (c) in the case of a total transfer of engagements from a
9 co-operative, the certificate of registration of the
10 co-operative has been surrendered to the Registrar; and
11 (d) there is no good reason why the transfer of engagements
12 should not take effect.
13 (2) A transfer of engagements takes effect on the day specified in
14 the approval of the Registrar.
15 304. Transfer of engagements by direction of Registrar
16 (1) The Registrar may, with the approval of the Minister, direct a
17 co-operative --
18 (a) to transfer its engagements to a co-operative approved
19 by the Registrar; and
20 (b) within a period specified by the Registrar when giving
21 the direction or a further period allowed by the
22 Registrar, to enter into an agreement approved by the
23 Registrar to give effect to the transfer of engagements
24 directed.
25 (2) The Registrar cannot give such a direction to a co-operative
26 unless the necessary grounds exist for the giving of the
27 direction, as referred to in section 336(2).
28 (3) The transfer of engagements must make provision, in a way
29 approved by the Registrar, for the members of the transferor
30 co-operative who wish to do so to become members of the
31 transferee co-operative.
page 177
Co-operatives Bill 2009
Part 12 Merger, transfer of engagements, winding-up
Division 2 Transfer of incorporation
s. 305
1 (4) If a co-operative fails to comply with a direction under this
2 section, the Registrar may elect to treat the failure as the
3 necessary grounds --
4 (a) for winding-up the co-operative on a certificate of the
5 Registrar; or
6 (b) for appointing an administrator of the co-operative.
7 (5) The Registrar must notify the co-operative of the Registrar's
8 decision under subsection (4).
9 (6) The Registrar may revoke a direction under this section at any
10 time up until the co-operative has agreed pursuant to the
11 direction to transfer its engagements.
12 (7) A transfer of engagements directed under this section takes
13 effect on a day notified by the Registrar in the Gazette.
14 (8) An officer of a co-operative must not --
15 (a) fail to take all reasonable steps to secure compliance by
16 the co-operative with a direction given under this
17 section; or
18 (b) by a wilful act or omission be the cause of a failure by
19 the co-operative to comply with a direction.
20 Penalty: a fine of $2 000.
21 Division 2 -- Transfer of incorporation
22 305. Application for transfer
23 (1) A co-operative, if approved under this Division, may apply to
24 become registered or incorporated as one of the following
25 corporations --
26 (a) a company under the Corporations Act;
27 (b) an incorporated association under the Associations
28 Incorporation Act 1987;
29 (c) a corporation that is incorporated, registered or
30 otherwise established under a law that is a law of a place
page 178
Co-operatives Bill 2009
Merger, transfer of engagements, winding-up Part 12
Transfer of incorporation Division 2
s. 306
1 outside this State and that is prescribed by the
2 regulations.
3 (2) For the purposes of subsection (1)(a), an application is to be
4 made in accordance with the Corporations Act section 601BC
5 for registration as a company under Part 5B of that Act.
6 (3) For the purposes of the Corporations Act section 601BC(8)(d), a
7 co-operative is authorised by this Act to transfer its
8 incorporation.
9 306. Requirements before application can be made
10 (1) Before an application is made under section 305, the
11 co-operative must, by special resolution passed by means of a
12 special postal ballot --
13 (a) approve the proposed application; and
14 (b) determine under what name the co-operative is to apply
15 to be incorporated or registered; and
16 (c) adopt a constitution or replaceable rules or rules that
17 may be necessary or considered desirable.
18 (2) The name applied for need not be the same as that of the
19 co-operative and cannot include the word "co-operative" or
20 "cooperative" or another word importing a similar meaning.
21 (3) The regulations may provide that a co-operative is exempt from
22 compliance with a provision of this section and section 186 in
23 relation to a matter to which this section applies.
24 307. Meaning of new body and transfer
25 The registration or incorporation of a co-operative as a
26 corporation as a result of an application under this Division is
27 referred to in this Division as its transfer and the corporation
28 concerned is referred to in this Division as the new body.
page 179
Co-operatives Bill 2009
Part 12 Merger, transfer of engagements, winding-up
Division 2 Transfer of incorporation
s. 308
1 308. New body ceases to be registered as co-operative
2 On the transfer of a co-operative under this Division, it ceases to
3 be registered as a co-operative under this Act.
4 309. Transfer not to impose greater liability etc.
5 (1) The constitution or replaceable rules or rules adopted for the
6 purposes of the transfer cannot be such as to --
7 (a) impose on the members of the new body who were
8 members of the co-operative at the date of transfer any
9 greater or different liability to contribute to the assets of
10 the new body than the liability to which they were
11 subject as members of the co-operative; or
12 (b) deprive a member of the new body of preferential rights
13 to dividend or capital to which the member was entitled
14 as a member of the co-operative at the date of transfer.
15 (2) In subsection (1), member includes former shareholder of a
16 co-operative, whose shares have been forfeited within 2 years of
17 the transfer.
18 (3) The transfer must result in all persons who were members of the
19 co-operative at the date of transfer becoming members of the
20 new body.
21 (4) In the case of a transfer of a co-operative that has a share capital
22 to a new body that has a share capital, the transfer must result in
23 every member of the co-operative at the date of transfer who
24 held shares in the co-operative being the holder of shares in the
25 capital of the new body equal in number and nominal value to
26 the shares held by the member as a member of the co-operative.
27 310. Effect of new certificate of registration
28 A certificate of registration or incorporation as the new body
29 issued by the appropriate officer under the law applicable to the
30 new body is evidence that all the requirements of this Division
31 about registration or incorporation have been complied with.
page 180
Co-operatives Bill 2009
Merger, transfer of engagements, winding-up Part 12
Winding-up and deregistration Division 3
s. 311
1 311. New body must give copy of new certificate of registration
2 or incorporation to Registrar
3 On the transfer of a co-operative under this Division, the new
4 body must immediately give the Registrar a copy of its new
5 certificate of registration or incorporation.
6 Penalty: a fine of $1 000.
7 312. New body is a continuation of the co-operative
8 (1) When a co-operative transfers to a new body, the corporation
9 constituted by the new body is taken to be the same entity as the
10 corporation constituted by the co-operative.
11 (2) Without limiting subsection (1), Division 6 applies to a transfer
12 under this Division.
13 Division 3 -- Winding-up and deregistration
14 313. Methods of winding-up
15 (1) A co-operative may be wound-up voluntarily or by the Supreme
16 Court or on a certificate of the Registrar.
17 (2) In the case of a winding-up voluntarily or by the Supreme
18 Court, the co-operative may be wound-up in the same way and
19 in the same circumstances as a company under the Corporations
20 Act may be wound-up.
21 314. Winding-up on Registrar's certificate
22 (1) A co-operative may be wound-up on a certificate of the
23 Registrar only if the necessary grounds for taking the action
24 exist, as referred to in section 336.
25 (2) A winding-up on a certificate of the Registrar starts when the
26 Registrar gives the certificate to the co-operative.
page 181
Co-operatives Bill 2009
Part 12 Merger, transfer of engagements, winding-up
Division 3 Winding-up and deregistration
s. 315
1 (3) On the giving of a certificate, the Registrar may appoint a
2 person to be the liquidator of the co-operative.
3 (4) The liquidator need not be a registered liquidator under the
4 Corporations Act.
5 (5) The liquidator must, within 10 days after appointment, give
6 notice of his or her appointment in the Gazette.
7 (6) The liquidator must give the security prescribed by the
8 regulations and is entitled to receive the fees fixed by the
9 Registrar.
10 (7) Any vacancy occurring in the office of liquidator is to be filled
11 by a person appointed by the Registrar.
12 315. Method of deregistration
13 A co-operative may be deregistered in the same way and in the
14 same circumstances as a company under the Corporations Act
15 may be deregistered.
16 316. Application of Corporations Act to winding-up and
17 deregistration
18 The winding-up or deregistration of a co-operative, and a
19 deregistered co-operative, are declared to be applied
20 Corporations legislation matters for the purposes of the
21 Corporations (Ancillary Provisions) Act 2001 Part 3 in relation
22 to the provisions of the Corporations Act Parts 5.4, 5.4A, 5.4B,
23 5.5, 5.6, 5.7 and 5A.1, subject to the following modifications --
24 (a) a reference in the provisions to a special resolution or an
25 extraordinary resolution is to be read as a reference to a
26 special resolution within the meaning of this Act;
27 (b) a reference in the provisions to ASIC is to be read as a
28 reference to the Registrar;
page 182
Co-operatives Bill 2009
Merger, transfer of engagements, winding-up Part 12
Winding-up and deregistration Division 3
s. 316
1 (c) section 513B is to be considered to be amended by
2 inserting after paragraph (d) --
3 "
4 (da) if the winding-up is on the certificate of the
5 Registrar -- on the date that the certificate is
6 given; or
7 ";
8 (d) section 516 is to be considered to be amended by
9 inserting after "past member" --
10 "
11 together with any charges payable by him or her to the
12 co-operative in accordance with the rules
13 ";
14 (e) a reference in the provisions to a registered liquidator is
15 to be read as including a reference to a person approved
16 or appointed by the Registrar as a liquidator of a
17 co-operative;
18 (f) a reference in the provisions to the Corporations Act
19 Part 2F.1 is to be read as a reference to Part 4 Division 5
20 of this Act;
21 (g) for the purposes of the application of the provisions to a
22 winding-up on the certificate of the Registrar, the
23 winding-up is taken to be a voluntary winding-up, but
24 the Corporations Act section 490 does not apply;
25 (h) the provisions are to be read subject to sections 67
26 and 322 of this Act for the purposes of determining the
27 liability of members and former members to contribute
28 on a winding-up of a co-operative;
29 (i) any other modifications, within the meaning of the
30 Corporations (Ancillary Provisions) Act 2001 Part 3,
31 that are prescribed by the regulations.
page 183
Co-operatives Bill 2009
Part 12 Merger, transfer of engagements, winding-up
Division 3 Winding-up and deregistration
s. 317
1 317. Restrictions on voluntary winding-up
2 (1) A co-operative may be wound-up voluntarily only --
3 (a) by a creditors' voluntary winding-up; or
4 (b) if a special resolution is passed by means of a special
5 postal ballot in favour of voluntary winding-up.
6 (2) A regulation may exempt a co-operative from compliance with
7 a provision of this section or section 186.
8 (3) When a special postal ballot referred to in subsection (1)(b) is
9 held, the members may, by means of the same ballot, by simple
10 majority --
11 (a) appoint one or more liquidators to wind-up the affairs
12 and distribute the assets of the co-operative; and
13 (b) fix the remuneration to be paid to the liquidator.
14 318. Start of members' voluntary winding-up
15 A members' voluntary winding-up of a co-operative starts when
16 the result of the special postal ballot is noted in the minute book
17 by the secretary of the co-operative.
18 319. Distribution of surplus -- non-distributing co-operatives
19 (1) In this section --
20 surplus property means property of the co-operative that
21 remains after satisfaction of the debts and liabilities of the
22 co-operative and the costs, charges and expenses of the
23 winding-up.
24 (2) On a winding-up of a non-distributing co-operative, the surplus
25 property of the co-operative must be distributed as required by
26 the rules of the co-operative.
27 (3) The rules of a non-distributing co-operative must make
28 provision for the way in which the surplus property of the
29 co-operative is to be distributed in a winding-up.
page 184
Co-operatives Bill 2009
Merger, transfer of engagements, winding-up Part 12
Winding-up and deregistration Division 3
s. 320
1 320. Liquidator -- vacancy may be filled by Registrar
2 If a co-operative is being wound-up voluntarily and a vacancy
3 occurs in the office of liquidator that in the opinion of the
4 Registrar is unlikely to be filled in the way provided by the
5 Corporations Act, as applied by this Division, the Registrar may
6 appoint a person to be liquidator.
7 321. Review of liquidator's remuneration
8 A member or creditor of a co-operative or the liquidator may at
9 any time before the completion of the winding-up of the
10 co-operative apply to the Supreme Court to review the amount
11 of the remuneration of the liquidator.
12 322. Liability of member to contribute in a winding-up where
13 shares forfeited etc.
14 (1) If a person's membership of a co-operative is cancelled under
15 Part 6 within 2 years before the start of the winding-up of the
16 co-operative, the person is liable on the winding-up to
17 contribute to the property of the co-operative the amount paid
18 by the co-operative to the member or former member in respect
19 of any shares forfeited in connection with that cancellation,
20 together with any amount unpaid on the shares immediately
21 before the cancellation.
22 (2) If under section 163 a co-operative --
23 (a) purchases a share of a member in the co-operative; or
24 (b) repays to a member the whole or any part of the amount
25 paid up up to the stated nominal value on a share held by
26 a member,
27 within 2 years before the start of the winding-up of the
28 co-operative, the member or former member is liable on the
29 winding-up to contribute to the property of the co-operative the
30 amount paid by the co-operative to the member or former
31 member in respect of the purchase or repayment together with
page 185
Co-operatives Bill 2009
Part 12 Merger, transfer of engagements, winding-up
Division 4 Administration of co-operative -- application of Corporations
Act
s. 323
1 any amount unpaid on the shares immediately before the
2 purchase or repayment.
3 (3) If a person contributes to the property of a co-operative under a
4 liability under this section, the amount contributed is, for the
5 purposes of the winding-up, to be treated as having been paid up
6 by the person on shares of the co-operative.
7 (4) The liability of a member or former member of a co-operative
8 under this section is in addition to any other liability of the
9 member or former member to contribute to the property of the
10 co-operative on a winding-up of the co-operative.
11 Division 4 -- Administration of co-operative -- application of
12 Corporations Act
13 323. Application of Corporations Act to administration of
14 co-operative
15 A co-operative is declared to be an applied Corporations
16 legislation matter for the purposes of the Corporations
17 (Ancillary Provisions) Act 2001 Part 3 in relation to the
18 provisions of the Corporations Act Part 5.3A and Part 5.9
19 Division 3, subject to the following modifications --
20 (a) the provisions are to be read as if a co-operative were a
21 company;
22 (b) a reference in the provisions to the Corporations Act
23 sections 128 and 129 is to be read as a reference to
24 sections 41 to 43, and section 45 of this Act;
25 (c) a reference in the provisions to ASIC is to be read as a
26 reference to the Registrar;
27 (d) any other modifications, within the meaning of the
28 Corporations (Ancillary Provisions) Act 2001 Part 3,
29 that are prescribed by the regulations.
page 186
Co-operatives Bill 2009
Merger, transfer of engagements, winding-up Part 12
Appointment of administrator Division 5
s. 324
1 Division 5 -- Appointment of administrator
2 324. Appointment of administrator
3 (1) The Registrar may, by written notice, appoint an administrator
4 to conduct the affairs of a co-operative.
5 (2) A notice of appointment must state --
6 (a) the date of appointment; and
7 (b) the appointee's name; and
8 (c) the appointee's business address.
9 (3) If the appointee's name or business address changes, the
10 appointee must immediately give written notice of the change to
11 the Registrar.
12 (4) The Registrar cannot appoint an administrator unless the
13 necessary grounds for taking the action exist, as referred to in
14 section 336(2).
15 325. Effect of appointment of administrator
16 (1) On the appointment of an administrator of a co-operative --
17 (a) the directors of the co-operative cease to hold office; and
18 (b) all contracts of employment with the co-operative are
19 terminated; and
20 (c) all contracts for the provision of secretarial or
21 administrative services for the co-operative are
22 terminated; and
23 (d) the administrator may terminate any contract for
24 providing other services to the co-operative.
25 (2) An administrator of a co-operative has the functions of the
26 board of the co-operative, including the board's powers of
27 delegation.
page 187
Co-operatives Bill 2009
Part 12 Merger, transfer of engagements, winding-up
Division 5 Appointment of administrator
s. 326
1 (3) A director of a co-operative cannot be appointed or elected
2 while the administrator is in office except as provided by this
3 Division.
4 326. Revocation of appointment
5 (1) An administrator holds office until the administrator's
6 appointment is revoked.
7 (2) The Registrar may, by written notice, revoke the appointment of
8 an administrator.
9 (3) When a liquidator of a co-operative is appointed, the
10 appointment of any administrator of the co-operative is
11 automatically revoked.
12 (4) Immediately on the revocation of an administrator's
13 appointment, the administrator must prepare and submit a report
14 to the Registrar showing how the administration was carried
15 out, and for that purpose an administrator has access to the
16 co-operative's records.
17 (5) On giving the report and accounting fully for the administration
18 of the co-operative to the satisfaction of the Registrar, the
19 administrator is released from any further duty to account for
20 the administration of the co-operative other than on account of
21 fraud, dishonesty, negligence or wilful failure to comply with
22 this Act.
23 (6) Before revoking the appointment of an administrator of a
24 co-operative, the Registrar must --
25 (a) appoint another administrator; or
26 (b) appoint a liquidator; or
27 (c) ensure that directors of the co-operative have been
28 elected in accordance with the rules of the co-operative
29 at a meeting called by the administrator in accordance
30 with those rules; or
31 (d) appoint directors of the co-operative.
page 188
Co-operatives Bill 2009
Merger, transfer of engagements, winding-up Part 12
Appointment of administrator Division 5
s. 327
1 (7) Directors elected or appointed under subsection (6) --
2 (a) take office on revocation of the administrator's
3 appointment; and
4 (b) in the case of directors appointed under subsection (6),
5 hold office until the next annual general meeting of the
6 co-operative after the revocation of that appointment.
7 327. Expenses of administration
8 (1) The expenses of and incidental to the conduct of a
9 co-operative's affairs by an administrator are payable from the
10 co-operative's funds.
11 (2) The expenses of conducting a co-operative's affairs include --
12 (a) if the administrator is not an officer or employee of the
13 public service, remuneration of the administrator at a
14 rate approved by the Registrar; or
15 (b) if the administrator is an officer or employee of the
16 public service, the amount that the Registrar certifies
17 should be paid to the State as repayment of the
18 administrator's remuneration.
19 (3) An amount certified under subsection (2)(b) may be recovered
20 in a court of competent jurisdiction as a debt payable to the
21 State.
22 (4) An administrator has, in relation to the expenses referred to in
23 subsection (1), the same priority on the winding-up of a
24 co-operative as the liquidator of the co-operative has, as set out
25 in the Corporations Act Part 5.6.
26 328. Liabilities arising from administration
27 (1) If a co-operative incurs loss because of fraud, dishonesty,
28 negligence or wilful failure to comply with this Act or the rules
29 of the co-operative by an administrator, the administrator is
30 liable for the loss.
page 189
Co-operatives Bill 2009
Part 12 Merger, transfer of engagements, winding-up
Division 5 Appointment of administrator
s. 329
1 (2) An administrator is not liable for loss that is not a loss to which
2 subsection (1) applies but must account for the loss in a report
3 given under section 326.
4 329. Additional powers of Registrar
5 (1) If the Registrar appoints directors of a co-operative under
6 section 326, the Registrar may, by written notice given to the
7 co-operative, specify --
8 (a) a time during which this section is to apply in relation to
9 the co-operative; and
10 (b) the terms on which all or any of the directors hold
11 office; and
12 (c) the rules that are to be the co-operative's rules.
13 (2) While this section applies to a co-operative, the Registrar
14 may --
15 (a) remove and appoint directors; and
16 (b) vary, revoke or state new terms in place of all or any of
17 the terms specified under subsection (1); and
18 (c) amend all or any of the rules specified under
19 subsection (1).
20 (3) The Registrar may, by written notice given to the co-operative,
21 extend the time for which this section is to apply to a
22 co-operative.
23 (4) A rule specified by the Registrar under this section to be a rule
24 of a co-operative --
25 (a) cannot be altered except in the way set out in this
26 section; and
27 (b) if it is inconsistent with another rule of the co-operative,
28 prevails over the other rule, and the other rule is to the
29 extent of the inconsistency inoperative; and
30 (c) has the same evidentiary value as is by this Act accorded
31 to the co-operative's rules and to copies of them.
page 190
Co-operatives Bill 2009
Merger, transfer of engagements, winding-up Part 12
Effect of merger etc. on property, liabilities etc. Division 6
s. 330
1 330. Stay of proceedings
2 (1) If the Registrar appoints an administrator to conduct a
3 co-operative's affairs, a person cannot begin or continue
4 proceedings in a court against the co-operative until the
5 administrator's appointment is revoked except with the leave of
6 the Supreme Court and, if the Supreme Court grants leave, in
7 accordance with any terms that the Supreme Court imposes.
8 (2) A person intending to apply for leave of the Supreme Court
9 under subsection (1) must give the Registrar at least 10 days
10 notice of intention to apply.
11 (3) On the hearing of an application under subsection (1), the
12 Registrar may be represented and may oppose the application.
13 331. Administrator to report to Registrar
14 On the receipt of a request from the Registrar, the administrator
15 of a co-operative must, without delay, prepare and give to the
16 Registrar a report showing how the administration is being
17 carried out.
18 Division 6 -- Effect of merger etc. on property, liabilities etc.
19 332. How this Division applies to a merger
20 (1) This Division applies to a merger of co-operatives under
21 this Part.
22 (2) In the application of this Division to a merger --
23 new body means the co-operative that results from the merger;
24 original body means each co-operative that is a party to the
25 merger;
26 relevant day means the day on which the merged co-operative is
27 registered under this Act.
page 191
Co-operatives Bill 2009
Part 12 Merger, transfer of engagements, winding-up
Division 6 Effect of merger etc. on property, liabilities etc.
s. 333
1 333. How this Division applies to a transfer of engagements
2 (1) This Division applies to a transfer of the engagements of a
3 co-operative to another co-operative under Division 1.
4 (2) In the application of this Division to a transfer of
5 engagements --
6 new body means the co-operative to which the engagements are
7 transferred;
8 original body means the co-operative that transfers its
9 engagements;
10 relevant day means the day on which the transfer of
11 engagements takes effect.
12 334. How this Division applies to a transfer of incorporation
13 (1) This Division applies to a transfer of incorporation under
14 Division 2.
15 (2) In the application of this Division to such a transfer --
16 new body means the corporation that results from the transfer;
17 original body means the co-operative that transfers its
18 incorporation;
19 relevant day means the day on which the transfer takes effect.
20 335. Effect of merger etc. on property, liabilities etc.
21 (1) In this section --
22 assets means any legal or equitable estate or interest (whether
23 present or future and whether vested or contingent) in real or
24 personal property of any description (including money), and
25 includes securities, choses in action and documents;
26 instrument means an instrument (other than this Act) which
27 creates, modifies or extinguishes rights or liabilities (or would
28 do so if lodged, filed or registered in accordance with any law),
29 and includes any judgment, order and process of a court;
page 192
Co-operatives Bill 2009
Merger, transfer of engagements, winding-up Part 12
Effect of merger etc. on property, liabilities etc. Division 6
s. 335
1 liabilities means liabilities, debts and obligations (whether
2 present or future and whether vested or contingent).
3 (2) On and from the relevant day for an event to which this
4 Division applies --
5 (a) the assets of the original body vest in the new body
6 without the need for a conveyance, transfer, assignment
7 or assurance; and
8 (b) the rights and liabilities of the original body become the
9 rights and liabilities of the new body; and
10 (c) all proceedings by or against the original body that are
11 pending immediately before the relevant day are taken
12 to be proceedings pending by or against the new body;
13 and
14 (d) an act, matter or thing done or omitted to be done by, to
15 or in relation to the original body before the relevant day
16 is, to the extent to which that act, matter or thing has any
17 force or effect, taken to have been done or omitted by, to
18 or in relation to the new body; and
19 (e) a reference in an instrument or document of any kind to
20 the original body is to be read as, or as including, a
21 reference to the new body.
22 (3) The operation of this section cannot be regarded --
23 (a) as a breach of contract or confidence or otherwise as a
24 civil wrong; or
25 (b) as a breach of any contractual provision prohibiting,
26 restricting or regulating the assignment or transfer of
27 assets, rights or liabilities; or
28 (c) as giving rise to a remedy by a party to an instrument, or
29 as causing or permitting the termination of an
30 instrument, because of a change in the beneficial or legal
31 ownership of an asset, right or liability.
page 193
Co-operatives Bill 2009
Part 12 Merger, transfer of engagements, winding-up
Division 7 Miscellaneous
s. 336
1 Division 7 -- Miscellaneous
2 336. Grounds for winding-up, transfer of engagements,
3 appointment of administrator
4 (1) This section applies to the following actions --
5 (a) a direction by the Registrar to a co-operative to transfer
6 its engagements under section 304;
7 (b) the appointment of an administrator of a co-operative
8 under Division 5;
9 (c) the winding-up of a co-operative on a certificate of the
10 Registrar under section 314.
11 (2) The necessary grounds for taking action to which this section
12 applies exist if the Registrar certifies that --
13 (a) the number of members is reduced to less than the
14 minimum number of persons allowed under section 65;
15 or
16 (b) the co-operative has not commenced business within
17 one year of registration or has suspended business for
18 more than 6 months; or
19 (c) the registration of the co-operative has been obtained by
20 mistake or fraud; or
21 (d) the co-operative exists for an illegal purpose; or
22 (e) the co-operative has wilfully, and after notice from the
23 Registrar, violated the provisions of this Act or of the
24 rules of the co-operative; or
25 (f) the board of the co-operative has, after notice from the
26 Registrar, failed to ensure that the rules of the
27 co-operative contain active membership provisions in
28 accordance with Part 6; or
29 (g) there are, and have been, for one month immediately
30 before the date of the Registrar's certificate, insufficient
31 directors of the co-operative to form a quorum in
32 accordance with the rules of the co-operative; or
page 194
Co-operatives Bill 2009
Merger, transfer of engagements, winding-up Part 12
Miscellaneous Division 7
s. 337
1 (h) after an inquiry under this Act into the affairs of a
2 co-operative or the working and financial condition of a
3 co-operative, that in the interests of members or
4 creditors of the co-operative or the public the action
5 concerned should be taken.
6 (3) Alternatively, the necessary grounds for winding-up a
7 co-operative on a certificate of the Registrar exist if the
8 Registrar certifies that --
9 (a) the period, if any, fixed for the duration of the
10 co-operative by its rules has ended; or
11 (b) an event, to be specified in the certificate, has occurred
12 on the occurrence of which the regulations or the rules
13 provide that the co-operative is to be wound-up.
14 (4) The Registrar cannot certify under this section as to any matter
15 unless the matter has been proved to the Registrar's satisfaction.
16 337. Application of Corporations Act for insolvent co-operatives
17 A co-operative is declared to be an applied Corporations
18 legislation matter for the purposes of the Corporations
19 (Ancillary Provisions) Act 2001 Part 3 in relation to the
20 provisions of the Corporations Act Part 5.7B, subject to the
21 following modifications --
22 (a) the provisions are to be read as if a co-operative were a
23 company;
24 (b) a reference in the provisions to a provision of the
25 Corporations Act sections 286 to 290, as applied under
26 section 225 of this Act, is to be read with any
27 modifications prescribed by the regulations;
28 (c) any other modifications, within the meaning of the
29 Corporations (Ancillary Provisions) Act 2001 Part 3,
30 that are prescribed by the regulations.
page 195
Co-operatives Bill 2009
Part 13 Arrangements and reconstructions
Division 1 General requirements
s. 338
1 Part 13 -- Arrangements and reconstructions
2 Division 1 -- General requirements
3 338. Requirements for binding compromise or arrangement
4 (1) A compromise or arrangement is binding only if it is approved
5 by order of the Supreme Court after having been agreed to --
6 (a) if the compromise or arrangement is between the
7 co-operative and any of its creditors, at a court ordered
8 meeting by a majority in number of the creditors
9 concerned who are present and voting (in person or by
10 proxy), being a majority whose debts or claims against
11 the co-operative amount to at least 75% of the total of
12 the debts and claims of all those creditors who are
13 present and voting (in person or by proxy); or
14 (b) if the compromise or arrangement is between the
15 co-operative and any of its members, by the members
16 concerned, by special resolution passed by means of a
17 special postal ballot.
18 (2) The court ordered meeting referred to in subsection (1)(a) is a
19 meeting called in accordance with an order of the Supreme
20 Court under this Part.
21 (3) The Supreme Court may grant its approval to a compromise or
22 arrangement subject to the alterations or conditions it considers
23 appropriate.
24 (4) An order of the Supreme Court approving a compromise or
25 arrangement does not have effect until an office copy of the
26 order is lodged with the Registrar.
27 (5) On the copy being lodged, the order takes effect from the date
28 of lodgment or an earlier date the Supreme Court specifies in
29 the order.
page 196
Co-operatives Bill 2009
Arrangements and reconstructions Part 13
General requirements Division 1
s. 339
1 339. Supreme Court ordered meeting of creditors
2 (1) In this section --
3 appropriate person, in relation to an application for an order,
4 means --
5 (a) the co-operative; or
6 (b) a member of the co-operative; or
7 (c) one of the creditors concerned; or
8 (d) in the case of a co-operative being wound-up, the
9 liquidator.
10 (2) If a compromise or arrangement is proposed between a
11 co-operative and any of its creditors, the Supreme Court may on
12 application by an appropriate person order a meeting or
13 meetings of the creditors concerned.
14 (3) The meeting must be convened in the way and be held in the
15 place or places, in this State or elsewhere, that the Supreme
16 Court directs.
17 (4) In considering whether to make an order for a meeting to be
18 held in another jurisdiction, the Supreme Court may have regard
19 to where creditors concerned reside.
20 340. Registrar to be given notice and opportunity to make
21 submissions
22 The Supreme Court may, on the application of an appropriate
23 person as defined in section 339(1), make an order under this
24 Division approving a compromise or arrangement if the Court is
25 satisfied that --
26 (a) at least 14 days notice of the hearing of the application
27 for the order, or a shorter period of notice the Court or
28 the Registrar permits, has been given to the Registrar;
29 and
page 197
Co-operatives Bill 2009
Part 13 Arrangements and reconstructions
Division 1 General requirements
s. 341
1 (b) the Registrar has had a reasonable opportunity to
2 examine --
3 (i) the terms of that compromise or arrangement;
4 and
5 (ii) the explanatory statement to be sent to creditors
6 or members under section 349,
7 and make submissions to the Court.
8 341. Results of 2 or more meetings
9 If the Supreme Court orders 2 or more meetings of creditors to
10 be held in relation to a proposed compromise or arrangement --
11 (a) the meetings are taken to form a single meeting; and
12 (b) the votes in favour of the proposed compromise or
13 arrangement cast at each of the meetings are to be
14 added; and
15 (c) the votes against the proposed compromise or
16 arrangement cast at each of the meetings are to be
17 added.
18 342. Persons disqualified from administering compromise etc.
19 Except with the leave of the Supreme Court, a person cannot be
20 appointed to administer, and cannot administer, a compromise
21 or arrangement approved under this Act between a co-operative
22 and any of its creditors or members, whether by the terms of the
23 compromise or arrangement or under a power given by the
24 terms of a compromise or arrangement, if the person --
25 (a) is a mortgagee of property of the co-operative; or
26 (b) is an auditor or an officer of the co-operative; or
27 (c) is an officer of a corporation that is a mortgagee of
28 property of the co-operative; or
29 (d) is not a registered liquidator under the Corporations Act
30 unless the person is a corporation authorised by or under
31 a law of this State to administer the compromise or
32 arrangement concerned; or
page 198
Co-operatives Bill 2009
Arrangements and reconstructions Part 13
General requirements Division 1
s. 343
1 (e) is an officer of a corporation related to the co-operative;
2 or
3 (f) unless the Registrar directs in writing that this paragraph
4 does not apply in relation to the person in relation to the
5 co-operative, has at any time within the last 12 months
6 been an officer or promoter of the co-operative or of a
7 related corporation of the co-operative.
8 343. Application of Schedule 4 to person appointed
9 Schedule 4 clauses 16, 18(2) and (4), 19, 23 and 25 apply to a
10 person appointed to administer a compromise or arrangement as
11 if the appointment were an appointment of the person as a
12 receiver and manager of property of the co-operative and as if a
13 reference to a receiver were a reference to that person.
14 344. Application of Corporations Act to person appointed
15 A person appointed to administer a compromise or arrangement
16 is declared to be an applied Corporations legislation matter for
17 the purposes of the Corporations (Ancillary Provisions)
18 Act 2001 Part 3 in relation to the Corporations Act section 536
19 as if --
20 (a) the appointment were an appointment as a liquidator of
21 the co-operative; and
22 (b) a reference in the section to a liquidator were a reference
23 to that person; and
24 (c) a reference in that section to ASIC were a reference to
25 the Registrar.
26 345. Copy of order to be attached to rules
27 (1) A co-operative must ensure that a copy of an order of the
28 Supreme Court approving a compromise or arrangement is
29 attached to each copy of the rules of the co-operative issued
30 after the order is made.
31 Penalty: a fine of $2 000.
page 199
Co-operatives Bill 2009
Part 13 Arrangements and reconstructions
Division 1 General requirements
s. 346
1 (2) The Supreme Court may, by order, exempt a co-operative from
2 compliance with this section or determine the period during
3 which the co-operative must comply.
4 346. Directors to arrange for reports
5 (1) When a compromise or arrangement (whether or not for the
6 purposes of or in connection with a scheme for the
7 reconstruction of a co-operative or the merger of any 2 or more
8 co-operatives) has been proposed, the directors of the
9 co-operative must --
10 (a) if a meeting of the members of the co-operative by
11 resolution so directs, instruct the accountants or legal
12 practitioners or both named in the resolution to report on
13 the proposals and send their report or reports to the
14 directors as soon as practicable; and
15 (b) make any report or reports so obtained available at the
16 registered office of the co-operative for inspection by
17 the members and creditors of the co-operative at least
18 7 days before the day of the meeting ordered by the
19 Supreme Court or the holding of the special postal
20 ballot, as appropriate.
21 (2) If subsection (1) is not complied with, each director of the
22 co-operative commits an offence.
23 Penalty: a fine of $2 000.
24 347. Power of Supreme Court to restrain further proceedings
25 (1) If a proposed compromise or arrangement is between a
26 co-operative and any of its creditors and no order has been made
27 or resolution passed for the winding-up of the co-operative, the
28 Supreme Court may restrain further proceedings in an action or
29 other civil proceeding against the co-operative except by leave
30 of the Supreme Court and subject to such terms as the Supreme
31 Court imposes.
page 200
Co-operatives Bill 2009
Arrangements and reconstructions Part 13
Explanatory statements Division 2
s. 348
1 (2) The Supreme Court's power under this section is in addition to
2 any of its other powers and cannot be exercised except on
3 application by the co-operative or of any creditor or member of
4 the co-operative.
5 348. Supreme Court need not approve compromise or
6 arrangement takeovers
7 (1) The Supreme Court need not approve a compromise or
8 arrangement unless --
9 (a) it is satisfied that the compromise or arrangement has
10 not been proposed for the purpose of enabling any
11 person to avoid the operation of any of the provisions of
12 Part 11 Division 2; and
13 (b) there is produced to the Supreme Court a statement in
14 writing by the Registrar stating that the Registrar has no
15 objection to the compromise or arrangement.
16 (2) The Supreme Court need not approve a compromise or
17 arrangement merely because a statement by the Registrar stating
18 that the Registrar has no objection to the compromise or
19 arrangement has been produced to the Supreme Court.
20 Division 2 -- Explanatory statements
21 349. Explanatory statement required to accompany notice of
22 meeting etc.
23 (1) An explanatory statement must accompany every notice --
24 (a) that is sent to a creditor of a co-operative calling a court
25 ordered meeting to obtain agreement to a compromise or
26 arrangement; or
27 (b) that is sent to a member of a co-operative for the
28 purpose of the conduct of the special postal ballot to
29 obtain agreement to the compromise or arrangement.
30 (2) In every notice of a meeting referred to in subsection (1) that is
31 given by advertisement there must be included either a copy of
page 201
Co-operatives Bill 2009
Part 13 Arrangements and reconstructions
Division 2 Explanatory statements
s. 349
1 the explanatory statement or notification of the place at which
2 and the way in which creditors entitled to attend the meeting
3 may obtain copies of the explanatory statement.
