Co-operatives Act 1992 Co-operatives (General) Regulation 1993 (1993-184) [GG No 49 of 21.5.1993] (NSW)
1993—No. 184
CO-OPERATIVES ACT 1992—REGULATION
(Co-operatives (General) Regulation 1993)
NEW SOUTH WALES
[Published in Gazette No. 49 of 21 May 1993]
HIS Excellency the Governor, with the advice of the Executive Council,
and in pursuance of the Co-operatives Act 1992, has been pleased to
make the Regulation set forth hereunder.
G. B. PEACOCKE, M.P.,
Minister for Co-operatives.PART 1—PRELIMINARY
Citation
1. This Regulation may be cited as the Co-operatives (General)
Regulation 1993.
Commencement
2. This Regulation commences on 21st May, 1993,
Definitions
3. (1) In this Regulation:
“the Act” means the Co-operatives Act 1992.
(2) In this Regulation, a reference to a Form is a reference to a Form
set out in Schedule 4.
Definition of “debenture” (sec. 5)
4. The following classes of documents are prescribed as exempt
documents for the purposes of paragraph (c) of the definition of
“debenture” in section 5 (1) of the Act:
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(a) a passbook or other document:
(i) that contains all or some of the terms and conditions pursuant to which deposits are accepted by, or withdrawn from, a co-operative; and
(ii) that acknowledges the receipt of a deposit with a co-operative; and
(iii) that enables further deposits to be made at any time adding to the balance of an existing deposit; and
(iv) that enables the withdrawal of the whole or part of the balance of a deposit, whether at call or on the giving of a fixed period of notice; and
(v) that acknowledges the amount of the withdrawal and the balance remaining;
(b) a document acknowledging a debt incurred by a co-operative:
(i) in the ordinary course of carrying on so much of a business as neither comprises, nor forms part of, a business of borrowing money and providing finance; and
(ii) in respect of money that is or may be deposited with or lent to the co-operative by a person in the ordinary course of a business carried on by the co-operative;
(c)
a document that is issued by a company and that constitutes evidence of a debt owed by the company to a co-operative that is a holding company (within the meaning of the Corporations Law) of the company;
(d)
a document that is issued by a co-operative and that constitutes evidence of a debt owed by the co-operative to a body corporate that is a subsidiary of the co-operative.
PART 2—FORMATION OF CO-OPERATIVES
Making of application (sec. 10)
5. For the purposes of section 10 (3) (d) of the Act, the prescribed fee to accompany an application for registration is the fee specified in Schedule 1 in respect of such an application.
Application for registration (sec. 19)
6. For the purposes of section 19 (3) (d) of the Act, the prescribed fee to accompany an application for registration is the fee specified in Schedule 1 in respect of such an application.
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Conditions of registration—compliance with Act etc. (sec. 23)
7. (1) For the purposes of Division 3 of Part 2 of the Act, the
following provisions of the Act are applied to a foreign co-operative:
(a) Part 2 (section 12 (1) and (3) only);
(b) Part 3;
(c) Part 4 (section 83 and Division 5 only);
(d) Part 5 (other than sections 107, 109, 110, 111, 112 and 113);
(e) Part 6 (Division 1 and sections 118 and 119 (1) only);
(f) Part 9:(i) Division 5 (to the extent only to which it requires the lodgment of accounts with the Registrar);
(ii) Division 6 (other than sections 249 and 250);
(iii) Division 7 (other than section 260);
(g) Part 10 (other than Divisions 4 and 5);
(h) Part 12 (other than section 309 and Divisions 2 and 3);
(i) Part 13;
(j) Part 14;
(k) Part 16 (section 430 only).
(2) For the purposes of the application of those provisions to a foreign
co-operative:
(a) section 119 (1) of the Act is to be read:
(i) as if it allowed the Registrar to exempt any particular foreign co-operative from its requirements; and
(ii) as if the words “in accordance with this Part” were omitted and the words “in accordance with guidelines issued by the Registrar” inserted instead; and
(b)
the requirement of section 252 of the Act that returns be submitted at least 14 days before each annual general meeting is taken to be a requirement that returns be submitted within one month after each annual’ general meeting; and
(c)
section 258 (1) of the Act is taken to require the name of the State, Territory or country in which the co-operative is registered or incorporated to appear in the seal and documents referred to in that subsection as well as the name of the co-operative; and
(d)
a reference in section 259 of the Act to a certificate of incorporation is taken to include a reference to a certificate of registration as a foreign co-operative; and
(e)
a reference in section 261 (1) of the Act to a registered office is taken to be a reference to a local agent; and
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(f) section 261 (2) of the Act is taken to require the name of the foreign co-operative to indicate whether the co-operative is registered or incorporated and (if so) the State, Territory or country in which the co-operative is registered or incorporated. (3) The matter required by subclause (2) (f) to be indicated in the notice under section 261 (2) of the Act:
(a)
must be placed in brackets after or under the name of the co-operative, as registered or incorporated in its home State, Territory or country; and
(b)
must be printed in a size which is at least 75 per cent of the size in which the name of the co-operative is printed.
PART 3—RULES
Content of rules (sec. 107)
8. For the purposes of section 107 (3) of the Act, $1,000 is prescribedas the maximum fine which may be fixed by the rules of a co-operative.
Alteration does not take effect until registered (sec. 113)
9. An application under section 113 of the Act for registration of an alteration of the rules of a co-operative is to be accompanied by the fee specified in Schedule 1 in relation to such an application.
PART 4—ACTIVE MEMBERSHIP REQUIREMENTS
Active membership—explanation (sec. 116)
10. (1) This clause applies to a co-operative that has as its primary activity the carrying on of a club, including a registered club within the meaning of the Registered Clubs Act 1976.(2) For the purposes of section 116 (b) of the Act, a person’s active membership of a co-operative is sufficiently established if the person is the holder of a life membership awarded under the rules of the co-operative for long or meritorious service.
Factors and considerations for determining primary activities etc.
(sec. 121)11. (1) For the purposes of section 121 (2) (c) of the Act, the following factors and considerations are relevant in determining the matter referred to in section 121 (1) (a) of the Act:
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(a) in the case of a co-operative whose activities include the provision of a taxi radio network facility, whether the co-operative actually carries out that activity; (b) in the case of a co-operative whose activities include the disposal of milk, sugar cane, grain, fruit, vegetables, cotton, fish, shellfish or livestock on behalf of its members, whether the co-operative actually carries out that activity; (c) in the case of a co-operative whose activities include the acquisition of particular goods for its members, whether the co-operative actually carries out that activity.
