Co-operatives (Adoption of National Law) Act 2012 (NSW)
Statute Law (Miscellaneous Provisions) Bill 2021
An Act relating to the formation, registration and management of co-operatives; and for related purposes.
This Act is the Co-operatives (Adoption of National Law) Act 2012.
This Act commences on a day or days to be appointed by proclamation.
Different days may be appointed under subsection (1) for the commencement of different provisions of the Co-operatives National Law.
For the purposes of this Act,
In the local application provisions of this Act—
(a) the Commissioner for Fair Trading, Department of Customer Service, or
(b) if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department of Customer Service.
Terms used in the local application provisions of this Act and also in the Co-operatives National Law have the same meanings in those provisions as they have in that Law.
The Appendix forms part of this Act but notes included in this Act (other than in the Appendix) do not form part of this Act.
The Co-operatives National Law, as in force from time to time, set out in the Appendix to this Act—
(a) applies as a law of this jurisdiction, and
(b) as so applying may be referred to as the Co-operatives National Law (NSW), and
(c) so applies as if it were an Act.
The Co-operatives National Regulations, as in force from time to time—
(a) apply as National Regulations in force for the purposes of the Co-operatives National Law (NSW), subject to modifications prescribed by the local regulations, and
(b) as so applying may be referred to as the Co-operatives National Regulations (NSW).
The Co-operatives National Regulations as in force from time to time apply by virtue of this provision as National Regulations for the purposes of the Co-operatives National Law (NSW). The regulations as so applying and referred to as the Co-operatives National Regulations (NSW) are interpreted in accordance with that Law (and see in particular clauses 15 and 37 of Schedule 4 to that Law).
In the Co-operatives National Law (NSW)—
The following Acts of this jurisdiction do not apply to the Co-operatives National Law (NSW), the Co-operatives National Regulations (NSW), the Co-operatives National Regulations or other instruments (excluding local regulations) made under that Law—
(a) Interpretation Act 1987,
(b) Subordinate Legislation Act 1989.
With respect to the definition of
(a) the Registrar is specified for the purposes of sections 15, 601 and 622 of that Law, and
(b) the Secretary is specified for the purposes of sections 492, 494 and 520 of that Law, and
(c) an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 is specified for the purposes of sections 504 and 505 of that Law.
With respect to the definition of
(a) an order in writing in the approved form is specified for the purposes of the provisions of that Law referred to in Column 2 of the table to this subsection and for the person or class (if any) or in the circumstances (if any) specified in that Column, and
(b) a Gazette notice in the approved form is specified for the purposes of the provisions of that Law referred to in Column 3 of the table to this subsection and for the person or class (if any) or in the circumstances (if any) specified in that Column, and
(c) a written notice in the approved form is specified for the purposes of section 443 (5) of that Law.
Table
Column 1 | Column 2 | Column 3 |
Item | Designated instrument is an order in writing | Designated instrument is a Gazette notice |
1 | … | Section 33 (1) (certificate of registration) |
2 | Section 35 (5) (a) (exemption from special postal ballot for amendment of rules for conversion)—for individual co-operative | Section 35 (5) (b) (exemption from special postal ballot for amendment of rules for conversion)—for class of co-operatives |
3 | … | Section 60 (2) (specifying rule amendments requiring prior approval by Registrar) |
4 | Section 71 (1) (exemption from requirements of Division 2 of Part 2.4)—for individual co-operative | Section 71 (1) (exemption from requirements of Division 2 of Part 2.4)—for class of co-operatives |
5 | Section 92 (6) (exemption from complying with disclosure direction) | … |
6 | Section 171 (1) (exemption from requirements of Division 5 of Part 2.6)—for individual co-operative | Section 171 (1) (exemption from requirements of Division 5 of Part 2.6)—for class of co-operatives |
7 | … | Section 221 (1) (approval of omission of “Limited” or “Ltd” from name) |
8 | Section 226 (6) (exemption from requirement to display location notice)—for individual small co-operative | Section 226 (6) (exemption from requirement to display location notice)—for class of or all small co-operatives) |
9 | Section 316 (1) (exemption for individual co-operative from accounting and auditing provisions) | … |
10 | … | Section 317 (1) (exemption for class of co-operatives from accounting and auditing provisions) |
11 | … | Section 319 (1) (exemption for non-auditor members and former members of audit firms, and former employees of audit companies from accounting and auditing provisions) |
12 | … | Section 320 (1) (exemption for classes of non-auditor members etc from accounting and auditing provisions) |