4 (3) The explanatory statement must --
5 (a) explain the effect of the compromise or arrangement
6 and, in particular, state --
7 (i) material interests of the directors, whether as
8 directors, members or creditors of the
9 co-operative or otherwise; and
10 (ii) the effect on those interests of the compromise or
11 arrangement in so far as that effect is different
12 from the effect on the like interests of other
13 persons;
14 and
15 (b) set out --
16 (i) the information prescribed by the regulations;
17 and
18 (ii) other information that is material to the making
19 of a decision by a creditor or member whether or
20 not to agree to the compromise or arrangement,
21 is within the knowledge of the directors and has
22 not previously been disclosed to the creditors or
23 members.
24 (4) Subsection (1)(a) does not apply in the case of a creditor whose
25 debt does not exceed $200 unless the Supreme Court orders
26 otherwise.
27 (5) The notice calling the meeting that is sent to a creditor referred
28 to in subsection (1)(a) must specify a place at which a copy of
29 the explanatory statement can be obtained on request.
30 (6) The co-operative must comply with a request under
31 subsection (5) as soon as practicable.
page 202
Co-operatives Bill 2009
Arrangements and reconstructions Part 13
Explanatory statements Division 2
s. 350
1 350. Requirements for explanatory statement
2 (1) An explanatory statement must be as approved by the Registrar.
3 (2) If the compromise or arrangement affects the rights of debenture
4 holders, the explanatory statement must specify --
5 (a) any material interests of the trustees for the debenture
6 holders, whether as such trustees, as members or
7 creditors of the co-operative or otherwise; and
8 (b) the effect on those interests of the compromise or
9 arrangement to the extent that that effect is different
10 from the effect on the like interests of other persons.
11 (3) If a notice given by advertisement includes a notification that
12 copies of the explanatory statement can be obtained in a
13 particular way, the co-operative must give a copy of the
14 statement free of charge to each creditor or member entitled to
15 attend the meeting or vote in the ballot who applies for it in that
16 way.
17 (4) Each person who is a director or trustee for debenture holders
18 must give notice to the co-operative of such matters relating to
19 the person as are required to be included in the explanatory
20 statement.
21 351. Contravention of Division -- offence by co-operative
22 (1) If a provision of this Division is contravened, the co-operative
23 concerned and any other person involved in the contravention
24 commits an offence.
25 Penalty: a fine of $2 000.
26 (2) It is a defence to a prosecution for an offence under
27 subsection (1) if it is proved that the contravention was due to
28 the failure of a person, other than the defendant, who is a
29 director of the co-operative or a trustee for debenture holders of
30 the co-operative, to supply for the purposes of the explanatory
31 statement particulars of the person's interests.
page 203
Co-operatives Bill 2009
Part 13 Arrangements and reconstructions
Division 3 Facilitating reconstructions and mergers
s. 352
1 Division 3 -- Facilitating reconstructions and mergers
2 352. Provisions for facilitating reconstructions and mergers
3 (1) In this section --
4 co-operative includes a foreign co-operative;
5 liabilities includes duties of any description, including duties
6 that are of a personal character or are incapable under the
7 general law of being assigned or performed vicariously;
8 property includes rights and powers of any description,
9 including rights and powers that are of a personal character and
10 are incapable under the general law of being assigned or
11 performed vicariously.
12 (2) This section applies if an application is made to the Supreme
13 Court under this Part for the approval of a compromise or
14 arrangement and it is shown to the Court that --
15 (a) the compromise or arrangement has been proposed for
16 the purposes of a scheme for the reconstruction of a
17 co-operative or the merger of a co-operative with
18 another co-operative or with another corporation; and
19 (b) under the scheme all or part of the undertaking or of the
20 property of a co-operative concerned in the scheme (the
21 transferor) is to be transferred to another corporation
22 (the transferee) and the transferee is not a company
23 within the meaning of the Corporations Act.
24 (3) If this section applies, the Supreme Court may, either by the
25 order approving the compromise or arrangement or by a later
26 order provide for any one or more of the following --
27 (a) the transfer to the transferee of all or part of the
28 undertaking and the property or liabilities of the
29 transferor;
30 (b) the allotting or appropriation by the transferee of shares,
31 debentures, co-operative capital units, policies or other
32 interests in the transferee that, under the compromise or
page 204
Co-operatives Bill 2009
Arrangements and reconstructions Part 13
Facilitating reconstructions and mergers Division 3
s. 352
1 arrangement, are to be allotted or appropriated by the
2 transferee to or for a person;
3 (c) the continuation by or against the transferee of legal
4 proceedings pending by or against the transferor;
5 (d) the deregistration, without winding-up, of the transferor;
6 (e) the provision to be made for any persons who, within
7 the time and in the way the Court directs, dissent from
8 the compromise or arrangement;
9 (f) the transfer or allotment of any interest in property to a
10 person concerned in the compromise or arrangement;
11 (g) the incidental, consequential and supplemental matters
12 necessary to ensure that the reconstruction or merger is
13 fully and effectively carried out.
14 (4) If an order made under this section provides for the transfer of
15 property or liabilities, then, by virtue of the order --
16 (a) the property is transferred to and vests in the transferee
17 free, in the case of a particular property if the order so
18 directs, from a charge that is under the compromise or
19 arrangement to cease to have effect; and
20 (b) the liabilities are transferred to and become the liabilities
21 of the transferee.
22 (5) If an order is made under this section, each body to which the
23 order relates must, within 14 days after the making of the order,
24 lodge with the Registrar an office copy of the order.
25 (6) If the Registrar is required by the Court to appear and assist the
26 Court in making an order under this section, the Court may
27 make an award of costs to the Registrar for the appearance.
page 205
Co-operatives Bill 2009
Part 13 Arrangements and reconstructions
Division 4 Acquisition of shares of dissenting shareholders
s. 353
1 Division 4 -- Acquisition of shares of dissenting shareholders
2 353. Definitions
3 In this Division --
4 dissenting shareholder, in relation to a scheme or contract,
5 means a shareholder who has not assented to the scheme or
6 contract or who has failed to transfer the shareholder's shares
7 under the scheme or contract;
8 excluded shares, in relation to a scheme or contract involving a
9 transfer to a person of shares in a class of shares in a
10 co-operative, means shares in the class that, when the offer
11 relating to the scheme or contract is made, are held by --
12 (a) in any case, the person or a nominee of the person; or
13 (b) if the person is a corporation, a subsidiary of the body.
14 354. Schemes and contracts to which Division applies
15 (1) This Division applies to a scheme or contract involving a
16 transfer of shares in a co-operative (the transferor) to a person
17 (the transferee) that has, within 4 months after the making of
18 the offer relating to the scheme or contract by the transferee,
19 been approved by the holders of at least 90% in nominal value
20 of all the shares (other than excluded shares) to which the offer
21 relates.
22 (2) This Division does not apply to a scheme or contract arising out
23 of the making of an offer to which Part 11 Division 2 applies.
24 355. Acquisition of shares pursuant to notice to dissenting
25 shareholder
26 (1) The transferee under the scheme or contract may, within
27 2 months after the offer is approved, give notice as prescribed
28 by the regulations (a compulsory acquisition notice) to a
29 dissenting shareholder that the transferee wishes to acquire the
30 shares held by that shareholder.
page 206
Co-operatives Bill 2009
Arrangements and reconstructions Part 13
Acquisition of shares of dissenting shareholders Division 4
s. 356
1 (2) If a compulsory acquisition notice is given, the dissenting
2 shareholder may, by written notice given to the transferee
3 within one month after the day on which the compulsory
4 acquisition notice was given, ask for a statement in writing of
5 the names and addresses of all other dissenting shareholders as
6 shown in the register of members and the transferee must give
7 that statement.
8 (3) Having given the compulsory acquisition notice, the transferee
9 is, unless the Supreme Court orders to the contrary, entitled and
10 bound to acquire the shares of the dissenting shareholder on the
11 terms on which, under the scheme or contract, the shares of the
12 approving shareholders are to be transferred to the transferee.
13 (4) The Supreme Court may give an order to the contrary only on
14 the application of the dissenting shareholder made within the
15 later of 28 days after the compulsory acquisition notice was
16 given or within 14 days after a statement asked for under
17 subsection (2) was given.
18 (5) If alternative terms are offered to the approving shareholders --
19 (a) the dissenting shareholder is entitled to elect which of
20 those terms are preferred but must make the election
21 within the time allowed for making an application to the
22 Supreme Court under subsection (4); and
23 (b) if the dissenting shareholder fails to make the election
24 within the time, the transferee may, unless the Supreme
25 Court orders otherwise, decide which of the terms is to
26 apply to the acquisition of the shares of the dissenting
27 shareholder.
28 356. Restrictions when excluded shares exceed 10%
29 If the nominal value of excluded shares is more than 10% of the
30 total nominal value of all the shares, including excluded shares,
31 to be transferred under the scheme or contract, section 355 does
32 not apply unless --
page 207
Co-operatives Bill 2009
Part 13 Arrangements and reconstructions
Division 4 Acquisition of shares of dissenting shareholders
s. 357
1 (a) the transferee offers the same terms to all holders of the
2 shares, other than excluded shares, to be transferred
3 under the scheme or contract; and
4 (b) the holders who approve the scheme or contract together
5 hold at least 90% in nominal value of the shares (other
6 than excluded shares) to be transferred under the scheme
7 or contract and are also at least 75% in number of the
8 holders of those shares, with joint owners of shares
9 being counted as one person.
10 357. Remaining shareholders may require acquisition
11 (1) If, under a scheme or contract to which this Division applies, the
12 transferee becomes beneficially entitled to shares in the
13 transferor that, together with other shares in the transferor to
14 which the transferee or a corporation related to the transferee is
15 beneficially entitled, comprise or include 90% in nominal value
16 of the shares to which the offer relates, then --
17 (a) the transferee must, within 28 days after becoming
18 beneficially entitled to the shares, give notice of the fact
19 as prescribed by the regulations to the holders of the
20 remaining shares concerned who, when the notice was
21 given, had not assented to the scheme or contract or
22 been given a compulsory acquisition notice by the
23 transferee under this Division; and
24 (b) a holder referred to in paragraph (a) may, within
25 3 months after being given that notice, by notice to the
26 transferee require the transferee to acquire the holder's
27 share and, if alternative terms were offered to the
28 approving shareholders, elect which of those terms the
29 holder will accept.
30 (2) If a shareholder gives notice under this section with respect to
31 the shareholder's shares, the transferee is entitled and bound to
32 acquire those shares --
33 (a) on the terms on which under the scheme or contract the
34 shares of the approving shareholders were transferred to
page 208
Co-operatives Bill 2009
Arrangements and reconstructions Part 13
Acquisition of shares of dissenting shareholders Division 4
s. 358
1 the transferee and, if alternative terms were offered to
2 those shareholders, on the terms for which the
3 shareholder has elected, or, if no election is made, for
4 whichever of the terms the transferee determines; or
5 (b) on such other terms as are agreed or as the Supreme
6 Court, on the application of the transferee or of the
7 shareholder, considers appropriate to order.
8 358. Transfer of shares pursuant to compulsory acquisition
9 (1) A transferee who has given a compulsory acquisition notice
10 must --
11 (a) send a copy of the notice to the transferor together with
12 an instrument of transfer for the shares that the
13 transferee is entitled to acquire under this Division and
14 that is executed, on the shareholder's behalf, by a person
15 appointed by the transferee and, on the transferee's own
16 behalf, by the transferee; and
17 (b) pay, allot or transfer to the transferor the consideration
18 for the shares.
19 (2) The transferee must do so within 14 days after whichever of the
20 following happens last --
21 (a) the period of 28 days after the day on which the
22 compulsory acquisition notice was given expires;
23 (b) the period of 14 days after a statement of the names and
24 addresses of dissenting shareholders is supplied under
25 this Division expires;
26 (c) if an application has been made to the Supreme Court by
27 a dissenting shareholder, the application is disposed of.
28 (3) When the transferee has complied with this section, the
29 transferor must register the transferee as the holder of the
30 shares.
31 (4) This section does not apply if the Supreme Court on the
32 application of the dissenting shareholder orders to the contrary.
page 209
Co-operatives Bill 2009
Part 13 Arrangements and reconstructions
Division 4 Acquisition of shares of dissenting shareholders
s. 359
1 359. Disposal of consideration for shares compulsorily acquired
2 (1) Amounts received by the transferor under this Division must be
3 paid into a financial institution account established for the
4 purpose of depositing those amounts, and the amounts, and any
5 other consideration received, are to be held by the transferor in
6 trust for the persons entitled to the shares in relation to which
7 the amounts and other consideration were received.
8 (2) If an amount or other property received by the transferor under
9 this Division has been held in trust by the transferor for a person
10 for at least 2 years, the transferor must pay the amount or
11 transfer the consideration, and any accretions to it and any
12 property that may become substituted for it or for part of it, to
13 the Registrar.
14 (3) Anything paid or transferred to the Registrar under
15 subsection (2) is declared to be applied Corporations legislation
16 matter for the purposes of the Corporations (Ancillary
17 Provisions) Act 2001 Part 3 in relation to the provisions of the
18 Corporations Act Part 9.7, subject to the following
19 modifications --
20 (a) a reference in the provisions to unclaimed property is to
21 be read as a reference to the thing paid or transferred to
22 the Registrar under subsection (2);
23 (b) a reference in the provisions to ASIC is to be read as a
24 reference to the Registrar;
25 (c) a reference in the provisions to the Commonwealth is to
26 be read as a reference to this State;
27 (d) any other modifications, within the meaning of the
28 Corporations (Ancillary Provisions) Act 2001 Part 3,
29 that are prescribed by the regulations.
30 (4) The transferor must comply with subsection (2) before the end
31 of 10 years after the day on which the amount was paid, or the
32 consideration was allotted or transferred, to the transferor.
page 210
Co-operatives Bill 2009
Arrangements and reconstructions Part 13
Miscellaneous Division 5
s. 360
1 Division 5 -- Miscellaneous
2 360. Notification of appointment of scheme manager
3 Within 14 days after being appointed to administer a
4 compromise or arrangement approved under this Part, a person
5 must lodge with the Registrar a written notice of the
6 appointment.
7 Penalty: a fine of $1 000.
8 361. Power of Supreme Court to require reports
9 When an application is made to the Supreme Court under this
10 Part in relation to a proposed compromise or arrangement, the
11 Supreme Court may --
12 (a) before making an order on the application, require the
13 Registrar or another person to give to the Court a report
14 as to --
15 (i) the terms of the compromise or arrangement or
16 of the scheme for, or in relation to, which the
17 compromise or arrangement has been proposed;
18 and
19 (ii) the conduct of the officers of the body or bodies
20 concerned; and
21 (iii) any other matters that, in the opinion of the
22 Registrar or that person, ought to be brought to
23 the attention of the Court;
24 and
25 (b) in deciding the application, have regard to anything
26 contained in the report; and
27 (c) make any order as to the payment of the costs of
28 preparing and giving the report as the Court considers
29 appropriate.
page 211
Co-operatives Bill 2009
Part 13 Arrangements and reconstructions
Division 5 Miscellaneous
s. 362
1 362. Effect of out-of-jurisdiction compromise or arrangement
2 (1) A compromise or arrangement that is binding on any creditors
3 of a foreign co-operative because of a provision of the law of
4 another State or a Territory that corresponds to this Part is also
5 binding on the creditors of the foreign co-operative whose debts
6 are recoverable by action in a court of this State.
7 (2) If a court of another State or a Territory makes an order under a
8 provision of the law of that State or Territory that is prescribed
9 by the regulations as corresponding to a provision of this Part,
10 the order is taken to have been made by the Supreme Court of
11 Western Australia under the corresponding provision of this Act
12 and has effect and may be enforced accordingly.
13 363. Jurisdiction to be exercised in harmony with Corporations
14 Act jurisdiction
15 The jurisdiction of the Supreme Court under this Part is
16 intended to complement the Supreme Court's jurisdiction under
17 the Corporations Act, as applied under this Act, and should be
18 exercised in harmony with that jurisdiction.
19 364. Registrar may appear etc.
20 In any proceedings before the Supreme Court under this Part,
21 the Registrar is entitled to appear and be heard, either in person
22 or by the Registrar's properly appointed representative.
page 212
Co-operatives Bill 2009
Mutual recognition Part 14
Introductory Division 1
s. 365
1 Part 14 -- Mutual recognition
2 Division 1 -- Introductory
3 365. Definitions
4 In this Part --
5 authorisation notice means a written notice issued by the
6 Registrar under this Part to a foreign co-operative stating that
7 the co-operative is authorised to carry on business in this State;
8 co-operatives law means a law of another State that, under
9 section 367(1), is certified to be a co-operatives law for the
10 purposes of this Part;
11 non-participating co-operative means a foreign co-operative
12 other than a participating co-operative;
13 participating co-operative means a foreign co-operative that is
14 registered, incorporated or formed under, or subject to, a
15 co-operatives law;
16 participating registrar means a person exercising the functions
17 of a registrar under a co-operatives law;
18 participating State means any State in which a co-operatives
19 law is in force;
20 State includes the Australian Capital Territory and the Northern
21 Territory.
22 366. What constitutes carrying on business
23 (1) For the purposes of this Part, a foreign co-operative carries on
24 business in this State if it --
25 (a) solicits for members in this State; or
26 (b) seeks share capital in this State, takes deposits in this
27 State or offers other securities in the co-operative in this
28 State; or
29 (c) provides any goods or services within this State.
page 213
Co-operatives Bill 2009
Part 14 Mutual recognition
Division 1 Introductory
s. 367
1 (2) A foreign co-operative is not to be regarded as carrying on
2 business in this State merely because in this State it --
3 (a) is or becomes a party to an action or suit or arbitration
4 proceeding; or
5 (b) effects settlement of an action, suit or proceeding or of a
6 claim or dispute; or
7 (c) holds meetings of its directors or members or carries on
8 other activities concerning its internal affairs; or
9 (d) maintains an account with an authorised deposit taking
10 institution; or
11 (e) effects a sale through an independent contractor; or
12 (f) solicits or procures an offer that becomes a binding
13 contract only if the offer is accepted outside this State;
14 or
15 (g) creates evidence of a debt or creates a charge on real or
16 personal property; or
17 (h) secures or collects any of its debts or enforces its rights
18 in regard to any securities relating to the debts; or
19 (i) conducts an isolated transaction that is completed within
20 a period of 31 days not being one of a number of similar
21 transactions repeated from time to time.
22 367. Co-operatives law
23 (1) A law of another State is a co-operatives law for the purposes of
24 this Part if the Minister certifies in writing that the law
25 substantially corresponds to the provisions of this Act, including
26 this Part.
27 (2) The Minister must notify the Minister administering a
28 co-operatives law in another State when the law is certified to
29 be a co-operatives law under this Division.
page 214
Co-operatives Bill 2009
Mutual recognition Part 14
Introductory Division 1
s. 368
1 368. Excluded matter
2 (1) A foreign co-operative authorised under this Part to carry on
3 business in this State is declared to be an excluded matter for
4 the purposes of the Corporations Act section 5F in relation to
5 the whole of the Corporations legislation other than to the extent
6 specified in this section.
7 (2) Subsection (1) does not exclude the application of the following
8 provisions of the Corporations legislation to foreign
9 co-operatives to the extent that those provisions would
10 otherwise be applicable to them --
11 (a) provisions relating to a matter that the regulations
12 provide is not to be excluded from the operations of the
13 Corporations Act;
14 (b) provisions relating to the role of a co-operative in the
15 formation of a company;
16 (c) provisions relating to substantial holdings of shares, by
17 or involving a co-operative, in a company;
18 (d) provisions conferring or imposing functions on a
19 co-operative as a member, or former member, of a
20 corporation;
21 (e) provisions relating to dealings by a co-operative in
22 financial products of a corporation, other than financial
23 products of the co-operative itself;
24 (f) provisions conferring or imposing functions on a
25 co-operative in its dealings with a corporation, not being
26 dealings in financial products of the co-operative;
27 (g) provisions relating to financial products of a
28 co-operative, other than shares in, co-operative capital
29 units in, debentures of or deposits with a co-operative;
30 (h) provisions relating to financial markets and participants
31 in financial markets;
32 (i) provisions relating to financial services licensees whose
33 licence covers dealing in, or providing advice about,
34 financial products;
page 215
Co-operatives Bill 2009
Part 14 Mutual recognition
Division 2 Mutual recognition of foreign co-operatives
s. 369
1 (j) provisions relating to carrying on a financial services
2 business;
3 (k) provisions relating to financial statements, and audits of
4 financial statements, of financial services licensees
5 whose licence covers dealing in, or providing advice
6 about, financial products;
7 (l) provisions relating to clients of financial services
8 licensees whose licence covers dealing in, or providing
9 advice about, financial products;
10 (m) provisions relating to registers of interests in financial
11 products;
12 (n) provisions relating to powers of a Court to cure
13 procedural irregularities and to make other orders.
14 (3) To remove doubt it is declared that subsection (1) does not
15 operate to exclude the operations of the following provisions of
16 the Corporations Act except in relation to shares in, CCUs
17 issued by, debentures of or deposits with a foreign
18 co-operative --
19 (a) Part 1.2A;
20 (b) Chapter 2L;
21 (c) Chapter 6CA;
22 (d) Chapter 6D;
23 (e) Part 7.10.
24 Division 2 -- Mutual recognition of foreign co-operatives
25 369. Operation of foreign co-operatives in this State
26 A foreign co-operative must not carry on business in this State
27 as a co-operative unless it is authorised under this Part to carry
28 on business in this State.
29 Penalty: a fine of $24 000.
page 216
Co-operatives Bill 2009
Mutual recognition Part 14
Mutual recognition of foreign co-operatives Division 2
s. 370
1 370. Authorisation to carry on business
2 (1) A participating co-operative is, by this Act, authorised to carry
3 on business in this State after notifying the Registrar in
4 accordance with section 372 that the participating co-operative
5 intends to carry on business in this State.
6 (2) The authorisation of a participating co-operative is subject to the
7 same conditions or restrictions that apply to the carrying on of
8 its business under its registration in the participating State.
9 (3) A non-participating co-operative is, by this Act, authorised to
10 carry on business in this State if the Registrar issues an
11 authorisation notice to the co-operative.
12 371. Registration under Companies (Co-operative) Act 1943
13 A company, as defined in the Companies (Co-operative)
14 Act 1943 section 328(1), that is registered under Part XI of that
15 Act immediately before the commencement of section 369 is
16 taken to be a foreign co-operative authorised under this Part of
17 this Act to carry on business in this State, and the Companies
18 (Co-operative) Act 1943 ceases to apply to that company.
19 372. Notification to Registrar
20 (1) A foreign co-operative that proposes to carry on business in this
21 State must lodge with the Registrar a written notice in the form
22 approved by the Registrar.
23 (2) The notice must be accompanied by the following --
24 (a) a statement signed by 2 directors, or a director and the
25 secretary of the co-operative, as to the following
26 matters --
27 (i) that the co-operative is able to pay its debts as
28 and when they become due and payable;
29 (ii) that the co-operative complies and will continue
30 to comply with the provisions of applicable laws
31 of another State or other place under which the
page 217
Co-operatives Bill 2009
Part 14 Mutual recognition
Division 2 Mutual recognition of foreign co-operatives
s. 372
1 co-operative is registered, incorporated or
2 formed;
3 (iii) that no legal proceedings have been commenced
4 or are pending against the co-operative in respect
5 of a failure to comply, in its capacity as a
6 co-operative, with a law of another State or any
7 other place in which the co-operative carries on
8 business under which the co-operative is
9 registered, incorporated, formed or authorised to
10 carry on business;
11 (iv) the full name and address of each person who is
12 to act as agent of the co-operative in this State;
13 (v) the address of the proposed principal office of
14 the co-operative in this State, if any;
15 (vi) the name under which the co-operative proposes
16 to carry on business in this State;
17 (b) a copy of the certificate of registration, incorporation or
18 formation of the co-operative and particulars of any
19 condition or restriction to which the registration,
20 incorporation or formation is subject;
21 (c) any other documents or information that the Registrar
22 may require or that are prescribed by the regulations;
23 (d) the fee prescribed by the regulations.
24 (3) In the case of a non-participating co-operative, the notice must
25 also be accompanied by the following --
26 (a) a copy of the current rules of the co-operative;
27 (b) a copy of the latest financial report, directors' report and
28 auditor's report for the co-operative;
29 (c) the full name, date of birth and address of each director
30 of the co-operative;
31 (d) details of the proposed business activities to be carried
32 on in this State;
page 218
Co-operatives Bill 2009
Mutual recognition Part 14
Mutual recognition of foreign co-operatives Division 2
s. 373
1 (e) details of any changes required to be registered under
2 this Act.
3 373. Authorisation notices for participating co-operatives
4 (1) Subject to subsection (2), the Registrar must, on a notice and
5 accompanying documents being lodged in accordance with
6 section 372 by a participating co-operative, issue to the
7 co-operative a written notice stating that the co-operative is
8 authorised to carry on business in this State.
9 (2) The Registrar may refuse to issue to the co-operative a written
10 notice under subsection (1) if the Registrar is satisfied that the
11 name under which the co-operative proposes to carry on
12 business in this State is likely to be confused with the name of a
13 corporation or a registered business name.
14 (3) A failure to issue a notice to a participating co-operative under
15 this section does not affect the authority of the co-operative to
16 carry on business in this State.
17 374. Authorisation notices for non-participating co-operatives
18 The Registrar may issue to a non-participating co-operative a
19 written notice stating that the co-operative is authorised to carry
20 on business in this State if a notice and accompanying
21 documents are lodged by the co-operative in accordance with
22 section 372 and the Registrar is satisfied that the rules of the
23 co-operative --
24 (a) comply with co-operative principles; and
25 (b) include acceptable active membership provisions; and
26 (c) provide procedures acceptable to the Registrar for
27 disclosure of information; and
28 (d) provide that a member has one vote only; and
29 (e) make adequate provision for the duties of directors; and
30 (f) provide for acceptable accounting standards for the
31 co-operative.
page 219
Co-operatives Bill 2009
Part 14 Mutual recognition
Division 2 Mutual recognition of foreign co-operatives
s. 375
1 375. Name of foreign co-operative
2 A foreign co-operative that is authorised to carry on business in
3 this State must do so under a name that is not likely to be
4 confused with the name of a corporation or a registered business
5 name.
6 376. When foreign co-operative not authorised to carry on
7 business
8 A foreign co-operative ceases to be authorised to carry on
9 business in this State if --
10 (a) it is deregistered or otherwise ceases to exist as a
11 co-operative under the laws of the place in which it is
12 registered, incorporated or formed; or
13 (b) its authority to carry on business in this State is
14 withdrawn under section 377; or
15 (c) the Registrar notifies it under section 383(3) that it is not
16 authorised to carry on business in this State; or
17 (d) in the case of a non-participating co-operative, the
18 Registrar decides not to issue an authorisation notice to
19 the co-operative.
20 377. Withdrawal of authority to carry on business
21 (1) The Registrar may give written notice to a foreign co-operative
22 requiring it to show cause (a show cause notice), within the
23 period specified in the notice, why its authority to carry on
24 business in this State should not be withdrawn on any one or
25 more of the following grounds --
26 (a) that the name under which the co-operative carries on
27 business or proposes to carry on business in this State
28 does not comply with this Division;
29 (b) that any of the statements, documents or information
30 notified or lodged by the co-operative under this
31 Division are materially false or misleading;
page 220
Co-operatives Bill 2009
Mutual recognition Part 14
Mutual recognition of foreign co-operatives Division 2
s. 378
1 (c) that the circumstances of the co-operative have
2 materially changed since the date the notice under
3 section 372 was lodged by the co-operative;
4 (d) that the co-operative has, after notice from the Registrar,
5 failed to comply with provisions of this Act applicable
6 to the co-operative or provisions of the rules of the
7 co-operative.
8 (2) A show cause notice may be given if the Registrar considers
9 that there are reasonable grounds to do so.
10 (3) The show cause notice must specify the period, being at least
11 14 days, within which it must be complied with.
12 (4) The foreign co-operative may, within the period specified in the
13 show cause notice, make oral or written submissions to the
14 Registrar and provide evidence with respect to any of the
15 matters to which the notice relates.
16 (5) The Registrar must consider any submissions made, or evidence
17 adduced, in compliance with subsection (4) and may, if the
18 Registrar is satisfied that any of the grounds referred to in
19 subsection (1) has been established in relation to the foreign
20 co-operative, give the co-operative a written notice withdrawing
21 its authority to carry on business in this State.
22 (6) The Registrar may withdraw a show cause notice or other notice
23 given under this section.
24 378. Appeals
25 A foreign co-operative may appeal to the Supreme Court against
26 the following decisions --
27 (a) a decision not to issue an authorisation notice to the
28 co-operative;
29 (b) a decision of the Registrar to give written notice to the
30 co-operative that it is not authorised to carry on business
31 in this State.
page 221
Co-operatives Bill 2009
Part 14 Mutual recognition
Division 3 General
s. 379
1 379. Application of Act and regulations to foreign co-operatives
2 The provisions of this Act specified in --
3 (a) Schedule 5; and
4 (b) the regulations,
5 apply, with all necessary modifications and any modifications
6 prescribed by the regulations, to a foreign co-operative that is
7 authorised to carry on business in this State under this Part.
8 Division 3 -- General
9 380. Name and place of origin to appear on business and other
10 documents
11 (1) The name and place of origin of a foreign co-operative must
12 appear in legible characters on its seal, and on any of the
13 following documents issued, signed or endorsed by or on behalf
14 of the co-operative --
15 (a) a bill of exchange, promissory note, cheque or other
16 negotiable instrument;
17 (b) a receipt or letter of credit issued by the co-operative;
18 (c) a document of a class prescribed by the regulations.
19 (2) If subsection (1) is contravened, the co-operative is guilty of an
20 offence.
21 Penalty: a fine of $2 000.
22 (3) An officer of a foreign co-operative or a person on its behalf
23 must not --
24 (a) use a seal of the co-operative; or
25 (b) sign or authorise to be signed on behalf of the
26 co-operative any document referred to in subsection (1),
27 in or on which the co-operative's name does not appear in
28 legible characters.
29 Penalty: a fine of $2 000.
page 222
Co-operatives Bill 2009
Mutual recognition Part 14
General Division 3
s. 381
1 (4) A director of a foreign co-operative who knowingly authorises
2 or permits a contravention of this section is guilty of an offence.
3 Penalty: a fine of $2 000.
4 381. Supply of information to participating Registrars
5 The Registrar must, if requested to do so by a participating
6 Registrar, supply free of charge to the participating Registrar
7 information, or copies of public documents, held by the
8 Registrar relating to a co-operative, including a foreign
9 co-operative.
10 382. Registrar to be notified of changes
11 A foreign co-operative must lodge with the Registrar particulars
12 of any change in the information provided by the co-operative
13 under section 372, other than section 372(3)(e), within 28 days
14 of the change.
15 Penalty: a fine of $2 000.
16 383. Cessation of business
17 (1) A foreign co-operative authorised to carry on business under
18 this Part must, within 7 days of ceasing to carry on business in
19 this State as a co-operative, give the Registrar written notice of
20 that fact.
21 Penalty: a fine of $6 000.
22 (2) On notifying the Registrar that it has ceased to carry on business
23 as a co-operative in this State, a foreign co-operative is no
24 longer required to comply with this Part, other than Division 4,
25 and cannot carry on business in this State as a co-operative.
26 (3) Unless the Registrar has been given written notice that the
27 foreign co-operative will resume carrying on business in this
28 State as a co-operative, the Registrar must, 12 months after
29 receiving the notice under subsection (1), notify the
30 co-operative that it is not authorised to carry on business in this
31 State.
page 223
Co-operatives Bill 2009
Part 14 Mutual recognition
Division 4 Winding-up of foreign co-operatives in this State
s. 384
1 (4) If a foreign co-operative which has given notice under
2 subsection (1) --
3 (a) gives written notice to the Registrar that it will resume
4 carrying on business as a co-operative in this State; and
5 (b) has not received notice from the Registrar that it is not
6 authorised to carry on business in this State,
7 the co-operative has authority to carry on business in this State
8 and must comply with this Part.
9 384. Functions conferred on Registrar under co-operatives law
10 The Registrar may exercise any function conferred on the
11 registrar by or under a co-operatives law.
12 Division 4 -- Winding-up of foreign co-operatives in this State
13 385. Winding-up to relate to State activities
14 (1) This Division applies to the winding-up of the affairs of a
15 foreign co-operative in or in relation to this State.
16 (2) A foreign co-operative may be wound-up under this Division
17 even though it has been wound-up or deregistered or has
18 otherwise ceased to exist as a co-operative under or because of
19 the laws of the place in which it is registered, incorporated or
20 formed.
21 (3) This Division has effect in addition to, and not in derogation of,
22 any other provisions of this Act or any other law with respect to
23 the winding-up of co-operatives.
24 386. Supreme Court may order winding-up
25 (1) The Supreme Court may order the winding-up of a foreign
26 co-operative if --
27 (a) the Registrar has, as a result of an inquiry conducted
28 under Part 15 Division 2 or 4, stated that it is in the
page 224
Co-operatives Bill 2009
Mutual recognition Part 14
Winding-up of foreign co-operatives in this State Division 4
s. 387
1 interest of the public, of the members, or of the
2 creditors, that the co-operative be wound-up; or
3 (b) the co-operative's authority to carry on business in this
4 State has been withdrawn under this Act; or
5 (c) the co-operative has been deregistered or has ceased to
6 exist as a co-operative in the place in which it was
7 registered, incorporated or formed or has ceased to carry
8 on business in that place.
9 (2) The Registrar may apply to the Supreme Court for the
10 winding-up of a foreign co-operative on any of the grounds
11 referred to in subsection (1).
12 (3) The Registrar must, as soon as possible after making an
13 application under this section, give a copy of the application to
14 the foreign co-operative the subject of the application.
15 387. Application of Corporations Act to winding-up of foreign
16 co-operatives
17 (1) The winding-up or deregistration or withdrawal of an authority
18 to carry on business in this State of a foreign co-operative is
19 declared to be an applied Corporations legislation matter for the
20 purposes of the Corporations (Ancillary Provisions) Act 2001
21 Part 3 in relation to the Corporations Act Parts 5.4B and 5.6 and
22 section 601AE.
23 (2) The Corporations Act Parts 5.4B and 5.6 are applied subject to
24 the modifications set out in Schedule 6.
25 (3) The Corporations Act section 601AE applies to property that
26 vests in the Registrar under section 388 as if the property were
27 vested in the Registrar under section 601AD(2) of that Act.
28 (4) The fact that a foreign co-operative has been deregistered or has
29 ceased to exist as a co-operative in the place in which it was
30 registered, incorporated or formed does not affect the liability of
31 a member or former member as a contributory on a winding-up
32 under this Division.
page 225
Co-operatives Bill 2009
Part 14 Mutual recognition
Division 5 Mergers and transfers of engagements
s. 388
1 388. Outstanding property of foreign co-operative
2 (1) This section applies if, after the winding-up of a foreign
3 co-operative in this State, outstanding property of the body
4 remains in this State.
5 (2) The estate and interest in the property, at law or in equity, of the
6 body or its liquidator at that time, together with all claims, rights
7 and remedies that the co-operative or its liquidator then had in
8 respect of the property, vests by force of this section in --
9 (a) if the co-operative was registered, formed or
10 incorporated in Australia or an external Territory, the
11 person entitled to the property under the law of the place
12 in which the co-operative was registered, formed or
13 incorporated; or
14 (b) in any other case, the Registrar.
15 (3) If any claim, right or remedy of a liquidator may under this
16 Division be made, exercised or availed of only with the
17 approval or concurrence of the Supreme Court or some other
18 person, the Registrar may, for the purposes of this section,
19 make, exercise or avail himself or herself of the claim, right or
20 remedy without the approval or concurrence.