(2) For the purposes of section 121 (2) (c) of the Act, the following factors and considerations are relevant in determining the matter referred to in section 121 (1) (b) of the Act:
(a) in the case of a co-operative whose primary activities include the disposal of produce or livestock on behalf of its members (being produce or livestock of a kind referred to in Table 1 to this clause), whether the rate at which the produce or livestock is disposed of by the co-operative exceeds the relevant rate specified in that Table; (b) in the case of a co-operative whose primary activities include the disposal of goods or the provision of services (being goods or services of a kind referred to in Table 2 to this clause), whether the rate at which the goods or services are disposed of or provided by the co-operative exceeds the relevant rate specified in that Table.
(3) For the purposes of section 121 (3) of the Act, an activity may be specified as a primary activity:
(a)
if it makes a significant contribution to the business of the co-operative and contributes at least:
(i) 10 per cent of the co-operative’s turnover; or
(ii) 10 per cent of the co-operative’s income; or
(iii) 10 per cent of the co-operative’s expenses; or
(iv) 10 per cent of the co-operative’s surplus; or(v) 10 per cent of the co-operative’s business determined in some other manner approved by the Registrar; or
(b)
if, in the opinion of the Registrar, the failure by the co-operative to conduct that activity would result in a reduction of 10 per cent or more in the business conducted by the co-operative.
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TABLE 1
200 litres per member per week
Milk ....................................................... 40 tomes per member per year Sugar cane ............................................. Grain (other than seed grain) .......... 1 tonne per member per year Seed grain ......................................... 10 kilograms per member per year Fruit and vegetables............................. 40 cases per member per year Cotton ................................................... 10 bales per member per year Fish and shellfish .................................. . 10 kilograms per member per month Livestock ............................................... 30 stock equivalents per member per year, where:
(a)
1 head of cattle is 3 stock equivalents; and
(b) 1 pig is 2 stock equivalents; and
(c)
1 sheep, goat or other livestock animal is 1 stock equivalent.
TABLE 2
Form requisites ...................................... $100 per member per month Household requisites ................................ $10 per member per month Books and stationery ................................ $20 per member per year Machinery, parts and goods not included elsewhere .............................................. $100 per member per year
Services .................................................... $10 per member per year Active membership—supply or purchase of goods or produce
(sec. 123)12. For the purposes of section 123 (3) (b) of the Act, a person’s relationship with a co-operative as a supplier of livestock is sufficiently established if the person supplies livestock to an agent of the co-operative who in turn supplies the livestock to the co-operative.
Appeal against refusal of approval (sec. 125)
13. A request under section 125 of the Act for a review of a decision of the Registrar to refuse an approval of a proposed active membership resolution is to be accompanied by the fee specified in Schedule 1 in relation to such a request.
Repayment of deposits, debentures and CCU’s (sec. 136)
14. An application under section 136 (6) of the Act for a reduction in the period for repayment under that section is to be accompanied by the fee specified in Schedule 1 in relation to such an application.
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Register of cancelled memberships (sec. 137)
15. For the purposes of section 137 of the Act, the prescribed particulars for persons whose membership of a co-operative is cancelled under Part 6 of the Act are the particulars prescribed by Schedule 3 in that regard.
PART 5—SHARES
Restrictions on conversion to co-operative without share capital
(sec. 145)
16. An application under section 145 (1) of the Act for the Council’s approval for conversion to a co-operative without share capital is to be accompanied by the fee specified in Schedule 1 in relation to such an application.
Members may be required to take up additional shares (sec. 155)
17. An application under section 155 of the Act for the approval of the
Registrar to a proposed disclosure statement is to be accompanied by the
fee specified in Schedule 1 in relation to such an application.
Bonus share issues (sec. 156)
18. For the purposes of section 156 (3) (c) of the Act, a prescribed person is:
(a)
in relation to the valuation of land, a person who is registered as a practising real estate valuer under the Valuers Registration Act 1975; and
(b)
in relation to the valuation of assets of some other kind, a person who has, for a period of or for periods totalling at least 5 years, been engaged in valuing assets of that kind.
PART 6—VOTING
Rules of co-operative formed to carry on club may restrict voting rights (sec. 177)
19. An application under section 177 (1) of the Act for the Council’s approval for the restriction of voting rights of a co-operative formed to carry on a club is to be accompanied by the fee specified in Schedule 1 in relation to such an application.
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Effect of relevant share and voting interests on voting rights
(sec. 178)
20. An application under section 178 (2) of the Act for the Council to review a matter is to be accompanied by the fee specified in Schedule 1 in relation to such an application.
Postal ballots on proposals for resolution (sec. 193)
21. For the purposes of section 193 (1) of the Act, a postal ballot is to be conducted in accordance with the requirements of Schedule 2.
Special postal ballots (sec. 194)
22. An application under section 194 of the Act for the approval of the Registrar to a proposed disclosure statement is to be accompanied by the fee specified in Schedule 1 in relation to such an application.
Minutes (sec. 203)
23. (1) For the purposes of section 203 of the Act, minutes of a meeting of a co-operative are to be kept and confirmed in the following manner:
(a) a separate minute book must be kept by the secretary of the meetings of the co-operative; (b) the secretary must arrange for minutes of the proceedings of each meeting of the co-operative to be taken; (c) the minutes of each meeting must be confirmed as the first business of the next meeting of the co-operative; (d) a motion or discussion is not in order with respect to the minutes except with regard to their accuracy as a record of the proceedings; (e) the minutes must be signed after confirmation by the chairperson of the meeting at which they are confirmed; (f) the minutes must be recorded in the minute book within 14 days of the date of the meeting to which they relate. (2) If it is impracticable for the minutes of a meeting to be confirmed at the next meeting of the co-operative, the minutes must be confirmed at the next meeting of the co-operative at which it is practicable to confirm them.
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PART 7—MANAGEMENT AND ADMINISTRATION OF
CO-OPERATIVES
Election of employees as directors (sec. 216)
24. An application under section 216 (3) of the Act for the Council to approve a co-operative for the purposes of that section is to be accompanied by the fee specified in Schedule 1 in relation to such an application.