13 | … | Section 322 (1) (exemption from National Regulations made under Part 3.3) |
14 | Section 338 (6) (exemption from compliance with section 338)—for individual co-operative | Section 338 (6) (exemption from compliance with section 338)—for class of co-operatives |
15 | Section 343 (10) (exemption from compliance with section 343)—for individual co-operative | Section 343 (10) (exemption from compliance with section 343)—for class of co-operatives |
16 | Section 359 (3) (exemption from compliance with section 359 or 248) | … |
17 | Section 363 (2) (stating maximum greater than 20% of nominal value of issued share capital)—for individual co-operative | Section 363 (2) (stating maximum greater than 20% of nominal value of issued share capital)—for class of co-operatives |
18 | … | Section 372 (1) (exemption of person or class of persons from the operation of Division 1 of Part 3.5) |
19 | Section 380 (1) (exemption from compliance with Division 2 of Part 3.5 or section 248) | … |
20 | Section 397 (4) (exemption from compliance with section 397) | … |
21 | … | Section 401 (7) (notification by Registrar of date of effect of transfer of engagements between co-operatives) |
22 | Section 404 (4) (exemption from compliance with section 404 or 248) | … |
23 | Section 445 (3) (exemption from compliance with section 445 or 248)—for individual co-operative | Section 445 (3) (exemption from compliance with section 445 or 248)—for class of co-operatives |
24 | Section 607 (3) (Registrar’s approval)—for individual co-operative or person | Section 607 (3) (Registrar’s approval)—for class of co-operatives or persons |
The following provisions have effect with respect to the definition of
(a) the Supreme Court is specified for the purposes of the provisions of that Law in which the term is used, except Part 7.3 of that Law,
(b) the Civil and Administrative Tribunal is specified for the purposes of Part 7.3 of that Law.
For the purposes of sections 201 (b), 444 (3) (k) and 451 (1) (f) of the Co-operatives National Law (NSW), the reference to 23 June 1993 is to be read as a reference to 15 December 1995.
For the purposes of section 436 (3) (b) (i) of the Co-operatives National Law (NSW), references in section 1339 of the Corporations Act to crediting an amount to the Companies and Unclaimed Moneys Special Account are to be read as references to dealing with the amount as unclaimed money in accordance with the Unclaimed Money Act 1995.
For the purposes of section 436 (3) (b) (ii) of the Co-operatives National Law (NSW), section 1341 (1) and (2) of the Corporations Act are taken to be replaced by subsection (3) of this section.
The amount is to be dealt with in accordance with the Unclaimed Money Act 1995, and accordingly applications for the payment of the amount may be made under that Act to the Chief Commissioner of State Revenue.
For the purposes of section 453 (d) of the Co-operatives National Law (NSW), references in sections 601AD–601AF of the Corporations Act to the Commonwealth are to be read as references to the State of New South Wales.
For the purposes of section 453 (e) of the Co-operatives National Law (NSW), references in section 601AE of the Corporations Act to crediting an amount to a Special Account (within the meaning of the Financial Management and Accountability Act 1997 of the Commonwealth) are to be read as references to crediting the amount to the Special Deposits Account (within the meaning of the Government Sector Finance Act 2018).
Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to warrants under Part 6.4 of the Co-operatives National Law (NSW).
Part 6.4 of the Co-operatives National Law (NSW) does not apply to the extent of any inconsistency with that Division.
Section 7 (1) (c) of this Act provides for authorised officers within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 to be designated authorities for the issue of warrants under the Law.
Section 518 of the Law contemplates that the Co-operatives National Law Act of a jurisdiction may contain machinery and other provisions for applications for, the issue of, and the execution of, warrants.
Section 483 of the Law provides that Part 6.4 (which includes section 518) applies to a jurisdiction except to the extent (if any) that the Co-operatives National Law Act of a jurisdiction provides otherwise, and with the modifications (if any) made by that Act.
For the purposes of section 530 (3) (b) of the Co-operatives National Law (NSW), the prescribed entity is the State of New South Wales.
For the purposes of section 537 (4) (c) of the Co-operatives National Law (NSW), information may be divulged to—
(a) the Treasurer, or
(b) the Chief Commissioner of State Revenue, or
(c) the Auditor-General, or
(d) the Independent Commission Against Corruption, or
(e) any special commission (within the meaning of the Special Commissions of Inquiry Act 1983) if—
(i) the Registrar has received a written request for information from the special commission, and
(ii) the Minister has given written approval to the Registrar of the communication of that information, and
(iii) the Registrar has given to the special commission written approval of the communication of that information.