21 Division 5 -- Mergers and transfers of engagements
22 389. Definitions
23 In this Division --
24 appropriate Registrar, in relation to a proposed merger or
25 transfer of engagements, means --
26 (a) the State Registrar, if the merger is to result in a State
27 co-operative or the transfer is to a State co-operative; or
28 (b) the participating Registrar, if the merger is to result in a
29 co-operative under the co-operatives law of the
30 participating State concerned or the transfer is to such a
31 co-operative;
page 226
Co-operatives Bill 2009
Mutual recognition Part 14
Mergers and transfers of engagements Division 5
s. 390
1 State co-operative means a co-operative registered in this State,
2 other than a foreign co-operative;
3 State Registrar means the Registrar of this State.
4 390. Authority for merger or transfer of engagements
5 (1) A State co-operative and a participating co-operative may
6 consolidate all or any of their assets, liabilities and undertakings
7 by way of merger or transfer of engagements approved under
8 this Division.
9 (2) A State co-operative and a non-participating co-operative may
10 consolidate all or any of their assets, liabilities and undertakings
11 by way of merger or transfer of engagements approved under
12 this Division if --
13 (a) the merger is to result in a State co-operative; or
14 (b) the transfer is to a State co-operative.
15 391. Requirements before application can be made
16 (1) Before a State co-operative and a participating co-operative can
17 apply for approval under this Division of a merger or transfer of
18 engagements, the proposed merger or transfer must have been
19 approved by each of the co-operatives by --
20 (a) a special resolution passed by special postal ballot; or
21 (b) if permitted by subsection (3), by a special resolution, or
22 by a resolution of the board, of the co-operative.
23 (2) Before a State co-operative and a non-participating co-operative
24 can apply for approval under this Division of a merger or
25 transfer of engagements, the proposed merger or transfer of
26 engagements --
27 (a) must have been approved --
28 (i) in the case of the non-participating co-operative,
29 by a special resolution of the co-operative; and
page 227
Co-operatives Bill 2009
Part 14 Mutual recognition
Division 5 Mergers and transfers of engagements
s. 392
1 (ii) in the case of the State co-operative, by a special
2 resolution passed by special postal ballot;
3 or
4 (b) if permitted by subsection (3), must have been
5 approved --
6 (i) in the case of the non-participating co-operative,
7 by a resolution of the board of the co-operative;
8 and
9 (ii) in the case of the State co-operative, by a special
10 resolution, or by a resolution of the board, of the
11 co-operative.
12 (3) The proposed merger or transfer of engagements may be
13 approved by special resolution, or by a resolution of the board,
14 of the co-operative if --
15 (a) the State Registrar consents to that procedure applying
16 in the particular case; and
17 (b) in the case of a merger or transfer affecting a
18 participating co-operative, the participating Registrar
19 also consents to that procedure applying in the particular
20 case.
21 (4) A consent referred to in subsection (3) may be granted subject
22 to conditions, including a condition that a disclosure statement
23 be provided to members or directors.
24 (5) A co-operative that contravenes a condition of a consent is
25 taken not to have been given consent.
26 392. Disclosure statement required
27 (1) A special resolution of a State co-operative or foreign
28 co-operative is not effective for the purposes of this Division
29 unless this section has been complied with.
30 (2) Section 186 does not apply where a special resolution by means
31 of special postal ballot is required under this Division.
page 228
Co-operatives Bill 2009
Mutual recognition Part 14
Mergers and transfers of engagements Division 5
s. 392
1 (3) Each co-operative must send to each of its members a disclosure
2 statement approved by the appropriate Registrar specifying --
3 (a) the financial position of the State co-operative and the
4 foreign co-operative as shown in financial statements
5 that have been prepared as at a date that is not more than
6 6 months before the date of the statement; and
7 (b) any interest that any officer of the State co-operative or
8 the foreign co-operative has in the proposed merger or
9 transfer of engagements; and
10 (c) any compensation or other consideration proposed to be
11 paid, or any other incentive proposed to be given, to any
12 officer or member of the State co-operative or foreign
13 co-operative in relation to the proposed merger or
14 transfer of engagements; and
15 (d) whether the proposal is a merger or transfer of
16 engagements and the reason for the merger or transfer of
17 engagements; and
18 (e) in the case of a transfer of engagements -- whether it is
19 a total or partial transfer of engagements; and
20 (f) in the case of a merger, whether the merged co-operative
21 will result in a State co-operative or a co-operative
22 under the co-operatives law of the participating State
23 concerned; and
24 (g) any other information that the Registrar directs.
25 (4) The disclosure statement must be sent to the members of the
26 State co-operative or foreign co-operative so that it will in the
27 ordinary course of post reach each member who is entitled to
28 vote on the special resolution not later than --
29 (a) if the resolution is to be decided at a meeting, 21 days
30 before the date of the meeting; or
31 (b) if the resolution is to be decided by a postal ballot,
32 21 days before the day on or before which the ballot
33 papers must be returned by members voting in the
34 ballot.
page 229
Co-operatives Bill 2009
Part 14 Mutual recognition
Division 5 Mergers and transfers of engagements
s. 393
1 (5) The appropriate Registrar may exempt the State co-operative or
2 foreign co-operative from complying with this section.
3 (6) The appropriate Registrar may grant an exemption, or approve a
4 disclosure statement, subject to any conditions the Registrar
5 considers appropriate.
6 393. Making an application
7 (1) An application for approval of a merger or transfer of
8 engagements under this Division must be made to the State
9 Registrar and, if the merger or transfer affects a participating
10 co-operative, to the Registrar for the participating State
11 concerned in the way and form required by the Registrar
12 concerned.
13 (2) An application for approval of a merger must be accompanied
14 by --
15 (a) 2 copies of the proposed rules of the merged
16 co-operative; and
17 (b) in the case of a non-participating co-operative, details of
18 voting on the special resolution, if any, of the
19 co-operative; and
20 (c) any other information required by the Registrar to whom
21 the application is made.
22 394. Approval of merger
23 (1) If the State Registrar is the appropriate Registrar, he or she must
24 approve a merger pursuant to an application under this Division
25 if satisfied that --
26 (a) this Division has been complied with in relation to the
27 application; and
28 (b) the proposed rules of the merged co-operative are
29 adequate; and
30 (c) the certificate of registration of the State co-operative
31 has been surrendered to the State Registrar; and
page 230
Co-operatives Bill 2009
Mutual recognition Part 14
Mergers and transfers of engagements Division 5
s. 395
1 (d) in the case of a merger with a participating co-operative,
2 the certificate of registration of the participating
3 co-operative has been surrendered to the Registrar for
4 the participating State concerned; and
5 (e) in the case of a merger with a non-participating
6 co-operative, the merged co-operative will comply with
7 this Act; and
8 (f) there is no good reason why the merged co-operative
9 and its rules should not be registered.
10 (2) If the State Registrar is not the appropriate Registrar, he or she
11 must approve a merger pursuant to an application under this
12 Division if satisfied that the merger has been approved under
13 the provision of the co-operatives law of the participating State
14 that corresponds with subsection (1).
15 (3) On approving an application for merger, the State Registrar
16 must --
17 (a) cancel the registration of the State co-operative involved
18 in the merger; and
19 (b) if the merger is to result in a State co-operative, register
20 the merged co-operative and its rules and issue to it a
21 certificate of registration under this Act.
22 (4) A merger takes effect on the issue of the certificate of
23 registration for the merged co-operative, whether under this Act
24 or under the co-operatives law of the participating State
25 concerned.
26 395. Approval of transfer of engagements
27 (1) If the State Registrar is the appropriate Registrar, he or she must
28 approve a transfer of engagements pursuant to an application
29 under this Division if satisfied that --
30 (a) this Division has been complied with in relation to the
31 application; and
page 231
Co-operatives Bill 2009
Part 14 Mutual recognition
Division 5 Mergers and transfers of engagements
s. 396
1 (b) the rules or proposed rules of the transferee co-operative
2 are adequate; and
3 (c) in the case of a total transfer of engagements from a
4 participating co-operative, the certificate of registration
5 of the participating co-operative has been surrendered to
6 the participating Registrar; and
7 (d) in the case of a total transfer of engagements from a
8 non-participating co-operative, the certificate of
9 registration of the non-participating co-operative has
10 been surrendered to the State Registrar; and
11 (e) in the case of a transfer of engagements by a
12 non-participating co-operative, the transferee
13 co-operative will comply with this Act; and
14 (f) there is no good reason why the transfer of engagements
15 should not take effect.
16 (2) If the State Registrar is not the appropriate Registrar, he or she
17 must approve a transfer of engagements pursuant to an
18 application under this Division if satisfied that the transfer has
19 been approved under the provision of the co-operatives law of
20 the participating State that corresponds with subsection (1).
21 (3) A transfer of engagements takes effect on the day specified in
22 the approval of the State Registrar.
23 396. Effect of merger or transfer of engagements
24 (1) In this section --
25 assets means any legal or equitable estate or interest (whether
26 present or future and whether vested or contingent) in real or
27 personal property of any description (including money) and
28 includes securities, choses in action and documents;
29 instrument means an instrument (other than this Act) that
30 creates, modifies or extinguishes rights or liabilities (or would
31 do so if lodged, filed or registered in accordance with any law)
32 and includes any judgment, order and process of a court;
page 232
Co-operatives Bill 2009
Mutual recognition Part 14
Mergers and transfers of engagements Division 5
s. 396
1 liabilities means liabilities, debts and obligations (whether
2 present or future and whether vested or contingent);
3 original co-operative means --
4 (a) in the case of a transfer of engagements, the transferor
5 co-operative; or
6 (b) in the case of a merger, each of the co-operatives that
7 are merging;
8 successor co-operative means --
9 (a) in the case of a transfer of engagements, the transferee
10 co-operative; or
11 (b) in the case of a merger, the co-operative formed by the
12 merger.
13 (2) When a merger or transfer of engagements takes effect under
14 this Division (the transition day), the following provisions
15 apply to the extent necessary to give effect to the merger or
16 transfer --
17 (a) persons who were members of the original co-operative
18 immediately before the transition day are members of
19 the successor co-operative in accordance with its rules;
20 (b) the assets of the original co-operative vest in the
21 successor co-operative without the need for any
22 conveyance, transfer, assignment or assurance;
23 (c) the rights and liabilities of the original co-operative
24 become the rights and liabilities of the successor
25 co-operative;
26 (d) all proceedings by or against the original co-operative
27 that are pending immediately before the transition day
28 are taken to be proceedings pending by or against the
29 successor co-operative;
30 (e) any act, matter or thing done or omitted to be done by,
31 to or in respect of the original co-operative before the
32 transition day is (to the extent to which that act, matter
33 or thing has any force or effect) to be taken to have been
page 233
Co-operatives Bill 2009
Part 14 Mutual recognition
Division 5 Mergers and transfers of engagements
s. 397
1 done or omitted by, to or in respect of the successor
2 co-operative;
3 (f) a reference in an instrument or in any document of any
4 kind to the original body is to be read as, or as including,
5 a reference to the new body.
6 (3) The operation of this section is not to be regarded --
7 (a) as a breach of contract or confidence or otherwise as a
8 civil wrong; or
9 (b) as a breach of any contractual provision prohibiting,
10 restricting or regulating the assignment or transfer of
11 assets, rights or liabilities; or
12 (c) as giving rise to any remedy by a party to an instrument,
13 or as causing or permitting the termination of any
14 instrument, because of a change in the beneficial or legal
15 ownership of any asset, right or liability.
16 397. Division applies instead of certain other provisions of
17 this Act
18 (1) This Division applies instead of Part 12 Division 1, in relation
19 to the merger of a State co-operative with a foreign
20 co-operative.
21 (2) This Division applies instead of Part 12 Division 1, in relation
22 to a transfer of engagements between a State co-operative and a
23 foreign co-operative.
page 234
Co-operatives Bill 2009
Supervision and protection of co-operatives Part 15
Supervision and protection Division 1
s. 398
1 Part 15 -- Supervision and protection of co-operatives
2 Division 1 -- Supervision and protection
3 398. Definitions
4 In this Part --
5 chief executive officer (DOCEP) means the chief executive
6 officer of the department of the Public Service principally
7 assisting the Minister in the administration of this Act;
8 co-operative venture means --
9 (a) any corporation or unit trust formed by a co-operative or
10 in the formation of which a co-operative participated; or
11 (b) any partnership, joint venture or association of persons
12 or bodies formed or entered into by a co-operative;
13 place includes all or part of a structure, building, aircraft,
14 vehicle, vessel and place, whether built on or not;
15 relevant documents means records or other documents that
16 relate to the promotion, formation, membership, control,
17 transactions, dealings, business or property of a co-operative.
18 399. Co-operative includes subsidiaries, foreign co-operatives and
19 co-operative ventures
20 A reference in this Part to a co-operative includes a reference to
21 each of the following --
22 (a) a foreign co-operative;
23 (b) a subsidiary of a co-operative or foreign co-operative;
24 (c) a co-operative venture;
25 (d) a co-operative or foreign co-operative, or a subsidiary of
26 either, or a co-operative venture, that is in the course of
27 being wound-up or has been deregistered.
page 235
Co-operatives Bill 2009
Part 15 Supervision and protection of co-operatives
Division 1 Supervision and protection
s. 400
1 400. Appointment of inspectors
2 The Registrar may appoint a person as an inspector under this
3 Act if --
4 (a) the chief executive officer (DOCEP) considers the
5 person has the necessary expertise or experience to be an
6 inspector; or
7 (b) the person has satisfactorily finished training approved
8 by the chief executive officer (DOCEP).
9 401. Registrar and investigators have functions of inspectors
10 The Registrar, and any investigator exercising functions under
11 Division 2, have and may exercise all the functions of an
12 inspector and for that purpose are to be considered to be
13 inspectors.
14 402. Inspector's identity card
15 (1) The Registrar must give each inspector an identity card.
16 (2) The identity card must --
17 (a) contain a recent photo of the person; and
18 (b) be signed by the person; and
19 (c) identify the person as an inspector.
20 (3) A person who stops being an inspector must return the person's
21 identity card to the Registrar as soon as possible, but within
22 21 days, after the person stops being an inspector, unless the
23 person has a reasonable excuse.
24 Penalty: a fine of $2 000.
25 (4) This section does not prevent the giving of a single identity card
26 to a person for this and other Acts or for other purposes.
page 236
Co-operatives Bill 2009
Supervision and protection of co-operatives Part 15
Supervision and protection Division 1
s. 403
1 403. Production or display of inspector's identity card
2 (1) An inspector may exercise a power in relation to someone only
3 if --
4 (a) the inspector first produces the inspector's identity card
5 for the other person's inspection; or
6 (b) the inspector has the inspector's identity card displayed
7 so it is clearly visible to the other person.
8 (2) However, if for any reason it is not practicable to comply with
9 subsection (1) before exercising the power, the inspector must
10 produce the identity card for inspection by the person at the first
11 reasonable opportunity.
12 404. Powers of inspector
13 (1) An inspector must act in accordance with the directions of the
14 Registrar.
15 (2) The powers of an inspector may be limited --
16 (a) under a regulation; or
17 (b) under a condition of appointment; or
18 (c) by written notice given by the Registrar to the inspector.
19 405. Inspector's appointment conditions
20 (1) An inspector holds office on the conditions stated in the
21 instrument of appointment.
22 (2) An inspector --
23 (a) if the appointment provides for a term of appointment,
24 stops holding office at the end of the term; and
25 (b) if the conditions of appointment provide, stops holding
26 office when the inspector stops holding another office
27 stated in the appointment conditions (the main office);
28 and
29 (c) may resign by signed notice of resignation given to the
30 Registrar.
page 237
Co-operatives Bill 2009
Part 15 Supervision and protection of co-operatives
Division 1 Supervision and protection
s. 406
1 (3) However, an inspector may not resign from the office under this
2 Act (the secondary office) if a term of employment to the main
3 office requires the person to hold the secondary office.
4 406. Entry of place
5 (1) An inspector may enter a place if --
6 (a) its occupier consents to the entry; or
7 (b) the entry is authorised by a warrant; or
8 (c) it is a place on which the affairs or activities of a
9 co-operative are managed or conducted.
10 (2) An inspector, without the occupier's consent or a warrant, may
11 enter the land around the place to ask its occupier for consent to
12 enter the place.
13 407. Consent to entry
14 (1) This section applies if an inspector intends to ask an occupier of
15 a place to consent to the inspector or another inspector entering
16 the place.
17 (2) Before asking for the consent, the inspector must inform the
18 occupier --
19 (a) of the purpose of the entry; and
20 (b) that the occupier is not required to consent.
21 (3) If the consent is given, the inspector may ask the occupier to
22 sign an acknowledgment of the consent.
23 (4) The acknowledgment must state --
24 (a) that the occupier was informed --
25 (i) of the purpose of the entry; and
26 (ii) that the occupier is not required to consent;
27 and
28 (b) that the occupier gives an inspector consent to enter the
29 place and exercise powers under this Act; and
page 238
Co-operatives Bill 2009
Supervision and protection of co-operatives Part 15
Supervision and protection Division 1
s. 408
1 (c) the time and date the consent was given.
2 (5) If the occupier signs an acknowledgment of consent, the
3 inspector must immediately give a copy to the occupier.
4 (6) Subsection (7) applies to a court if --
5 (a) a question arises, in a proceeding in or before the court,
6 as to whether the occupier of a place consented to an
7 inspector entering the place under this Act; and
8 (b) an acknowledgment under this section is not produced in
9 evidence for the entry; and
10 (c) it is not proved the occupier consented to the entry.
11 (7) The court may presume the occupier did not consent.
12 408. Inspectors may require certain persons to appear, answer
13 questions and produce documents
14 (1) An inspector may by notice in the form prescribed by the
15 regulations --
16 (a) require a co-operative to produce to the inspector at a
17 time and place specified in the notice specified relevant
18 documents relating to the co-operative; or
19 (b) require a person who is involved in the activities of a
20 co-operative to produce to the inspector at a time and
21 place specified in the notice specified relevant
22 documents relating to the co-operative; or
23 (c) require a person who is involved in the activities of a
24 co-operative --
25 (i) to attend before the inspector at a time and place
26 specified in the notice; and
27 (ii) to answer any questions put to the person by the
28 inspector relating to the promotion, formation,
29 membership, control, transactions, dealings,
30 business or property of the co-operative.
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Co-operatives Bill 2009
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1 (2) A person is to be considered to be involved in the activities of a
2 co-operative if the person --
3 (a) is or has been an officer or employee of, or an agent,
4 financial institution, legal practitioner, auditor or other
5 person acting in any capacity for the co-operative; or
6 (b) has relevant documents relating to the co-operative in
7 the person's possession or control; or
8 (c) was a party to the creation of relevant documents
9 relating to the co-operative.
10 (3) A person is not subject to any liability as a result of complying
11 with a requirement made or purportedly made under this
12 section.
13 409. Powers of inspectors on place entered
14 An inspector has the following powers on a place that the
15 inspector is authorised to enter --
16 (a) power to search for evidence of a contravention of this
17 Act;
18 (b) power to search for relevant documents and to require a
19 person on the place to produce to the inspector relevant
20 documents in the person's custody or under the person's
21 control;
22 (c) power to require a person on the place who is apparently
23 involved in the management or conduct of the affairs or
24 activities of a co-operative to answer questions or
25 provide information;
26 (d) power to exercise the functions of an inspector under
27 section 410 in relation to relevant documents found on
28 the place or produced to the inspector.
29 410. Functions of inspectors in relation to relevant documents
30 (1) An inspector has the following powers in relation to a relevant
31 document found by an inspector on a place entered by the
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1 inspector or produced to the inspector pursuant to a requirement
2 made under this Division --
3 (a) power to take possession of the document or secure it
4 against interference;
5 (b) power to make copies, or take extracts from, the
6 document;
7 (c) power to require a person who was party to the creation
8 of the document to make a statement giving any
9 explanation that the person is able to provide as to any
10 matter relating to the creation of the document or the
11 matters to which the document relates;
12 (d) power to retain possession of the document for the
13 period necessary to enable the document to be inspected,
14 and copies of, or extracts from, the document to be made
15 or taken.
16 (2) While an inspector retains possession of a document, the
17 inspector must permit a person who would be entitled to inspect
18 the document were it not in the possession of the inspector to
19 inspect the document at a reasonable time and make a copy of,
20 or take extracts from, the document.
21 (3) If an inspector takes possession of or secures against
22 interference a relevant document and a person has a lien on the
23 document, the inspector's actions do not prejudice the lien.
24 411. Protection from incrimination
25 (1) A person is not excused from making a statement under a
26 requirement under this Division on the ground that the statement
27 might tend to incriminate the person.
28 (2) If the person claims before making a statement that the
29 statement might tend to incriminate him or her, the statement is
30 not admissible in evidence against him or her in criminal
31 proceedings other than proceedings under this Division.
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1 (3) Except as provided by subsection (2), a statement made by a
2 person in compliance with a requirement under this Division
3 may be used in evidence in any criminal or civil proceedings
4 against the person.
5 412. Warrants
6 (1) An inspector may apply to a magistrate for a warrant to enter a
7 place.
8 (2) The application must be sworn and state the grounds on which
9 the warrant is sought.
10 (3) The magistrate may refuse to consider the application until the
11 inspector gives the magistrate all the information the magistrate
12 requires about the application in the way the magistrate
13 requires.
14 (4) The magistrate may issue the warrant only if satisfied there are
15 reasonable grounds for suspecting --
16 (a) there is a particular thing or activity that may provide
17 evidence of an offence against this Act; and
18 (b) that thing or activity is at the place, or may be at the
19 place, within the next 7 days.
20 (5) The warrant must state --
21 (a) that the inspector may, with reasonable and necessary
22 help and force, enter the place and exercise the
23 inspector's powers under this Act; and
24 (b) the offence for which the warrant was issued; and
25 (c) any evidence that may be seized under the warrant; and
26 (d) the hours when the place may be entered; and
27 (e) the date, within 7 days after the warrant's issue, when
28 the warrant ends.
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1 413. Warrants -- applications made other than in person
2 (1) An inspector may apply for a warrant by phone, fax, radio or
3 another form of communication if the inspector considers it
4 necessary because of --
5 (a) urgent circumstances; or
6 (b) other special circumstances, including, for example, the
7 inspector's remote location.
8 (2) Before applying for the warrant under subsection (1), the
9 inspector must prepare an application stating the grounds on
10 which the warrant is sought.
11 (3) The inspector may apply for the warrant before the application
12 is sworn.
13 (4) After issuing the warrant, the magistrate must immediately fax a
14 copy to the inspector if it is reasonably practicable to fax a copy.
15 (5) If it is not reasonably practicable to fax a copy to the
16 inspector --
17 (a) the magistrate must --
18 (i) tell the inspector what the terms of a warrant
19 applied for under subsection (1) are; and
20 (ii) tell the inspector the date and time the warrant
21 was issued;
22 and
23 (b) the inspector must complete a form of warrant (the
24 warrant form) and write on it --
25 (i) the magistrate's name; and
26 (ii) the date and time the magistrate issued the
27 warrant; and
28 (iii) the warrant's terms.
29 (6) The facsimile warrant, or the warrant form properly completed
30 by the inspector, authorises the entry and the exercise of the
31 other powers stated by the warrant issued by the magistrate.
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1 (7) The inspector must, at the first reasonable opportunity, send the
2 magistrate --
3 (a) the sworn application; and
4 (b) if the inspector completed a warrant form, the completed
5 warrant form.
6 (8) On receiving the documents, the magistrate must attach them to
7 the warrant.
8 (9) Subsection (10) applies to a court if --
9 (a) a question arises, in a proceeding in or before the court,
10 whether a power exercised by an inspector was
11 authorised by a warrant issued under this section; and
12 (b) the warrant is not produced in evidence.
13 (10) The court may presume the exercise of the power was not
14 authorised by a warrant issued under this section, unless the
15 contrary is proved.
16 414. Entry with warrant
17 (1) Before executing a search warrant, the inspector named in the
18 warrant or a person assisting the inspector must announce that
19 the inspector is authorised by the warrant to enter the place and
20 give any person at the place an opportunity to allow entry to the
21 premises.
22 (2) The inspector or a person assisting the inspector need not
23 comply with subsection (1) if the inspector believes on
24 reasonable grounds that immediate entry to the premises is
25 required to ensure the effective execution of the search warrant
26 is not frustrated.
27 (3) If an occupier or another person who apparently represents the
28 occupier is present at a place when a search warrant is being
29 executed, the inspector must --
30 (a) identify himself or herself to the person by producing
31 his or her identity card for inspection by the person; and
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1 (b) give to the person a copy of the execution copy of the
2 warrant.
3 415. General powers after entering places
4 (1) This section applies to an inspector who enters a place under
5 this Part.
6 (2) For monitoring or enforcing compliance with this Act, the
7 inspector may --
8 (a) search any part of the place; and
9 (b) examine, inspect, photograph or film anything on the
10 place; and
11 (c) copy a document on the place; and
12 (d) take into or onto the place any persons, equipment and
13 materials the inspector reasonably requires for
14 exercising a power under this Part; and
15 (e) require a person in the place to give the inspector
16 reasonable help to exercise the powers mentioned in
17 paragraphs (a) and (d).
18 (3) A person required to give reasonable help under
19 subsection (2)(e) must comply with the requirement, unless the
20 person has a reasonable excuse.
21 Penalty: a fine of $12 000 or imprisonment for one year.
22 (4) If the help is required to be given to an inspector by --
23 (a) answering a question; or
24 (b) producing a document, other than a document required
25 to be kept under this Act,
26 it is a reasonable excuse for the person to fail to answer the
27 question, or produce the document, if complying with the
28 requirement might tend to incriminate the person.
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Division 1 Supervision and protection
s. 416
1 416. Power to seize evidence
2 (1) An inspector who enters a place under this Part other than under
3 a warrant may seize a thing in the place if --
4 (a) the inspector reasonably believes the thing is evidence
5 of an offence against this Act; and
6 (b) seizure of the thing is consistent with the purpose of
7 entry as told to the occupier.
8 (2) An inspector who enters a place under this Part under a warrant
9 may seize the evidence for which the warrant was issued.
10 (3) An inspector may also seize a thing in a place referred to in
11 subsection (1) or (2) if the inspector believes --
12 (a) the thing is evidence of an offence against this Act; and
13 (b) the seizure is necessary to prevent the thing being
14 hidden, lost or destroyed or used to continue or repeat
15 the offence.
16 417. Receipt for seized things
17 (1) As soon as possible after an inspector seizes a thing, the
18 inspector must give a receipt for it to the person from whom it
19 was seized.
20 (2) However, if it is not practicable to comply with subsection (1),
21 the inspector must leave the receipt at the place of seizure, in a
22 reasonably secure way and in a conspicuous position.
23 (3) The receipt must describe generally each thing seized and its
24 condition.
25 418. Return of seized things
26 (1) An inspector must return a seized thing to its owner at the end
27 of --
28 (a) 6 months; or
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1 (b) if proceedings for an offence involving it are started
2 within the 6 months, the proceedings and any appeal
3 from the proceedings.
4 (2) Despite subsection (1), the inspector must return the seized
5 thing to the person immediately the inspector stops being
6 satisfied its retention as evidence is necessary.
7 419. Power to require name and address
8 (1) This section applies if --
9 (a) an inspector finds a person committing an offence
10 against this Act; or
11 (b) an inspector finds a person in circumstances that lead, or
12 has information that leads, the inspector to reasonably
13 suspect the person has just committed an offence against
14 this Act.
15 (2) The inspector may require the person to state the person's name
16 and address.
17 (3) When making the requirement the inspector must warn the
18 person it is an offence to fail to state the person's name or
19 address, unless the person has a reasonable excuse.
20 (4) The inspector may require the person to give evidence of the
21 correctness of the stated name or address if the inspector
22 reasonably suspects the stated name or address is false.
23 (5) A person must comply with a requirement under subsection (2)
24 or (4), unless the person has a reasonable excuse.
25 Penalty: a fine of $12 000 or imprisonment for one year.
26 (6) A person does not commit an offence against subsection (5)
27 if --
28 (a) the person was required to state the person's name and
29 address by an inspector who suspected the person had
30 committed an offence against this Act; and
31 (b) the person is not proved to have committed the offence.
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s. 420
1 420. False or misleading statements
2 (1) A person must not state anything to an inspector the person
3 knows is false or misleading in a material particular.
4 Penalty: a fine of $12 000 or imprisonment for one year.
5 (2) It is enough for a prosecution notice lodged for an offence
6 against subsection (1) to state the statement was false or
7 misleading to the person's knowledge without stating which.
8 421. Power to require production of documents
9 (1) An inspector may require a person to produce to the inspector,
10 for inspection, a document this Act requires the person to hold
11 or keep.
12 (2) The person must produce the document, unless the person has a
13 reasonable excuse for not producing it.
14 Penalty: a fine of $12 000 or imprisonment for one year.
15 (3) The inspector may keep a document that is produced --
16 (a) to take an extract from the document; or
17 (b) to make a copy of it.
18 (4) The inspector must return the document to the person as soon as
19 practicable after taking the extract or making the copy.
20 422. False or misleading documents
21 (1) A person must not give to the Registrar or an inspector a
22 document containing information the person knows is false or
23 misleading in a material particular.
24 Penalty: a fine of $12 000 or imprisonment for one year.
25 (2) Subsection (1) does not apply to a person who, when giving the
26 document --
27 (a) tells the Registrar or inspector, to the best of the
28 person's ability, how it is false, misleading or
29 incomplete; and
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s. 423
1 (b) if the person has, or can reasonably get, the correct
2 information, gives the correct information to the
3 Registrar or inspector.
4 (3) It is enough for a prosecution notice lodged against a person for
5 an offence against subsection (1) to state the document was
6 false, misleading or incomplete to the person's knowledge
7 without stating which.
8 423. Obstruction of inspectors
9 (1) In this section --
10 obstruct includes hinder and attempt to obstruct.
11 (2) A person must not obstruct an inspector, or a person helping an
12 inspector, in the exercise of a power under this Act, unless the
13 person has a reasonable excuse.
14 Penalty: a fine of $12 000 or imprisonment for one year.
15 (3) If a person obstructs an inspector in the exercise of a power
16 under this Act and the inspector decides to exercise the power,
17 the inspector must warn the person.
18 (4) In warning the person, the inspector must tell the person --
19 (a) it is an offence to obstruct the inspector, unless the
20 person has a reasonable excuse; and
21 (b) the inspector considers the person's conduct is an
22 obstruction.
23 424. Copies or extracts of records to be admitted in evidence
24 (1) Subject to this section, in any legal proceedings, whether under
25 this Act or otherwise, a copy of or extract from a record relating
26 to affairs of a co-operative is admissible in evidence as if it were
27 the original record or the relevant part of the original record.
28 (2) A copy of or extract from a record is not admissible in evidence
29 under subsection (1) unless it is proved that the copy or extract
30 is a true copy of the record or of the relevant part of the record.
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s. 425
1 (3) For the purposes of subsection (2), evidence that a copy of or
2 extract from a record is a true copy of the record or of a part of
3 the record may be given either orally or by an affidavit or
4 statutory declaration by a person who has compared the copy or
5 extract with the record or the relevant part of the record.
6 425. Privilege
7 (1) A legal practitioner is entitled to refuse to comply with a
8 requirement under section 408 or 410 relating to a relevant
9 document if --
10 (a) the document contains a privileged communication
11 made by or on behalf of or to the legal practitioner in his
12 or her capacity as a legal practitioner; or
13 (b) the legal practitioner is not able to comply with the
14 requirement without disclosing a privileged
15 communication made by or on behalf of or to the legal
16 practitioner in his or her capacity as a legal practitioner.
17 (2) The legal practitioner is not entitled to refuse to comply with the
18 requirement to the extent that he or she is able to comply with it
19 without disclosing the privileged communication.
20 (3) The legal practitioner is also not entitled to refuse to comply
21 with the requirement if the person by or on behalf of whom the
22 communication was made or (if the person is under
23 administration under the Corporations Act Part 5.3A as applying
24 under this Act, or in the course of being wound-up) the
25 administrator or the liquidator agrees to the legal practitioner
26 complying with the requirement.
27 (4) If the legal practitioner refuses to comply with the requirement,
28 he or she must immediately give in writing to the Registrar --
29 (a) the name and address of the person to whom or by or on
30 behalf of whom the communication was made, if known
31 to the legal practitioner; and
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s. 426
1 (b) enough particulars to identify the document containing
2 the communication, if the communication was made in
3 writing.
4 Penalty: a fine of $6 000.
5 Division 2 -- Inquiries
6 426. Definitions
7 In this Division --
8 affairs of a co-operative includes --
9 (a) the promotion, formation, membership, control,
10 transactions, dealings, business and property of the
11 co-operative; and
12 (b) loans made to the co-operative; and
13 (c) matters that are concerned with identifying people who
14 are, or have been, financially interested in the success or
15 failure, or apparent success or failure, of the
16 co-operative or who are, or have been, able to control or
17 influence materially the policies of the co-operative; and
18 (d) the circumstances in which a person placed, withdrew or
19 disposed of funds with, or loans to, the co-operative;
20 costs of an inquiry under this Division include --
21 (a) the expenses of, and incidental to, the inquiry; and
22 (b) the expenses payable by the Registrar in proceedings
23 instituted by the Registrar under this Division in the
24 name of the co-operative the subject of the inquiry; and
25 (c) the part of the remuneration of an officer or employee of
26 the State as the Minister decides is attributable to
27 matters connected with the inquiry;
28 investigator means a person appointed under section 427;
29 involved person, in relation to an inquiry into the affairs of a
30 co-operative, means --
31 (a) an officer of the co-operative; or
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Division 2 Inquiries
s. 427
1 (b) a person who acts, or has at any time acted, as financial
2 institution, legal practitioner, auditor or actuary, or in
3 another capacity, for the co-operative; or
4 (c) a person who has, or at any time had, in his or her
5 possession any property of the co-operative; or
6 (d) a person who is indebted to the co-operative; or
7 (e) a person who is capable of giving information relating to
8 the affairs of the co-operative; or
9 (f) a person whom an investigator believes on reasonable
10 grounds to be a person referred to in paragraphs (a)
11 to (e).
12 427. Appointment of investigators
13 (1) The chief executive officer (DOCEP) may appoint a person or
14 persons to hold an inquiry into the affairs of a co-operative if
15 the chief executive officer (DOCEP) considers that it is
16 desirable to do so for the protection, or otherwise in the
17 interests, of the public or of the members or creditors of the
18 co-operative.
19 (2) The chief executive officer (DOCEP) may vary the terms and
20 conditions of appointment of an investigator if the investigator
21 agrees to the variation.
22 (3) In the course of an inquiry into the affairs of a co-operative, an
23 investigator may inquire into the affairs of a subsidiary of the
24 co-operative that, if the subsidiary were the co-operative, would
25 be affairs of the co-operative.
26 (4) An inquiry into the affairs of a subsidiary of a co-operative may
27 be conducted as if the subsidiary were the co-operative.
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s. 428
1 428. Powers of investigators
2 (1) An investigator inquiring into the affairs of a co-operative may,
3 by giving an involved person a notice in a form approved by the
4 Registrar, require the person --
5 (a) to produce any document of which the person has
6 custody or control and that relates to those affairs; or
7 (b) to give the investigator all reasonable help with the
8 inquiry; or
9 (c) to appear before the investigator for examination on oath
10 or affirmation.
11 (2) An investigator may administer an oath or affirmation to an
12 involved person given a notice under subsection (1).
13 (3) An investigator may take possession of a document produced by
14 an involved person under subsection (1) and may retain it for
15 the period that the investigator decides is necessary for the
16 inquiry.
17 (4) While an investigator retains possession of a document, the
18 investigator must permit a person who would be entitled to
19 inspect the document were it not in the possession of the
20 investigator to inspect the document at any reasonable time and
21 make a copy of, or take extracts from, the document.
22 429. Examination of involved person
23 (1) A legal practitioner acting for an involved person --
24 (a) may attend an examination of the involved person by an
25 investigator; and
26 (b) may, to the extent that the investigator permits, address
27 the investigator and examine the involved person.
28 (2) An involved person is not excused from answering a question
29 asked by the investigator even if seeking to be excused on the
30 ground of possible self incrimination.