Minutes (sec. 219)
25. (1) For the purposes of section 219 of the Act, minutes of a meeting of the board are to be kept and confirmed in the following manner:
(a) a separate minute book must be kept by the secretary of the meetings of the board; (b) the secretary must arrange for minutes of the proceedings of each meeting of the board to be taken; (c) the minutes of each meeting must be confirmed as the first business of the next meeting of the board; (d) a motion or discussion is not in order with respect to the minutes except with regard to their accuracy as a record of the proceedings; (e) the minutes must be signed after confirmation by the chairperson of the meeting at which they are confirmed; (f) the minutes must be recorded in the minute book within 14 days of the date of the meeting to which they relate.
(2) If it is impracticable for the minutes of a meeting to be confirmed at the next meeting of the board, the minutes must be confirmed at the next meeting of the board at which it is practicable to confirm them.
Certain persons not to manage co-operatives (sec. 231)
26. For the purposes of section 231 (2) of the Act, the Commissioner of Corrective Services is a prescribed authority.
Transitional requirements for accounts and accounting records
(sec. 243)
27. (1) For the purposes of section 243 (1) of the Act, the requirements of the Co-operation (Accounts and Audit) Regulation 1988 with respect to:
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(a) the keeping of accounting records; and
(b) the preparation of accounts and consolidated accounts; and
(c) the auditing of accounts and consolidated accounts,
must be observed by and in respect of co-operatives within the meaning of the Act in the same way as they must be observed by and in respect of societies within the meaning of the Co-operation Act 1923.
(2) This clause ceases to have effect on the first anniversary of the commencement of this Regulation.
Power of Registrar to grant exemptions (sec. 244)
28. An application under section 244 of the Act for the granting of an exemption is to be accompanied by the fee specified in Schedule 1 in relation to such an application.
Registers to be kept by co-operatives (sec. 249)
29. (1) For the purposes of section 249 (2) of the Act, a register:
(a) must be kept in written or electronic form; and
(b) must contain the particulars specified in Schedule 3.(2) A register may include:
(a)
any document in the English language in which the required particulars are recorded; and
(b)
any disc, tape, soundtrack or other device in which the required particulars are recorded, so long as they are capable (with or without the aid of some other equipment) of being reproduced in a document in the English language.
Notice of appointment etc. of directors and officers (sec. 251)
30. For the purposes of section 251 (2) of the Act:
(a)
Form 1 is the prescribed form of notice of appointment or cessation of appointment; and
(b)
the particulars set out in Form 1 are the prescribed particulars to be specified in the notice.
Returns (sec. 252)
31. (1) For the purposes of section 252 (a) of the Act, Form 2 is the prescribed form of list of directors and principal executive officers.
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(2) For the purposes of section 252 (e) of the Act:
(a) Form 3 is the prescribed form of return; and
(b) the particulars set out in Form 3 are the prescribed particulars to be contained in the return.
(3) A return under section 252 of the Act that is sent to the Registrar after the due date under that section is to be accompanied by the fee specified in Schedule 1 in relation to a late return.
Change of name of co-operative (sec. 259)
32. (1) For the purposes of section 259 (1) of the Act, the prescribed manner of advertising the change of name of a co-operative is:
(a)
for the Registrar to cause the change of name to be advertised in the Gazette; and
(b)
for the co-operative to cause the change of name to be advertised in at least one newspaper circulating in the locality in which the registered office of the co-operative is situated,
within 28 days after the change of name is notified to the Registrar.
(2) Notification of the change of name of a co-operative must be in a
form approved by the Registrar and must be forwarded to the Registrar in
duplicate within one month of the meeting at which the special resolution
authorising the change is passed.
(3) The application must be accompanied by:
(a) the certificate of incorporation of the co-operative; and
(b) an application for registration of the special resolution altering the co-operative’s rules.
(4) If a co-operative is unable to produce its certificate of incorporation, a statutory declaration must be made by the chairperson of the board, or by the secretary of the co-operative, setting out the circumstances under which the certificate was lost or destroyed and, if lost, the steps that have been taken to find the certificate.
Restrictions on the use of “co-operative” by other bodies (sec. 260)
33. An application under section 260 of the Act for the granting of an exemption is to be accompanied by the fee specified in Schedule 1 in relation to such an application.
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PART 8—FUNDS, PROPERTY ETC.
Fund raising to be in accordance with rules, the Act and regulations
(sec. 263)
34. (1) A co-operative must not invite its members to deposit money with the co-operative, and must not indicate to its members that it is willing to accept deposits of money from them, unless:
(a) the terms of the invitation; and
(b) the terms on which any such money is to be held,
are approved by the Registrar, either unconditionally or subject to
conditions.
(2) The conditions of an approval under this clause to the terms of an invitation to deposit money with a co-operative may include a condition requiring the invitation to contain any one or more of the following statements, as at a specified date:
(a) a statement of the assets and liabilities of the co-operative;
(b) a statement of the financial position of the co-operative;(c) a profit and loss statement for the co-operative;
(d) such other information as is reasonably necessary to enable a person to make an informed assessment of the financial prospects of the co-operative.
(3) The conditions of an approval under this clause to the terms on which money is held by a co-operative may include a condition requiring the co-operative to give to the person by whom the money is deposited, within such time as the Registrar may determine, a document (such as a passbook) that is in a form approved by the Registrar and that contains one or more of the following statements:
(a) a statement evidencing the co-operative’s receipt of the money;
(b) a statement of any interest payable on the money, together with details of the manner in which any such interest is to be calculated; (c) a statement of the conditions on which the money may be withdrawn or on which further money may be deposited or interest added to the money.
(4) In subclauses (1) and (2), a reference to an invitation to deposit money includes a reference to an invitation to subscribe to an issue of debentures, but does not include a reference to an invitation to subscribe to an issue of CCU’s.
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(5) For the purposes of section 263 of the Act, a co-operative is restricted from accepting deposits of money from persons other than its members.
(6) Subclause (5) does not apply to the acceptance of money in
connection with the issue by the co-operative of debentures or CCU’s.
(7) This clause does not apply to the acceptance by a co-operative of a
deposit of money in connection with goods or services to be supplied by
the co-operative in the ordinary course of business.
Application of Corporations Law to issues of securities and prescribed interests (sec. 266)
35. (1) For the purposes of section 266 (1) (c) of the Act, the provisions of Part 7.12 of the Corporations Law are to be read:
(a) as if the references in those provisions (sections 1023, 1044 and 1045 excepted) to a security did not include a reference to a debenture to be issued by a co-operative to members of the co-operative; and (b) as if the requirement in section 1023 for a document to be given after acceptance of a deposit or loan included also a requirement that the document be approved by the Registrar before it is issued.