For the purposes of the definition of
For the purposes of section 556 (2) of the Co-operatives National Law (NSW), a pecuniary penalty ordered to be paid in this jurisdiction is to be paid and treated in accordance with this section.
The penalty is a civil debt payable to the Registrar on behalf of the State.
The Registrar or the State may enforce the order as if it were an order made in civil proceedings against the person to recover a debt due by the person.
The debt arising from the order is taken to be a judgment debt.
No duty is payable in respect of any of the following instruments—
(a) in the case of a co-operative that—
(i) has as its primary activity the providing of any community service or benefit, and
(ii) was, before it was incorporated under the Co-operatives National Law (NSW), an unincorporated club, association or body operating to provide sporting or recreational facilities for its members and not carried on for the pecuniary benefit of its members,
an instrument transferring to the co-operative any property that was, immediately before the co-operative was so incorporated, held by or on behalf of the unincorporated club, association or body,
(b) an instrument executed or registered for or with respect to a transfer of any property to give effect to section 413 or 481 of the Co-operatives National Law (NSW) in respect of—
(i) a merger of co-operatives, or
(ii) a transfer of engagements,
(c) a share certificate or any other instrument issued or executed in connection with the capital of a co-operative.
If—
(a) a co-operative that transfers its incorporation under Division 2 of Part 4.3 of the Co-operatives National Law (NSW) was before its registration as a co-operative under that Law a company under the Corporations Act or any corresponding previous law of this jurisdiction, and
(b) stamp duty had been paid on its incorporation as such a company in respect of the amount of the nominal capital of the company (or if subsequently increased on the amount of its nominal capital as so increased),
any stamp duty so paid is to be taken into account and included in assessing the stamp duty payable on its incorporation or registration pursuant to the transfer.
An instrument issued or executed in connection with a CCU of a co-operative is not exempt under subsection (2).
No fee is chargeable under any Act for registration of an instrument executed or registered for or with respect to a transfer of any property to give effect to section 413 or 481 of the Co-operatives National Law (NSW) in respect of—
(a) a merger of co-operatives, or
(b) a transfer of engagements, or
(c) a transfer of incorporation.
The Governor is authorised to exercise the power to make Co-operatives National Regulations conferred by the Co-operatives National Law as applied by an Act of any jurisdiction.
The Executive Council of the State is authorised to advise the Governor in the exercise of the power referred to in subsection (1).
This section does not limit the power of the Governor to make local regulations conferred under the Co-operatives National Law (NSW).
The Governor may make regulations (the
(a) that by the local application provisions of this Act is required or permitted to be prescribed by the local regulations or that is necessary or convenient to be prescribed by the local regulations for carrying out or giving effect to the local application provisions of this Act, or
(b) that by the Co-operatives National Law (NSW) is required or permitted to be prescribed by the local regulations.
Without limitation, the local regulations may make provision for or with respect to—
(a) the administration of the Co-operatives National Law (NSW), and
(b) procedural matters relating to any aspects of the Co-operatives National Law (NSW), and
(c) without limiting paragraphs (a) and (b), administrative matters relating to the supervision and inspection of co-operatives, and
(d) the fees to be paid in respect of matters arising under this Act, the Co-operatives National Law (NSW) or the Co-operatives National Regulations (NSW), and
(e) the waiver, reduction, postponement or refund by the Registrar of Co-operatives of fees payable or paid under—
(i) this Act, or
(ii) the Co-operatives National Law (NSW), or
(iii) the Co-operatives National Regulations (NSW), or
(iv) the local regulations.
The local regulations may create offences and impose penalties for an offence of not more than the amount specified in section 612 (5) of the Co-operatives National Law (NSW).
Except as provided by the local regulations, the Co-operatives National Law (NSW) does not apply to or in respect of—
(a) a co-operative housing body under the Co-operative Housing and Starr-Bowkett Societies Act 1998, or
(b) a body that is of the same nature as such a co-operative housing body but that is not registered under that Act.
A copy of an order, notice, exemption or other instrument published in the Gazette purporting to have been given or issued under this Act, the Co-operatives National Law (NSW), the Co-operatives National Regulations (NSW) or the local regulations is evidence of the giving or issuing of the order, notice, exemption or other instrument of which it purports to be a copy.
In this section—
Proceedings for an offence are to be disposed of summarily before—
(a) the Local Court, or
(b) the Supreme Court in its summary jurisdiction.