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s. 430
1 (3) If an involved person answers a question of an investigator after
2 having claimed possible self incrimination by doing so, neither
3 the question nor the answer is admissible in evidence in any
4 criminal proceedings other than --
5 (a) proceedings under section 431 for giving a false or
6 misleading answer to the question; or
7 (b) proceedings on a charge of perjury in respect of the
8 answer.
9 (4) An involved person who attends for examination by an
10 investigator is entitled to be paid the allowance and the
11 expenses prescribed by the regulations.
12 430. Privilege
13 (1) An involved person who is a legal practitioner is entitled to
14 refuse to produce a document to an investigator if the document
15 contains a privileged communication made by or on behalf of or
16 to the legal practitioner in his or her capacity as a legal
17 practitioner.
18 (2) The legal practitioner is not entitled to refuse to produce the
19 document if the person by or on behalf of whom the
20 communication was made or, if the person is under
21 administration under the Corporations Act Part 5.3A as applying
22 under this Act, or in the course of being wound-up, the
23 administrator or the liquidator agrees to the legal practitioner
24 producing the document.
25 (3) If the legal practitioner refuses to comply with the requirement
26 to produce a document, he or she must immediately give in
27 writing to the investigator --
28 (a) the name and address of the person to whom or by or on
29 behalf of whom the communication was made, if known
30 to the legal practitioner; and
31 (b) enough particulars to identify the document.
32 Penalty: a fine of $6 000.
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Inquiries Division 2
s. 431
1 431. Offences by involved person
2 (1) An involved person must not --
3 (a) fail to comply with a lawful requirement of an
4 investigator without showing reasonable cause for the
5 failure; or
6 (b) give an investigator information knowing the
7 information to be false or misleading in a material
8 particular; or
9 (c) when appearing before an investigator --
10 (i) make a statement knowing the statement to be
11 false or misleading in a material particular; or
12 (ii) fail to be sworn or to make an affirmation.
13 Penalty: a fine of $24 000 and imprisonment for 2 years.
14 (2) If an investigator considers that a failure by a person to comply
15 with a requirement of the investigator is an offence under
16 subsection (1)(a), the investigator may certify the failure to the
17 Supreme Court and the Court may then --
18 (a) order the involved person to comply with the
19 requirement of the investigator within a stated period; or
20 (b) instead of, or in addition to, making that order, punish
21 the involved person as for a contempt of the Court if
22 satisfied that there was no lawful excuse for the failure
23 to comply with the requirement of the investigator.
24 432. Offences relating to documents
25 If an inquiry into the affairs of a co-operative is being held
26 under this Division, a person who --
27 (a) conceals, destroys, mutilates or alters a document
28 relating to the co-operative; or
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Division 2 Inquiries
s. 433
1 (b) sends, or causes to be sent, out of the State a document
2 or other property that belongs to, or is under the control
3 of, the co-operative,
4 commits an offence unless it is established that the person
5 charged did not intend to defeat, delay or obstruct the inquiry.
6 Penalty: a fine of $12 000 and imprisonment for one year.
7 433. Record of examination
8 (1) Except as provided by section 429, a record of an examination
9 may be used in proceedings against the person examined, but
10 this does not preclude the admission of other written or oral
11 evidence.
12 (2) A person examined is, on written application made to the
13 investigator, entitled to a free copy of the record of examination.
14 (3) The Registrar may provide a legal practitioner with a copy of a
15 record of examination made by an investigator if the Registrar is
16 satisfied that the legal practitioner is conducting, or is in good
17 faith contemplating, legal proceedings in respect of affairs of
18 the co-operative to which the record relates.
19 (4) A legal practitioner must not --
20 (a) use a copy of a record of examination otherwise than for
21 the preparation for, institution of, or conduct of, legal
22 proceedings; or
23 (b) publish or communicate the record or any part of it for
24 any other purpose.
25 Penalty: a fine of $6 000.
26 434. Report of investigator
27 (1) An investigator may, and if directed by the Registrar to do so
28 must, make interim reports to the Registrar on any inquiry being
29 held by the investigator.
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s. 434
1 (2) As soon as practicable after the end of an inquiry, the
2 investigator must report to the Registrar --
3 (a) the opinion of the investigator in relation to the affairs of
4 the co-operative the subject of the inquiry; and
5 (b) the findings on which the opinion is based.
6 (3) An investigator's report may include a recommendation as to
7 whether --
8 (a) a direction should be made under section 437(3); or
9 (b) an application should be made under section 437(4)
10 or (5); or
11 (c) a direction and an application should both be made.
12 (4) A report by an investigator may be accompanied by any
13 document of which the investigator has taken possession after
14 being produced under this Division, in which case the
15 Registrar --
16 (a) may retain the document for the period that the Registrar
17 considers necessary in order to decide whether legal
18 proceedings should be instituted as a result of the
19 inquiry; and
20 (b) may retain the document for the further period that the
21 Registrar considers to be necessary to enable legal
22 proceedings to be instituted and prosecuted; and
23 (c) may permit the use of the document for legal
24 proceedings instituted as a result of the inquiry; and
25 (d) must permit inspection of the document by a person who
26 would be entitled to inspect it if it were returned to its
27 former custody; and
28 (e) may permit inspection of the document by another
29 person while it is in the possession of the Registrar but
30 only if the Registrar considers that the person has an
31 interest in the inquiry and, because of that interest,
32 refusal of the inspection would be unjust.
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Division 2 Inquiries
s. 435
1 435. Proceedings following inquiry
2 (1) If legal proceedings are to be, or have been, instituted by the
3 Registrar as a result of an inquiry under this Division, the
4 Registrar may, by written notice, require a person who, in
5 relation to the inquiry, was an involved person to give all
6 assistance in connection with the proceedings as the person is
7 reasonably able to give.
8 (2) The Supreme Court may, on the application of the Registrar,
9 order a person to comply with a requirement under
10 subsection (1) if the person has failed to do so.
11 (3) If the Registrar considers that, as a result of an inquiry under
12 this Division, legal proceedings should, in the public interest, be
13 instituted by a co-operative for the recovery of --
14 (a) damages for fraud or other misconduct in connection
15 with the affairs of the co-operative; or
16 (b) property of the co-operative,
17 the Registrar may institute and prosecute the proceedings in the
18 name of the co-operative.
19 436. Admission of investigator's report as evidence
20 (1) A document certified by the Registrar as being a copy of a
21 report of an inquiry under this Division is admissible as
22 evidence of any findings made by the investigator.
23 (2) Subsection (1) does not authorise the admission of evidence that
24 is inadmissible under section 429.
25 437. Costs of inquiry
26 (1) The costs of an inquiry under this Division are to be paid out of
27 money appropriated by Parliament.
28 (2) At the direction of the Minister, the Registrar must act under
29 one or more of subsections (3), (4) and (5).
page 258
Co-operatives Bill 2009
Supervision and protection of co-operatives Part 15
Prevention of fraud etc. Division 3
s. 438
1 (3) The Registrar may, by written notice given to a co-operative,
2 direct the co-operative to pay to the State all or part of the costs
3 of an inquiry under this Division into the affairs of the
4 co-operative.
5 (4) If proceedings are instituted by the Registrar under section 435
6 in the name of a co-operative, the Supreme Court may, in the
7 course of the proceedings and on the application of the
8 Registrar, order that all or part of the costs of the inquiry that
9 led to the proceedings be paid to the State by a specified party to
10 the proceedings.
11 (5) If a person is convicted of an offence in proceedings certified by
12 the Registrar to be the result of an inquiry into the affairs of a
13 co-operative, the Supreme Court may, on the application of the
14 Registrar made at the time of the conviction or not more than
15 14 days later, order the convicted person to pay to the State all
16 or part of the costs of the inquiry.
17 (6) A direction or an order under this section must state --
18 (a) the amount to be paid; and
19 (b) the time or times for payment; and
20 (c) the manner of payment.
21 (7) An amount that has not been paid by a person in accordance
22 with a direction or an order under this section is recoverable
23 from the person by the Registrar as a debt payable to the State.
24 Division 3 -- Prevention of fraud etc.
25 438. Falsification of records
26 A person must not make, order or allow to be made an entry or
27 erasure in, or any omission from --
28 (a) a record of a co-operative or a subsidiary of a
29 co-operative; or
page 259
Co-operatives Bill 2009
Part 15 Supervision and protection of co-operatives
Division 3 Prevention of fraud etc.
s. 439
1 (b) a record required to be sent, kept or delivered under
2 this Act,
3 with intent to falsify them or it, or to evade any of the
4 provisions of this Act.
5 Penalty: a fine of $6 000.
6 439. Fraud or misappropriation
7 (1) A person must not --
8 (a) by false representation or imposition, obtain possession
9 of any property of a co-operative; or
10 (b) having property of a co-operative in his or her
11 possession, withhold or misapply it or wilfully apply
12 part of it to purposes other than purposes authorised by
13 the rules of the co-operative or this Act.
14 Penalty: a fine of $6 000.
15 (2) A person who is found guilty of an offence under subsection (1)
16 must, if ordered to do so by the court, deliver up all the property
17 and repay all money improperly applied.
18 Penalty: a fine of $6 000.
19 440. Offering or paying commission
20 A person must not offer or pay a commission, fee or reward,
21 whether pecuniary or otherwise, to an officer of a co-operative
22 in relation to a transaction or proposed transaction between the
23 person and the co-operative.
24 Penalty: a fine of $6 000.
25 441. Accepting commission
26 (1) An officer of a co-operative must not accept a commission, fee
27 or reward, whether pecuniary or otherwise, from a person in
28 relation to a transaction or proposed transaction between the
29 person and the co-operative.
30 Penalty: a fine of $6 000.
page 260
Co-operatives Bill 2009
Supervision and protection of co-operatives Part 15
Miscellaneous powers of the Registrar Division 4
s. 442
1 (2) An officer of a co-operative who commits an offence under
2 subsection (1) is liable to make good to the co-operative double
3 the value or amount of the commission, fee or reward.
4 442. False statements in loan application etc.
5 (1) A person must not in or in relation to an application, request or
6 demand for money made to or of a co-operative --
7 (a) give information or make a statement to the co-operative
8 or an officer, employee or agent of the co-operative
9 knowing it to be false or misleading in a material
10 particular; or
11 (b) proffer to the co-operative or an officer, employee or
12 agent of the co-operative any information or statement
13 provided by another person knowing it to be false or
14 misleading in a material particular.
15 Penalty: a fine of $6 000.
16 (2) If a person is found guilty of an offence under subsection (1), a
17 co-operative from which money has been obtained by the
18 person in relation to the commission of the offence may
19 exercise all rights under a mortgage or other security given to it
20 by the person to secure the repayment of money that it could
21 exercise if there were a breach of a covenant or of a term of a
22 contract by which the security was given.
23 (3) The co-operative may exercise the rights whether the mortgage
24 or other security was executed by the person alone or by the
25 person and another person or other persons.
26 Division 4 -- Miscellaneous powers of the Registrar
27 443. Application for special meeting or inquiry
28 (1) The Registrar must, on the application of a majority of the
29 members of the board or of not less than one third in number of
30 the members of a co-operative --
31 (a) call a special meeting of the co-operative; or
page 261
Co-operatives Bill 2009
Part 15 Supervision and protection of co-operatives
Division 4 Miscellaneous powers of the Registrar
s. 444
1 (b) hold, or appoint an inspector to hold, an inquiry into the
2 affairs of the co-operative or of a subsidiary of the
3 co-operative.
4 (2) An application must be supported by the evidence that the
5 Registrar directs for the purpose of showing that the applicants
6 have good reason for requiring the meeting or inquiry and that
7 the application is made without malicious motive.
8 (3) Notice of the application must be given to the co-operative as
9 the Registrar directs.
10 (4) The applicants must give security for the expenses of the
11 meeting or inquiry as the Registrar directs.
12 444. Holding of special meeting
13 (1) The Registrar may direct the time and place at which a special
14 meeting of a co-operative under this Division is to be held and
15 the matters that are to be discussed and decided at the meeting.
16 (2) The Registrar must give such notice to members of the holding
17 of the special meeting as the Registrar considers appropriate,
18 despite any provision in the co-operative's rules as to the giving
19 of notice.
20 (3) The special meeting has all the powers of a meeting called in
21 accordance with the rules of the co-operative and has power to
22 appoint its own chairman, despite a rule of the co-operative to
23 the contrary.
24 (4) The Registrar or another person nominated by the Registrar may
25 attend and address the meeting.
26 445. Expenses of special meeting or inquiry
27 The expenses of and incidental to a special meeting called or an
28 inquiry held under this Division, including under section 446,
29 must be defrayed in the proportions the Registrar directs --
30 (a) by the applicants, if any; or
page 262
Co-operatives Bill 2009
Supervision and protection of co-operatives Part 15
Miscellaneous powers of the Registrar Division 4
s. 446
1 (b) out of the funds of the co-operative to which the meeting
2 or inquiry related or whose subsidiary was the subject of
3 the inquiry; or
4 (c) by any officer, member, former officer or former
5 member of the co-operative.
6 446. Power to hold special inquiry into co-operative
7 The Registrar may without an application hold, or appoint an
8 inspector to hold, an inquiry into the working and financial
9 condition of a co-operative or a subsidiary of a co-operative.
10 447. Special meeting following inquiry
11 (1) On completion of any inquiry under this Division, the Registrar
12 may call a special meeting of the co-operative.
13 (2) Sections 444 and 445 apply to such a meeting.
14 448. Information and evidence
15 (1) On an application for registration of a co-operative or
16 registration or approval of a rule or document under this Act,
17 the Registrar may require from the applicant information and
18 evidence as may be reasonable in order to show that the
19 application should be granted.
20 (2) The Registrar may require from any co-operative such
21 information and evidence as may be reasonable in order to show
22 that the co-operative is genuinely carrying on business in
23 accordance with the provisions of this Act.
24 (3) The Registrar may require from a co-operative evidence as the
25 Registrar considers appropriate of all matters required to be
26 done and of the entries in any document required to be given to
27 the Registrar under this Act.
28 449. Extension or abridgment of time
29 (1) The Registrar may grant an extension of, or may abridge, a time
30 for doing anything required to be done by a co-operative by this
page 263
Co-operatives Bill 2009
Part 15 Supervision and protection of co-operatives
Division 4 Miscellaneous powers of the Registrar
s. 450
1 Act, or the rules of a co-operative on the terms, if any, as the
2 Registrar decides.
3 (2) The Registrar may grant an extension of time even if the time
4 for doing the thing has expired.
5 450. Power of Registrar to intervene in proceedings
6 (1) The Registrar may intervene in proceedings relating to a matter
7 arising under this Act.
8 (2) When the Registrar intervenes in proceedings, the Registrar is
9 taken to be a party to the proceedings and, subject to this Act,
10 has all the rights, duties and liabilities of a party to the
11 proceedings.
12 (3) The Registrar may appear and be represented in any
13 proceedings in which the Registrar wishes to intervene under
14 this section --
15 (a) by a person to whom the Registrar has delegated the
16 Registrar's functions under this Act or the functions
17 relating to a matter to which the proceedings relate; or
18 (b) by an employee of the public service who is engaged in
19 the administration of this Act; or
20 (c) by a legal practitioner.
page 264
Co-operatives Bill 2009
Administration of this Act Part 16
The Registrar Division 1
s. 451
1 Part 16 -- Administration of this Act
2 Division 1 -- The Registrar
3 451. Registrar of Co-operatives
4 The Commissioner as defined in the Consumer Affairs Act 1971
5 section 4(1) is the Registrar of Co-operatives for the purposes of
6 this Act.
7 452. Deputy Registrar and other staff
8 (1) In this section --
9 department means the department of the Public Service
10 principally assisting the Minister in the administration of this
11 Act;
12 departmental officer means a public service officer employed
13 in the department;
14 designation means a designation under subsection (2);
15 employed in the department includes seconded to perform
16 functions or services for, or duties in the service of, the
17 department;
18 public service officer has the meaning given in the Public
19 Sector Management Act 1994 section 3(1).
20 (2) The Registrar is to designate a departmental officer to be a
21 deputy registrar and other departmental officers to be assistant
22 registrars.
23 (3) There are to be as many assistant registrars as are necessary to
24 perform the functions conferred on assistant registrars by this
25 Act or any other written law.
26 (4) A person ceases to be a deputy registrar or an assistant registrar
27 if the designation of the person is revoked or ceases to have
28 effect.
page 265
Co-operatives Bill 2009
Part 16 Administration of this Act
Division 1 The Registrar
s. 453
1 (5) The power to make a designation includes --
2 (a) the power to revoke a designation previously made; and
3 (b) the power to designate a person to perform functions of
4 another person who has that designation when it is
5 impractical for that other person to perform the
6 functions.
7 (6) A designation ceases to have effect if the person designated
8 ceases to be a departmental officer.
9 (7) The Registrar cannot delegate the power to make a designation
10 to another person.
11 (8) These are to be in writing --
12 (a) a designation; and
13 (b) a revocation of a designation.
14 453. Delegation by Registrar
15 (1) Subject to section 452, the Registrar may delegate to a person
16 any power or duty of the Registrar under another provision of
17 this Act.
18 (2) The delegation must be in writing signed by the Registrar.
19 (3) The delegation may expressly authorise the delegate to further
20 delegate the power or duty.
21 (4) A person exercising or performing a power or duty that has been
22 delegated to the person under or as authorised under this
23 section, is to be taken to do so in accordance with the terms of
24 the delegation unless the contrary is shown.
25 (5) Nothing in this section limits the ability of the Registrar to
26 perform a function through an officer or agent.
27 454. Registers to be kept by Registrar
28 (1) The Registrar is to keep --
29 (a) a register of co-operatives; and
page 266
Co-operatives Bill 2009
Administration of this Act Part 16
The Registrar Division 1
s. 455
1 (b) a register of foreign co-operatives,
2 in addition to the Register of Co-operative Charges established
3 under Schedule 3 clause 18, and the register of undertakings
4 referred to in section 472.
5 (2) The Registrar must record in a register documents, relating to an
6 entity or thing or proposed entity mentioned in subsection (1),
7 that are specified by the Registrar by order published in the
8 Gazette and anything else required by this Act to be recorded in
9 the Register.
10 455. Keeping of registers
11 (1) The Registrar must keep, in addition to the registers referred to
12 in section 454, any other registers that the Registrar considers
13 necessary or desirable for the purposes of this Act.
14 (2) Subject to section 454(2), a register must be kept in the form
15 and contain the particulars that the Registrar thinks fit.
16 (3) Subject to section 456, any document lodged with, furnished to
17 or registered by the Registrar under this Act must be kept in the
18 office of the Registrar.
19 456. Disposal of records by Registrar
20 Subject to the State Records Act 2000, the Registrar may, if the
21 Registrar considers that it is no longer necessary or desirable to
22 retain them, destroy or dispose of any of the following --
23 (a) an annual return or balance sheet lodged more than
24 7 years ago;
25 (b) a document creating or evidencing a charge, or the
26 complete or partial satisfaction of a charge, if a
27 memorandum of satisfaction of the charge was
28 registered more than 7 years ago;
29 (c) a document, other than the rules or a document affecting
30 the rules of a co-operative, that was lodged, given or
31 registered more than 15 years ago;
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Co-operatives Bill 2009
Part 16 Administration of this Act
Division 1 The Registrar
s. 457
1 (d) a document lodged, given or registered in relation to a
2 co-operative that was dissolved or ceased to be
3 registered more than 15 years ago;
4 (e) a document of which a transparency or electronic image
5 is incorporated in the register kept by the Registrar or is
6 otherwise kept in the office of the Registrar.
7 457. Inspection of registers
8 (1) Subject to subsection (2) a person may --
9 (a) inspect the registers kept by the Registrar, on payment
10 of the fee, if any, prescribed by the regulations; and
11 (b) inspect documents kept by the Registrar relating to a
12 co-operative and prescribed by the regulations, on
13 payment of the fee, if any, prescribed by the regulations;
14 and
15 (c) obtain an extract from a register inspected under
16 paragraph (a), on payment of the fee prescribed by the
17 regulations; and
18 (d) obtain a certified copy of a document that the person
19 may inspect under paragraph (b), on payment of the fee
20 prescribed by the regulations; and
21 (e) obtain a copy of a document that the person may inspect
22 under paragraph (b), on payment of the fee prescribed
23 by the regulations.
24 (2) A person who is not a member cannot inspect a membership list
25 kept by the Registrar.
26 (3) If a copy of a document or an extract of information contained
27 in a document and recorded in a register is produced for
28 inspection, a person is not entitled under subsection (1) to
29 require the production of the original of that document.
30 458. Approvals by Registrar
31 (1) This section applies to a provision of this Act that imposes a
32 requirement for the Registrar's approval of any action or thing.
page 268
Co-operatives Bill 2009
Administration of this Act Part 16
The Registrar Division 1
s. 459
1 (2) The Registrar may indicate in writing to an applicant for such an
2 approval that the approval is taken to have been granted at the
3 end of a specified period unless the Registrar informs the
4 applicant in writing within that period that the approval has not
5 been granted or is still being considered.
6 459. Lodgment of documents
7 A document is not lodged under this Act unless --
8 (a) all information required to be provided in or with the
9 document is provided; and
10 (b) the fee, if any, prescribed by the regulations has been
11 paid.
12 460. Way of lodging
13 (1) Subject to section 459, it is sufficient compliance with a
14 requirement under this Act that a document be lodged with the
15 Registrar if the Registrar receives a copy of the document by
16 facsimile or electronic transmission.
17 (2) If the Registrar receives from a person a copy of a document
18 under subsection (1), the Registrar may require that person to
19 produce and lodge the original within the time specified by the
20 Registrar.
21 (3) If the person does not comply with a requirement of the
22 Registrar within the specified time, the person is to be taken not
23 to have lodged the document.
24 461. Power of Registrar to refuse to register or reject documents
25 (1) The Registrar may refuse to register or may reject a document
26 submitted to the Registrar if the Registrar considers that the
27 document --
28 (a) contains matter contrary to law; or
29 (b) contains matter, that in a material particular, is false or
30 misleading in the form or context in which it is included;
31 or
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Co-operatives Bill 2009
Part 16 Administration of this Act
Division 2 Protection from liability
s. 462
1 (c) by reason of an omission or misdescription, has not been
2 duly completed; or
3 (d) does not comply with the requirements of this Act; or
4 (e) contains any error, alteration or erasure; or
5 (f) if submitted in electronic form, is not readily accessible
6 by the Registrar so as to be useable by the Registrar.
7 (2) If the Registrar refuses to register or rejects a document under
8 subsection (1), the Registrar may request --
9 (a) that the document be appropriately amended; or
10 (b) that a fresh document be submitted in its place; or
11 (c) if the document has not been duly completed, that a
12 supplementary document in the form approved by the
13 Registrar be submitted.
14 Division 2 -- Protection from liability
15 462. Particular persons protected from liability
16 (1) An action in tort does not lie against a person for anything that
17 the person has done, in good faith, in the performance or
18 purported performance of a function under this Act.
19 (2) The Registrar and the State are also relieved of any liability that
20 either of them might otherwise have had for a person having
21 done anything as described in subsection (1).
22 (3) The protection given by this section applies even though the
23 thing done as described in subsection (1) may have been
24 capable of being done whether or not this Act had been enacted.
25 (4) In this section, a reference to the doing of anything includes a
26 reference to an omission to do anything.
page 270
Co-operatives Bill 2009
Administration of this Act Part 16
Evidence Division 3
s. 463
1 Division 3 -- Evidence
2 463. Certificate of registration
3 (1) A certificate of registration of a co-operative issued under this
4 Act is evidence that the co-operative is incorporated under this
5 Act and that all the requirements of this Act in relation to
6 registration have been complied with.
7 (2) This section does not affect a provision of this Act for the
8 winding-up or deregistration of the co-operative or the
9 cancellation of its registration.
10 464. Certificate evidence
11 (1) If a function under this Act is conferred or imposed on the
12 Registrar as a consequence of something being done or omitted
13 to be done within a specified period, the Registrar may
14 certify --
15 (a) that the thing had or had not been done within that
16 period; or
17 (b) that the thing had or had not been done by a specified
18 date.
19 (2) The Registrar may issue a certificate stating that a requirement
20 of this Act specified in the certificate --
21 (a) had, or had not, been complied with at a date or within a
22 period specified in the certificate; or
23 (b) had been complied with at a date specified in the
24 certificate but not before that date.
25 (3) The Registrar may issue a certificate stating that on a date
26 specified in the certificate a body specified in the certificate was
27 not or had ceased to be registered as a co-operative under
28 this Act.
29 (4) A certificate given by the Registrar under this section is
30 evidence of the matters stated in the certificate.
page 271
Co-operatives Bill 2009
Part 16 Administration of this Act
Division 3 Evidence
s. 465
1 465. Records kept by co-operatives
2 (1) A record kept by a co-operative under a requirement of this Act
3 is admissible in evidence in any proceedings and is evidence of
4 any matter stated or recorded in the record.
5 (2) A document purporting to be a record kept by a co-operative is,
6 unless the contrary is proved, taken to be a record kept by the
7 co-operative under a requirement of this Act.
8 (3) A copy of an entry in a record regularly kept by a co-operative
9 in the course of its business is, if verified by statutory
10 declaration of the secretary to be a true copy of the entry, to be
11 received in evidence in any case where and to the same extent
12 as the original entry itself is admissible.
13 466. Minutes
14 (1) Every entry in the minutes purporting to be a minute of the
15 business transacted at a meeting of a co-operative or of the
16 board, and purporting to have been signed by the chairman at a
17 subsequent meeting, is evidence that the business recorded in
18 the minute was transacted at the meeting and that the meeting
19 was properly convened and held.
20 (2) An entry in the minutes of a meeting of a co-operative to the
21 effect that a resolution was carried or carried unanimously, or
22 was lost, is evidence of the fact without proof of the number or
23 proportion of votes recorded for or against the resolution.
24 467. Official certificates
25 (1) A certificate of registration given by the Registrar must be
26 received in evidence as if it were the original certificate.
27 (2) A certificate of registration or other official document relating
28 to a co-operative signed by or bearing the seal of the Registrar is
29 to be received in evidence without further proof.
page 272
Co-operatives Bill 2009
Administration of this Act Part 16
Enforceable undertakings Division 4
s. 468
1 (3) A copy of rules certified by the Registrar to be a true copy of
2 the rules of a co-operative is evidence of the registered rules of
3 the co-operative.
4 468. The Registrar and proceedings
5 (1) Judicial notice must be taken of the signature or the facsimile of
6 the signature, by whatever process it is produced, and seal of
7 any person who holds or has held the office of Registrar, if the
8 signature or facsimile signature or seal purports to be attached
9 to a certificate or other official document.
10 (2) This section extends to a copy of the rules of a co-operative
11 certified by the Registrar to be a true copy of its registered rules.
12 (3) In any proceedings, no proof is required, until evidence is given
13 to the contrary, of the appointment of the Registrar or a former
14 Registrar.
15 469. Rules
16 A printed copy of the rules of a co-operative verified by
17 statutory declaration of the secretary of the co-operative to be a
18 true copy of its registered rules is, in any proceedings, evidence
19 of the rules.
20 470. Registers
21 The register of directors, members and shares kept by a
22 co-operative as required by section 230(1)(a) is evidence of the
23 particulars directed or authorised by or under this Act to be
24 inserted in the register.
25 Division 4 -- Enforceable undertakings
26 471. Undertakings following contravention of, or failure to
27 comply with, this Act
28 (1) Where it appears to the Registrar that a person has engaged in
29 conduct that constitutes a contravention of or a failure to
30 comply with a provision of this Act, the Registrar may request
page 273
Co-operatives Bill 2009
Part 16 Administration of this Act
Division 4 Enforceable undertakings
s. 472
1 the person to execute, within the period of time specified by the
2 Registrar, a written undertaking in terms approved by the
3 Registrar under which the person gives undertakings as to --
4 (a) discontinuing the conduct; or
5 (b) complying with the Act in the future; or
6 (c) taking action to rectify the consequences of the
7 contravention or failure to comply.
8 (2) With the consent of the Registrar, the person may withdraw or
9 vary the undertaking at any time.
10 (3) The Registrar cannot start, and must discontinue, legal
11 proceedings against a person for conduct that is the subject of an
12 undertaking that has been given by the person, that has been
13 approved by the Registrar and that the person is complying
14 with.
15 472. Register of undertakings
16 (1) The Registrar must keep a register of undertakings in
17 accordance with this Act.
18 (2) If a person gives an undertaking under section 471, the Registrar
19 must register that document in the register of undertakings.
20 473. Enforcement orders
21 (1) The Registrar cannot make an application under this section if
22 the Registrar has started legal proceedings against the person for
23 conduct that is the subject of the undertaking to which the
24 application relates.
25 (2) Where a person fails to comply with a request to give an
26 undertaking under section 471, the Supreme Court may, on the
27 application of the Registrar and on being satisfied that there
28 were grounds for the request, order the person --
29 (a) to act in a manner that would have been required; or
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Co-operatives Bill 2009
Administration of this Act Part 16
Enforceable undertakings Division 4
s. 473
1 (b) to refrain from acting in a manner that would have been
2 prohibited,
3 by the undertaking if it had been given, and the person must
4 comply with the order.
5 Penalty: a fine of $10 000.
6 (3) Where, on the application of the Registrar, the Supreme Court is
7 satisfied that a person has failed to observe a term of an
8 undertaking given by the person under section 471, the Court
9 may make an order under subsection (4) against the person.
10 (4) The Supreme Court may order the person --
11 (a) to comply with the term of the undertaking within a time
12 specified in the order; or
13 (b) to pay to the State an amount up to the amount of any
14 financial benefit that the person has obtained directly or
15 indirectly and that is reasonably attributable to the
16 failure to observe the term of the undertaking; or
17 (c) to compensate any other person who has suffered loss,
18 injury or damage as a result of the failure to observe the
19 term of the undertaking; or
20 (d) to take any other action the Court considers appropriate.
21 (5) If --
22 (a) a failure on which an application under subsection (1)
23 or (2) is based is a failure by a corporation; and
24 (b) the Supreme Court is satisfied that a person, who at the
25 time of the failure was a director of the corporation or a
26 person concerned in its management, knowingly
27 authorised or permitted the failure by the corporation,
28 the Court may order the person to take the action required to
29 cause the corporation to observe the undertaking, and the person
30 must comply with the order.
31 Penalty: a fine of $10 000.
page 275
Co-operatives Bill 2009
Part 16 Administration of this Act
Division 4 Enforceable undertakings
s. 473
1 (6) An order under this section may be made subject to such
2 conditions as the Supreme Court sees fit.
3 (7) The Supreme Court may, on the application of the Registrar,
4 vary or discharge that order.
page 276
Co-operatives Bill 2009
Offences and proceedings Part 17
s. 474
1 Part 17 -- Offences and proceedings
2 474. Offences by officers of co-operatives
3 (1) If a co-operative contravenes a provision of this Act --
4 (a) any person who is a director of the co-operative or
5 concerned in its management is taken to have
6 contravened the same provision if the person knowingly
7 authorised or permitted the contravention; and
8 (b) any other officer of the co-operative who by a wilful act
9 or omission is the cause of the contravention is taken to
10 have contravened the same provision.
11 (2) A person may be proceeded against and convicted under a
12 provision pursuant to subsection (1) whether or not the
13 co-operative has been proceeded against or convicted under that
14 provision.
15 (3) This section does not affect any liability imposed on a
16 co-operative for an offence committed by the co-operative
17 against this Act.
18 475. Notice to be given of conviction for offence
19 If a co-operative or an officer of a co-operative is convicted of
20 an offence against a provision of this Act, the co-operative
21 must, within 28 days after the conviction is recorded, give to
22 each member of the co-operative notice of --
23 (a) the conviction; and
24 (b) any penalty imposed; and
25 (c) the nature of the offence.
26 476. Secrecy
27 (1) In this section --
28 divulge, in relation to information, means --
29 (a) to communicate the information orally; or
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Co-operatives Bill 2009
Part 17 Offences and proceedings
s. 476
1 (b) to make available a document containing the
2 information; or
3 (c) to make available anything from which, by electronic
4 process or otherwise, the information may be obtained;
5 or
6 (d) to communicate the information in any other manner;
7 repealed Act means the Companies (Co-operative) Act 1943 or
8 the Co-operative and Provident Societies Act 1903.
9 (2) A person who is, or at any time was, engaged in the
10 administration of this Act or a repealed Act must not, except as
11 provided by this section, record, make use of or divulge
12 information obtained in the course of the administration.
13 Penalty: a fine of $6 000.
14 (3) Subsection (2) does not apply to --
15 (a) the recording, making use of or divulging of information
16 in the course of the administration of this Act; or
17 (b) the recording or making use of information for the
18 purpose of divulging it as permitted by subsection (4)
19 or (5); or
20 (c) the divulging of information as permitted by
21 subsection (4).
22 (4) Information may be divulged --
23 (a) for the purposes of criminal proceedings; or
24 (b) for the purposes of any proceedings under this Act or of
25 an inquiry authorised by an Act; or
26 (c) with the consent of the person to whom the information
27 relates; or
28 (d) under section 381; or
29 (e) under a reciprocal arrangement under section 485.
30 (5) Information may be divulged to --
31 (a) the Minister; or
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Co-operatives Bill 2009
Offences and proceedings Part 17
s. 476
1 (b) the Treasurer; or
2 (c) the Commissioner of State Revenue; or
3 (d) the Auditor General; or
4 (e) the Commissioner of Taxation, a Second Commissioner
5 of Taxation or a Deputy Commissioner of Taxation
6 holding office under a law of the Commonwealth; or
7 (f) the Australian Securities and Investments Commission;
8 or
9 (g) the person who, under a law of another State, or of a
10 Territory, administers a law of the State or Territory that
11 relates to taxation or the imposition of a duty; or
12 (h) the Corruption and Crime Commission if the Registrar
13 has received a written request, under the Corruption and
14 Crime Commission Act 2003 for the information; or
15 (i) a person seeking information under an arrangement
16 under section 381 or 485; or
17 (j) a police officer exercising functions as a police officer;
18 or
19 (k) a person nominated by a person referred to in
20 paragraphs (a) to (g); or
21 (l) any person, to whom, in the opinion of the Registrar, it
22 is in the public interest that the information be divulged.
23 (6) For the purposes of this section, a person is, or was, engaged in
24 the administration of this Act or a repealed Act if the person
25 exercises, or at any time exercised, a function as --
26 (a) the Registrar holding office under this Act or a repealed
27 Act; or
28 (b) an inspector appointed under this Act or a repealed Act;
29 or
30 (c) an investigator appointed under this Act; or
31 (d) a person appointed or employed for the purposes of this
32 Act or a repealed Act.
page 279
Co-operatives Bill 2009
Part 17 Offences and proceedings
s. 477
1 477. False or misleading statements
2 (1) A person must not, in a document required for the purposes of
3 this Act or lodged with the Registrar make, or authorise the
4 making of, a statement knowing it to be false or misleading in a
5 material particular.
6 Penalty: a fine of $12 000.
7 (2) A person must not, from a document required for the purposes
8 of this Act or lodged with the Registrar omit, or authorise the
9 omission of, anything knowing that the omission makes the
10 document false or misleading in a material particular.
11 Penalty: a fine of $12 000.
12 (3) A person who, in a document required for the purposes of this
13 Act or lodged with the Registrar makes, or authorises the
14 making of, a statement that is false or misleading in a material
15 particular commits an offence unless it is proved that the person
16 had taken reasonable precautions aimed at avoiding the making
17 or authorising of false or misleading statements in such a
18 document.
19 Penalty: a fine of $6 000.
20 (4) If an omission makes a document required for the purposes of
21 this Act or lodged with the Registrar misleading in a material
22 respect, a person who made or authorised the omission commits
23 an offence unless it is proved that the person had taken
24 reasonable precautions aimed at avoiding the making or
25 authorising of omissions that would make such a document false
26 or misleading.