(2) An application under section 1084 of the Corporations Law for the granting of an exemption is to be accompanied by the fee specified in Schedule 1 in relation to such an application.
Compulsory loan by member to co-operative (sec. 268)
36. (1) For the purposes of section 268 (2) of the Act, 10 years is
prescribed as the maximum term for a loan referred to in that subsection.
(2) For the purposes of section 268 (3) of the Act, 15 per cent is prescribed as the maximum rate of interest payable by a co-operative on money lent to it by its members.
CCU’s not to be issued unless terms of issue etc. approved by
Registrar (sec. 273)
37. An application under section 273 of the Act for the approval of the Registrar to a proposed statement is to be accompanied by the fee specified in Schedule 1 in relation to such an application.
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PART 9—RESTRICTIONS ON THE ACQUISITION OF
INTERESTS IN CO-OPERATIVES
Notice required to be given of voting interest (sec. 286)
38. For the purposes of section 286 of the Act, the notice in writing required to be given by a person who acquires, or ceases to have, a relevant interest in the right to vote of a member of a co-operative must be in or to the effect of Form 4 specifying the particulars required by that form.
Notice of existence of substantial share interest (sec. 287)
39. (1) For the purposes of section 287 (1) of the Act, the notice in writing required to be given by a person who acquires a substantial share interest in a co-operative must be in or to the effect of Form 5 specifying the particulars required by that form.
(2) The notice must be accompanied by:
(a)
in the case of an interest that has been acquired under a written contract, scheme or arrangement:
(i) a copy of the contract, scheme or arrangement; and
(ii) a statement in writing by the person who acquired the relevant interest verifying that the copy is a true copy of the contract, scheme or arrangement concerned; or
(b) in the case of an interest that has been acquired otherwise than under a written contract, scheme or arrangement: (i) a memorandum giving full particulars of the circumstances of the acquisition; and
(ii) a statement in writing by the person who acquired the relevant interest verifying that the memorandum contains full and correct particulars of the circumstances of the acquisition.
Notice of substantial change in share interest (sec. 287)
40. (1) For the purposes of section 287 (2) of the Act, the notice in writing required to be given by a holder of a substantial share interest whose shareholding in a co-operative increases or decreases by at least 1 per cent of the nominal value of the issued share capital of the co-operative must be in or to the effect of Form 6 specifying the particulars required by that form.
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(2) The notice must be accompanied by:
(a)
in the case of an interest that has been acquired or disposed of under a written contract, scheme or arrangement:
(i) a copy of the contract, scheme or arrangement; and
(ii) a statement in writing by the person who acquired or disposed of the relevant interest verifying that the copy is a true copy of the contract, scheme or arrangement concerned; or
(b) in the case of an interest that has been acquired or disposed of otherwise than under a written contract, scheme or arrangement: (i) a memorandum giving full particulars of the circumstances of the acquisition or disposition; and
(ii) a statement in writing by the person who acquired or disposed of the relevant interest verifying that the memorandum contains full and correct particulars of the circumstances of the acquisition or disposition.
Notice of termination of substantial share interest (sec. 287)
41. (1) For the purposes of section 287 (3) of the Act, the notice in writing required to be given by a person who ceases to have a substantial share interest in a. co-operative must be in or to the effect of Form 7 specifying the particulars required by that form.
(2) The notice must be accompanied by:
(a)
in the case of an interest that has been disposed of under a written contract, scheme or arrangement:
(i) a copy of the contract, scheme or arrangement; and
(ii) a statement in writing by the person who disposed of the relevant interest verifying that the copy is a true copy of the contract, scheme or arrangement concerned; or
(b) in the case of an interest that has been disposed of otherwise than under a written contract, scheme or arrangement: (i) a memorandum giving full particulars of the circumstances of the disposition; and
(ii) a statement in writing by the person who disposed of the relevant interest verifying that the memorandum contains full and correct particulars of the circumstances of the disposition.
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Co-operative to keep register (sec. 294)
42. For the purposes of section 294 (2) (b) of the Act, the prescribed maximum fee that may be imposed by a co-operative for inspection of a register is the fee specified in Schedule 1 in respect of the inspection of such a register.
Council may grant exemptions (sec. 308)
43. An application under section 308 of the Act for the Council to grant an exemption from compliance with all or specified provisions of Division 2 of Part 11 is to be accompanied by the fee specified in Schedule 1 in relation to such an application.
PART 10—AMALGAMATION, TRANSFER OF
ENGAGEMENTS, WINDING UP ETC.
Amalgamation of local and foreign co-operatives (sec. 310)
44. For the purposes of section 310 of the Act, the Primary Producers’Co-operative Associations Act 1923 of Queensland is a prescribed law.
Exemptions (sec. 312)
45. An application under section 312 of the Act for the Council to grant an exemption from compliance with all or specified provisions of Division 1 of Part 12 is to be accompanied by the fee specified in Schedule 1 in relation to such an application.
Application for transfer (sec. 316)
46. An application under section 316 of the Act for the registration or incorporation of a co-operative under some other law is to be accompanied by the fee specified in Schedule 1 in relation to such an application.
Winding up on Registrar’s certificate (sec. 324)
47. For the purposes of section 324 (4) of the Act, the following forms of security are prescribed:
(a) cash;
(b)
a bank cheque drawn on a bank that is authorised, under the Banking Act 1959 of the Commonwealth, to carry on banking business in Australia:
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(c)
a certificate of deposit issued by a bank that is authorised, under the Banking Act 1959 of the Commonwealth, to carry on banking business in Australia;
(d)
a debenture or security that is guaranteed by the Government of New South Wales or by the Government of the Commonwealth.
Application of Corporations Law (sec. 325)
48. An application under section 325 of the Act for the Registrar to act on behalf of a defunct co-operative in relation to the execution of documents is to be accompanied by the fee specified in Schedule 1 in relation to such an application.
Restrictions on voluntary winding up (sec. 326)
49. An application under section 326 of the Act for the Council to grant an exemption from compliance with all or specified provisions of section 194 or 326 is to be accompanied by the fee specified in Schedule 1 in relation to such an application.