The maximum penalty that may be imposed by the Local Court for an offence is 50 penalty units or imprisonment for 12 months, or both.
Proceedings for an offence under the local application provisions of this Act or the local regulations may be—
(a) started no later than 5 years after the alleged commission of the offence, and
(b) started only by the Registrar or a person authorised in writing by the Registrar to start the proceedings.
See sections 551 and 552 of the Co-operatives National Law about starting proceedings for an offence under that Law or the National Regulations.
Nothing in this section affects the operation of the Director of Public Prosecutions Act 1986.
Proceedings for the recovery of any fine or penalty imposed by the rules of a co-operative are to be disposed of summarily before the Local Court.
Proceedings for the recovery of a fine or penalty imposed by the rules of a co-operative may be instituted only by the co-operative.
In this section—
(a) the Minister, or
(b) the Registrar, or
(c) a public sector official (within the meaning of section 5) engaged in the administration of the local application provisions of this Act or the Co-operatives National Law (NSW).
An official does not incur civil liability for an act done, or omission made, honestly and without negligence under the local application provisions of this Act, the local regulations, the Co-operatives National Law (NSW) or the Co-operatives National Regulations (NSW).
If subsection (2) prevents a civil liability attaching to an official, the liability attaches instead to the State.
The Secretary is designated as the Registrar of Co-operatives and may exercise the functions of the Registrar of Co-operatives expressed to be conferred or imposed on the Registrar by or under the local application provisions of this Act, the local regulations, the Co-operatives National Law (NSW) or the Co-operatives National Regulations (NSW).
For that purpose, a reference in the local application provisions of this Act, the local regulations, the Co-operatives National Law (NSW) or the Co-operatives National Regulations (NSW) to the Registrar is to be read as a reference to the Secretary, but those functions are to be exercised under the title of the Registrar of Co-operatives.
A person appointed as an investigator under section 18 of the Fair Trading Act 1987 is taken to have been appointed as an inspector under section 492 of the Co-operatives National Law (NSW).
The local regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act.
Any such provision may, if the local regulations so provide, take effect from the date of assent to the Act concerned or a later date.
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as—
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
In this Part—
Subject to the local application provisions of this Act and the Co-operatives National Law (NSW), each person, thing and circumstance appointed or created under the repealed Act or existing or continuing under that Act immediately before the commencement of relevant provisions of the Co-operatives National Law (NSW) continues to have the same status, operation and effect as it would have had if this Act had not been enacted.
A co-operative whose registration under the repealed Act is in force immediately before the commencement of this clause is taken to be registered under the Co-operatives National Law (NSW).
A co-operative referred to in subclause (1) that was a trading co-operative immediately before the commencement of this clause is taken to be a distributing co-operative.
A co-operative referred to in subclause (1) that was a non-trading co-operative immediately before the commencement of this clause is taken to be a non-distributing co-operative.
The rules of a co-operative that has as a primary activity the operation, maintenance or carrying on of a club may provide for different classes of membership and restrict the voting rights attaching to membership of those different classes, but only if—
(a) the Registrar approves of the provisions concerned, and
(b) the membership of the class or classes entitled to full voting rights constitutes at least 40% of the total membership of the co-operative.
Any such provision in the rules of a co-operative must not be amended except with the prior approval of the Registrar.
An approval that was given under section 177 of the repealed Act by the Co-operatives Council constituted under that Act, and that was operative immediately before the commencement of this clause, has effect as if given by the Registrar.
This clause applies only to—
(a) a co-operative that holds a club licence under the Liquor Act 2007 (regardless of when it was registered as a co-operative), or
(b) a co-operative that was registered under the repealed Act before 17 December 1997 (being the date of assent to the Statute Law (Miscellaneous Provisions) Act (No 2) 1997).
A reference in Division 5 of Part 2.6 of the Co-operatives National Law (NSW) to the period of 2 years is taken to be a reference to a period of 5 years in a case where the cancellation of membership occurred before the commencement of that Division.
Any entitlement that a member or former member of a co-operative had immediately before the commencement of this clause in relation to a surplus arising from the business of the co-operative or a part of the reserves of the co-operative continues in force until satisfied.
Section 78 of the Co-operatives National Law (NSW) does not affect shares issued before the commencement of that section.
The repeal of the Co-operatives Act 1992 does not affect the operation of Part 6 of Schedule 6 to that Act on and after the date of the repeal, and that Part so operates as if that Act had not been repealed.
In this Part—
(a) starting on 18 July 2019, and
(b) ending immediately before the commencement of the amendment Act.