27 Penalty: a fine of $6 000.
28 478. Further offence for continuing failure to do required act
29 (1) If a provision of this Act requires an act to be done, the
30 obligation to do the act continues until the act is done --
31 (a) even if a person has been convicted of an offence in
32 relation to the failure to do the act; and
page 280
Co-operatives Bill 2009
Offences and proceedings Part 17
s. 479
1 (b) even if the provision required the act to be done within a
2 particular period or before a particular time and that
3 period has ended or that time has passed.
4 (2) If a person is convicted of an offence (a primary conviction) for
5 a failure to do the act, whether it is the first or a second or
6 subsequent offence in relation to the failure, and the failure to
7 do the act continues after the time of the conviction, the person
8 commits a further offence for that continuing failure.
9 (3) That further offence is constituted by the failure to do the act
10 during the period (the further offence period) that begins with
11 the primary conviction and ends when proceedings for the
12 further offence are commenced or the act concerned is done,
13 whichever happens first.
14 (4) Proceedings for the further offence are taken to have been
15 commenced on the day on which the information for the further
16 offence is laid or on an earlier day specified in the information
17 for that purpose.
18 (5) The penalty for the further offence is determined using the
19 following formula --
20 AxB=C
21 where --
22 A is 50 per centum (50%) of the amount specified in this Act to
23 be the monetary penalty for the initial offence; and
24 B is the number of days in the further offence period; and
25 C is the maximum penalty for the further offence.
26 479. Civil remedies
27 (1) If a co-operative, in making, guaranteeing or raising any loan or
28 receiving any deposit, contravenes this Act or a rule of the
29 co-operative, the civil rights and liabilities of the co-operative or
30 any other person in respect of the recovery of the loan or deposit
page 281
Co-operatives Bill 2009
Part 17 Offences and proceedings
s. 480
1 are not affected or prejudiced by the contravention, but the
2 money becomes immediately payable.
3 (2) The same remedies may be had for the recovery of the loan or
4 deposit and for the enforcement of any security for it as if there
5 had not been a contravention of this Act or of the rules of the
6 co-operative.
7 480. Injunctions
8 (1) This section applies to conduct that constituted, constitutes or
9 would constitute --
10 (a) a contravention of this Act; or
11 (b) attempting to contravene this Act; or
12 (c) aiding, abetting, counselling or procuring a person to
13 contravene this Act; or
14 (d) inducing or attempting to induce, whether by threats,
15 promises or otherwise, a person to contravene this Act;
16 or
17 (e) being in any way, directly or indirectly, knowingly
18 concerned in, or party to, the contravention by a person
19 of this Act; or
20 (f) conspiring with others to contravene this Act.
21 (2) On the application of --
22 (a) the Registrar; or
23 (b) a person whose interests are affected by conduct
24 engaged in by another person,
25 the Supreme Court, if satisfied that conduct is conduct to which
26 this section applies, may grant an injunction, on the terms the
27 Court considers appropriate, restraining a person from engaging
28 in the conduct and, if the Court considers it appropriate,
29 requiring that other person to do any act or thing.
30 (3) If the Supreme Court considers it appropriate, the Court may
31 grant an interim injunction pending a decision on the
32 application.
page 282
Co-operatives Bill 2009
Offences and proceedings Part 17
s. 481
1 (4) The Supreme Court may discharge or vary an injunction granted
2 under this section.
3 (5) The power of the Supreme Court to grant an injunction
4 restraining a person from engaging in conduct may be
5 exercised --
6 (a) whether or not it appears to the Court that the person
7 intends to engage again, or to continue to engage, in the
8 conduct; and
9 (b) whether or not the person has previously engaged in the
10 conduct; and
11 (c) whether or not there is an imminent danger of
12 substantial damage to another person if the
13 first-mentioned person engages in the conduct.
14 (6) The power of the Supreme Court to grant an injunction
15 requiring a person to do an act or thing may be exercised --
16 (a) whether or not it appears to the Court that the person
17 intends to refuse or fail again, or to continue to refuse or
18 fail, to do that act or thing; and
19 (b) whether or not the person has previously refused or
20 failed to do that act or thing; and
21 (c) whether or not there is an imminent danger of
22 substantial damage to any person if the first-mentioned
23 person refuses or fails to do that act or thing.
24 (7) If the Supreme Court has power under this section to grant an
25 injunction restraining a person from engaging in particular
26 conduct, or requiring a person to do a particular act or thing, the
27 Court may, either in addition to or in substitution for the grant
28 of the injunction, order that person to pay damages to any other
29 person.
30 481. Proceedings for offences etc.
31 (1) Proceedings for an offence under this Act may be instituted
32 within 3 years after the alleged commission of the offence.
page 283
Co-operatives Bill 2009
Part 17 Offences and proceedings
s. 481
1 (2) Proceedings for an offence may be instituted by the Registrar or
2 any aggrieved person.
3 (3) Proceedings for the recovery of any fine or penalty imposed by
4 the rules of a co-operative may be instituted only by the
5 co-operative.
page 284
Co-operatives Bill 2009
General Part 18
s. 482
1 Part 18 -- General
2 482. Co-operative ceasing to exist
3 (1) As soon as practicable after a co-operative ceases to exist, other
4 than on the deregistration of the co-operative under section 315,
5 the Registrar must deregister the co-operative by registering the
6 cessation and cancelling the registration of the co-operative.
7 (2) The Registrar may remove from the register the name of a
8 co-operative that has been deregistered or otherwise ceased to
9 exist.
10 (3) A co-operative that has transferred its engagements to another
11 co-operative is taken to have ceased to exist.
12 483. Service of documents on co-operative
13 (1) A document may be served on a co-operative by post or by
14 leaving it at the registered office of the co-operative with a
15 person who appears to be 16 years of age or more.
16 (2) A document may be served on a foreign co-operative --
17 (a) by post; or
18 (b) by leaving it with a person who appears to be 16 years
19 of age or more and is at a place where the foreign
20 co-operative carries on business in this State; or
21 (c) by leaving it at the registered office in this State of the
22 foreign co-operative registered under Part 14.
23 (3) For the purpose of serving a document under this section by
24 post, the document is properly addressed if --
25 (a) in the case of a co-operative, it is addressed to the
26 registered office of the co-operative; or
27 (b) in the case of a foreign co-operative, it is addressed to a
28 place in this State where the foreign co-operative carries
29 on business or to the registered office of the foreign
page 285
Co-operatives Bill 2009
Part 18 General
s. 484
1 co-operative in its place of registration, incorporation or
2 formation.
3 (4) This section does not affect the operation of any provision of a
4 law or of the rules of a court authorising a document to be
5 served on a co-operative or a foreign co-operative in another
6 way.
7 484. Service on member of co-operative
8 (1) A notice required under this Act to be given to a member of a
9 co-operative must be in writing.
10 (2) A notice or other document required under this Act to be given
11 to a member of a co-operative may be given --
12 (a) personally; or
13 (b) by leaving it with a person who appears to be 16 years
14 of age or more at the member's address; or
15 (c) by post; or
16 (d) by faxing it or emailing it to a fax number or email
17 address provided by the person; or
18 (e) by sending it to the member by other electronic means
19 (if any) nominated by the member; or
20 (f) by publishing the notice in a newspaper circulating
21 generally in this State or in the area served by the
22 co-operative, if --
23 (i) the co-operative is a non-distributing
24 co-operative; or
25 (ii) the member's whereabouts are unknown to the
26 co-operative; or
27 (iii) the Registrar permits notice to be given to
28 members of the co-operative in that way.
page 286
Co-operatives Bill 2009
General Part 18
s. 485
1 485. Reciprocal arrangements
2 (1) If a reciprocal arrangement with another State or a Territory is
3 in force, the Registrar --
4 (a) may, at the request of the appropriate official of the
5 State or Territory, give the official information or
6 documents relating to a co-operative; and
7 (b) may ask the appropriate official of the State or Territory
8 to give the Registrar documents or information relating
9 to an organisation that, under the arrangement, is an
10 organisation corresponding to a co-operative.
11 (2) A reciprocal arrangement with another State or a Territory is an
12 arrangement made between the Minister and a representative of
13 the government of the other State or the Territory under which it
14 is agreed --
15 (a) that the Registrar will comply with a request referred to
16 in subsection (1)(a); and
17 (b) that a request made by the Registrar to an official
18 designated in the arrangement as the appropriate official
19 for the purposes of subsection (1)(b) will be complied
20 with.
21 486. Translations of documents
22 A requirement imposed under this Act to give or lodge a
23 document or make a document available for inspection is, in the
24 case of a document that is not in the English language, taken to
25 include a requirement that a translation of the document be
26 given, lodged or made available for inspection at the same time.
27 487. Exemptions may be on conditions
28 An exemption under section 139(1), 226, 273(4), 288, 296
29 or 300(4) may be given on conditions.
30 488. Approval of forms
31 The Registrar may approve forms for use under this Act.
page 287
Co-operatives Bill 2009
Part 18 General
s. 489
1 489. Regulation making power
2 (1) The Governor may make regulations prescribing all matters that
3 are required or permitted by this Act to be prescribed or are
4 necessary or convenient to be prescribed for giving effect to the
5 purposes of this Act.
6 (2) Without limiting subsection (1), regulations may be made for or
7 in relation to the following --
8 (a) the making of applications for the exercise of a function
9 by the Registrar;
10 (b) the way documents are lodged with the Registrar,
11 including electronic lodgment and lodgment by
12 facsimile;
13 (c) fees to be paid in relation to the administration of this
14 Act including --
15 (i) fees for lodgment of any documents under this
16 Act; and
17 (ii) additional fees for late lodgment of any
18 documents under this Act.
19 (3) A regulation may create an offence punishable by a penalty of a
20 fine not exceeding $2 000.
21 490. Companies (Co-operative) Act 1943 repealed
22 The Companies (Co-operative) Act 1943 is repealed.
23 491. Co-operative and Provident Societies Act 1903 repealed
24 The Co-operative and Provident Societies Act 1903 is repealed.
page 288
Co-operatives Bill 2009
Transitional and savings provisions Part 19
Preliminary Division 1
s. 492
1 Part 19 -- Transitional and savings provisions
2 Division 1 -- Preliminary
3 492. Terms used in this Part
4 In this Part --
5 co-operative company means a co-operative company
6 registered under the Companies (Co-operative) Act 1943
7 Part VI;
8 former Act means --
9 (a) in relation to a co-operative company, the Companies
10 (Co-operative) Act 1943; and
11 (b) in relation to a registered society, the Co-operative and
12 Provident Societies Act 1903;
13 registered society means a society registered or deemed to be
14 registered under the Co-operative and Provident Societies
15 Act 1903;
16 transition period means the period beginning on the day on
17 which this Act comes into operation and ending on the day
18 before sections 490 and 491 come into operation.
19 493. Interpretation Act 1984 not affected
20 The transitional and savings provisions of this Act do not
21 prejudice or affect the application of the Interpretation Act 1984
22 to and in relation to the repeals effected by sections 490
23 and 491.
24 494. Transitional regulations
25 (1) If there is no sufficient provision in this Act for dealing with a
26 transitional matter, regulations under this Act may prescribe all
27 matters that are required or necessary or convenient to be
28 prescribed for dealing with the matter.
page 289
Co-operatives Bill 2009
Part 19 Transitional and savings provisions
Division 2 Prohibition on registration under former Act
s. 495
1 (2) Regulations made under subsection (1) may provide that
2 specified provisions of this Act --
3 (a) do not apply; or
4 (b) apply with specified modifications,
5 to or in relation to any matter.
6 (3) If regulations under subsection (1) provide that a specified state
7 of affairs is taken to have existed, or not to have existed, on and
8 from a day that is earlier than the day on which the regulations
9 are published in the Gazette but not earlier than the day this Act
10 comes into operation, the regulations have effect according to
11 their terms.
12 (4) In subsections (2) and (3) --
13 specified means specified or described in the regulations.
14 (5) If regulations contain a provision referred to in subsection (3),
15 the provision does not operate so as --
16 (a) to affect in a manner prejudicial to any person (other
17 than the State), the right of that person existing before
18 the day of publication of those regulations; or
19 (b) to impose liabilities on any person (other than the State
20 or an authority of the State) in respect of anything done
21 or omitted to be done before the day of publication of
22 those regulations.
23 Division 2 -- Prohibition on registration under former Act
24 495. Prohibition on registration under Companies (Co-operative)
25 Act 1943 or Co-operative and Provident Societies Act 1903
26 During the transition period, a corporation cannot --
27 (a) register as a co-operative company under the Companies
28 (Co-operative) Act 1943 Part VI; or
29 (b) register under the Companies (Co-operative) Act 1943
30 Part XI; or
page 290
Co-operatives Bill 2009
Transitional and savings provisions Part 19
Transfer to incorporation under this Act Division 3
s. 496
1 (c) register as a co-operative and provident society under
2 the Co-operative and Provident Societies Act 1903.
3 Division 3 -- Transfer to incorporation under this Act
4 496. Co-operative companies and registered societies to register
5 under this Act
6 (1) Unless subsection (2) applies, a co-operative company or a
7 registered society must apply for registration under Part 2
8 Division 5 not later than 3 months before the end of the
9 transition period.
10 (2) A co-operative company or a registered society is not required
11 to register as a co-operative under this Act if it has --
12 (a) applied for incorporation under another written law, and
13 not had that application refused; or
14 (b) in the case of a co-operative company, applied to the
15 Court for an order under the Companies (Co-operative)
16 Act 1943 Part IV Division 12 sanctioning a scheme for
17 reconstruction or amalgamation that will, when
18 implemented, result in the dissolution of the company,
19 and not had that application refused; or
20 (c) in the case of a registered society, passed a special
21 resolution under the Co-operative and Provident
22 Societies Act 1903 section 41 or 42 to amalgamate or
23 transfer its engagements and is proceeding to give effect
24 to that resolution; or
25 (d) in the case of a registered society, voted under the
26 Co-operative and Provident Societies Act 1903
27 section 46 to dissolve the society and is proceeding
28 towards dissolution; or
29 (e) commenced to be wound-up.
30 (3) The Companies (Co-operative) Act 1943 section 176A does not
31 prevent a co-operative company from becoming registered as a
32 co-operative under this Act.
page 291
Co-operatives Bill 2009
Part 19 Transitional and savings provisions
Division 3 Transfer to incorporation under this Act
s. 497
1 (4) The Co-operative and Provident Societies Act 1903 section 42
2 does not prevent a registered society from becoming registered
3 as a co-operative under this Act.
4 497. Decision of Registrar to register co-operative company or
5 registered society
6 (1) If a co-operative company or a registered society fails to comply
7 with section 496(1) the Registrar may decide to register --
8 (a) the company or society as a co-operative bearing the
9 corporate name determined by the Registrar; and
10 (b) rules for the co-operative, the content of which is
11 determined by the Registrar under subsection (2).
12 (2) The rules for the co-operative are the model rules amended --
13 (a) as the Registrar considers necessary having regard to the
14 circumstances of the co-operative; and
15 (b) in the case of a co-operative company, to comply with
16 the Companies (Co-operative) Act 1943 section 176C.
17 (3) If the Registrar decides under this section to register a
18 co-operative company or registered society as a co-operative the
19 Registrar must --
20 (a) ensure registration under the former Act is cancelled;
21 and
22 (b) issue to the co-operative a certificate of registration, and
23 a copy of its rules; and
24 (c) publish notice of the issue of the certificate in the
25 Gazette.
26 (4) On issue of the certificate of registration --
27 (a) registration and incorporation take effect; and
28 (b) section 35 applies as if a co-operative company or
29 registered society registered under this section was a
30 corporation registered under Part 2 Division 5.
page 292
Co-operatives Bill 2009
Transitional and savings provisions Part 19
General transitional provisions Division 4
s. 498
1 Division 4 -- General transitional provisions
2 498. Special resolutions, applications to the Court and court
3 orders
4 (1) A special resolution or court order is not to be given effect
5 under this section if to do so would cause a transferred
6 co-operative to be in contravention of this Act.
7 (2) If immediately before the transfer day a transferred
8 co-operative, as previously incorporated, has passed a special
9 resolution and the resolution has not been given effect, the
10 resolution is to be given effect under the former Act whether or
11 not that Act has been repealed.
12 (3) If immediately before the transfer day for a transferred
13 co-operative a person, or the co-operative as previously
14 incorporated, has applied to a court for an order in relation to
15 the co-operative as previously incorporated and the court has
16 not made an order on that application, the application is to be
17 considered, and any resulting order given effect, under the
18 former Act whether or not that Act has been repealed.
19 (4) If immediately before the transfer day for a transferred
20 co-operative the court has, in relation to that co-operative as
21 previously incorporated, made an order that has not been given
22 effect, the order is to be given effect under the former Act
23 whether or not that Act has been repealed.
24 499. Inspections or inquiry
25 (1) If immediately before the transfer day for a transferred
26 co-operative an inspection or inquiry into the affairs of the
27 co-operative as previously incorporated has started under the
28 Companies (Co-operative) Act 1943 and not been completed,
29 the inspection or inquiry is to be completed under that Act
30 whether or not it has been repealed.
page 293
Co-operatives Bill 2009
Part 19 Transitional and savings provisions
Division 4 General transitional provisions
s. 500
1 (2) For the purposes of this section, an inspection or inquiry is
2 completed when the findings of that inspection or inquiry are
3 reported.
4 (3) The reported findings of an inspection or inquiry completed
5 under subsection (1) in relation to a transferred co-operative
6 may, in relation to that co-operative, be used for any purpose
7 that the reported findings of an inquiry or inspection under this
8 Act may be used for.
9 500. Acquisition of shares of shareholders dissenting from
10 scheme or contract approved by majority
11 (1) This section applies to an offer by a company (the transferee) to
12 acquire shares in a co-operative company (the transferor) under
13 a scheme or contract.
14 (2) If immediately before the transfer day for a transferred
15 co-operative, an offer to acquire shares in the co-operative as
16 previously incorporated has been made but not completed, and
17 subsection (3) does not apply, the offer is to be completed under
18 the Companies (Co-operative) Act 1943 whether or not that Act
19 has been repealed.
20 (3) Part 13 Division 3 of this Act applies to an offer made during
21 the 4 month period ending on the transfer day.
22 (4) For the purposes of subsection (2), an offer is completed if --
23 (a) 6 months has expired since the making of the offer and
24 the transferee has not given a notice under the
25 Companies (Co-operative) Act 1943 section 160 to
26 dissenting shareholders; or
27 (b) the transferee has --
28 (i) acquired the shares of dissenting shareholders to
29 which the transferee gave notice; and
30 (ii) complied with any court order given on the
31 application of a dissenting shareholder under the
32 Companies (Co-operative) Act 1943 section 160.
page 294
Co-operatives Bill 2009
Transitional and savings provisions Part 19
Pending incorporation, reconstruction or winding-up Division 5
s. 501
1 501. Transitional provisions about active members
2 The Registrar may, for a particular transferred co-operative,
3 specify a period within which active membership provisions
4 under section 127 do not apply if it is a newly transferred
5 co-operative.
6 Division 5 -- Pending incorporation, reconstruction or
7 winding-up
8 502. Pending incorporation
9 If immediately before the day the former Acts are repealed a
10 co-operative company or registered society has passed a special
11 resolution to transfer to registration or incorporation under
12 another written law and the application for registration or
13 incorporation has been neither granted nor refused --
14 (a) the special resolution is to be given effect under the
15 former Act; and
16 (b) the company or society continues to be incorporated and
17 be regulated by the former Act until the application for
18 registration or incorporation is either granted or refused.
19 503. Pending reconstruction
20 (1) Subsection (2) applies if immediately before the day the former
21 Acts are repealed a co-operative company or registered society
22 is engaged in any of the following processes --
23 (a) in the case of a co-operative company, the company has
24 applied to the Court for an order under the Companies
25 (Co-operative) Act 1943 Part IV Division 12 sanctioning
26 a scheme for reconstruction or amalgamation that will,
27 when implemented, result in the dissolution of the
28 company, and not had that application refused;
29 (b) in the case of a registered society, the society has passed
30 a special resolution under the Co-operative and
31 Provident Societies Act 1903 section 41 or 42 to
page 295
Co-operatives Bill 2009
Part 19 Transitional and savings provisions
Division 5 Pending incorporation, reconstruction or winding-up
s. 504
1 amalgamate or transfer its engagements and is
2 proceeding to give effect to that resolution;
3 (c) in the case of a registered society, the society has voted
4 under the Co-operative and Provident Societies
5 Act 1903 section 46 to dissolve the society and is
6 proceeding towards dissolution.
7 (2) If a co-operative company or registered society is engaged in a
8 process referred to in subsection (1) --
9 (a) the process is to be completed under the former Act; and
10 (b) the company or society continues to be incorporated and
11 be regulated by the former Act until either the process is
12 completed or an event occurs that prevents the process
13 from being completed.
14 504. Pending wind-up
15 (1) If immediately before the day the former Acts are repealed a
16 co-operative company or registered society has started to be
17 wound-up but the winding-up has not been completed --
18 (a) the process of winding-up is to be completed under the
19 former Act; and
20 (b) the company or society continues to be incorporated
21 under and be regulated by the former Act until it is
22 dissolved.
23 (2) For the purposes of this section --
24 (a) the winding-up of a co-operative company or registered
25 society starts when a court has ordered the winding-up
26 or the company or society has passed a resolution for
27 winding-up; and
28 (b) the winding-up of a co-operative company or registered
29 society has been completed when the company or
30 society is dissolved.
page 296
Co-operatives Bill 2009
Consequential amendments Part 20
Consequential amendments commencing on registration of Division 1
Co-operative Bulk Handling Limited
s. 505
1 Part 20 -- Consequential amendments
2 Division 1 -- Consequential amendments commencing on
3 registration of Co-operative Bulk Handling Limited
4 505. Grain Marketing Act 2002 amended
5 (1) This section amends the Grain Marketing Act 2002.
6 (2) In section 48(2)(b) delete subparagraph (ii) and insert:
7
8 (ii) Co-operative Bulk Handling Limited, a
9 co-operative registered under the
10 Co-operatives Act 2009,
11
12 (3) In Schedule 1 clause 5(3) in the definition of CBH delete the
13 passage that begins with "a company" and ends with "1943."
14 and insert:
15
16 a co-operative registered under the Co-operatives Act 2009.
17
18 506. Local Government Act 1995 amended
19 (1) This section amends the Local Government Act 1995.
20 (2) In section 6.26(2)(i) delete "company" (each occurrence) and
21 insert:
22
23 co-operative
24
25 (3) In section 6.26(3) delete "company" and insert:
26
27 co-operative
28
page 297
Co-operatives Bill 2009
Part 20 Consequential amendments
Division 2 Consequential amendments commencing on commencement
of this Act
s. 507
1 Division 2 -- Consequential amendments commencing on
2 commencement of this Act
3 507. Civil Judgments Enforcement Act 2004 amended
4 (1) This section amends the Civil Judgments Enforcement Act 2004.
5 (2) In section 45 in paragraph (c) of the definition of financial
6 institution after "1903" insert:
7
8 , or a co-operative registered under the Co-operatives Act 2009
9 that is permitted under that Act to accept money on deposit
10
11 508. Criminal Property Confiscation Act 2000 amended
12 (1) This section amends the Criminal Property Confiscation
13 Act 2000.
14 (2) In the Glossary in paragraph (e) of the definition of financial
15 institution after "1903" insert:
16
17 , or a co-operative registered under the Co-operatives Act 2009
18 that is permitted under that Act to accept money on deposit
19
20 509. Equal Opportunity Act 1984 amended
21 (1) This section amends the Equal Opportunity Act 1984.
22 (2) In section 35N(1)(a) after "1903" insert:
23
24 or of a co-operative registered under the Co-operatives Act 2009
25
26 (3) In section 66ZS(1)(a)(i) after "1903" insert:
27
28 or of a co-operative registered under the Co-operatives Act 2009
page 298
Co-operatives Bill 2009
Consequential amendments Part 20
Consequential amendments commencing on repeal of former Division 3
Acts
s. 510
1
2 (4) In section 69(1)(b)(i) after "1903" insert:
3
4 or of a co-operative registered under the Co-operatives Act 2009
5
6 510. Taxi Act 1994 amended
7 (1) This section amends the Taxi Act 1994.
8 (2) In section 3(3)(b) after "1943" insert:
9
10 and a co-operative incorporated under the Co-operatives
11 Act 2009
12
13 511. Western Australian Treasury Corporation Act 1986 amended
14 (1) This section amends the Western Australian Treasury
15 Corporation Act 1986.
16 (2) After Schedule 1 item 6 insert:
17
7A. Co-operatives registered under the Co-operatives Act 2009.
18
19 Division 3 -- Consequential amendments commencing on
20 repeal of former Acts
21 512. Civil Judgments Enforcement Act 2004 amended
22 (1) This section amends the Civil Judgments Enforcement Act 2004.
23 (2) In section 45 in paragraph (c) of the definition of financial
24 institution delete "a society registered or deemed to be
25 registered under the Co-operative and Provident Societies
26 Act 1903, or".
page 299
Co-operatives Bill 2009
Part 20 Consequential amendments
Division 3 Consequential amendments commencing on repeal of former
Acts
s. 513
1 513. Criminal Property Confiscation Act 2000 amended
2 (1) This section amends the Criminal Property Confiscation
3 Act 2000.
4 (2) In the Glossary in paragraph (e) of the definition of financial
5 institution delete "a registered society within the meaning of the
6 Co-operative and Provident Societies Act 1903, or".
7 514. Equal Opportunity Act 1984 amended
8 (1) This section amends the Equal Opportunity Act 1984.
9 (2) In section 35N(1)(a) delete "of a society registered under the
10 Co-operative and Provident Societies Act 1903 or".
11 (3) In section 66ZS(1)(a)(i) delete "of a society registered under the
12 Co-operative and Provident Societies Act 1903 or".
13 (4) In section 69(1)(b)(i) delete "of a society registered under the
14 Co-operative and Provident Societies Act 1903 or".
15 515. Housing Loan Guarantee Act 1957 amended
16 (1) This section amends the Housing Loan Guarantee Act 1957.
17 (2) In section 5(1)(a) delete "or Co-operative and Provident
18 Societies Act 1903".
19 (3) In section 10 delete "or Co-operative and Provident Societies
20 Act 1903".
21 516. Local Government Act 1995 amended
22 (1) This section amends the Local Government Act 1995.
23 (2) In section 5.74 in the definition of corporation:
24 (a) delete paragraph (d) and "or" after it;
25 (b) after each of paragraphs (a) and (b) insert:
26
27 or
28
page 300
Co-operatives Bill 2009
Consequential amendments Part 20
Consequential amendments commencing on repeal of former Division 3
Acts
s. 517
1 517. Taxi Act 1994 amended
2 (1) This section amends the Taxi Act 1994.
3 (2) In section 3(3)(b) delete "a company within the meaning of the
4 Companies (Co-operative) Act 1943, and".
5 518. Western Australian Treasury Corporation Act 1986 amended
6 (1) This section amends the Western Australian Treasury
7 Corporation Act 1986.
8 (2) In Schedule 1 delete items 5 and 6.
page 301
Co-operatives Bill 2009
Schedule 1 Matters for which rules must make provision
cl. 1
1 Schedule 1 -- Matters for which rules must make provision
2 [s. 98]
3 1. Requirements for all co-operatives
4 The rules of all co-operatives must set out or make provision for each
5 of the following --
6 (a) the name of the co-operative;
7 (b) active membership provisions (within the meaning of Part 6);
8 (c) the mode and conditions of admission to membership, and the
9 payment to be made or the share or interest to be acquired
10 before rights of membership are exercised;
11 (d) the rights and liabilities of members, of the estates of
12 deceased members, and of representatives of members under
13 bankruptcy or mental incapacity;
14 (e) the circumstances in which members may be expelled or
15 suspended, and the rights and liabilities of expelled and
16 suspended members;
17 (f) the circumstances in which membership ceases;
18 (g) the charges or subscriptions that are payable by a member to
19 the co-operative;
20 (h) the circumstances in which fines and forfeitures may be
21 imposed on members of the co-operative, and the amount of
22 the fines (being not more than the maximum amount
23 prescribed by the regulations);
24 (i) the grievance procedures for settling disputes under the rules
25 between the co-operative and any of its members as defined
26 in section 79(4), or between a member and another member;
27 (j) the restrictions, if any, on the powers of the co-operative and
28 the board;
29 (k) the number of directors, the qualification of directors, the way
30 of electing, remunerating and removing directors and filling a
31 vacancy, the period for which directors are to hold office,
32 whether directors are to retire by rotation or otherwise, and
33 the holding of elections;
34 (l) the quorum for, and the procedure at, meetings of the board;
page 302
Co-operatives Bill 2009
Matters for which rules must make provision Schedule 1
cl. 2
1 (m) the design, custody and use of the seal of the co-operative;
2 (n) the manner in which the funds of the co-operative are to be
3 managed, and in particular the mode of drawing and signing
4 cheques, drafts, bills of exchange, promissory notes, and
5 other negotiable instruments for and on behalf of the
6 co-operative;
7 (o) the custody of securities belonging to the co-operative;
8 (p) the way in which debentures are to be transferred;
9 (q) the date on which the financial year of the co-operative ends;
10 (r) the auditing of the financial reports of the co-operative, and
11 the appointing of the auditor;
12 (s) the way in which a loss that results from the transactions of
13 the co-operative is to be dealt with;
14 (t) the procedure for calling general and special meetings, the
15 requisite notices of meetings, and the quorum for meetings, of
16 the co-operative;
17 (u) the procedure at meetings of the co-operative, including the
18 rights of members in voting at meetings, the manner of
19 voting, and the majority necessary for carrying resolutions;
20 (v) the method of conducting postal ballots, including special
21 postal ballots, and the sending and lodgment of information
22 and votes by facsimile or electronic means;
23 (w) the way of altering the rules;
24 (x) the way in which the co-operative may be wound-up;
25 (y) a matter prescribed by the regulations for the purposes of this
26 clause;
27 (z) a matter that the co-operative considers needs to be provided
28 for in the rules.
29 2. Additional matters -- co-operatives with share capital
30 In addition to the matters specified in clause 1, the rules of a
31 co-operative with a share capital must set out or make provision for
32 each of the following --
33 (a) the nominal value of each share in the co-operative;
page 303
Co-operatives Bill 2009
Schedule 1 Matters for which rules must make provision
cl. 3
1 (b) the amount of the contingent liability, if any, attaching to
2 shares;
3 (c) the terms on which shares, not including bonus shares but
4 including shares, if any, with a contingent liability attached to
5 them, are to be issued;
6 (d) the periodic subscriptions by which or the way in which
7 shares are to be paid for;
8 (e) in the case of a distributing co-operative, the manner in which
9 a surplus may be distributed;
10 (f) the allocation of a deficiency on the winding-up of a
11 co-operative;
12 (g) the forfeiture of shares on expulsion or on failure to pay a
13 subscription or call, the extent to which members whose
14 shares have been forfeited are to remain liable for an amount
15 still unpaid for them, and the sale or cancellation of forfeited
16 shares;
17 (h) the way in which shares are to be transferred;
18 (i) a matter prescribed by the regulations.
19 3. Additional matters -- non-distributing co-operatives
20 (1) In addition to the matters specified in clauses 1 and 2, the rules of a
21 non-distributing co-operative must provide --
22 (a) that there must be no return or distribution on surplus or share
23 capital to members other than the nominal value of shares, if
24 any, at winding-up; and
25 (b) for the way of distribution of the surplus property at
26 winding-up.
27 (2) In addition to the matters specified in clauses 1 and 2, the rules of a
28 non-distributing co-operative that has operated as a mutual may
29 provide that --
30 (a) surplus funds are payable only to members who have paid
31 contributions to the co-operative and have a credit balance in
32 their member's ledger; and
33 (b) the payment of surplus funds is limited to the return of the
34 contributions paid by the member to the co-operative and the
35 nominal paid up value of the shares, if any.
page 304
Co-operatives Bill 2009
Relevant interests, associates, related bodies Schedule 2
Relevant interests Division 1
cl. 1
1 Schedule 2 -- Relevant interests, associates, related bodies
2 [s. 4(1)]
3 Division 1 -- Relevant interests
4 1. Terminology used in this Schedule
5 (1) This clause applies for the purposes of this Division.
6 (2) Power to vote in relation to a right to vote is power to exercise, or to
7 control the exercise of, the right to vote.
8 (3) A reference to power to dispose of a share includes a reference to
9 power to exercise control over the disposal of the share.
10 (4) A reference to power or control includes a reference to power or
11 control that is direct or indirect or is, or can be, exercised as a result
12 of, by means of, in breach of, or by revocation of, trusts, agreements
13 and practices, or any of them, whether or not they are enforceable.
14 (5) Power to vote in relation to a right to vote, or power to dispose of a
15 share, that is exercisable by 2 or more persons jointly is taken to be
16 exercisable by either or any of those persons.
17 (6) A reference to a controlling interest includes a reference to an interest
18 that gives control.
19 2. Basic rules -- relevant interests
20 (1) A person who has power to vote in relation to a right to vote has a
21 relevant interest in the right to vote.
22 (2) A person who has power to dispose of a share has a relevant interest
23 in the share.
24 3. Control of corporation having power in relation to a share
25 If a corporation has, or is by this Division taken to have --
26 (a) power to vote in relation to a right to vote; or
page 305
Co-operatives Bill 2009
Schedule 2 Relevant interests, associates, related bodies
Division 1 Relevant interests
cl. 4
1 (b) power to dispose of a share,
2 a person is taken for the purposes of this Division to have in relation
3 to the right to vote or the share the same power as the corporation has,
4 or is taken to have, if --
5 (c) the corporation is, or its directors are, accustomed or under an
6 obligation, whether formal or informal, to act in accordance
7 with the directions, instructions or wishes of the person in
8 relation to the exercise of the power referred to in
9 paragraph (a) or (b); or
10 (d) the person has a controlling interest in the corporation.
11 4. Control of 20% of voting power in corporation having power in
12 relation to a share
13 If a corporation or an associate of a corporation has, or is by this
14 Division (other than this clause) taken to have --
15 (a) power to vote in respect of a right to vote; or
16 (b) power to dispose of a share,
17 a person is taken for the purposes of this Division to have in relation
18 to the right to vote or the share the same power as the corporation or
19 associate has, or is taken to have, if --
20 (c) the person has; or
21 (d) an associate of the person has; or
22 (e) associates of the person together have; or
23 (f) the person and an associate or associates of the person
24 together have,
25 power to vote in relation to the right to vote attached to not less than
26 20% of the voting shares in the corporation.
27 5. Deemed relevant interest in advance of performance of agreement
28 that will give rise to a relevant interest
29 If a person --
30 (a) has entered into an agreement with another person in relation
31 to an issued share or right to vote in which the other person
32 has a relevant interest; or
page 306
Co-operatives Bill 2009
Relevant interests, associates, related bodies Schedule 2
Relevant interests Division 1
cl. 6
1 (b) has a right enforceable against another person in relation to
2 an issued share or right to vote in which the other person has
3 a relevant interest, whether the right is enforceable presently
4 or in the future and whether or not on the fulfilment of a
5 condition; or
6 (c) has an option granted by another person, or has granted to
7 another person an option, with respect to an issued share or
8 right to vote in which the other person has a relevant interest,
9 and, on performance of the agreement, enforcement of the right, or
10 exercise of the option, the first-mentioned person would have a
11 relevant interest in the share or right to vote, the first-mentioned
12 person is taken for the purposes of this Division to have that relevant
13 interest in the share or right to vote.
14 6. Control of corporation having a relevant interest by virtue of
15 clause 5
16 If a corporation is by clause 5 taken to have a relevant interest in a
17 share in, or right to vote at meetings of, a co-operative, a person is
18 taken for the purposes of this Division to have a relevant interest in
19 the share or right to vote if --
20 (a) the corporation is, or its directors are, accustomed or under an
21 obligation, whether formal or informal, to act in accordance
22 with the directions, instructions or wishes of the person in
23 relation to the exercise of power to vote in relation to that
24 right to vote or power to dispose of those shares; or
25 (b) the person has a controlling interest in the corporation; or
26 (c) the person has power to vote in relation to the right to vote
27 attached to not less than 20% of the voting shares in the
28 corporation.