PART 11—ARRANGEMENTS AND RECONSTRUCTIONS
Registrar to be given notice and opportunity to make submissions
(secs. 346, 354)
50. (1) For the purposes of sections 346 (2) (b) and 354 (3) (b) of the Act, the information prescribed is the information prescribed for the purposes of sections 411 (3) (b) and 412 (1) (a) (ii) of the Corporations Law, comprising information concerning the matters set out in, and the documents required by, Schedule 8 to the Corporations Regulations.
(2) Schedule 8 to the Corporations Regulations is to be construed as if
(a)
references to provisions of those Regulations or provisions of the Corporations Law were references to the corresponding provisions of this Regulation or corresponding provisions of the Act, respectively: and
(b)
the reference in Part 2 of that Schedule to Form 507 were a reference to Form 15 in Schedule 4 to this Regulation.
Acquisition of shares pursuant to notice to dissenting shareholder
(sec. 360)
51. For the purposes of section 360 (1) of the Act, the manner in
which a notice is to be given is by giving the notice to the person
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personally or by means of a letter sent by post to the person at the
person’s address shown in the books of the transferor co-operative.
Remaining shareholders may require acquisition (sec. 362)
52. For the purposes of section 362 (1) (a) of the Act, the manner in which a notice is to be given is by giving the notice to the person personally or by means of a letter sent by post to the person at the person’s address shown in the books of the transferor co-operative.
PART 12—SUPERVISION AND PROTECTION OF
CO-OPERATIVES
Inspectors may require certain persons to appear, answer questions and produce documents (sec. 375)
53. For the purposes of section 375 (1) of the Act, Form 8 is the prescribed form of notice.
Powers of investigators (sec. 387)
54. For the purposes of section 387 (1) of the Act, Form 9 is the prescribed form of notice.
Examination of involved person (sec. 388)
55. For the purposes of section 388 (4) of the Act, the prescribed allowance and prescribed expenses to which an involved person is entitled are the allowances and expenses to which a witness is entitled in civil proceedings before the District Court.
Enlargement or abridgment of time (sec. 408)
56. An application under section 408 of the Act for the enlargement or abridgment of time for the doing of any act is to be accompanied by the fee specified in Schedule 1 in relation to such an application.
PART 13—GENERAL
Inspection of documents (sec. 438)
57. For the purposes of section 438 (1) of the Act, the prescribed fee for a service referred to in paragraph (a), (b) or (c) of that subsection is the fee specified in Schedule 1 in respect of such a service.
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Forms
58. (1) If a form prescribed or approved for the purposes of the Act requires the form to be completed in a specified manner, or requires specified information to be included in, attached to or furnished with the form, the form is not duly completed unless it is completed in that manner and unless it includes, or has attached to or furnished with it, that information.
(2) Each page of a document that is attached to a form:
(a) must be sequentially lettered or numbered; and
| (b) | must indicate that it is, or forms part of, an attachment to the form; and |
(c) must be signed by the person by whom the form is signed.
Waiver of fees
59. The Registrar may waive, postpone or remit any fee payable under the Act by:
| (a) | a co-operative that, in the opinion of the Registrar, is constituted primarily for a charitable purpose; or |
| (b) | a co-operative that, in the opinion of the Registrar, is constituted primarily for the purpose of advancing the welfare of a disadvantaged class of persons, |
if, in the opinion of the Registrar, there are special circumstances that
justify payment being waived, postponed or remitted.
PART 14—THE SCHEDULES TO THE ACT
Division 1—Schedule 1
Requirements for all co-operatives (cl. 1)
60. For the purposes of clause 1 of Schedule 1 to the Act, the maximum fine that may be imposed by a co-operative on any of its members is $1,000.
Division 2—Schedule 3
Charges required to be registered (cl. 2)
61. For the purposes of clause 2 (5) of Schedule 3 to the Act, each of the following laws is a prescribed law of a State or Territory:
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NEW SOUTH WALES
Liens on Crops and Wool and Stock Mortgages Act 1898 (Parts 2 and 3)
VICTORIA
Instruments Act 1958 (Parts 7 and 8)
QUEENSLAND
Bills of Sale and Other Instruments Act 1955 (Part 2 to the extent to which it relates to the registration of stock mortgages, liens on crops and liens on wool, and Part 4 excluding section 24)
Liens on Crops of Sugar Cane Act 1931
WESTERN AUSTRALIA
Bills of Sale Act 1899 (sections 7 and 8 and Parts 9, 10 and 11)
SOUTH AUSTRALIA
Liens an Fruit Act 1923
Stock Mortgages and Wool Liens Act 1924
TASMANIA
Bills of Sale Act 1900 (section 36)
Stock. Wool and Crop Mortgages Act 1930
AUSTRALIAN CAPITAL TERRITORY
Instruments Act 1933 (Pans 4 and 5)
Lodgment of notice of charge and copy of instrument (cl. 3)
62. (1) For the purposes of clause 3 (1) (a) of Schedule 3 to the Act,
Form 10 is the prescribed form of notice.
(2) A statement referred to in clause 3 (1) (b) or (2) (b) of Schedule 3 to the Act must be in a form approved by the Registrar.
Acquisition of property subject to a charge (cl. 4)
63. For the purposes of clause 4 (1) (a) (i) of Schedule 3 to the Act,
Form 10 is the prescribed form of notice.
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Assignment and variation of charges (cl. 9)
64. A notice referred to in clause 9 (1) or (2) of Schedule 3 to the Act must be in a form approved by the Registrar.
Satisfaction of, and release of property from, charges (cl. 10)
65. For the purposes of clause 10 (1) of Schedule 3 to the Act, Form 11 is the prescribed form of memorandum.
Co-operative to keep documents relating to charges and register of charges (cl. 12)
66. For the purposes of clause 12 (3) (b) and (4) (a) of Schedule 3 to the Act, $20 is prescribed as the maximum amount that a co-operative may charge for inspection of a register or for a copy of a register or any part of a register.
Registration under other legislation relating to charges (cl. 14)
67. For the purposes of clause 14 (1) of Schedule 3 to the Act, the prescribed time is the time when the period of 45 days referred to in clause 3 (1) of that Schedule expires.
Division 3—Schedule 4
Notification of appointment of receiver (cl. 12)
68. (1) A notice referred to in clause 12 (1) of Schedule 4 to the Act must be in a form approved by the Registrar.
(2) For the purposes of clause 12 (2) of Schedule 4 to the Act, Form 12 is the prescribed form of notice.