This clause applies if, during the relevant period, the Registrar of Co-operatives waived, reduced, postponed or refunded, in whole or part, a fee payable or paid by a person under this Act or the regulations on the ground the Registrar was satisfied it was appropriate because—
(a) the person was suffering financial hardship, or
(b) special circumstances existed.
The waiver, reduction, postponement or refund is taken to have been as valid as if it had happened after the commencement of the amendment Act.
To remove any doubt, the power of the Registrar of Co-operatives to waive, reduce, postpone or refund, in whole or part, a fee payable or paid under this Act or the regulations applies in relation to—
(a) a person who was suffering financial hardship—
(i) during the relevant period, or
(ii) because of events that happened during the relevant period, or
(b) special circumstances—
(i) that existed during the relevant period, or
(ii) that exist because of events that happened during the relevant period.
(Section 4)
This Law may be cited as the Co-operatives National Law.
This Law commences in a jurisdiction as provided by the Co-operatives National Law Act of that jurisdiction.
The objects of this Law are—
(a) to enable the formation, registration and operation of co-operatives; and
(b) to promote co-operative philosophy, principles, practices and objectives; and
(c) to protect the interests of co-operatives, their members and the public in the operations and activities of co-operatives; and
(d) to ensure directors of co-operatives are accountable for their actions and decisions to the members of co-operatives; and
(e) to encourage and facilitate self-management by co-operatives at all levels; and
(f) to encourage the development, integration and strengthening of co-operatives at local, regional, national and international levels by supporting and fostering State, Territory and national peak organisations and co-operative instrumentalities.
In this Law—
(a) whether formal or informal or partly formal and partly informal; or
(b) whether written or oral or partly written and partly oral; or
(c) whether or not having legal or equitable force and whether or not based on legal or equitable rights.
(a) is admitted to the legal profession under the law of a jurisdiction; and
(b) holds a current practising certificate under a law of a jurisdiction authorising the person to engage in legal practice.
(a) a register; and
(b) minutes; and
(c) any other record of information; and
(d) financial reports or financial records, however compiled, recorded or stored; and
(e) a document.
Division 3 of Part 1.2 of the Corporations Act contains provisions relating to carrying on business.
(a) a company; and
(b) any body corporate (whether incorporated in this jurisdiction or elsewhere); and
(c) an unincorporated body that, under the law of its place of origin, may—
(i) sue or be sued; or
(ii) hold property in the name of its secretary or of an office holder of the body duly appointed for that purpose;
but does not include—
(d) an exempt public authority (within the meaning of the Corporations Act); or
(e) a corporation sole.
A co-operative is a corporation within this definition.
(a) for a State—Part 3 of the Corporations (Ancillary Provisions) Act 2001 of that State; or
(b) for the Northern Territory—Part 4 of the Corporations Reform (Northern Territory) Act of that Territory; or
(c) for the Australian Capital Territory—the provisions of a law of that Territory that are declared by the Co-operatives National Law Act of that Territory to be the Corporations application legislation of that Territory;
unless a law of the State or Territory concerned provides otherwise.
(a) an undertaking to repay money deposited with or lent to the co-operative by a person if—
(i) the person deposits or lends the money in the ordinary course of a business carried on by the person; and
(ii) the co-operative receives the money in the ordinary course of carrying on a business that neither comprises nor forms part of a business of borrowing money and providing finance; or
(b) an undertaking by an Australian authorised deposit-taking institution to repay money deposited with it, or lent to it, in the ordinary course of its banking business; or
(c) an undertaking to pay money under—
(i) a cheque; or
(ii) an order for the payment of money; or
(iii) a bill of exchange; or
(d) an undertaking by a co-operative to pay money to a related corporation; or
(e) an undertaking to repay money that is prescribed by the regulations under the Corporations Act; or
(f) another document of a class prescribed by the National Regulations as exempt from this definition.
For the purposes of this definition, if a chose in action that includes an undertaking by a co-operative to pay money as a debt is offered as consideration for the acquisition of securities under an off-market takeover bid, or is issued under a compromise or arrangement under Part 4.4, the undertaking is taken to be an undertaking to repay as a debt money deposited with or lent to the co-operative.
(a) of the kind; and
(b) made, served or published in the manner (if any);
specified or described in the Co-operatives National Law Act of this jurisdiction for the purposes of the provision in which the term is used.
Examples are an order in writing served on a person and a notice published in the Gazette.