29 7. Matters not affecting application of Division
30 (1) It is immaterial for the purposes of this Division whether or not power
31 to vote in relation to a right to vote, or power to dispose of a share --
32 (a) is express or implied or formal or informal; or
33 (b) is exercisable by a person alone or jointly with any other
34 person or persons; or
35 (c) cannot be related to a particular share; or
page 307
Co-operatives Bill 2009
Schedule 2 Relevant interests, associates, related bodies
Division 1 Relevant interests
cl. 8
1 (d) is, or can be made, subject to restraint or restriction.
2 (2) A relevant interest in a share or right to vote is not to be disregarded
3 merely because of --
4 (a) its remoteness; or
5 (b) how it arose.
6 8. Corporation may have a relevant interest in its own shares
7 A corporation may, by virtue of this Division, be considered to have a
8 relevant interest in a share in, or right to vote arising from
9 membership of, the corporation itself.
10 9. Exclusions -- money lenders
11 A relevant interest of a person in a share or right to vote is to be
12 disregarded if the person's ordinary business includes lending money
13 and the person has authority to exercise powers as the holder of the
14 relevant interest only because of a security given for the purposes of a
15 transaction entered into in the ordinary course of business in
16 connection with lending money, other than a transaction entered into
17 with an associate of the person.
18 10. Exclusions -- certain trustees
19 A relevant interest of a person in a share or right to vote is to be
20 disregarded if --
21 (a) the share or right is subject to a trust; and
22 (b) the person has the relevant interest as a trustee of the trust;
23 and
24 (c) either --
25 (i) a beneficiary under the trust is by clause 5 taken to
26 have a relevant interest in the share or right because
27 the beneficiary has a presently enforceable and
28 unconditional right referred to in clause 5(b); or
29 (ii) the person is a bare trustee.
page 308
Co-operatives Bill 2009
Relevant interests, associates, related bodies Schedule 2
Relevant interests Division 1
cl. 11
1 11. Exclusions -- instructions to securities dealer to dispose of share
2 A relevant interest of a person in a share or right to vote is to be
3 disregarded if --
4 (a) the person's ordinary business includes dealing in securities;
5 and
6 (b) the person has authority to exercise powers as the holder of
7 the relevant interest only because of instructions given to the
8 person, by or on behalf of another person, to dispose of the
9 share on the other person's behalf in the ordinary course of
10 that business.
11 12. Exclusions -- honorary proxies
12 A relevant interest of a person in a share or right to vote is to be
13 disregarded if the person has it only because of having been
14 appointed, otherwise than for valuable consideration given by the
15 person or an associate of the person, to vote as a proxy or
16 representative at a meeting of members, or of a class of members, of a
17 corporation.
18 13. Exclusions -- holders of prescribed offices
19 A relevant interest of a person in a share or right to vote is to be
20 disregarded if the person has it because of holding an office
21 prescribed by the regulations.
22 14. Prescribed exclusions
23 The regulations may provide that a relevant interest in a share is, in
24 specified circumstances and subject to specified conditions, if any, to
25 be disregarded for the purposes of a provision of this Act.
26 15. Effect of Schedule
27 (1) Nothing in this Schedule limits the generality of anything else in it.
28 (2) A person does not have a relevant interest in a share of a co-operative
29 or right to vote in respect of a co-operative except as provided in this
30 Schedule.
page 309
Co-operatives Bill 2009
Schedule 2 Relevant interests, associates, related bodies
Division 2 Associates
cl. 16
1 16. Relevant interest -- corporation other than co-operative
2 A reference in this Act to a relevant interest in a share of a corporation
3 other than a co-operative or a right to vote in relation to a corporation
4 other than a co-operative is to be construed in accordance with the
5 Corporations Act.
6 Division 2 -- Associates
7 17. Effect of Part
8 A person is not an associate of another person except as provided by
9 this Division.
10 18. Associates of a corporation
11 The associates of a corporation include the following --
12 (a) a director or secretary of the body;
13 (b) a related corporation;
14 (c) a director or secretary of a related corporation.
15 19. Matters relating to voting rights
16 (1) If a reference to an associate of a person relates to --
17 (a) the extent of power to exercise, or to control the exercise of,
18 the voting power attached to voting shares in or arising from
19 membership of a corporation; or
20 (b) the person's entitlement to shares in a corporation; or
21 (c) an offer to purchase shares to which Part 11 Division 2
22 applies,
23 the reference includes a reference to another person with whom the
24 person has, or proposes to enter into, an agreement referred to in
25 subclause (2).
26 (2) Subclause (1) applies to an agreement --
27 (a) because of which one of the persons referred to in
28 subclause (1) has or will have power, even if it is in any way
29 qualified --
30 (i) to exercise; or
page 310
Co-operatives Bill 2009
Relevant interests, associates, related bodies Schedule 2
Associates Division 2
cl. 20
1 (ii) to control, directly or indirectly, the exercise of; or
2 (iii) to influence substantially the exercise of,
3 any voting power attached to shares in the corporation; or
4 (b) for the purpose of controlling or influencing --
5 (i) the composition of the corporation's board; or
6 (ii) the conduct of affairs of the corporation;
7 or
8 (c) under which one of those persons --
9 (i) will or may acquire; or
10 (ii) may be required by the other to acquire,
11 shares in the corporation in which the other has a relevant
12 interest; or
13 (d) under which one of those persons may be required to dispose
14 of shares in the corporation in accordance with the other's
15 directions.
16 (3) Subclause (1) applies despite any other effect the agreement may
17 have.
18 (4) In relation to a matter relating to shares in a corporation, a person may
19 be an associate of the corporation and the corporation may be an
20 associate of a person.
21 20. General
22 (1) A reference to an associate of a person includes a reference to --
23 (a) another person in concert with whom the person is acting or
24 proposes to act; or
25 (b) another person who, under the regulations, is, for the
26 purposes of the provision in which the reference occurs, an
27 associate of the person; or
28 (c) another person with whom the person is or proposes to
29 become associated, whether formally or informally, in any
30 other way,
31 in relation to the matter to which the reference relates.
page 311
Co-operatives Bill 2009
Schedule 2 Relevant interests, associates, related bodies
Division 3 Related corporations
cl. 21
1 (2) If a person has entered, or proposes to enter, into a transaction, or has
2 done, or proposes to do, any act or thing, in order to become
3 associated with another person as mentioned in an applicable
4 provision of this Division, a reference to an associate of the person
5 includes a reference to that other person.
6 21. Exclusions
7 A person is not an associate of another person by virtue of clause 19
8 or 20(1), or by virtue of clause 20(2) as it applies in relation to
9 clause 19 or 20(1), merely because --
10 (a) one gives advice to the other, or acts on the other's behalf, in
11 the proper performance of the functions attaching to a
12 professional capacity or a business relationship; or
13 (b) one, a client, gives specific instructions to the other, whose
14 ordinary business includes dealing in securities, to acquire
15 shares on the client's behalf in the ordinary course of that
16 business; or
17 (c) one has made, or proposes to make, to the other an offer to
18 which Part 11 Division 2 applies, in relation to shares held by
19 the other; or
20 (d) one has appointed the other, otherwise than for valuable
21 consideration given by the other or by an associate of the
22 other, to vote as a proxy or representative at a meeting of
23 members, or of a class of members, of a corporation.
24 Division 3 -- Related corporations
25 22. Related corporations
26 For the purposes of this Act, a corporation is to be taken to be related
27 to --
28 (a) another corporation that is its subsidiary; and
29 (b) another corporation of which it is a subsidiary; and
30 (c) another corporation if both it and that other corporation are
31 subsidiaries of the same corporation.
page 312
Co-operatives Bill 2009
Registration etc. of charges Schedule 3
Preliminary Division 1
cl. 1
1 Schedule 3 -- Registration etc. of charges
2 [s. 267]
3 Division 1 -- Preliminary
4 1. Interpretation
5 In this Division --
6 co-operative includes a foreign co-operative registered under Part 14;
7 document of title means a document --
8 (a) used in the ordinary course of business as proof of possession
9 or control, or of the right to possession or control, of property
10 other than land; or
11 (b) authorising or purporting to authorise, whether by
12 endorsement or delivery, the possessor of the document to
13 transfer or receive property other than land,
14 and includes --
15 (c) a bill of lading; and
16 (d) a warrant or order for the delivery of goods; and
17 (e) a document that is, or evidences title to, a marketable
18 security;
19 marketable security has the meaning given to that term in the
20 Corporations Act;
21 present liability, in relation to a charge, means a liability that has
22 arisen, being a liability the extent or amount of which is fixed or
23 capable of being ascertained, whether or not the liability is
24 immediately due to be met;
25 property, in relation to a co-operative, means property within this
26 State held by the co-operative, whether or not as trustee;
27 prospective liability, in relation to a charge, means any liability that
28 may arise in the future, or any other liability, but does not include a
29 present liability;
30 Register of Co-operative Charges means the register referred to in
31 clause 18;
page 313
Co-operatives Bill 2009
Schedule 3 Registration etc. of charges
Division 2 Registration
cl. 2
1 registrable charge means a charge in relation to which, by virtue of
2 clause 4, the provisions of this Schedule mentioned in clause 4(1)
3 apply.
4 2. Application to charges referred to in clause 17
5 (1) A charge referred to in clause 17 is, until the charge is registered, to
6 be treated for the purposes of this Schedule as if it were not a
7 registrable charge but, when the charge is registered, it has the priority
8 accorded to a registered charge as from the time of registration.
9 (2) The registration of a charge referred to in clause 17 does not prejudice
10 any priority that would have been accorded to the charge under any
11 other law, whether or not a law of a place in Australia, if the charge
12 had not been registered.
13 3. Lodgment of documents
14 For the purposes of this Schedule, a notice or other document is taken
15 to be lodged when it is received at the office of the Registrar by an
16 officer authorised to receive it.
17 Division 2 -- Registration
18 Subdivision 1 -- Charges
19 4. Charges to which the Schedule applies
20 (1) Subject to this Division, the provisions of this Schedule relating to the
21 giving of notice in relation to the registration of, and the priorities of,
22 charges --
23 (a) apply in relation to the charges referred to in subclause (2)
24 (whether legal or equitable) on property of a co-operative;
25 and
26 (b) do not apply in relation to other charges.
27 (2) Subclause (1) applies to the following charges --
28 (a) a floating charge on the whole or a part of the property,
29 business or undertaking of the co-operative;
30 (b) a charge on uncalled share capital or uncalled share
31 premiums;
page 314
Co-operatives Bill 2009
Registration etc. of charges Schedule 3
Registration Division 2
cl. 5
1 (c) a charge on a call, whether in respect of share capital or share
2 premiums, made but not paid;
3 (d) a charge on a personal chattel, including a personal chattel
4 that is unascertained or is to be acquired in the future, but not
5 including a ship registered in an official register kept under a
6 law of a place in Australia relating to title to ships;
7 (e) a charge on goodwill, on a patent or licence under a patent,
8 on a trade mark or service mark or a licence to use a trade
9 mark or service mark, on a copyright or a licence under a
10 copyright or on a registered design or a licence to use a
11 registered design;
12 (f) a charge on a book debt;
13 (g) a charge on a marketable security, not being --
14 (i) a charge created in whole or in part by the deposit of
15 a document of title to the marketable security; or
16 (ii) a mortgage under which the marketable security is
17 registered in the name of the chargee or a person
18 nominated by the chargee;
19 (h) a lien or charge on a crop, a lien or charge on wool or a stock
20 mortgage;
21 (i) a charge on a negotiable instrument other than a marketable
22 security.
23 5. Excluded charges
24 The provisions of this Schedule mentioned in clause 4(1) do not apply
25 in relation to --
26 (a) a charge, or a lien over property, arising by operation of law;
27 or
28 (b) a pledge of a personal chattel or of a marketable security; or
29 (c) a charge created in relation to a negotiable instrument or a
30 document of title to goods, being a charge by way of pledge,
31 deposit, letter of hypothecation or trust receipt; or
32 (d) a transfer of goods in the ordinary course of the practice of
33 any profession or the carrying on of any trade or business; or
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1 (e) a dealing, in the ordinary course of the practice of any
2 profession or the carrying on of any trade or business, in
3 relation to goods outside Australia.
4 6. Personal chattels
5 The reference in clause 4(2)(d) to a charge on a personal chattel is a
6 reference to a charge on any article capable of complete transfer by
7 delivery, whether at the time of the creation of the charge or at some
8 later time, and includes a reference to a charge on a fixture or a
9 growing crop that is charged separately from the land to which it is
10 affixed or on which it is growing, but does not include a reference to a
11 charge on --
12 (a) a document evidencing title to land; or
13 (b) a chattel interest in land; or
14 (c) a marketable security; or
15 (d) a document evidencing a thing in action; or
16 (e) stock or produce on a farm or land that because of a covenant
17 or agreement ought not to be removed from the farm or land
18 where the stock or produce is at the time of the creation of the
19 charge.
20 7. Book debts
21 The reference in clause 4(2)(f) to a charge on a book debt --
22 (a) is a reference to a charge on a debt payable or to become
23 payable to the co-operative at some future time on account of
24 or in connection with a profession, trade or business carried
25 on by the co-operative, whether entered in a book or not; and
26 (b) includes a reference to a charge on a future debt of the same
27 nature although not incurred or owing at the time of the
28 creation of the charge,
29 but does not include a reference to a charge on a marketable security,
30 on a negotiable instrument or on a debt owing in relation to a
31 mortgage, charge or lease of land.
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1 8. Crops or stock
2 The reference in clause 4(2)(h) to a lien or charge on a crop, a lien or
3 charge on wool or a stock mortgage includes a reference to a security,
4 however described, that is registrable under a law, prescribed by the
5 regulations, of a State or Territory.
6 9. Deposit of documents of title
7 For the purposes of this Division, a co-operative is taken to have
8 deposited a document of title to property with another person (the
9 chargee) in a case where the document of title is not in the possession
10 of the co-operative if --
11 (a) the person who holds the document of title acknowledges in
12 writing that the person holds the document of title on behalf
13 of the chargee; or
14 (b) a government, an authority or a corporation that proposes to
15 issue a document of title in relation to the property agrees, in
16 writing, to deliver the document of title, when issued, to the
17 chargee.
18 10. Charges on land or fixtures on land
19 (1) The provisions of this Schedule mentioned in clause 4(1) do not apply
20 in relation to a charge on land.
21 (2) The provisions of this Schedule mentioned in clause 4(1) do not apply
22 in relation to a charge on fixtures given by a charge on the land to
23 which they are affixed.
24 11. Where other property is also charged
25 For the purposes of this Division, a charge is taken to be a charge on
26 property of a kind to which a particular paragraph of clause 4(2)
27 applies even though the instrument of charge also charges other
28 property of the co-operative, including other property that is of a kind
29 to which none of the paragraphs of that subclause applies.
30 12. Effect of failure to lodge or give notice or document
31 A charge on property of a co-operative is not invalid merely because
32 of the failure to lodge with the Registrar, or give to the co-operative or
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1 another person, a notice or other document that is required by this
2 Division to be so lodged or given.
3 Subdivision 2 -- Notice of charge
4 13. Lodgment of notice of charge and copy of instrument, and
5 transitional provision
6 (1) If a co-operative creates a charge, the co-operative must ensure that
7 there is lodged with the Registrar within 45 days after the creation of
8 the charge, a notice in the form approved by the Registrar setting out
9 the following particulars --
10 (a) the name of the co-operative and the date of the creation of
11 the charge;
12 (b) whether the charge is a fixed charge, a floating charge or both
13 a fixed and floating charge;
14 (c) if the charge is a floating charge, whether there is any
15 provision in the resolution or instrument creating or
16 evidencing the charge that prohibits or restricts the creation of
17 subsequent charges;
18 (d) a short description of the liability, whether present or
19 prospective secured by the charge;
20 (e) a short description of the property charged;
21 (f) whether the charge is created or evidenced by a resolution, by
22 an instrument or by a deposit or other conduct;
23 (g) if the charge is constituted by the issue of a debenture or
24 debentures, the name of the trustee, if any, for debenture
25 holders;
26 (h) if the charge is not constituted by the issue of a debenture or
27 debentures or there is no trustee for debenture holders, the
28 name of the chargee;
29 (i) any other information that is prescribed by the regulations.
30 (2) On becoming registered under this Act, a transferred co-operative that
31 owns property over which a registrable charge exists must, in relation
32 to each such charge, immediately, and at the same time for each
33 charge, lodge with the Registrar a notice under subclause (1).
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1 (3) If, under a resolution or resolutions passed by the co-operative, the
2 co-operative issues a series of debentures constituting a charge to the
3 benefit of which all the holders of debentures in the series are entitled
4 in equal priority, and the charge is evidenced only by the resolution or
5 resolutions and the debentures, the notice under subclause (1) must be
6 accompanied by --
7 (a) a copy of the resolution or of each of the resolutions verified
8 by a statement in writing to be a true copy; and
9 (b) a copy of the first debenture issued in the series and a
10 statement in writing verifying the execution of that first
11 debenture.
12 (4) If, in a case to which subclause (3) does not apply, the charge created
13 by the co-operative was created or evidenced by an instrument or
14 instruments, the notice under subclause (1) must be accompanied
15 by --
16 (a) the instrument or each of the instruments; or
17 (b) a copy of the instrument or of each of the instruments verified
18 by a statement in writing to be a true copy, and a statement in
19 writing verifying the execution of the instrument or of each of
20 the instruments.
21 14. Series of debentures
22 In a case to which clause 13(3) applies --
23 (a) the charge is, for the purposes of clause 13, taken to be
24 created when the first debenture in the series of debentures is
25 issued; and
26 (b) if, after the issue of the first debenture in the series, the
27 co-operative passes a further resolution authorising the issue
28 of debentures in the series, the co-operative must ensure that
29 a copy of that resolution, verified by a statement in writing to
30 be a true copy of that resolution, is lodged within 45 days
31 after the passing of that resolution.
32 15. Operation of priority provisions in respect of issue of debentures
33 If a notice relating to an instrument creating a charge has been lodged
34 under clause 13(1), being a charge in relation to an issue of several
35 debentures the holders of which are entitled under the instrument in
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1 equal priority to the benefit of the charge, clauses 46 to 49 have effect
2 as if any charges constituted by the debentures were registered at the
3 time when the charge to which the notice relates was registered.
4 16. Discounts
5 (1) If a payment or discount has been made or allowed, either directly or
6 indirectly, by a co-operative to a person in consideration of the
7 person --
8 (a) subscribing or agreeing to subscribe, whether absolutely or
9 conditionally, for debentures; or
10 (b) procuring or agreeing to procure subscriptions, whether
11 absolute or conditional, for debentures,
12 the notice required to be lodged under clause 13(1) must include
13 particulars as to the amount or rate per cent of the payment or
14 discount.
15 (2) If a co-operative issues debentures as security for a debt of the
16 co-operative, the co-operative is not taken, for the purposes of
17 subclause (1), to have allowed a discount in respect of the debentures.
18 17. Acquisition of property subject to charge
19 (1) If a co-operative acquires property that is subject to a charge, being a
20 charge that would have been registrable when it was created if it had
21 been created by a co-operative, the co-operative must, within 45 days
22 after the acquisition of the property --
23 (a) ensure that there is lodged with the Registrar a notice in the
24 form approved by the Registrar in relation to the charge,
25 setting out --
26 (i) the name of the co-operative; and
27 (ii) the date on which the property was so acquired; and
28 (iii) any other particulars required by clause 13(1);
29 and
30 (b) give to the chargee notice that it has acquired the property
31 and the date on which it was so acquired.
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1 (2) If the charge referred to in subclause (1) was created or evidenced as
2 referred to in clause 13(3), the notice under subclause (1)(a) must be
3 accompanied by --
4 (a) a copy of the resolution or of each of the resolutions referred
5 to in clause 13(3) verified by a statement in writing to be a
6 true copy; and
7 (b) a copy of the first debenture issued in the series referred to in
8 clause 13(3) verified by a statement in writing to be a true
9 copy.
10 (3) If the charge referred to in subclause (1) was created or evidenced by
11 an instrument or instruments (otherwise than as mentioned in
12 clause 13(3)), the notice under subclause (1)(a) must be accompanied
13 by --
14 (a) the instrument or each of the instruments; or
15 (b) a copy of the instrument or of each of the instruments verified
16 by a statement in writing to be a true copy.
17 Subdivision 3 -- Registration
18 18. Register of Co-operative Charges
19 The Registrar must keep a register to be known as the Register of
20 Co-operative Charges.
21 19. Registration of documents relating to charge
22 (1) If a notice is lodged with the Registrar in accordance with Division 2,
23 the Registrar must as soon as practicable cause to be entered in the
24 Register of Co-operative Charges the time and date when the notice
25 was lodged and the following particulars in relation to the charge --
26 (a) if the charge is a charge created by the co-operative, the date
27 of its creation;
28 (b) if the charge was a charge existing on property acquired by
29 the co-operative, the date on which the property was so
30 acquired;
31 (c) a short description of the liability, whether present or future,
32 secured by the charge;
33 (d) a short description of the property charged;
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1 (e) the name of the trustee for debenture holders or, if there is no
2 such trustee, the name of the chargee.
3 (2) Subclause (1) only applies if the notice contains the required
4 particulars and is accompanied by the required documents.
5 (3) Subclause (1) applies whether the notice is lodged during or after the
6 period within which the notice is required to be lodged.
7 (4) Subject to this Division, if particulars in respect of a charge are
8 entered in the Register of Co-operative Charges in accordance with
9 subclause (1), the charge is taken to be registered, and to have been
10 registered from and including the time and date entered in the register
11 under that subclause.
12 (5) The Registrar may enter in the Register of Co-operative Charges, in
13 addition to the particulars expressly required by this Division to be
14 entered, other particulars in relation to a charge that the Registrar
15 considers appropriate.
16 20. Provisional registration if stamp duty not paid
17 (1) If --
18 (a) a notice in relation to a charge on property of a co-operative
19 is lodged under Subdivision 2; and
20 (b) the notice is not accompanied by a certificate to the effect that
21 all documents accompanying the notice have been properly
22 stamped under the Stamp Act 1921,
23 the Registrar must cause to be entered in the Register of Co-operative
24 Charges the time and date when the notice was lodged and the
25 particulars referred to in clause 19(1)(a) to (e), but must cause the
26 word "provisional" to be entered in the register next to the entry
27 specifying that time and date.
28 (2) Subclause (1) applies whether the notice was lodged during or after
29 the period within which the notice was required to be lodged.
30 (3) The Registrar must delete the word "provisional" entered in the
31 register under subclause (1) from an entry relating to a charge if a
32 certificate to the effect set out in subclause (1)(b) has been produced
33 to the Registrar --
34 (a) within a period of 28 days; or
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cl. 21
1 (b) within such longer period as is prescribed by the regulations
2 after the notice was lodged; or
3 (c) within such further period as the Registrar, if the Registrar
4 considers it to be appropriate in a particular case, allows.
5 (4) The Registrar must delete from the Register of Co-operative Charges
6 all the particulars that were entered in relation to a charge if --
7 (a) the word "provisional" is entered in the register under
8 subclause (1) in relation to an entry relating to the charge; and
9 (b) a certificate to the effect set out in subclause (1)(b) is not
10 produced within the period, or the further period, referred to
11 in subclause (3).
12 21. Provisional registration if required particulars not supplied
13 (1) In this clause --
14 defective notice means a document that --
15 (a) purports to be a notice in respect of a charge on property of a
16 co-operative for the purposes of Subdivision 2; and
17 (b) contains the name of the co-operative concerned and the
18 particulars referred to in clause 13(1)(g) or (h), as the case
19 requires,
20 but does not contain some or all of the other particulars that are
21 required to be included in the notice or is otherwise defective.
22 (2) If a defective notice in respect of a charge on property is lodged with
23 the Registrar under clause 19, the Minister must cause to be entered in
24 the Register of Co-operative Charges --
25 (a) the time and date when the document was lodged; and
26 (b) the particulars referred to in clause 19(1)(a) to (e) that are
27 ascertainable; and
28 (c) the word "provisional" next to the entry specifying the time
29 and date.
30 (3) If a defective notice in relation to a charge is lodged under clause 19,
31 the Registrar must, by written notice to the person who lodged the
32 defective notice, direct the person to lodge, on or before the day
33 specified in the notice, a notice in relation to the charge that complies
34 with the requirements of Subdivision 2.
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1 (4) Subclauses (2) and (3) apply whether the defective notice was lodged
2 during or after the period within which the notice was required to be
3 lodged.
4 (5) The giving by the Registrar of a direction to the person under
5 subclause (3) does not affect any liability that the co-operative may
6 have incurred or may incur by reason of a contravention of
7 Subdivision 2.
8 (6) If the Registrar gives a direction to a person under subclause (3) in
9 relation to a charge and the direction is complied with on or before the
10 day specified in the notice containing the direction, the Registrar
11 must --
12 (a) delete from the Register of Co-operative Charges the word
13 "provisional" that was inserted pursuant to subclause (2); and
14 (b) cause to be entered in the register in relation to the charge any
15 particulars referred to in clause 19(1) that have not previously
16 been entered.
17 (7) If the Registrar gives a direction to a person under subclause (3) in
18 relation to a charge and the direction is not complied with on or
19 before the day specified in the notice, the Registrar must delete from
20 the Register of Co-operative Charges all the particulars that were
21 entered in relation to the charge.
22 (8) If the Registrar gives a direction to a person under subclause (3) in
23 relation to a charge and the direction is complied with after the day
24 specified in the notice, the Registrar must cause to be entered in the
25 Register of Co-operative Charges in relation to the charge --
26 (a) the time at which and day on which the direction was
27 complied with; and
28 (b) the particulars referred to in clause 19(1)(a) to (e).
29 22. Effect of provisional registration
30 (1) Subject to this clause, if the word "provisional" is entered in the
31 Register of Co-operative Charges next to an entry specifying a time
32 and day in relation to a charge, the charge is taken not to have been
33 registered.
34 (2) If the word "provisional" is deleted from the Register of Co-operative
35 Charges pursuant to clause 20 or 21(6), the charge is taken to be
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cl. 23
1 registered and to have been registered from and including the time
2 and day specified in the register under clause 20 or 21(2).
3 (3) If the particulars in relation to the charge are deleted from the Register
4 of Co-operative Charges pursuant to clause 21(7) and those
5 particulars and a time and day are subsequently entered in the register
6 in relation to the charge under clause 21(8) the charge is taken to be
7 registered from and including that last-mentioned time and day.
8 23. If 2 or more charges relate to the same property
9 (1) If, under clause 17, a co-operative lodges notices relating to 2 or more
10 charges on the same property acquired by the co-operative, being
11 charges that are not already registered under this Subdivision, the time
12 and day that is to be entered in the Register of Co-operative Charges
13 in relation to each of those charges are the time and day when the first
14 notice was lodged.
15 (2) If, under subclause (1), the time and day that are entered in the
16 Register of Co-operative Charges are the same in relation to 2 or more
17 charges on property acquired by a co-operative, those charges are to
18 have, as between themselves, the respective priorities that they would
19 have had if they had not been registered under this Subdivision.
20 24. Registration of assignment or variation of charge
21 (1) If a notice is lodged under clause 36, the Registrar must as soon as
22 practicable cause to be entered in the Register of Co-operative
23 Charges the time and day when the notice was lodged and the
24 particulars set out in the notice.
25 (2) Subclause (1) applies whether the notice was lodged during or after
26 the period within which the notice was required to be lodged.
27 25. Standard time for the purposes of this Subdivision
28 (1) The Registrar may, by order published in the Gazette, declare a
29 specified standard time to be the standard time for the purposes of this
30 Subdivision.
31 (2) If an order is in force under subclause (1), a reference in this
32 Subdivision to entering the time when a particular event happened is a
33 reference to entering that time as expressed in terms of the standard
34 time specified in the order.
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cl. 26
1 Subdivision 4 -- Certain charges void against liquidator or administrator
2 26. Definitions
3 In this Division --
4 critical day, in relation to a co-operative, means --
5 (a) if the co-operative is being wound-up, the day when the
6 winding-up began; or
7 (b) if the co-operative is under administration, the relevant day in
8 relation to the administration; or
9 (c) if the co-operative has executed a deed of arrangement, the
10 relevant day in relation to the administration that ended when
11 the deed was executed;
12 relevant day, in relation to the administration of a co-operative,
13 means --
14 (a) if, when the administration began, a winding-up of the
15 co-operative was in progress, the day on which the
16 winding-up is taken because of the Corporations Act Part 5.6
17 Division 1A as applying under this Act to have begun; or
18 (b) otherwise, the day on which the administration began.
19 27. Certain charges void against liquidator or administrator
20 (1) Subject to this Subdivision, if --
21 (a) an order is made, or a resolution is passed, for the winding-up
22 of a co-operative; or
23 (b) the Registrar gives a certificate under section 314 for the
24 winding-up of the co-operative; or
25 (c) an administrator of a co-operative is appointed under the
26 Corporations Act Part 5.3A as applying under this Act; or
27 (d) a co-operative executes a deed of arrangement,
28 a registrable charge on property of the co-operative is void as a
29 security on that property as against the liquidator, the administrator of
30 the co-operative, or the deed's administrator, as the case may be.
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1 (2) A charge is not void under subclause (1) if --
2 (a) a notice about the charge was lodged under clause 13 or 17,
3 as the case requires --
4 (i) within the relevant period; or
5 (ii) at least 6 months before the critical day;
6 or
7 (b) the period within which a notice about the charge, other than
8 a notice under clause 36, is required to be lodged, being the
9 period specified in the relevant clause or that period as
10 extended by the Supreme Court under clause 29, has not
11 ended at the start of the critical day and the notice is lodged
12 before the end of that period; or
13 (c) in the case of a charge to which clause 17 applies, the period
14 of 45 days after the chargee becomes aware that the property
15 charged has been acquired by a co-operative has not ended at
16 the start of the critical day and the notice is lodged before the
17 end of that period.
18 (3) The reference in subclause (2)(a) to the relevant period is to be read as
19 a reference to --
20 (a) in the case of a charge to which clause 13 applies, the period
21 of 45 days specified in that clause, or that period as extended
22 by the Supreme Court under clause 29; or
23 (b) in the case of a charge to which clause 17 applies, the period
24 of 45 days after the chargee becomes aware that the property
25 has been acquired by a co-operative.
26 28. Certain varied charges void against liquidator or administrator
27 (1) Subject to this Subdivision, if, after there has been a variation in the
28 terms of a registrable charge on property of a co-operative having the
29 effect of increasing the amount of the debt or increasing the liabilities,
30 whether present or prospective, secured by the charge --
31 (a) an order is made, or a resolution is passed, for the winding-up
32 of the co-operative; or
33 (b) an administrator of a co-operative is appointed under the
34 Corporations Act Part 5.3A as applying under this Act; or
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cl. 29
1 (c) a co-operative executes a deed of arrangement,
2 the registrable charge is void as a security on the property to the
3 extent that it secures the amount of the increase in the debt or liability.
4 (2) A charge is not void under subclause (1) if --
5 (a) a notice about the variation was lodged under clause 36 --
6 (i) within the period of 45 days specified in clause 36(2)
7 or that period as extended by the Supreme Court
8 under clause 29; or
9 (ii) within 6 months before the critical day;
10 or
11 (b) the period of 45 days specified in clause 36(2), or that period
12 as extended by the Supreme Court under clause 29, has not
13 ended at the start of the critical day and the notice is lodged
14 before the end of the period.
15 29. Supreme Court may extend required period
16 If the Supreme Court is satisfied that --
17 (a) the failure to lodge a notice of a charge, or of a variation in
18 the terms of a charge, as required by a provision of this
19 Schedule --
20 (i) was accidental or due to inadvertence or some other
21 sufficient cause; or
22 (ii) is not of a nature to prejudice the position of creditors
23 or shareholders;
24 or
25 (b) on other grounds it is just and equitable to grant relief,
26 the Court may, on the application of the co-operative or a person
27 interested and on such terms and conditions the Court considers just
28 and expedient, by order, extend the period for the further period
29 specified in the order.
30 30. Certain later charges void
31 (1) Subject to subclause (3), if --
32 (a) a registrable charge (the later charge) is created before the
33 end of 45 days after the creation of an unregistered registrable
34 charge (the earlier charge); and
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cl. 31
1 (b) the later charge relates to all or any of the property to which
2 the earlier charge related; and
3 (c) the later charge is given as a security for the same liability as
4 is secured by the earlier charge or any part of that liability,
5 the later charge, to the extent to which it is a security for the same
6 liability or part thereof, and so far as it relates to the property
7 comprised in the earlier charge, is void as a security on that property
8 as against a liquidator or administrator of the co-operative, or an
9 administrator of a deed of arrangement executed by the co-operative.
10 (2) Subclause (1) applies even if a notice of the later charge was lodged
11 under clause 13 within the period mentioned in clause 27(2)(a).
12 (3) Subclause (1) does not apply if it is proved to the satisfaction of the
13 Supreme Court that the later charge was given in good faith for the
14 purpose of correcting some material error in the earlier charge or
15 under other proper circumstances and not for the purposes of avoiding
16 or evading the provisions of this Subdivision.
17 31. Effect of provisions on purchaser in good faith
18 (1) Nothing in clause 27(1) or (2) or 28 operates to affect the title of a
19 person to property purchased for value from a chargee or from a
20 receiver appointed by a chargee in the exercise of powers conferred
21 by the charge or implied by law if the person purchased the property
22 in good faith and without notice of --
23 (a) the filing of an application for an order for the winding-up of
24 the co-operative; or
25 (b) the passing of the necessary resolution for the voluntary
26 winding-up of the co-operative; or
27 (c) an administrator of the co-operative being appointed under
28 the Corporations Act Part 5.3A as applying under this Act; or
29 (d) the co-operative executing a deed of arrangement.
30 (2) The onus of proving that a person purchased property in good faith
31 and without notice of any of the matters referred to in
32 subclause (1)(a), (b), (c) and (d) is on the person asserting that the
33 property was so purchased.
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Schedule 3 Registration etc. of charges
Division 2 Registration
cl. 32
1 Subdivision 5 -- Certain charges in favour of persons void
2 32. Definitions
3 In this Division --
4 chargee, in relation to a charge, means --
5 (a) in any case, the holder, or all or any of the holders, of the
6 charge; or
7 (b) in the case of a charge that is an agreement to give or execute
8 a charge in favour of a person or persons, whether on demand
9 or otherwise, the person, or all or any of those persons;
10 officer, of a foreign co-operative, includes a local agent of the foreign
11 co-operative;
12 receiver includes a receiver and manager;
13 relevant person, in relation to a charge created by a co-operative,
14 means --
15 (a) a person who is at the time when the charge is created, or
16 who has been at any time during the period of 6 months
17 ending at that time, an officer of the co-operative; or
18 (b) a person associated, in relation to the creation of the charge,
19 with a person of a kind referred to in paragraph (a).
20 33. Charges in favour of certain persons void in certain cases
21 (1) If --
22 (a) a co-operative creates a charge on property of the
23 co-operative in favour of a person who is, or in favour of
24 persons at least one of whom is, a relevant person in relation
25 to the charge; and
26 (b) within 6 months after the creation of the charge, the chargee
27 purports to take a step in the enforcement of the charge
28 without the Supreme Court having, under clause 34, given
29 leave for the charge to be enforced,
30 the charge, and any powers purported to be conferred by an
31 instrument creating or evidencing the charge, are, and are taken
32 always to have been, void.
page 330
Co-operatives Bill 2009
Registration etc. of charges Schedule 3
Registration Division 2
cl. 34
1 (2) Without limiting the generality of subclause (1), a person who --
2 (a) appoints a receiver of property of a co-operative under
3 powers conferred by an instrument creating or evidencing a
4 charge created by the co-operative; or
5 (b) whether directly or by an agent, enters into possession or
6 assumes control of property of a co-operative for the purposes
7 of enforcing a charge created by the co-operative,
8 is to be taken, for the purposes of subclause (1), to take a step in the
9 enforcement of the charge.