(3) For the purposes of clause 12 (3) of Schedule 4 to the Act, Form 13 is the prescribed form of notice.
Provisions as to information where receiver appointed (cl. 14)
69. For the purposes of clause 14 (2) (b) of Schedule 4 to the Act, Form 14 is the prescribed form of report.
Receiver may require reports (cl. 15)
70. For the purposes of clause 15 (1) of Schedule 4 to the Act, Form 15 is the prescribed form of statement.
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Lodging of accounts of receiver (cl. 17)
71. For the purposes of clause 17 (1) of Schedule 4 to the Act, Form
16 is the prescribed form of account.
SCHEDULE 1—FEES
Application for registration under sec. 10 of the Act (cl. 5) .................... $100 Application for registration under sec. 19 of the Act (cl. 6) ....................... $100 Application for registration under section 113 of the Act (cl. 9)............ per rule (maximum $70 for a single application) ......................................... Request for review under sec. 125 of the Act (cl. 13) ............................
$10
$50 Application for reduction of period of repayment under sec. 136 of the Act (cl. 14) ................................................................................................. Application for approval under sec. 145 of the Act for conversion to
$50
co-operative without share capital (cl. 16) ........................................ Application for approval under sec. 155 of the Act to proposed disclosure
$50
statement (cl. 17) ................................................................................. Application under sec. 177 of the Act for restriction of voting rights
$150
(cl. 19) ............................................................................................................. $50 Application under sec. 178 of the Act for review (cl. 20) ....................... $50 Application for approval under sec. 194 of the Act (cl. 22) ....................... $150 Application for approval under sec. 216 of the Act (cl. 24) ..................... $50 Application for exemption under sec. 244 of the Act (cl. 28) .................. $25 Late lodgment of return under sec. 252 of the Act (cl. 31) ................... $50 Application for exemption under section 260 of the Act (cl. 33) .......... $250 Application for exemption under sec. 1084 of the Corporations Law (cl. 35) ......................................................................................................... $250 Application for approval under sec. 273 of the Act (cl. 37) ....................... $250 Inspection fee under sec. 294 of the Act (cl. 42) .............................................. $10 Application for exemption under sec. 308 of the Act (cl. 43) ................. $50 Application for exemption under sec. 312 of the Act (cl. 45) ................. $50 Application under sec. 316 of the Act for registration or incorporation under some other law (cl. 46) ................................................................... $50 Application for execution of documents under sec. 325 of the Act (cl. 48) $10 Application for exemption under sec. 326 of the Act (cl. 49) .............. $50
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Application for enlargement or abridgment of time under sec. 408 of the
Act (cl. 56) ....................................................................................................... $50
| Fee to inspect document under sec. 438 (1) (a) of the Act (cl. 57) ................... | $20 |
| Fee for certified copy of document under sec. 438 (1) (b) of the Act |
(cl. 57) ........................................................................................................... $10
Fee for certificate of registration of a co-operative under sec. 438 (1) (c) of
| the | Act | (cl. 57) ............................................................................................ $10 |
Fee for certified copy of rules of a co-operative under sec. 438 (1) (c) of
| the ct cl. 57) .................................................................................................... | $50 |
SCHEDULE 2—POSTAL BALLOTS
(Cl. 21)
Ballots
1. (1) The board:
(a) must formulate the proposal or proposals on which the ballot is to be held; and
(b) must fix a date for the close of the ballot; and(c) must appoint a returning officer for the ballot.
(2) A director of the co-operative may not be appointed as the returning officer.
Preparation of the voting roll and the ballot papers
2. The returning officer:
(a) must prepare a roll specifying:
(i) the name and address of each member of the cooperative, as disclosed by the register of members and shares; and
(ii) the number of votes to which each such member is entitled under the rules of the co-operative; and
(b) must cause:
(i) a ballot paper, in or to the effect of Form 18. together with accompanying inner, middle and outer envelopes; and
(ii) a copy of the proposal on which the vote is to be held; and
(iii) in the case of a special postal ballot-a copy of the disclosure statement referred to in section 194 of the Act,
to be sent to each such member at least 21 days before the date fixed for the
close of the ballot.
Duplicate ballot papers
3. The returning officer may send a duplicate ballot paper to any voter if the
returning officer is satisfied
(a) that the voter has not received a ballot paper; or
(b)
that the ballot paper received by the voter has been lost, spoilt or destroyed and that the voter has not already voted.
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Voting
4. A voter casts a vote:
(a) by writing the word “YES” or “NO” in the appropriate place or places on the ballot paper or by indicating the voter’s intention in such other manner as may be approved by the Registrar; and
(b) by completing any other particulars required by the ballot paper. and
(c) by sending the ballot paper, in the envelopes supplied. to the returning officer.
Safe keeping of ballot papers
5. The returning officer must place in a locked ballot box all outer envelopes (together with their contents) received before the close of the ballot.
Counting of the votes
6. (1) As soon as practicable after the close of the ballot, the returning officer must open the ballot box and deal with the contents as follows:
(a)
each outer envelope and each middle envelope (containing the particulars that identify the voter) is to be removed from the ballot box;
(b)
any middle envelope that bears a name that does not correspond to one of the remaining names on the voting roll is to be rejected;
(c)
a line is to be drawn on the voting roll through the name of each person from whom an unrejected middle envelope has been received;
(d)
each outer and middle envelope is to be discarded and the inner envelope (containing the ballot paper) is to be replaced in the ballot box,
(e)
after all the outer and middle envelopes have been discarded and all the inner envelopes replaced in the ballot box, each inner envelope is to be removed from the ballot box;
(f) each ballot paper is to be removed from its inner envelope;
(g) the votes on the ballot papers are then to be counted
(2) A ballot paper is to be rejected as informal:
(a) if it is not duly initialled by the returning officer; or
(b)
if it is so imperfectly marked that the intention of the voter cannot with certainty be ascertained by the returning officer.
(3) The returning officer must, in respect of each proposal, ascertain from the ballot
papers:
(a) the number of formal votes cast in favour of the proposal concerned; and
(b) the number of votes cast against the proposal, and
(c) the number of informal votes cast.
Report
7. (1) After the votes have been counted, the returning officer must report to the board as to the results of the ballot.
(2) The returning officer must retain:
(a) all ballot papers; and
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(b) all rejected middle envelopes (together with their contents); and
(c) all voting rolls used in connection with the conduct of the ballot,
locked in the ballot box until the board directs that they may be destroyed.