(a) a person who occupies or acts in the position of a director or member of the board of a co-operative, whether or not the person is called a director and whether or not the person is validly appointed or properly authorised to act in the position; and
(b) a person under whose directions or instructions the directors or members of the board of directors of the co-operative are accustomed to act.
(a) invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes and vouchers; and
(b) documents of prime entry; and
(c) working papers and other documents needed to explain—
(i) the methods by which financial statements are made up; and
(ii) adjustments to be made in preparing financial statements.
The Agreement includes the following definition—
• “MCCA” means the Ministerial Council on Consumer Affairs which for the purposes of this Agreement comprises the members in accordance with Part VIII of this Agreement or such body as succeeds it or for the time being performs the functions carried out by the Ministerial Council on Consumer Affairs as set out in this Agreement.
Jurisdictional legislation may provide for the application of the National Regulations in individual jurisdictions. Section 6 of this Law deals with the case where the National Regulations are not applied in a jurisdiction in that manner but are separately made for that jurisdiction.
(a) a director or secretary of the co-operative; or
(b) a person—
(i) who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the co-operative; or
(ii) who has the capacity to affect significantly the co-operative’s financial standing; or
(iii) in accordance with whose instructions or wishes the directors of the co-operative are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the directors or the co-operative); or
(c) a receiver, or receiver and manager, of property of the co-operative; or
(d) an administrator of the co-operative; or
(e) an administrator of a deed of arrangement executed by the co-operative; or
(f) a liquidator of the co-operative; or
(g) a trustee or other person administering a compromise or arrangement made between the co-operative and someone else.
The Personal Property Securities Act 2009 of the Commonwealth applies to certain security interests in personal property. See the following provisions of that Act—
(a) section 8 (Interests to which this Act does not apply);
(b) section 12 (Meaning of security interest);
(c) Chapter 9 (Transitional provisions).
For the meaning of
(a) a PPSA security interest; or
(b) a charge, lien or pledge.
(a) the Minister administering the Co-operatives National Law Act of this jurisdiction; or
(b) if different Ministers are administering that Act in different respects—the Minister administering the Act in the relevant respect; or
(c) if different Ministers are administering different portions of that Act—the Minister administering the relevant portion of the Act; or
(d) if paragraphs (b) and (c) do not apply and 2 or more Ministers are administering that Act or a portion of that Act—any one of the Ministers administering the Act or portion of the Act.
Schedule 4 contains miscellaneous provisions relating to the interpretation of this Law.
This section applies where the Co-operatives National Law Act of a jurisdiction does not provide that the National Regulations apply as regulations for the purposes of this Law as applying in that jurisdiction.
A reference in this Law as applying in that jurisdiction to National Regulations is taken to be a reference to regulations made under that Act that are the same or substantially the same as the National Regulations.
This section determines what (if any) law of another jurisdiction is a
If this Law applies as a law of the other jurisdiction (whether with or without modification), this Law as so applying is a corresponding co-operatives law for the purposes of this Law.
If this Law does not apply as a law of the other jurisdiction, a law of the other jurisdiction is a corresponding co-operatives law for the purposes of this Law if the National Regulations declare that the law substantially corresponds to the provisions of this Law.
It is intended that this Law will or may be supplemented by provisions of the Co-operatives National Law Act of this jurisdiction where an intention of supplementation (however expressed) is indicated in this Law, including provisions designating—
(a) a person or body to be a designated authority; or
(b) an instrument or document to be a designated instrument; or
(c) a court or tribunal to be a designated tribunal;
for the purposes of particular provisions of this Law.
Other provisions of this Law express the intention that the Co-operatives National Law Act of this jurisdiction will or may provide for particular matters.
It is also intended that the National Regulations will or may be supplemented by provisions of the local regulations where an intention of supplementation is indicated in the National Regulations.
(cf Corporations Act s 79)
A person is involved in a contravention if, and only if, the person—
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced, whether by threats or promises or otherwise, the contravention; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention; or
(d) has conspired with others to effect the contravention.
The co-operative principles are the following principles—
1 Voluntary and open membership Co-operatives are voluntary organisations, open to all persons able to use their services and willing to accept the responsibilities of membership, without gender, social, racial, political or religious discrimination.
2 Democratic member control Co-operatives are democratic organisations controlled by their members, who actively participate in setting their policies and making decisions. Men and women serving as elected representatives are accountable to the membership. In primary co-operatives members have equal voting rights (1 member, 1 vote) and co-operatives at other levels are organised in a democratic way.