10 34. Supreme Court may give leave for enforcement of charge
11 On application by the chargee under a charge, the Supreme Court may
12 give leave for the charge to be enforced, if the Court is satisfied
13 that --
14 (a) immediately after the creation of the charge, the co-operative
15 that created the charge was solvent; and
16 (b) in all the circumstances of the case, it is just and equitable for
17 the Court to do so.
18 35. Certain transactions excluded
19 (1) Nothing in clause 33 affects a debt, liability or obligation of a
20 co-operative that would, if that clause had not been enacted, have
21 been secured by a charge created by the co-operative.
22 (2) Nothing in clause 33 operates to affect the title of a person to
23 property, other than the charge concerned or an interest in the charge
24 concerned, purchased for value from a chargee under a charge, from
25 an agent of a chargee under a charge, or from a receiver appointed by
26 a chargee under a charge in the exercise of powers conferred by the
27 charge or implied by law, if that person purchased the property in
28 good faith and without notice that the charge was created in favour of
29 a person who is, or in favour of persons at least one of whom is, as the
30 case may be, a relevant person in relation to the charge.
31 (3) The onus of proving that a person purchased property in good faith
32 and without notice that a charge was created as referred to in
33 subclause (2) is on the person asserting that the property was so
34 purchased.
page 331
Co-operatives Bill 2009
Schedule 3 Registration etc. of charges
Division 2 Registration
cl. 36
1 Subdivision 6 -- Assignment, variation or satisfaction of charges
2 36. Assignment and variation of charges
3 (1) If, after a registrable charge on property of a co-operative has been
4 created, a person other than the original chargee becomes the holder
5 of the charge, the person who becomes the holder of the charge must,
6 within 45 days after becoming the holder of the charge --
7 (a) lodge a notice with the Registrar stating that the person has
8 become the holder of the charge; and
9 (b) give the co-operative a copy of the notice.
10 (2) If, after a registrable charge on property of a co-operative has been
11 created, there is a variation in the terms of the charge having the effect
12 of --
13 (a) increasing the amount of the debt or increasing the liabilities,
14 whether present or prospective, secured by the charge; or
15 (b) prohibiting or restricting the creation of subsequent charges
16 on the property,
17 the co-operative must, within 45 days after the variation occurs,
18 ensure that there is lodged with the Registrar a notice setting out
19 particulars of the variation and accompanied by the instrument, if any,
20 effecting the variation or a certified copy of that instrument.
21 (3) If a charge created by a co-operative secures a debt of an unspecified
22 amount or secures a debt of a specified amount and further advances,
23 a payment or advance made by the chargee to the co-operative in
24 accordance with the terms of the charge is not to be taken, for the
25 purposes of subclause (2), to be a variation in the terms of the charge
26 having the effect of increasing the amount of the charge or the
27 liabilities, whether present or prospective, secured by the charge.
28 (4) A reference in this clause to the chargee in relation to a charge is, if
29 the charge is constituted by a debenture or debentures and there is a
30 trustee for debenture holders, to be construed as a reference to the
31 trustee for debenture holders.
32 (5) Nothing in clause 13 requires the lodgment of a notice under that
33 clause in relation to a charge merely because of the fact that the terms
34 of the charge are varied only in a manner mentioned in this clause.
page 332
Co-operatives Bill 2009
Registration etc. of charges Schedule 3
Registration Division 2
cl. 37
1 37. Satisfaction of, and release of property from, charges
2 (1) If, in relation to a charge registered under this Division --
3 (a) the debt or other liability, the payment or discharge of which
4 was secured by the charge, has been paid or discharged in
5 whole or in part; or
6 (b) the property charged or part of the property is released from
7 the charge,
8 the person who was the holder of the charge at the time when the debt
9 or other liability was so paid or discharged or the property or part of
10 the property was released must, within 14 days after receipt of a
11 request in writing made by the co-operative on whose property the
12 charge exists, give to the co-operative a memorandum in the form
13 approved by the Registrar acknowledging that the debt or other
14 liability has been paid or discharged in whole or in part or that the
15 property or part of it is no longer subject to the charge, as the case
16 may be.
17 (2) The co-operative may lodge the memorandum with the Registrar and,
18 on the memorandum being lodged, the Registrar must enter in the
19 Register of Co-operative Charges particulars of the matters stated in
20 the memorandum.
21 (3) The reference in subclause (1) to the person who was the holder of a
22 charge at the time when the debt or other liability was so paid or
23 discharged or the property or part of the property was released is, if
24 the charge was constituted by a debenture or debentures and there was
25 a trustee for debenture holders, to be construed as a reference to the
26 person who was, at that time, the trustee of debenture holders.
27 Subdivision 7 -- General
28 38. Lodgment of notices
29 (1) If a notice about a charge on property of a co-operative is required to
30 be lodged under clause 13, 17 or 36(2), the notice may be lodged by
31 the co-operative or by an interested person.
page 333
Co-operatives Bill 2009
Schedule 3 Registration etc. of charges
Division 2 Registration
cl. 39
1 (2) If a document required by this Division other than clause 36(1) to be
2 lodged with the Registrar is lodged by a person other than the
3 co-operative concerned, that person --
4 (a) must, within 7 days after the lodgment of the document, give
5 to the co-operative a copy of the document; and
6 (b) is entitled to recover from the co-operative the amount of any
7 fees properly paid by the person on lodgment of the
8 document.
9 39. Lodgment offences
10 (1) If clause 13, 17 or 36(2) is contravened in relation to a registrable
11 charge on property of a co-operative, the co-operative and an officer
12 of the co-operative who is knowingly concerned in or a party to the
13 contravention commits an offence.
14 Penalty: a fine of $1 000.
15 (2) If a person who becomes the holder of a registrable charge fails to
16 comply with clause 36(1), the person and, if the person is a
17 corporation, an officer of the corporation who is in default, each
18 contravene this subclause.
19 Penalty: a fine of $1 000.
20 40. Co-operative to keep documents relating to charges
21 A co-operative must, at the place where the co-operative register of
22 charges referred to in clause 41 is kept, keep a copy of --
23 (a) every document relating to a charge on property of the
24 co-operative that is lodged with the Registrar under this
25 Division; and
26 (b) every document given to the co-operative under this Division.
27 Penalty: a fine of $1 000.
28 41. Co-operative to keep register, and transitional provision
29 (1) A co-operative must keep a co-operative register of charges.
30 (2) On the creation of a charge, whether registrable or not, on property of
31 the co-operative, or on the acquisition of property subject to a charge,
page 334
Co-operatives Bill 2009
Registration etc. of charges Schedule 3
Registration Division 2
cl. 41
1 whether registrable or not, the co-operative must as soon as
2 practicable enter in the co-operative register of charges particulars of
3 the charge, giving in relation to each charge --
4 (a) if the charge is a charge created by the co-operative, the date
5 of its creation or, if the charge was a charge existing on
6 property acquired by the co-operative, the date on which the
7 property was so acquired; and
8 (b) a short description of the liability, whether present or
9 prospective, secured by the charge; and
10 (c) a short description of the property charged; and
11 (d) the name of the trustee for debenture holders or, if there is no
12 such trustee, the name of the chargee; and
13 (e) the name of the person whom the co-operative believes to be
14 the holder of the charge.
15 (3) In the case of a transferred co-operative previously registered under
16 the Companies (Co-operative) Act 1943, the register kept by the
17 co-operative under section 96 of that Act is to be considered to be part
18 of the register kept by the co-operative under subclause (2).
19 (4) A co-operative register of charges kept by a co-operative pursuant to
20 subclause (1) must be open for inspection --
21 (a) by a creditor or member of the co-operative, without
22 payment; and
23 (b) by another person, on payment for each inspection of the
24 amount, not exceeding the amount prescribed by the
25 regulations, the co-operative requires or, if the co-operative
26 does not require the payment of an amount, without charge.
27 (5) A person may request a co-operative to furnish the person with a copy
28 of the co-operative register of charges or any part of the register.
29 (6) If a person makes a request under subclause (5), the co-operative must
30 send the copy to that person --
31 (a) if the co-operative requires payment of an amount not more
32 than the amount prescribed by the regulations, within 21 days
33 after payment of the amount is received by the co-operative
34 or within a longer period approved by the Registrar; or
page 335
Co-operatives Bill 2009
Schedule 3 Registration etc. of charges
Division 2 Registration
cl. 42
1 (b) in a case to which paragraph (a) does not apply, within
2 21 days after the request is made or within such longer period
3 as the Registrar approves.
4 (7) If default is made in complying with any provision of this clause, the
5 co-operative commits an offence.
6 Penalty: a fine of $1 000.
7 42. Certificates
8 (1) If particulars of a charge are entered in the Register of Co-operative
9 Charges in accordance with this Division, the Registrar must, on
10 request by any person, issue to that person a certificate --
11 (a) setting out those particulars; and
12 (b) stating the time and day when a notice in respect of the
13 charge containing those particulars was lodged with the
14 Registrar; and
15 (c) if the word "provisional" appears in the Register of
16 Co-operative Charges next to the reference to the time and
17 day, stating that fact.
18 (2) A certificate issued under subclause (1) is evidence of the matters
19 stated in the certificate.
20 (3) If particulars of a charge are entered in the register of charges in
21 accordance with this Division, and the word "provisional" does not
22 appear in the register next to the reference to the time and day when a
23 notice about the charge was lodged, the Registrar must, on request by
24 any person, issue to that person a certificate stating that particulars of
25 the charge are entered in the register in accordance with this Division.
26 (4) A certificate issued under subclause (3) is evidence that the
27 requirements of this Division as to registration, other than the
28 requirements relating to the period after the creation of the charge
29 within which notice in respect of the charge is required to be lodged,
30 have been complied with.
page 336
Co-operatives Bill 2009
Registration etc. of charges Schedule 3
Registration Division 2
cl. 43
1 43. Power of Supreme Court to rectify register of charges
2 If the Supreme Court is satisfied --
3 (a) that a particular with respect to a registrable charge on
4 property of a co-operative has been omitted from, or
5 misstated in, the register of charges or a memorandum
6 referred to in clause 37; and
7 (b) that the omission or misstatement --
8 (i) was accidental or due to inadvertence or to some
9 other sufficient cause; or
10 (ii) is not of a nature to prejudice the position of creditors
11 or shareholders; or
12 (iii) on other grounds it is just and equitable to grant
13 relief,
14 the Court may, on the application of the co-operative or a person
15 interested and on terms and conditions that the Court considers just
16 and expedient, order that the omission or misstatement be rectified.
17 44. Registrar may exempt from compliance with certain
18 requirements of Division
19 (1) The Registrar may, by order published in the Gazette, exempt a
20 person from compliance with the requirements of clause 13, 17 or 36
21 relating to --
22 (a) the particulars to be contained in a notice under the relevant
23 clause; or
24 (b) the documents, other than the notice, to be lodged under the
25 relevant clause; or
26 (c) the verification of a document required to be lodged under the
27 relevant clause.
28 (2) A person who is exempted under this clause from compliance with a
29 requirement of clause 13, 17 or 36 must not contravene the condition.
30 (3) If a person has contravened a condition to which an exemption under
31 this clause is subject, the Supreme Court may, on the application of
32 the Registrar, order the person to comply with the condition.
page 337
Co-operatives Bill 2009
Schedule 3 Registration etc. of charges
Division 3 Order of priority
cl. 45
1 Division 3 -- Order of priority
2 Subdivision 1 -- General
3 45. Definitions
4 (1) In this Division --
5 prior registered charge, in relation to another registered charge,
6 means a charge the priority time of which is earlier than the priority
7 time of the other charge;
8 priority time, in relation to a registered charge, means --
9 (a) except as provided by paragraph (b) or (c), the time and date
10 appearing in the Register of Co-operative Charges in relation
11 to the charge, being a time and day entered in the register
12 pursuant to Division 2 Subdivision 3; or
13 (b) if a notice has been lodged under clause 17 in relation to a
14 charge on property, being a charge that, at the time when the
15 notice was lodged, was already registered under Division 2,
16 the earlier or earliest time and day appearing in the Register
17 of Co-operative Charges in relation to the charge, being a
18 time and day entered in the register pursuant to clause 17; or
19 (c) to the extent that the charge has effect as varied by a
20 variation, notice of which was required to be lodged under
21 clause 36(2), the time and day entered in the Register of
22 Co-operative Charges in relation to the charge pursuant to
23 clause 24;
24 registered charge means a charge that is registered under Division 2;
25 subsequent registered charge, in relation to another registered charge,
26 means a charge the priority time of which is later than the priority
27 time of the other registered charge;
28 unregistered charge means a charge that is not registered under
29 Division 2 but does not include a charge that is not a registrable
30 charge.
31 (2) A reference in this Division to a person having notice of a charge
32 includes a reference to a person having constructive notice of the
33 charge.
page 338
Co-operatives Bill 2009
Registration etc. of charges Schedule 3
Order of priority Division 3
cl. 46
1 (3) If, by virtue of the definition of priority time in subclause (1), a
2 registered charge has 2 or more priority times each of which relates to
3 a particular liability secured by the charge, each of the liabilities is,
4 for the purposes of this Division, taken to be secured by a separate
5 registered charge, the priority time of which is the priority time of the
6 first-mentioned registered charge that relates to the liability
7 concerned.
8 46. Priorities of charges
9 (1) Subject to this clause, Subdivision 2 has effect on the priorities, in
10 relation to each other, of registrable charges on the property of a
11 co-operative.
12 (2) The application, in relation to particular registrable charges, of the
13 order of priorities of charges set out in Subdivision 2, is subject to --
14 (a) any consent (express or implied) that varies the priorities in
15 relation to each other of the charges, being a consent given by
16 the holder of one of those charges and being a charge that
17 would otherwise be entitled to priority over the other charge;
18 and
19 (b) any agreement between the chargees that affects the priorities
20 in relation to each other of the charges in relation to which
21 those persons are the chargees.
22 (3) The holder of a registered charge, being a floating charge, on property
23 of a co-operative is taken, for the purposes of subclause (2), to have
24 consented to the charge being postponed to a subsequent registered
25 charge, being a fixed charge that is created before the floating charge
26 becomes fixed, on any of the property unless --
27 (a) the creation of the subsequent registered charge contravened
28 a provision of the instrument or resolution creating or
29 evidencing the floating charge; and
30 (b) a notice about the floating charge indicating the existence of
31 the provision referred to in paragraph (a) was lodged with the
32 Registrar under clause 13, 17 or 36 before the creation of the
33 subsequent registered charge.
34 (4) If a charge relates to property of a kind to which a particular
35 paragraph of clause 4(1) applies and also relates to other property,
36 Subdivision 2 applies so as to affect the priority of the charge only in
page 339
Co-operatives Bill 2009
Schedule 3 Registration etc. of charges
Division 3 Order of priority
cl. 47
1 so far as it relates to the first-mentioned property and does not affect
2 the priority of the charge in so far as it relates to the other property.
3 Subdivision 2 -- Priority rules
4 47. General priority rules in relation to registered charges
5 (1) A registered charge on property of a co-operative has priority over --
6 (a) a subsequent registered charge on the property, unless the
7 subsequent registered charge was created before the creation
8 of the prior registered charge and the chargee in relation to
9 the subsequent registered charge proves that the chargee in
10 relation to the prior registered charge had notice of the
11 subsequent registered charge at the time when the prior
12 registered charge was created; and
13 (b) an unregistered charge on the property created before the
14 creation of the registered charge, unless the chargee in
15 relation to the unregistered charge proves that the chargee in
16 relation to the registered charge had notice of the unregistered
17 charge at the time when the registered charge was created;
18 and
19 (c) an unregistered charge on the property created after the
20 creation of the registered charge.
21 (2) A registered charge on property of a co-operative is postponed to --
22 (a) a subsequent registered charge on the property, if the
23 subsequent registered charge was created before the creation
24 of the prior registered charge and the chargee in relation to
25 the subsequent registered charge proves that the chargee in
26 relation to the prior registered charge had notice of the
27 subsequent registered charge at the time when the prior
28 registered charge was created; and
29 (b) an unregistered charge on the property created before the
30 creation of the registered charge, where the chargee in
31 relation to the unregistered charge proves that the chargee in
32 relation to the registered charge had notice of the unregistered
33 charge at the time when the registered charge was created.
page 340
Co-operatives Bill 2009
Registration etc. of charges Schedule 3
Order of priority Division 3
cl. 48
1 48. General priority rule in relation to unregistered charges
2 An unregistered charge on property of a co-operative has priority
3 over --
4 (a) a registered charge on the property that was created after the
5 creation of the unregistered charge and does not have priority
6 over the unregistered charge under clause 47(1); and
7 (b) another unregistered charge on the property created after the
8 first-mentioned unregistered charge.
9 49. Special priority rules
10 (1) Except as provided by this clause, priority given by this Division to a
11 charge over another charge does not extend to a liability that, at the
12 priority time in relation to the first-mentioned charge, is not a present
13 liability.
14 (2) If a registered charge on property of a co-operative secures --
15 (a) a present liability and a prospective liability of an unspecified
16 amount; or
17 (b) a prospective liability of an unspecified amount,
18 priority given by this Division to the charge over another charge of
19 which the chargee in relation to the first-mentioned charge does not
20 have actual knowledge extends to the prospective liability, whether
21 the prospective liability became a present liability before or after the
22 registration of the first-mentioned charge.
23 (3) If a registered charge on property of a co-operative secures --
24 (a) a present liability and a prospective liability up to a specified
25 maximum amount; or
26 (b) a prospective liability up to a specified maximum amount,
27 and the notice lodged under clause 13 or 17 about the charge sets out
28 the nature of the prospective liability and the amount specified, then
29 priority given by this Division to the charge over another charge
30 extends to a prospective liability secured by the first-mentioned
31 charge to the extent of the maximum amount specified.
32 (4) Subclause (3) applies whether the prospective liability became a
33 present liability before or after the registration of the first-mentioned
page 341
Co-operatives Bill 2009
Schedule 3 Registration etc. of charges
Division 3 Order of priority
cl. 49
1 charge and despite the fact that the chargee in relation to the
2 first-mentioned charge had actual knowledge of the other charge at
3 the time when the prospective liability became a present liability.
4 (5) Subclause (6) applies if --
5 (a) a registered charge on property of a co-operative secures --
6 (i) a present liability and a prospective liability up to a
7 specified maximum amount; or
8 (ii) a prospective liability up to a specified maximum
9 amount,
10 but the notice lodged under clause 13 or 17 about the charge
11 does not set out the nature of the prospective liability or the
12 maximum amount specified; or
13 (b) a registered charge on property of a co-operative secures a
14 prospective liability of an unspecified amount.
15 (6) In relation to a charge referred to in subclause (5) --
16 (a) priority given by this Division to the charge over another
17 charge of which the chargee in relation to the first-mentioned
18 charge has actual knowledge extends to a prospective liability
19 secured by the first-mentioned charge that had become a
20 present liability at the time when the chargee in relation to the
21 first-mentioned charge first obtained actual knowledge of the
22 other charge; and
23 (b) priority given by this Division to the charge over another
24 charge of which the chargee in relation to the first-mentioned
25 charge has actual knowledge extends to a prospective liability
26 secured by the first-mentioned charge that became a present
27 liability, as the result of the making of an advance, after the
28 time when the chargee in relation to the first-mentioned
29 charge first obtained actual knowledge of the other charge if,
30 at that time, the terms of the first-mentioned charge required
31 the chargee in relation to the charge to make the advance after
32 that time.
33 (7) Subclause (6)(b) extends to the prospective liability whether the
34 advance was made before or after the registration of the
35 first-mentioned charge and despite the fact that the chargee in relation
36 to the first-mentioned charge had actual knowledge of the other
37 charge at the time when the advance was made.
page 342
Co-operatives Bill 2009
Receivers, and other controllers, of property of co-operatives Schedule 4
cl. 1
1 Schedule 4 -- Receivers, and other controllers, of property
2 of co-operatives
3 [s. 268]
4 1. Interpretation
5 In this Schedule --
6 administrator, in relation to a deed of arrangement, means an
7 administrator of the deed appointed under the Corporations Act
8 Part 5.3A, as applying under this Act;
9 control day, in relation to a controller of property of a co-operative,
10 means --
11 (a) unless paragraph (b) applies --
12 (i) in the case of a receiver, or receiver and manager, of
13 the property, the day when the receiver, or receiver
14 and manager, was appointed; or
15 (ii) in the case of another person who is in possession, or
16 has control, of the property for the purpose of
17 enforcing a charge, the day when the person entered
18 into possession, or took control, of property of the
19 co-operative for the purpose of enforcing the charge;
20 or
21 (b) if the controller became a controller of property of the
22 co-operative --
23 (i) to act with an existing controller of the property; or
24 (ii) in place of a controller of the property who has died
25 or ceased to be a controller of the property,
26 the day that is, because of any other application or
27 applications of this definition, the control day in relation to
28 the controller referred to in subparagraph (i) or (ii);
29 controller, of property of a co-operative, means --
30 (a) a receiver, or receiver and manager, of the property; or
31 (b) anyone else who, whether or not as agent for the
32 co-operative, is in possession, or has control, of the property
33 for the purpose of enforcing a charge;
34 co-operative includes a foreign co-operative registered under Part 14;
page 343
Co-operatives Bill 2009
Schedule 4 Receivers, and other controllers, of property of co-operatives
cl. 2
1 daily newspaper means a newspaper that is ordinarily published on
2 each day that is a business day in the place where the newspaper is
3 published, whether or not the newspaper is ordinarily published on
4 other days;
5 managing controller, of property of a co-operative, means --
6 (a) a receiver and manager of the property; or
7 (b) another controller of the property who has functions or
8 powers in relation to managing the co-operative;
9 national newspaper means a daily newspaper that circulates generally
10 in each State and Territory;
11 officer, of a foreign co-operative, includes a local agent of the foreign
12 co-operative;
13 property, of a co-operative, means property --
14 (a) in the case of a co-operative that is not a foreign co-operative,
15 within or outside Australia; or
16 (b) in the case of a co-operative that is a foreign co-operative,
17 within Australia or an external Territory;
18 receiver, of property of a co-operative, includes a receiver and
19 manager.
20 2. Application of Schedule
21 Except in so far as the contrary intention appears, this Schedule
22 applies in relation to a receiver of property of a co-operative who is
23 appointed after the commencement of this Schedule, even if the
24 appointment arose out of a transaction entered into, or an act or thing
25 done, before that commencement.
26 3. Persons not to act as receivers
27 (1) A person is not qualified to be appointed, and cannot act, as receiver
28 of property of a co-operative if the person --
29 (a) is a mortgagee of property of the co-operative; or
30 (b) is an auditor or an officer of the co-operative; or
31 (c) is an officer of a corporation that is a mortgagee of property
32 of the co-operative; or
33 (d) is not a registered liquidator under the Corporations Act; or
page 344
Co-operatives Bill 2009
Receivers, and other controllers, of property of co-operatives Schedule 4
cl. 4
1 (e) is an officer of a corporation related to the co-operative; or
2 (f) has at any time within the last 12 months been an officer or
3 promoter of the co-operative or of a related corporation,
4 unless the Registrar directs in writing that this paragraph does
5 not apply in relation to the person in relation to the
6 co-operative.
7 (2) In subclause (1) --
8 officer, in relation to a corporation, does not include a receiver,
9 appointed under an instrument whether before or after the
10 commencement of this clause, of property of the body.
11 (3) Subclause (1)(d) does not apply in relation to a corporation authorised
12 by or under a law of the Commonwealth, of a State or of a Territory to
13 act as receiver of property of the co-operative.
14 (4) Nothing in this clause prevents a person from acting as receiver of
15 property of a co-operative under an appointment validly made before
16 the commencement of this clause.
17 4. Supreme Court may declare whether controller is validly acting
18 (1) If there is doubt, on a specific ground, about --
19 (a) whether a purported appointment of a person, after the
20 commencement of this clause, as receiver of property of a
21 co-operative is valid; or
22 (b) whether a person who has entered into possession, or
23 assumed control, of property of a co-operative after the
24 commencement of this clause did so validly under the terms
25 of a charge on that property,
26 the person, the co-operative or any of the co-operative's creditors may
27 apply to the Supreme Court for an order under subclause (2).
28 (2) On an application, the Supreme Court may make an order declaring
29 whether or not --
30 (a) the purported appointment was valid; or
31 (b) the person entered into possession, or assumed control,
32 validly under the terms of the charge,
33 as the case may be, on the ground specified in the application or on
34 some other ground.
page 345
Co-operatives Bill 2009
Schedule 4 Receivers, and other controllers, of property of co-operatives
cl. 5
1 5. Liability of controller
2 (1) A receiver, or another authorised person, who, whether as agent for
3 the co-operative or not, enters into possession or assumes control of a
4 property of a co-operative for the purpose of enforcing a charge is,
5 despite an agreement to the contrary, but without prejudice to the
6 person's rights against the co-operative or another person, liable for
7 debts incurred by the person in the course of the receivership,
8 possession or control for services rendered, goods purchased or
9 property hired, leased, used or occupied.
10 (2) Subclause (1) does not constitute the person entitled to the charge a
11 mortgagee in possession.
12 (3) If --
13 (a) a person (the controller) enters into possession or assumes
14 control of property of a co-operative; and
15 (b) the controller purports to have been properly appointed as a
16 receiver of that property under a power contained in an
17 instrument, but has not been properly appointed; and
18 (c) civil proceedings in a federal court or a court of a State or
19 Territory arise out of an act alleged to have been done by the
20 controller,
21 the court may, if it is satisfied that the controller believed on
22 reasonable grounds that the controller had been properly appointed,
23 order that --
24 (d) the controller be relieved in whole or in part of a liability that
25 the controller has incurred but would not have incurred if the
26 controller had been properly appointed; and
27 (e) a person who purported to appoint the controller as receiver
28 be liable for an act, matter or thing in so far as the controller
29 has been relieved under paragraph (d) of liability for that act,
30 matter or thing.
31 6. Liability of controller under pre-existing agreement about
32 property used by co-operative
33 (1) This clause applies if --
34 (a) under an agreement made before the control day in relation to
35 a controller of property of a co-operative, the co-operative
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1 continues after that day to use or occupy, or to be in
2 possession of, property (the third party property) of which
3 someone else is the owner or lessor; and
4 (b) the controller is controller of the third party property.
5 (2) Subject to subclauses (4) and (7), the controller is liable for the
6 portion of the rent or other amounts payable by the co-operative under
7 the agreement that is attributable to a period --
8 (a) that begins more than 7 days after the control day; and
9 (b) throughout which --
10 (i) the co-operative continues to use or occupy, or to be
11 in possession of, the third party property; and
12 (ii) the controller is controller of the third party property.
13 (3) Within 7 days after the control day, the controller may give to the
14 owner or lessor a notice that specifies the third party property and
15 states that the controller does not propose to exercise rights in relation
16 to the property as controller of the property, whether on behalf of the
17 co-operative or anyone else.
18 (4) Despite subclause (2), the controller is not liable for the portion of the
19 rent or other amounts payable by the co-operative under the
20 agreement as is attributable to a period during which a notice under
21 subclause (3) is in force, but the notice does not affect a liability of
22 the co-operative.
23 (5) A notice under subclause (3) ceases to have effect if --
24 (a) the controller revokes it by writing given to the owner or
25 lessor; or
26 (b) the controller exercises, or purports to exercise, a right in
27 relation to the third party property as controller of the
28 property, whether on behalf of the co-operative or another
29 person.
30 (6) For the purposes of subclause (5), the controller does not exercise, or
31 purport to exercise, a right referred to in subclause (5)(b) merely
32 because the controller continues to be in possession, or to have
33 control, of the third party property, unless the controller --
34 (a) also uses the property; or
35 (b) asserts a right, as against the owner or lessor, to continue.
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1 (7) Subclause (2) does not apply to the extent that the Supreme Court, by
2 order, excuses the controller from liability, but an order does not
3 affect a liability of the co-operative.
4 (8) The controller is not taken because of subclause (2) --
5 (a) to have adopted the agreement; or
6 (b) to be liable under the agreement otherwise than as mentioned
7 in subclause (2).
8 7. Powers of receiver
9 (1) Subject to this clause, a receiver of property of a co-operative has
10 power to do, in Australia and elsewhere, all things necessary or
11 convenient to be done for or in relation to, or as incidental to, the
12 attainment of the objectives for which the receiver was appointed.
13 (2) Without limiting subclause (1), but subject to any provision of the
14 court order by which, or the instrument under which, the receiver was
15 appointed, being a provision that limits the receiver's powers in any
16 way, a receiver of property of a co-operative has, in addition to any
17 powers conferred by the order or instrument, as the case may be, or by
18 any other law, power, for the purpose of attaining the objectives for
19 which the receiver was appointed --
20 (a) to enter into possession and take control of property of the
21 co-operative in accordance with the terms of the order or
22 instrument; and
23 (b) to lease, let on hire or dispose of property of the co-operative;
24 and
25 (c) to grant options over property of the co-operative on
26 conditions that the receiver considers appropriate; and
27 (d) to borrow money on the security of property of the
28 co-operative; and
29 (e) to insure property of the co-operative; and
30 (f) to repair, renew or enlarge property of the co-operative; and
31 (g) to convert property of the co-operative into money; and
32 (h) to carry on a business of the co-operative; and
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1 (i) to take on lease or on hire, or to acquire, property necessary
2 or convenient in connection with the carrying on of a
3 business of the co-operative; and
4 (j) to execute a document, bring or defend proceedings or do any
5 other act or thing in the name of and on behalf of the
6 co-operative; and
7 (k) to draw, accept, make and endorse a bill of exchange or
8 promissory note; and
9 (l) to use a seal of the co-operative; and
10 (m) to engage or discharge employees on behalf of the
11 co-operative; and
12 (n) to appoint a legal practitioner, accountant or other
13 professionally qualified person to assist the receiver; and
14 (o) to appoint an agent to do any business that the receiver is
15 unable to do, or that it is unreasonable to expect the receiver
16 to do, in person; and
17 (p) if a debt or liability is owed to the co-operative, to prove the
18 debt or liability in a bankruptcy, insolvency or winding-up
19 and, in that connection, to receive dividends and to assent to a
20 proposal for a composition or a scheme of arrangement; and
21 (q) if the receiver was appointed under an instrument that created
22 a charge on uncalled capital or uncalled premiums of the
23 co-operative --
24 (i) in the name of the co-operative, to make a call for
25 money unpaid on shares in the co-operative, whether
26 on account of the nominal value of the shares or by
27 way of premium; or
28 (ii) on the giving of an adequate indemnity to a liquidator
29 of the co-operative, in the name of the liquidator, to
30 make a call for money unpaid on account of the
31 nominal value of shares in the co-operative;
32 and
33 (r) to enforce payment of a call that is due and unpaid, whether
34 the calls were made by the receiver or otherwise; and
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1 (s) to make or defend an application for the winding-up of the
2 co-operative; and
3 (t) to refer to arbitration a question affecting the co-operative.
4 (3) The conferring by this clause on a receiver of powers in relation to
5 property of a co-operative does not affect the rights in relation to that
6 property of any other person other than the co-operative.
7 (4) In this clause, a reference, in relation to a receiver, to property of a
8 co-operative is, unless the contrary intention appears, a reference to
9 the property of the co-operative in relation to which the receiver was
10 appointed.
11 8. Controller's duty of care in exercising power of sale
12 (1) In exercising a power of sale in respect of property of a co-operative,
13 a controller must take all reasonable care to sell the property for --
14 (a) if, when it is sold, it has a market value, not less than the
15 market value; or
16 (b) otherwise, the best price that is reasonably obtainable, having
17 regard to the circumstances existing when the property is
18 sold.
19 (2) Nothing in subclause (1) limits anything in Part 9 Division 3.
20 9. Supreme Court may authorise managing controller to dispose of
21 property despite prior charge
22 (1) On the application of a managing controller of property of a
23 co-operative, the Supreme Court may by order authorise the controller
24 to sell, or to dispose of in some other specified way, specified
25 property of the co-operative, even though it is subject to a charge (the
26 prior charge) that has priority over a charge (the controller's charge)
27 on the property that the controller is enforcing.
28 (2) The Supreme Court may make an order if satisfied that --
29 (a) apart from the existence of the prior charge, the controller
30 would have power to sell, or to dispose of, the property; and
31 (b) the controller has taken all reasonable steps to obtain the
32 consent of the holder of the prior charge to the sale or
33 disposal, but has not obtained the consent; and
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1 (c) sale or disposal of the property under the order is in the best
2 interests of the co-operative's creditors and of the
3 co-operative; and
4 (d) sale or disposal of the property under the order will not
5 unreasonably prejudice the rights or interests of the holder of
6 the prior charge.
7 (3) The Supreme Court may have regard to the need to protect adequately
8 the rights and interests of the holder of the prior charge.
9 (4) If the property would be sold or disposed of together with other
10 property that is subject to the controller's charge, the Supreme Court
11 may have regard to --
12 (a) the amount, if any, by which it is reasonable to expect that the
13 net proceeds of selling or disposing of the other property
14 otherwise than together with the first-mentioned property
15 would be less than so much of the net proceeds of selling or
16 disposing of all the property together as would be attributable
17 to that other property; and
18 (b) the amount, if any, by which it is reasonable to expect that the
19 net proceeds of selling or disposing of the first-mentioned
20 property otherwise than together with the other property
21 would be greater than so much of the net proceeds of selling
22 or disposing of all the property together as would be
23 attributable to the first-mentioned property.
24 (5) Nothing in subclause (3) or (4) limits the matters to which the
25 Supreme Court may have regard for the purposes of subclause (2).
26 (6) An order may be made subject to conditions.
27 10. Receiver's power to carry on co-operative's business during
28 winding-up
29 (1) A receiver of property of a co-operative that is being wound-up
30 may --
31 (a) with the written approval of the co-operative's liquidator or
32 with the approval of the Supreme Court, carry on the
33 co-operative's business either generally or as otherwise
34 specified in the approval; and
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Schedule 4 Receivers, and other controllers, of property of co-operatives
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1 (b) do whatever is necessarily incidental to carrying on the
2 business under paragraph (a).
3 (2) Subclause (1) does not --
4 (a) affect a power that the receiver has otherwise than under that
5 subclause; or
6 (b) empower the receiver to do an act that the receiver would not
7 have power to do if the co-operative were not being
8 wound-up.
9 (3) A receiver of property of a co-operative who carries on the
10 co-operative's business under subclause (1) does so --
11 (a) as agent for the co-operative; and
12 (b) in his or her capacity as receiver of property of the
13 co-operative.
14 (4) The consequences of subclause (3) include, but are not limited to, the
15 following --
16 (a) for the purposes of clause 5(1), a debt that the receiver incurs
17 in carrying on the business as mentioned in subclause (3) of
18 this clause is incurred in the course of the receivership;
19 (b) a debt or liability that the receiver incurs in so carrying on the
20 business is not a cost, charge or expense of the winding-up.
21 11. Controller's duties in relation to financial institution accounts
22 and financial records
23 (1) A controller of property of a co-operative must --
24 (a) open and maintain an account with a financial institution,
25 bearing --
26 (i) the controller's name; and
27 (ii) in the case of a receiver of the property, the title
28 "receiver"; and
29 (iii) otherwise, the title "controller"; and
30 (iv) the co-operative's name;
31 and
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1 (b) within 3 business days after money of the co-operative comes
2 under the control of the controller, pay the money into an
3 account referred to in paragraph (a); and
4 (c) ensure that no account that the controller maintains contains
5 money other than money of the co-operative that comes under
6 the control of the controller; and
7 (d) keep the financial records that correctly record and explain all
8 transactions that the controller enters into as the controller.
9 (2) A director, creditor or member of a co-operative may, unless the
10 Supreme Court otherwise orders, personally or by an agent, inspect
11 records kept by a controller of property of the co-operative for the
12 purposes of subclause (1)(d).
13 12. Managing controller to report within 2 months about
14 co-operative's affairs
15 (1) A managing controller of property of a co-operative must prepare a
16 report about the co-operative's affairs that is in the form approved by
17 the Registrar and is made up to a day not later than 28 days before the
18 day when it is prepared.