(3) During this period the returning officer must, if requested by the Registrar, send
the ballot box to the Registrar.
SCHEDULE 3—PARTICULARS TO BE INCLUDED IN REGISTER
(Cll. 15, 29)
Register of members, directors and shares
1. (1) The register of members, directors and shares of a co-operative must contain
the following particulars for each member:
(a) the name, address and occupation of each member,
(b) the date on which each member was admitted to the co-operative;
(c) the folio reference to the minute evidencing the boards decision to admit the member; (d) if the co-operative has share capital, a statement in respect of each member by whom shares are held of: (i) the number of shares held (whether on the member’s own behalf or on behalf of some other person); and
(ii) the date on which the shares were allotted; and
(iii) the amount paid or agreed to be considered as having been paid on the shares;
(e)
if applicable, the date of and circumstances under which the member’s membership terminated;
(f)
if shares are forfeited pursuant to section 290 of the Act, a statement of the number of shares forfeited and the date on which forfeiture was effected.
(g)
if shares are purchased pursuant to section 172 (1) of the Act, a statement of the number of shares purchased and the date on which the shares were purchased;
(h)
if there is a conversion to a co-operative without share capital, the date of the repayment of the share capital or the date of disposal and the name, address and occupation of the person or body to whom the share capital was repaid
(2) The register of members, directors and shares of a co-operative must contain the
following particulars for each director:
(a) the name, address and occupation of each director.
(b) the date of that person’s election or appointment as a director;
(c) whether the director is a non-member director.
(d) if applicable, the date of termination of office;(e) if applicable, the mode of termination of office.
(3) The register of loans to and securities given by a co-operative is required to
contain the following particulars for each loan:
(a) the name of each member to whom a loan is made;
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(b) the amount of the loan;
(c) the date on which the loan was approved,
(d)
the folio reference to the minute evidencing the board's decision to make the loan;
(e) a reference identifying the account created for the loan;
(f) the date of each advance made in relation to the loan and the amount of each advance so made; (g) where the loan is secured by way of mortgage of real property—the address and particulars of title of the property and a reference identifying the mortgage agreement; (h) where the loan is secured otherwise than by way of a mortgage of real property—particulars of the security taken and a reference identifying the agreement that evidences that security; (i) the location of the documents relating to the security taken in respect of the loan;
(j) particulars of any movement of those documents from that location; and
(k) the date of the final repayment made in relation to the loan.
Register of loans, securities, debentures and deposits
2. (1) The register of loans, securities, debentures and deposits of a co-operative must contain the following particulars for each debenture given:
(a)
the name, address and occupation of each person to whom a debenture is payable;
(b) the number and series of the debenture;
(c) the date of its issue;
(d) the amount of the debenture;
(e) the rate of interest;
(f) the dates of payment of principal;
(g) the place of payment;
(h) the name of the trustee (if relevant);
(i) the ledger folio;
(j) the name and address and occupation of transferor,
(k) the date of transfer.(2) The register of loans, securities, debentures and deposits of a co-operative must contain the following particulars for each deposit received by the co-operative:
(a) the name, address and occupation of the depositor;
(b) the date of receipt;
(c) the amount deposited,
(d) the rate of interest (if any);
(e) the amount repaid;
(f) the date of conversion to shares/debentures;
(9) the due date for repayment;
(h) the balance.1993—No. 184
Register of loans, guarantees and securities
3. The register of loans, securities, debentures and deposits of a co-operative must
contain the following particulars for each loan guaranteed by the co-operative:
(a) the name of the member;
(b) the name of the lender.
(c) the amount of the loan;
(d) the date of the guarantee;
(e) the security documents held;(f) the due date for repayment;
(g)
the folio reference to the minutes evidencing the board’s decision to guarantee the loan.
Register of co-operative capital units
4. The register of CCU’s issued by a co-operative must contain the following
particulars for each CCU:
(a) the date of the resolution approving the terms of issue;
(b) the name, address and occupation of the holder.
(c) the number and series of the CCU;(d) the Face value of the CCU,
(e)
the rate of interest and the nature of the interest (whether cumulative or non-cumulative);
(f) the date of payment of interest;
(g)
the entitlement (if any) to priority of payment of capital and dividend before shares on a winding up of the co-operative;
(h)
the entitlement (if any) to surplus assets and profits on a winding up of the co-operative;
(i) where transferred—the name, address and occupation of the transferee;
(j) the redemption value (if known).
Register of cancelled memberships
5. (1) The register of memberships cancelled under Part 6 of the Act must contain the
following particulars for each member whose shares are forfeited:
(a) the name of the member;
(b) the amount subscribed in respect of the shares forfeited,
(c) if the whereabouts of the member are unknown:(i) the date when the continuous period of the member’s whereabouts being unknown commenced; and
(ii) if the amount subscribed exceeds $50, the date of publication of the required notice in a newspaper and the name of the newspaper;
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(d) if the whereabouts of the member are known:
(i) the date of the member’s last active dealing with the society; and
(ii) the date of posting of the required notice in writing to the member;
(e) the date and folio number of the board‘s resolution cancelling membership;
(f) the date and folio number of the board’s resolution forfeiting the shares;
(g)
if the date fixed by the board resolution for repayment of the amount paid up on shares is within 12 months of forfeiture:
(i) the date of repayment; or
(ii) the date of payment to an unclaimed money account;
(h) if the amount due is to be transferred to a debenture or deposit account:
(i) the date of repayment; and
(ii) the date of transfer to such an account,
(2) Subclause (1) (b) (c). (f). (9) and (h) apply only to co-operatives that have share
capital.