3 Member economic participation Members contribute equitably to, and democratically control, the capital of their co-operative. At least part of the capital is usually the common property of the co-operative. They usually receive limited compensation (if any) on capital subscribed as a condition of membership. Members allocate surpluses for any or all of the following purposes—
(a) developing the co-operative, possibly by setting up reserves, part of which at least would be indivisible;
(b) benefiting members in proportion to their transactions with the co-operative;
(c) supporting other activities approved by the membership.
4 Autonomy and independence Co-operatives are autonomous, self-help organisations controlled by their members. If they enter into agreements with other organisations, including governments, or raise capital from external sources, they do so on terms that ensure democratic control by their members and maintain their co-operative autonomy.
5 Education, training and information Co-operatives provide education and training for their members, elected representatives, managers and employees so they can contribute effectively to the development of their co-operatives. They inform the general public, particularly young people and opinion leaders, about the nature and benefits of co-operation.
6 Co-operation among co-operatives Co-operatives serve their members most effectively and strengthen the co-operative movement by working together through local, national, regional and international structures.
7 Concern for the community While focusing on member needs, co-operatives work for the sustainable development of their communities through policies accepted by their members.
The co-operative principles are those adopted by the International Co-operative Alliance.
In the interpretation of a provision of this Law, a construction that would promote the co-operative principles is to be preferred to a construction that would not promote the co-operative principles.
A co-operative and a participating co-operative are each declared to be an excluded matter for the purposes of section 5F of the Corporations Act in relation to the whole of the Corporations legislation other than to the extent specified in this section.
This section ensures that neither the Corporations Act nor Part 3 of the ASIC Act will apply in relation to a co-operative or participating co-operative, other than to the extent specified in this section. Section 5F of the Corporations Act provides that if a State or Territory law declares a matter to be an excluded matter in relation to the whole of the Corporations legislation other than to a specified extent, then that legislation will not apply, except to the specified extent, in relation to that matter in the State or Territory concerned. However, other provisions of this Part provide for the application of provisions of the Corporations legislation to co-operatives or participating co-operatives as laws of this jurisdiction.
Subsection (1) does not exclude the application of the following provisions of the Corporations legislation to co-operatives or participating co-operatives to the extent that the provisions would otherwise be applicable to them—
(a) provisions relating to a matter that the National Regulations provide is not to be excluded from the operation of the Corporations legislation;
(b) provisions relating to the role of a co-operative or participating co-operative in the formation of a company;
(c) provisions relating to the registration of a co-operative as a company under Chapter 5B of the Corporations Act;
(d) provisions relating to substantial shareholdings, by or involving a co-operative or participating co-operative, in a company;
(e) provisions conferring or imposing functions on a co-operative or participating co-operative as a member, or former member, of a corporation;
(f) provisions relating to dealings by a co-operative or participating co-operative in financial products of a corporation, other than financial products of the co-operative or participating co-operative itself;
(g) provisions conferring or imposing functions on a co-operative or participating co-operative in its dealings with a corporation, not being dealings in financial products of the co-operative or participating co-operative;
(h) provisions relating to financial products of a co-operative, other than shares in, CCUs of, debentures of, or deposits with, a co-operative or participating co-operative;
(i) provisions relating to financial markets and participants in financial markets;
(j) provisions relating to financial services licensees whose licence covers dealing in, or providing advice about, financial products;
(k) provisions relating to carrying on a financial services business;
(l) provisions relating to financial statements, and audits of financial statements, of financial services licensees whose licence covers dealing in, or providing advice about, financial products;
(m) provisions relating to clients of financial services licensees whose licence covers dealing in, or providing advice about, financial products;
(n) provisions relating to registers of interests in financial products;
(o) provisions relating to powers of a court to cure procedural irregularities and to make other orders.
To avoid doubt, it is declared that subsection (1) does not operate so as to exclude the operation of the following provisions of the Corporations Act, except in relation to shares in, CCUs issued by, debentures of, or deposits with, a co-operative or participating co-operative—
(a) Part 1.2A;
(b) Chapter 2L;
(c) Chapter 6CA;
(d) Chapter 6D;
(e) Part 7.10.
Other provisions of this Law declare matters to be applied Corporations legislation matters for the purposes of the Corporations application legislation of this jurisdiction in relation to provisions of the Corporations Act specified in those provisions.
A declaration is made subject to any modifications specified in or in connection with the provision in which the declaration is made.
Additionally, a declaration is also made subject to—
(a) any modifications applying under section 15; and
(b) any modifications prescribed by the National Regulations; and
(c) any necessary modifications.