19 (2) The managing controller must prepare the report and lodge it with the
20 Registrar within 2 months after the control day.
21 (3) As soon as practicable, and in any event within 14 days, after lodging
22 the report with the Registrar, the managing controller must cause to be
23 published in a national newspaper, or in each State and Territory in a
24 daily newspaper that circulates generally in that State or Territory, a
25 notice stating --
26 (a) that the report has been prepared; and
27 (b) that a person can, on paying the fee prescribed by the
28 regulations, inspect the report at specified offices of the
29 Registrar.
30 (4) If, in the managing controller's opinion, it would seriously
31 prejudice --
32 (a) the co-operative's interests; or
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1 (b) the achievement of the objectives for which the controller
2 was appointed, or entered into possession or assumed control
3 of property of the co-operative, as the case requires,
4 if particular information that the controller would otherwise include in
5 the report were made available to the public, the controller need not
6 include the information in the report.
7 (5) If the managing controller omits information from the report as
8 permitted by subclause (4), the controller must include instead a
9 notice --
10 (a) stating that certain information has been omitted from the
11 report; and
12 (b) summarising what the information is about, but without
13 disclosing the information itself.
14 13. Reports by receiver
15 (1) If it appears to the receiver of property of a co-operative that --
16 (a) a past or present officer, or a member, of the co-operative
17 may have been guilty of an offence under a law of the
18 Commonwealth or of a State or Territory in relation to the
19 co-operative; or
20 (b) a person who has taken part in the formation, promotion,
21 administration, management or winding-up of the
22 co-operative --
23 (i) may have misapplied or retained, or may have
24 become liable or accountable for, money or property,
25 whether the property is within or outside Australia, of
26 the co-operative; or
27 (ii) may have been guilty of negligence, default, breach
28 of duty or breach of trust in relation to the
29 co-operative,
30 the receiver must --
31 (c) lodge with the Registrar as soon as practicable a report about
32 the matter; and
33 (d) give to the Registrar the information, and access to and
34 facilities for inspecting and taking copies of any documents,
35 as the Registrar requires.
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Receivers, and other controllers, of property of co-operatives Schedule 4
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1 (2) The receiver may also lodge further reports specifying any other
2 matter that, in the receiver's opinion, it is desirable to bring to the
3 notice of the Registrar.
4 (3) If it appears to the Supreme Court --
5 (a) that a past or present officer, or a member, of a co-operative
6 in relation to property of which a receiver has been appointed
7 has been guilty of an offence under a law referred to in
8 subclause (1)(a) in relation to the co-operative; or
9 (b) that a person who has taken part in the formation, promotion,
10 administration, management or winding-up of a co-operative
11 in relation to property of which a receiver has been appointed
12 has engaged in conduct referred to in subclause (1)(b) in
13 relation to the co-operative,
14 and that the receiver has not lodged a report with the Registrar about
15 the matter, the Court may, on the application of a person interested in
16 the appointment of the receiver or of its initiative, direct the receiver
17 to lodge the report.
18 14. Supervision of controller
19 (1) If --
20 (a) it appears to the Supreme Court or to the Registrar that a
21 controller of property of a co-operative has not faithfully
22 performed, or is not faithfully performing, the controller's
23 functions or has not observed, or is not observing, a
24 requirement of --
25 (i) in the case of a receiver, the order by which, or the
26 instrument under which, the receiver was appointed;
27 or
28 (ii) otherwise, an instrument under which the controller
29 entered into possession, or took control, of the
30 property; or
31 (iii) in any case, the Supreme Court; or
32 (iv) in any case, this Act or the rules of court;
33 or
34 (b) a person complains to the Supreme Court or to the Registrar
35 about an act or omission of a controller of property of a
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Schedule 4 Receivers, and other controllers, of property of co-operatives
cl. 15
1 co-operative in connection with performing or exercising any
2 of the controller's functions and powers,
3 the Supreme Court or the Registrar, as the case may be, may inquire
4 into the matter and, if the Court or the Registrar inquires under this
5 subclause, the Supreme Court may take the action that it considers
6 appropriate.
7 (2) The Registrar may report to the Supreme Court any matter that in the
8 Registrar's opinion is a misfeasance, neglect or omission on the part
9 of a controller of property of a co-operative and the Court may --
10 (a) order the controller to make good any loss that the estate of
11 the co-operative has sustained because of the misfeasance,
12 neglect or omission; and
13 (b) make any other order that it considers appropriate.
14 (3) The Supreme Court may at any time --
15 (a) require a controller of property of a co-operative to answer
16 questions about the performance or exercise of any of the
17 controller's functions and powers as controller; or
18 (b) examine a person about the performance or exercise by the
19 controller of any of the controller's functions and powers as
20 controller; or
21 (c) direct an investigation to be made of the controller's books.
22 15. Controller may apply to Supreme Court
23 (1) A controller of property of a co-operative may apply to the Supreme
24 Court for directions in relation to any matter arising in relation to the
25 performance or exercise of any of the controller's functions and
26 powers as controller.
27 (2) In the case of a receiver of property of a co-operative, subclause (1)
28 applies only if the receiver was appointed under a power contained in
29 an instrument.
30 16. Power of Supreme Court to fix receiver's remuneration
31 (1) The Supreme Court may by order fix the amount to be paid by way of
32 remuneration to a person who, under a power contained in an
33 instrument, has been appointed as receiver of property of a
34 co-operative.
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Receivers, and other controllers, of property of co-operatives Schedule 4
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1 (2) The power of the Supreme Court to make an order under this
2 clause --
3 (a) extends to fixing the remuneration for a period before the
4 making of the order or the application for the order; and
5 (b) is exercisable even if the receiver has died, or ceased to act,
6 before the making of the order or the application for the
7 order; and
8 (c) if the receiver has been paid or has retained for the receiver's
9 remuneration for any period before the making of the order
10 any amount in excess of that fixed for the period, extends to
11 requiring the receiver or the receiver's personal
12 representatives to account for the excess or the part of the
13 excess that is specified in the order.
14 (3) The power conferred by subclause (2)(c) cannot be exercised in
15 relation to a period before the making of the application for the order
16 unless, in the opinion of the Supreme Court, there are special
17 circumstances that make it appropriate for the power to be exercised.
18 (4) The Supreme Court may from time to time vary or amend an order
19 under this clause.
20 (5) An order under this clause may be made, varied or amended on the
21 application of --
22 (a) a liquidator of the co-operative; or
23 (b) an administrator of the co-operative; or
24 (c) an administrator of a deed of arrangement executed by the
25 co-operative; or
26 (d) the Registrar.
27 (6) An order under this clause may be varied or amended on the
28 application of the receiver concerned.
29 (7) An order under this clause may be made, varied or amended only as
30 provided in subclauses (5) and (6).
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Schedule 4 Receivers, and other controllers, of property of co-operatives
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1 17. Controller has qualified privilege in certain cases
2 A controller of property of a co-operative has qualified privilege in
3 relation to --
4 (a) a matter contained in a report that the controller lodges under
5 clause 12 or 13; or
6 (b) a comment that the controller makes under clause 20(2)(c).
7 18. Notification of matters relating to controller
8 (1) A person who obtains an order for the appointment of a receiver of
9 property of a co-operative, or who appoints such a receiver under a
10 power contained in an instrument, must --
11 (a) within 7 days after obtaining the order or making the
12 appointment, lodge notice that the order has been obtained, or
13 that the appointment has been made, as the case requires; and
14 (b) within 21 days after obtaining the order or making the
15 appointment, cause notice that the order has been obtained, or
16 that the appointment has been made, as the case requires, to
17 be published in the Gazette.
18 (2) A person who appoints another person to enter into possession, or
19 take control, of property of a co-operative, whether or not as agent for
20 the co-operative, for the purpose of enforcing a charge otherwise than
21 as receiver of that property must --
22 (a) within 7 days after making the appointment, lodge notice of
23 the appointment with the Registrar; and
24 (b) within 21 days after making the appointment, cause notice of
25 the appointment to be published in the Gazette.
26 (3) A person who enters into possession, or takes control, as mentioned in
27 subclause (2) must --
28 (a) within 7 days after entering into possession or taking control,
29 lodge notice with the Registrar that the person has done so;
30 and
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1 (b) within 21 days after entering into possession or taking
2 control, cause to be published in the Gazette notice that the
3 person has done so,
4 unless another person --
5 (c) appointed the first-mentioned person to enter into possession
6 or take control; and
7 (d) complies with subclause (2) in relation to the appointment.
8 (4) Within 14 days after becoming a controller of property of a
9 co-operative, a person must lodge with the Registrar notice, in the
10 form approved by the Registrar, of the address of the person's office.
11 (5) A controller of property of a co-operative must, within 14 days after a
12 change in the situation of the controller's office, lodge with the
13 Registrar notice, in the form approved by the Registrar, of the change.
14 (6) A person who ceases to be a controller of property of a co-operative
15 must --
16 (a) within 7 days after ceasing to be a controller, lodge with the
17 Registrar notice that the person has ceased; and
18 (b) within 21 days after ceasing to be a controller, cause notice
19 that the person has ceased to be published in the Gazette.
20 19. Statement that receiver appointed or other controller acting
21 (1) If a receiver of property, whether within or outside this State or within
22 or outside Australia, of a co-operative has been appointed, the
23 co-operative must set out, in every public document, and in every
24 eligible negotiable instrument, of the co-operative, after the name of
25 the co-operative where it first appears, a statement that a receiver, or a
26 receiver and manager, as the case requires, has been appointed.
27 (2) If a controller, other than a receiver, controls the property, whether
28 within or outside Australia, of a co-operative, the co-operative must
29 set out, in every public document, and in every negotiable instrument,
30 of the co-operative, after the co-operative's name where it first
31 appears, a statement that a controller is acting.
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1 20. Officers to report to controller about co-operative's affairs
2 (1) In this clause --
3 reporting officer, in relation to a co-operative and in relation to
4 property of which a person is controller, means a person who was on
5 the control day --
6 (a) in the case of a co-operative other than a foreign co-operative,
7 a director or secretary of the co-operative; or
8 (b) in the case of a foreign co-operative, a local agent of the
9 foreign co-operative.
10 (2) If a person becomes a controller of property of a co-operative --
11 (a) the person must serve on the co-operative, as soon as
12 practicable, notice that the person is a controller of property
13 of the co-operative; and
14 (b) within 14 days after the co-operative receives the notice, the
15 reporting officers must make out and submit to the person a
16 report, in the form approved by the Registrar, about the
17 affairs of the co-operative as at the control day; and
18 (c) the person must, within 28 days after receipt of the report --
19 (i) lodge with the Registrar a copy of the report and a
20 notice setting out any comments the person considers
21 appropriate to make relating to the report or, if the
22 person does not consider it appropriate to comment, a
23 notice stating that the person does not consider it
24 appropriate to comment; and
25 (ii) send to the co-operative a copy of the notice lodged
26 in accordance with subparagraph (i);
27 and
28 (d) the person must, within 28 days after receipt of the report, if
29 the person became a controller of the property --
30 (i) because of an appointment as receiver of the property
31 that was made by or on behalf of the holder of
32 debentures of the co-operative; or
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1 (ii) by entering into possession, or taking control, of the
2 property for the purpose of enforcing a charge
3 securing such debentures,
4 and there are trustees for the holders of the debentures, send
5 to those trustees a copy of the report and a copy of the notice
6 lodged under paragraph (c)(i).
7 (3) If notice has been served on a co-operative under subclause (2)(a), the
8 reporting officers may apply to the controller or to the Supreme Court
9 to extend the period within which the report is to be submitted and --
10 (a) if application is made to the controller, if the controller
11 believes that there are special reasons for so doing, the
12 controller may, by written notice given to the reporting
13 officers, extend that period until a specified day; and
14 (b) if application is made to the Supreme Court, if the Court
15 believes that there are special reasons for so doing, the Court
16 may, by order, extend that period until a specified day.
17 (4) As soon as practicable after granting an extension under
18 subclause (3)(a), the controller must lodge a copy of the notice with
19 the Registrar.
20 (5) As soon as practicable after the Supreme Court grants an extension
21 under subclause (3)(b), the reporting officers must lodge a copy of the
22 order with the Registrar.
23 (6) Subclauses (2), (3) and (4) do not apply in a case where a person
24 becomes a controller of property of a co-operative --
25 (a) to act with an existing controller of property of the
26 co-operative; or
27 (b) in place of a controller of the property who has died or ceased
28 to be a controller of the property.
29 (7) However, if subclause (2) applies in a case where a controller of
30 property of a co-operative dies, or ceases to be a controller of property
31 of the co-operative, before subclause (2) is fully complied with,
32 then --
33 (a) the references in subclauses (2)(b), (c) and (d) to the person;
34 and
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Co-operatives Bill 2009
Schedule 4 Receivers, and other controllers, of property of co-operatives
cl. 21
1 (b) the references in subclauses (3) and (4) to the controller,
2 include references to the controller's successor and to any continuing
3 controller.
4 (8) If a co-operative is being wound-up, this clause and clause 21 apply
5 even if the controller and the liquidator are the same person, but with
6 the necessary modifications arising from that fact.
7 21. Controller may require reports
8 (1) A controller of property of a co-operative may, by notice given to the
9 person or persons, require one or more persons included in one or
10 more of the following classes of persons to make out as required by
11 the notice, verify by a written statement in the approved form, and
12 submit to the controller, a report, containing such information as is
13 specified in the notice as to the affairs of the co-operative or as to
14 such of those affairs as are specified in the notice, as at a date
15 specified in the notice --
16 (a) persons who are or have been officers of the co-operative;
17 (b) if the co-operative was incorporated within 12 months before
18 the control day, persons who have taken part in the formation
19 of the co-operative;
20 (c) persons who are employed by the co-operative or have been
21 so employed within 12 months before the control day and are,
22 in the opinion of the controller, capable of giving the
23 information required;
24 (d) persons who are, or have been within 12 months before the
25 control day, officers of, or employed by, a co-operative that
26 is, or within that year was, an officer of the co-operative.
27 (2) Without limiting subclause (1), a notice under that subclause may
28 specify the information that the controller requires as to affairs of the
29 co-operative by reference to information that this Act requires to be
30 included in another report, statement or notice under this Act.
31 (3) A person making a report and verifying it as required by subclause (1)
32 must, subject to the regulations, be allowed, and must be paid by the
33 receiver (or the controller's successor) out of the controller's receipts,
34 any costs and expenses incurred in and about the preparation and
page 362
Co-operatives Bill 2009
Receivers, and other controllers, of property of co-operatives Schedule 4
cl. 22
1 making of the report and the verification of the report that the
2 controller (or the controller's successor) considers reasonable.
3 (4) A person must comply with a requirement made under subclause (1).
4 (5) A reference in this clause to the controller's successor includes a
5 reference to a continuing controller.
6 22. Controller may inspect records
7 A controller of property of a co-operative is entitled to inspect at any
8 reasonable time any records of the co-operative that relate to the
9 property and a person must not fail to allow the controller to inspect
10 those books at such a time.
11 23. Lodging controller's accounts
12 (1) A controller of property of a co-operative must lodge with the
13 Registrar an account --
14 (a) within 28 days after the end of --
15 (i) 6 months, or a shorter period the controller
16 determines, after the day when the controller became
17 a controller of property of the co-operative; and
18 (ii) each subsequent period of 6 months throughout
19 which the controller is a controller of property of the
20 co-operative;
21 and
22 (b) within 28 days after the controller ceases to be a controller of
23 property of the co-operative.
24 (2) An account must be in the form approved by the Registrar and
25 show --
26 (a) the controller's receipts and payments during --
27 (i) in the case of an account under subclause (1)(a), the
28 6 months or shorter period, as the case requires; or
29 (ii) in the case of an account under subclause (1)(b), the
30 period beginning at the end of the period to which the
31 last account related, or on the control day, as the case
32 requires and ending on the day when the controller
33 ceased to be the controller;
34 and
page 363
Co-operatives Bill 2009
Schedule 4 Receivers, and other controllers, of property of co-operatives
cl. 23
1 (b) except in the case of an account lodged under
2 subclause (1)(a)(i), the respective aggregates of the
3 controller's receipts and payments since the control day.
4 (3) In the case of --
5 (a) a receiver appointed under a power contained in an
6 instrument; or
7 (b) anyone else who is in possession, or has control, of property
8 of the co-operative for the purpose of enforcing a charge,
9 the accounts must also show the following --
10 (c) the amount, if any, owing under that instrument or charge --
11 (i) in the case of an account lodged under
12 subclause (1)(a)(i), at the end of the control day and
13 at the end of the period to which the account relates;
14 or
15 (ii) otherwise, at the end of the period to which the
16 account relates;
17 (d) the controller's estimate of the total value, at the end of the
18 period to which the account relates, of the property of the
19 co-operative that is subject to the instrument or charge.
20 (4) The Registrar may, of the Registrar's own initiative or on the
21 application of the co-operative or a creditor of the co-operative, cause
22 the accounts lodged in accordance with subclause (1) to be audited by
23 a registered company auditor appointed by the Registrar.
24 (5) For the purpose of the audit, the controller must give the auditor any
25 records and information that the auditor requires.
26 (6) If the Registrar causes the accounts to be audited on the request of the
27 co-operative or a creditor, the Registrar may require the co-operative
28 or creditor, as the case may be, to give security for the payment of the
29 cost of the audit.
30 (7) The costs of an audit under subclause (3) are to be fixed by the
31 Registrar.
32 (8) The Registrar may if the Registrar considers it appropriate make an
33 order declaring that, for the purposes of clause 5(1), the costs of the
34 audit are taken to be a debt incurred by the controller as referred to in
page 364
Co-operatives Bill 2009
Receivers, and other controllers, of property of co-operatives Schedule 4
cl. 24
1 clause 5(1) and, if such an order is made, the controller is liable
2 accordingly.
3 (9) A person must comply with a requirement made under this clause.
4 24. Payment of certain debts, out of property subject to floating
5 charge, in priority to claims under charge
6 (1) This clause applies if --
7 (a) a receiver is appointed on behalf of the holders of debentures
8 of a co-operative that are secured by a floating charge, or
9 possession is taken or control is assumed, by or on behalf of
10 the holders of any debentures of a co-operative, of property
11 subject to a floating charge; and
12 (b) at the date of the appointment or of the taking of possession
13 or assumption of control (the relevant date) --
14 (i) the co-operative has not commenced to be wound-up
15 voluntarily; and
16 (ii) the co-operative has not been ordered to be wound-up
17 by the Supreme Court.
18 (2) The receiver or other person taking possession or assuming control of
19 property of the co-operative must pay, out of the property coming into
20 the receiver's possession or control, the following debts or amounts in
21 priority to a claim for principal or interest in relation to the
22 debentures --
23 (a) first, an amount that in a winding-up is payable in priority to
24 unsecured debts under the Corporations Act section 556, as
25 applying under this Act;
26 (b) next, if an auditor of the co-operative applied to the Registrar
27 for consent to resign as auditor and the Registrar refused that
28 consent before the relevant date, the reasonable fees and
29 expenses of the auditor incurred during the period beginning
30 on the day of the refusal and ending on the relevant date;
31 (c) subject to subclauses (4) and (5), next, a debt or amount that
32 in a winding-up is payable in priority to other unsecured
33 debts under the Corporations Act section 556(1)(e), (g) or (h)
34 or 560, as applying under this Act.
page 365
Co-operatives Bill 2009
Schedule 4 Receivers, and other controllers, of property of co-operatives
cl. 24
1 (3) The receiver or other person taking possession or assuming control of
2 property must pay debts and amounts payable under subclause (2)(c)
3 in the same order of priority as is prescribed by the Corporations Act
4 Part 5.6 Division 6, as applying under this Act, for those debts and
5 amounts.
6 (4) If an auditor of the co-operative applied to the Registrar for consent to
7 resign as auditor and the Registrar, before the relevant date, refused
8 consent, a receiver must, when property comes into the receiver's
9 possession or control, before paying a debt or amount referred to in
10 subclause (2)(c), make provision out of the property for the
11 reasonable fees and expenses of the auditor incurred after the relevant
12 date but before the date on which the property comes into the
13 receiver's possession or control, being fees and expenses for which
14 provision has not already been made under this subclause.
15 (5) If an auditor of the co-operative applies to the Registrar for consent to
16 resign as auditor and, after the relevant date, the Registrar refuses
17 consent, the receiver must, in relation to property that comes into the
18 receiver's possession or control after the refusal, before paying any
19 debt or amount referred to in subclause (2)(c), make provision out of
20 the property for the reasonable fees and expenses of the auditor
21 incurred after the refusal and before the date on which the property
22 comes into the receiver's possession or control, being fees and
23 expenses for which provision has not already been made under this
24 subclause.
25 (6) A receiver must make provision for reasonable fees and expenses of
26 an auditor for a particular period as required by subclause (4) or (5)
27 whether or not the auditor has made a claim for fees and expenses for
28 the period, but if the auditor has not made a claim, the receiver may
29 estimate the reasonable fees and expenses of the auditor for the period
30 and make provision in accordance with the estimate.
31 (7) For the purposes of this clause, the references in the Corporations Act
32 Part 5.6 Division 6, as applying under this Act, to the relevant date are
33 to be read as references to the date of the appointment of the receiver,
34 or of possession being taken or control being assumed, as the case
35 may be.
page 366
Co-operatives Bill 2009
Receivers, and other controllers, of property of co-operatives Schedule 4
cl. 25
1 25. Enforcement of controller's duty to make returns
2 (1) If a receiver of property of a co-operative --
3 (a) who has defaulted in making or lodging a return, account or
4 other document or in giving notice required by law fails to
5 make good the default within 14 days after the service on the
6 controller, by a member or creditor of the co-operative or
7 trustee for debenture holders, of a notice requiring the
8 controller to make good the default; or
9 (b) who has become a controller of property of the co-operative
10 otherwise than by being appointed a receiver of the property
11 by a court and who has, after being required at any time by
12 the liquidator of the co-operative so to do, failed to render
13 proper accounts of, and to vouch, the controller's receipts and
14 payments and to pay over to the liquidator the amount
15 properly payable to the liquidator,
16 the Supreme Court may make an order directing the controller to
17 make good the default within the time specified in the order.
18 (2) An application for an order under subclause (1) may be made --
19 (a) if subclause (1)(a) applies, by a member or creditor of the
20 co-operative or by a trustee for debenture holders; and
21 (b) if subclause (1)(b) applies, by the liquidator of the
22 co-operative.
23 26. Supreme Court may remove controller for misconduct
24 If, on the application of a co-operative, the Supreme Court is satisfied
25 that a controller of property of the co-operative has been guilty of
26 misconduct in connection with performing or exercising the
27 controller's functions and powers, the Court may order that, on and
28 after a specified day, the controller cease to act as receiver or give up
29 possession or control, as the case requires, of property of the
30 co-operative.
31 27. Supreme Court may remove redundant controller
32 (1) The Supreme Court may order that, on and after a specified day, a
33 controller of property of a co-operative --
34 (a) cease to act as receiver, or give up possession or control, as
35 the case requires, of property of the co-operative; or
page 367
Co-operatives Bill 2009
Schedule 4 Receivers, and other controllers, of property of co-operatives
cl. 28
1 (b) act as receiver, or continue in possession or control, as the
2 case requires, only of specified property of the co-operative.
3 (2) The Supreme Court may make an order under subclause (1) if it is
4 satisfied that the objectives for which the controller was appointed, or
5 entered into possession or took control of property of the
6 co-operative, as the case requires, have been achieved, so far as is
7 reasonably practicable, except in relation to property specified in the
8 order under subclause (1)(b).
9 (3) For the purposes of subclause (2), the Supreme Court may have
10 regard to --
11 (a) the co-operative's interests; and
12 (b) the interests of the holder of the charge that the controller is
13 enforcing; and
14 (c) the interests of the co-operative's other creditors; and
15 (d) any other relevant matter.
16 (4) The Supreme Court may make an order under subclause (1) on the
17 application of a liquidator appointed for the purposes of winding-up
18 the co-operative in insolvency.
19 (5) An order under subclause (1) may also prohibit the holder of the
20 charge from doing any or all of the following, except with the leave of
21 the Supreme Court --
22 (a) appointing a person as receiver of property of the
23 co-operative under a power contained in an instrument
24 relating to the charge;
25 (b) entering into possession, or taking control, of the property for
26 the purpose of enforcing the charge;
27 (c) appointing a person to enter into possession or take control of
28 the property for the purpose of enforcing the charge, whether
29 as agent for the chargee or for the co-operative.
30 28. Effect of clauses 26 and 27
31 (1) Except as expressly provided in clause 26 or 27, an order under that
32 clause does not affect a charge on property of a co-operative.
33 (2) Nothing in clause 26 or 27 limits any other power of the Supreme
34 Court to remove, or otherwise deal with, a controller of property of a
35 co-operative.
page 368
Co-operatives Bill 2009
Applied co-operatives provisions Schedule 5
cl. 1
1 Schedule 5 -- Applied co-operatives provisions
2 [s. 379]
3 1. Provisions applicable to participating co-operatives
4 The following provisions apply to participating co-operatives --
5 (a) Part 1 Division 4, other than section 9;
6 (b) section 238;
7 (c) section 248;
8 (d) section 448;
9 (e) section 449;
10 (f) Part 17;
11 (g) section 483;
12 (h) section 485.
13 2. Provisions applicable to non-participating co-operatives
14 (a) Part 1 Division 3 and 4, other than section 9;
15 (b) section 12(2);
16 (c) section 13
17 (d) section 14;
18 (e) Part 3;
19 (f) section 75;
20 (g) section 76;
21 (h) Part 4 Division 5;
22 (i) section 97;
23 (j) section 99;
24 (k) section 100;
25 (l) section 236;
26 (m) section 237;
27 (n) section 238;
28 (o) Part 10 Division 1;
29 (p) Part 13;
30 (q) section 448;
page 369
Co-operatives Bill 2009
Schedule 5 Applied co-operatives provisions
cl. 2
1 (r) section 449;
2 (s) Part 17;
3 (t) section 484;
4 (u) section 485.
page 370
Co-operatives Bill 2009
Modifications to Corporations Act Schedule 6
cl. 1
1 Schedule 6 -- Modifications to Corporations Act
2 [s. 387]
3 1. Modifications to winding-up provisions
4 The Corporations Act Parts 5.4B and 5.6 apply with the following
5 modifications --
6 (a) a reference in those Parts to ASIC is to be read as a reference
7 to the Registrar;
8 (b) a reference in those Parts to an application to wind-up a
9 company under section 464 or Part 5.4A is to be read as a
10 reference to an application by the Registrar under Part 14
11 Division 4;
12 (c) a reference in those Parts to a winding-up ordered by the
13 Court under a provision of Part 5.4A is a reference to a
14 winding-up ordered by the Court under Part 1 Division 4;
15 (d) a reference in those Parts to an order under a provision of
16 Part 5.4A is a reference to an order under section 386;
17 (e) for the purposes of an application by the Registrar to wind-up
18 a foreign co-operative, those Parts apply, with such
19 modifications as the circumstances require, as if a winding-up
20 application had been made by the co-operative;
21 (f) those Parts apply as if a ground specified in section 386 were
22 a ground for winding-up by the Court specified in the
23 Corporations Act section 461;
24 (g) a reference in those Parts to an official liquidator is to be read
25 as a reference to a person approved by the Registrar as a
26 liquidator of a co-operative;
27 (h) sections 467(4) and (5), 480(d), 481(5)(b), 513B, 517, 518,
28 523 and 524 do not apply;
29 (i) a reference in section 485(2) to persons entitled to any
30 surplus is a reference to a person entitled to the surplus under
31 section 388 of this Act;
32 (j) section 516 is to be read as if "together with any charges
33 payable by the member to the co-operative in accordance
34 with the rules" were inserted after "past member";
35 (k) Part 5.6 Division 6 Subdivision C does not apply;
page 371
Co-operatives Bill 2009
Schedule 6 Modifications to Corporations Act
cl. 1
1 (l) a reference in those Parts to section 233 is to be read as a
2 reference to Part 4 Division 5 of this Act;
3 (m) those Parts are to be read subject to sections 76 and 331 of
4 this Act for the purposes of determining the liability of
5 members and past members to contribute on a winding-up of
6 a co-operative;
7 (n) any other modifications, within the meaning of Part 3 of the
8 Corporations (Ancillary Provisions) Act 2001, that are
9 prescribed by the regulations.
10
page 372
Co-operatives Bill 2009
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
active member.................................................................................................. 4(1)
active membership provision ........................................................................... 4(1)
active membership resolution ...........................................................................110
administrator ........................................................................................Sch. 4, cl. 1
affairs ................................................................................................................426
agreement......................................................................................................... 4(1)
alter .................................................................................................................. 4(1)
applied provisions .......................................................................................... 11(1)
appointed person .......................................................................................... 153(1)
appropriate person........................................................................................ 339(1)
appropriate Registrar.........................................................................................389
assets ............................................................................................... 335(1), 396(1)
associate .............................................................................................. 4(1), 217(1)
authorisation notice...........................................................................................365
authorised attorney......................................................................................... 49(1)
board ................................................................................................................ 4(1)
CCU ............................................................................................................. 257(1)
chargee ...........................................................................................Sch. 3, cl. 9, 32
chief executive officer...................................................................................... 4(1)
chief executive officer (DOCEP)......................................................................398
company................................................................................................................8
compulsory acquisition notice ..................................................................... 355(1)
constitution ...................................................................................................... 4(1)
control ...............................................................................................................224
control day ...........................................................................................Sch. 4, cl. 1
controller..................................................................................... Sch. 4, cl. 1, 5(3)
controller's charge .......................................................................... Sch. 4, cl. 9(1)
co-operative ............................................... 4(1), 352(1), Sch. 3, cl. 1, Sch. 4, cl. 1
co-operative capital unit................................................................................... 4(1)
co-operative company.......................................................................................492
co-operative group ........................................................................................... 4(1)
co-operative venture..........................................................................................398
co-operatives law ..............................................................................................365
corporation ....................................................................................................... 4(1)
Corporations Act.............................................................................................. 4(1)
Corporations legislation ........................................................................................8
costs ..................................................................................................................426
critical day .........................................................................................Sch. 3, cl. 26
page 373
Co-operatives Bill 2009
Defined Terms
daily newspaper ...................................................................................Sch. 4, cl. 1
debenture.......................................................................................................... 4(1)
declaratory provision ..................................................................................... 11(1)
deed of arrangement......................................................................................... 4(1)
defective notice ............................................................................. Sch. 3, cl. 21(1)
deferral period.............................................................................................. 123(1)
department ................................................................................................... 452(1)
departmental officer ..................................................................................... 452(1)
deposit taking co-operative .............................................................................. 4(1)
designation ................................................................................................... 452(1)
dissenting shareholder.......................................................................................353
distributing co-operative .................................................................................. 4(1)
divulge ......................................................................................................... 476(1)
document of title ..................................................................................Sch. 3, cl. 1
earlier charge................................................................................. Sch. 3, cl. 30(1)
eligible member ............................................................................................... 4(1)
employed...................................................................................................... 452(1)
entity .................................................................................................................224
excluded Corporations legislation provision.........................................................8
excluded shares .................................................................................................353
expenses of the postal ballot ........................................................................ 189(1)
financial records............................................................................................... 4(1)
financial report................................................................................................. 4(1)
financial services business ............................................................................... 4(1)
financial services licensee................................................................................ 4(1)
financial statements.......................................................................................... 4(1)
foreign co-operative ......................................................................................... 4(1)
former Act.........................................................................................................492
further offence period .................................................................................. 478(3)
incapable person .......................................................................................... 153(1)
independent director..................................................................................... 201(1)
inspector........................................................................................................... 4(1)
instrument ....................................................................................... 335(1), 396(1)
interest.................................................................................................................74
investigator........................................................................................................426
involved person.................................................................................................426
later charge.................................................................................... Sch. 3, cl. 30(1)
liabilities .............................................................................335(1), 352(1), 396(1)
limited dividend ........................................................................................... 271(1)
main office ................................................................................................... 405(2)
malice............................................................................................................... 5(2)
management contract ................................................................................... 219(1)
managing controller .............................................................................Sch. 4, cl. 1
marketable security ..............................................................................Sch. 3, cl. 1
material interest............................................................................................ 217(2)
page 374
Co-operatives Bill 2009
Defined Terms
member ............................................................................................. 79(4), 309(2)
member director.............................................................................. 199(1), 201(1)
model rules....................................................................................................... 4(1)
mortgage .......................................................................................................... 4(1)
national newspaper ..............................................................................Sch. 4, cl. 1
new body.....................................................................307, 332(2), 333(2), 334(2)
new co-operative.......................................................................................... 133(1)
non-distributing co-operative........................................................................... 4(1)
non-participating co-operative ..........................................................................365
obstruct ........................................................................................................ 423(1)
officer................................................... 4(1), 207, Sch. 3, cl. 32, Sch. 4, cl. 1, 3(2)
oppressed member ..............................................................................................85
original body .......................................................................332(2), 333(2), 334(2)
original co-operative ....................................................................... 133(1), 396(1)
participating co-operative .................................................................................365
participating registrar ........................................................................................365
participating State .............................................................................................365
place..................................................................................................................398
present liability ....................................................................................Sch. 3, cl. 1
primary activity................................................................................................ 4(1)
primary conviction ....................................................................................... 478(2)
prior charge ..................................................................................... Sch. 4, cl. 9(1)
prior registered charge .................................................................. Sch. 3, cl. 45(1)
priority time ............................................................................Sch. 3, cl. 45(1), (3)
property...............................................................352(1), Sch. 3, cl. 1, Sch. 4, cl. 1
proposed company ....................................................................................... 293(1)
prospective liability..............................................................................Sch. 3, cl. 1
public service officer.................................................................................... 452(1)
receiver ......................................................................... Sch. 3, cl. 32, Sch. 4, cl. 1
records.............................................................................................................. 4(1)
Register of Co-operative Charges ........................................................Sch. 3, cl. 1
registered charge ........................................................................... Sch. 3, cl. 45(1)
registered society ..............................................................................................492
registrable charge .................................................................................Sch. 3, cl. 1
Registrar........................................................................................................... 4(1)
related corporation ........................................................................................... 4(1)
relevant date.................................................................................. Sch. 4, cl. 24(1)
relevant day.................................................. 332(2), 333(2), 334(2), Sch. 3, cl. 26
relevant documents ...........................................................................................398
relevant interest................................................................................................ 4(1)
relevant person ...................................................................................Sch. 3, cl. 32
relevant shares.............................................................................................. 151(1)
repayable amount .............................................................................. 73(1), 127(1)
repealed Act ................................................................................................. 476(1)
reporting officer ............................................................................ Sch. 4, cl. 20(1)
page 375
Co-operatives Bill 2009
Defined Terms
required period............................................................................................. 120(1)
rules.................................................................................................................. 4(1)
seal ................................................................................................................... 4(1)
secondary office ........................................................................................... 405(3)
share................................................................................................................. 4(1)
show cause notice ........................................................................................ 377(1)
specified ....................................................................................................... 494(4)
State ..................................................................................................................365
State co-operative .............................................................................................389
State Registrar...................................................................................................389
subordinated debt......................................................................................... 249(1)
subsequent registered charge ........................................................ Sch. 3, cl. 45(1)
subsidiary ......................................................................................................... 4(1)
substantial change ........................................................................................ 276(5)
substantial share interest .............................................................................. 276(4)
successor co-operative ................................................................................. 396(1)
surplus.............................................................................................................. 4(1)
surplus property ........................................................................................... 319(1)
third party property ......................................................................... Sch. 4, cl. 6(1)
transfer ........................................................................................................74, 307
transfer day ...................................................................................................... 4(1)
transferee.............................................................................352(2), 354(1), 500(1)
transferor.............................................................................352(2), 354(1), 500(1)
transferred co-operative ................................................................................... 4(1)
transition day................................................................................................ 396(2)
transition period ................................................................................................492
undertaking .................................................................................................. 273(1)
unregistered charge ....................................................................... Sch. 3, cl. 45(1)
warrant form ................................................................................................ 413(5)
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