Register of fixed assets
6. The register of fixed assests of a co-operative must contain the following
particulars:
(a) a short description of the fixed asset;
(b) the method of financing any fixed asset that is leased;
(c) the physical location of the asset;
(d) the date of its purchase or installation;
(e) the manner in which depreciation is calculated;
(f) the annual percentage at which depreciation is calculated,
(g) the annual amount of depreciation or amortisation;
(h) the total amount of depreciation or amortisation;
(i) the revaluation increment;
(j) the sale price;
(k) the date sold.1993—No. 184
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Form 3
(Cl.31(2))
ANNUAL RETURN
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Send to Annexures
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amount owing under instrument at
date of appointment $ date of this account $
date of this account subject to the instrument at estimated value of property $
Statements of receipts and payments during period of this notification
receipts from date amount $ payments to date amount $ (if insufficient space). Further details are enclosed in annexure marked ( )
Signature This form must be signed by the receiver or administrator print name ................................................... capacity ....................................
sign here .................................................... date
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NOTE
TABLE OF PROVISIONS
PART 1—PRELIMINARY
1. Citation
2. Commencement
3. Definitions
4. Definition of “debenture” (sec. 5)
PART 2—FORMATION OF CO-OPERATIVES
5. Making of application (sec 10)
6. Application for registration (sec. 19)
7. Conditions of registratioin—compliance with Act etc. (sec. 23)
PART 3—RULES
8. Content of rules (sec. 107)
9. Alteration does not take effect until registered (sec. 113)
PART 4—active MEMBERSHIP REQUIREMENTS
10. Active membership—explanation (sec. 116)
11. Factors and considerations for determining primary activities etc. (sec. 121)
12. Active membership—supply or purchase of goods or produce (sec. 123)
13. Appeal against refusal of approval (sec. 125)
14. Repayment of deposits. debentures and CCU’s (sec. 136)
15. Register of cancelled memberships (sec. 137)
PART 5—SHARES
16. Restrictions on conversion to co-operative without share capital (sec. 145)
17. Members may be required to take up additional shares (sec. 155)
18. Bonus share issues (sec. 156)
PART 6—VOTING
19 Rules of co-operative formed to carry on club may restrict voting rights (sec. 177)
20. Effect of relevant share and voting interests on voting rights (sec. 178)
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22. Special postal ballots (sec. 194)
23. Minutes (sec. 203)
PART 7—MANAGEMENT AND ADMINISTRATION OF CO-OPERATIVES
24. Election of employees as directors (sec. 216)
25. Minutes (sec. 219)
26. Certain persons not to manage co-operatives (sec. 231)
27. Transitional requirements for accounts and accounting records (sec. 243)
28. Power of Registrar to grant exemptions (sec. 244)
29. Registers to be kept by co-operatives (sec. 249)
30. Notice of appointment etc. of directors and officers (sec. 251)
31. Returns (sec. 252)
32. Change of name of co-operative (sec. 259)
33. Restrictions on the use of “co-operative” by other bodies (sec. 260)
PART 8—FUNDS, PROPERTY ETC
34. Fund raising to be in accordance with rules. the Act and regulations (sec. 263)
35. Application of Corporations Law to issues of securities and prescribed interests
(sec. 266)
36. Compulsory loan by member to co-operative (sec. 268)
37. CCU’s not to be issued unless terms of issue etc. approved by Registrar (sec. 273)
PART 9—RESTRICTIONS ON THE ACQUISlTION OF INTERESTS
IN CO-OPERATIVES
38. Notice required to be given of voting interest (sec. 286)
39. Notice of existence of substantial share interest (sec. 287)
40. Notice of substantial change in share interest (sec. 287)
41. Notice of termination of substantial share interest (sec. 287)
42. Co-operative to keep register (sec. 294)43. Council may grant exemptions (sec. 308)
PART 10—AMALGAMATlON, TRANSFER OF ENGAGEMENTS.
WINDING UP ETC.
44. Amalgamation of local and foreign co-operatives (sec. 310)
45. Exemptions (sec. 312)
46. Application for transfer (sec. 316)
47. Winding up on Registrar’s certificate (sec. 324)
48. Application of Corporations Law (sec. 325)
49. Restrictions on voluntary winding up (sec. 326)
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PART 11—ARRANGEMENTS AND RECONSTRUCTIONS
50. Registrar to be given notice and opportunity to make submissions (secs. 346, 354)
51. Acquisition of shares pursuant to notice to dissenting shareholder (sec. 360)
52. Remaining shareholders may require acquisition (sec. 362)
PART 12—SUPERVISION AND PROTECTION OF CO-OPERATlVES
53. Inspectors may require certain persons to appear, answer questions and produce documents (sec. 375)
54. Powers of investigators (sec. 387)
55. Examination of involved person (sec. 388)
56. Enlargement or abridgment of time (sec. 408)
PART 13—GENERAL
57. Inspection of documents (sec. 438)
58. Forms
59. Waiver of fees
PART 14—THE SCHEDULES TO THE ACT
Division 1—Schedule 1
60. Requirements for all co-operatives (cl. 1)
Division 2—Schedule 3
61. Charges required to be registered (cl. 2)
62. Lodgment of notice of charge and copy of instrument (cl. 3)
63. Acquisition of property subject to a charge (cl. 4)
64. Assignment and variation of charges (cl. 9)
65. Satisfaaction of, and release of property from, charges (cl. 10)
66. Co-operative to keep documents relating to charges and register of charges (cl. 12)
67. Registration under other legislation relating to charges (cl. 14)
Division 3—Schedule 4
68. Notification of appointment of receiver (cl. 12)
69. Provisions as to information where receiver appointed (cl. 14)
70. Receiver may require reports (cl. 15)
71. Lodging of accounts of receiver (cl. 17)
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SCHEDULE 1—FEES
SCHEDULE 2—POSTAL BALLOTS
SCHEDULE 3—PARTICULARS TO BE INCLUDED IN REGISTERSCHEDULE 4—FORMS
EXPLANATORY NOTE
The purpose of this Regulation is to make provision under the Co-operatives Act 1992 with respect to the following procedural and administrative matters contemplated by that Act:
• the formation of co-operatives (Part 2);
• the rules of co-operatives (Part 3);
• the requirements of active membership of a co-operative (Part 4);
• shares in co-operatives (Part 5);
• voting in co-operatives (Part 6);
• management and administration of co-operatives (Part 7);
• funds, property etc. of co-operatives (Part 8);
• restrictions on the acquisition of interests in co-operatives (Part 9);• amalgamation, transfer of engagements, winding up etc. of co-operatives
(Part 10);
• arrangements, reconstructions etc. of co-operatives (Part 11);
• supervision and protection of co-operatives (Part 12);• other matters of a minor, consequential or ancillary nature (Parts 1, 13 and
14).
This Regulation is made under the Co-operatives Act 1992, including section 446 (the general regulation making power) and various other sections mentioned in the Regulation. If this Regulation is made or gazetted before the commencement of that Act, note that section 26 of the Interpretation Act 1987 enables those steps to be taken in advance of that commencement.
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