The Corporations application legislation of this jurisdiction provides for the application of provisions of the Corporations Act and Part 3 of the ASIC Act as laws of this jurisdiction in respect of any matter declared by a law of this jurisdiction (whether with or without modification) to be an applied Corporations legislation matter for the purposes of the Corporations application legislation in relation to those Commonwealth provisions. The Corporations application legislation ensures that a declaration made for the purposes of that legislation only operates so as to apply a provision of the Corporations legislation to a matter as a law of this jurisdiction if that provision does not already apply to the matter as a law of the Commonwealth. If a provision referred to in a declaration already applies as a law of the Commonwealth, nothing in the declaration will affect its continued operation as a law of the Commonwealth.
The following Table indicates the location and subject matter of declarations made under other provisions of this Law.
Table
Applied provisions of Corporations Act | Location of applied provisions in Corporations Act | Matter to which applied provision applies | Provision of this Law that makes the declaration |
Sections 111AA–111AX | Part 1.2A (Disclosing entities) | Debentures (and CCUs) of a co-operative | Section 337 |
Sections 283AA–283HB | Chapter 2L (Debentures) | Debentures (and CCUs) of a co-operative | Section 337 |
Section 295A | Part 2M.3, Division 1 (Annual financial reports and directors’ reports) | A co-operative with quoted securities | Section 277 |
Sections 299A–300A | Part 2M.3, Division 1 (Annual financial reports and directors’ reports) | A co-operative with quoted securities | Section 281 |
Sections 302–306 | Part 2M.3, Division 2 (Half-year financial report and directors’ report) | A co-operative that is a disclosing entity | Section 282 |
Sections 307–313 | Part 2M.3, Division 3 (Audit and auditor’s report) | A co-operative | Section 283 |
Section 315 (1) | Part 2M.3, Division 4 (Annual financial reporting to members) | A co-operative that is a disclosing entity | Section 285 |
Section 318 | Part 2M.3, Division 4 (Annual financial reporting to members) | A co-operative | Section 288 |
Sections 323–323C | Part 2M.3, Division 6 (Special provisions about consolidated financial statements) | A co-operative | Section 294 |
Sections 324AA–324DD (except section 324BD) | Part 2M.4 (Appointment and removal of auditors), Divisions 1–5 | A co-operative | Section 297 |
Sections 416–434G | Part 5.2 (Receivers, and other controllers, of property of corporations) | A co-operative | Section 393 |
Sections 435A–451D (except section 446B) | Part 5.3A (Administration of a company’s affairs with a view to executing a deed of company arrangement) | A co-operative | Section 382 |
Sections 459A–581 | Part 5.4 (Winding up in insolvency) Part 5.4A (Winding up by the court on other grounds) Part 5.4B (Winding up in insolvency or by the court) Part 5.5 (Voluntary winding up) Part 5.6 (Winding up generally) | The winding up of a co-operative | Section 444 |
Sections 465–489E | Part 5.4B (Winding up in insolvency or by the court) | The winding up or deregistration of participating co-operatives | Section 472 |
Sections 513–581 | Part 5.6 (Winding up generally) | The winding up or deregistration of participating co-operatives | Section 472 |
Section 536 | Part 5.6, Division 3 (Liquidators) | A person appointed to administer a compromise or arrangement | Section 420 |
Section 563AAA | Part 5.6, Division 6 (Proof and ranking of claims) | Debentures (and CCUs) issued by a co-operative to any of its members or employees | Section 342 |
Sections 588C–588Z | Part 5.7B (Recovering property or compensation for the benefit of creditors of insolvent company) | A co-operative | Section 451 |
Sections 589–596 | Part 5.8 (Offences) | A co-operative | Section 201 |
Sections 596AA–596AI | Part 5.8A (Employee entitlements) | A co-operative | Section 202 |
Sections 596A–597B | Part 5.9, Division 1 (Examining a person about a corporation) | A co-operative | Section 489 |
Sections 600A–600H | Part 5.9, Division 3 (Provisions applying to various kinds of external administration) | A co-operative | Section 382 |
Sections 601AA–601AH | Part 5A.1 (Deregistration) | The deregistration of a co-operative and a deregistered co-operative | Section 453 |
Sections 674–678 | Chapter 6CA (Continuous disclosure) | Debentures (and CCUs) of a co-operative | Section 337 |
Sections 700–742 | Chapter 6D (Fundraising) | Debentures (and CCUs) of a co-operative | Section 337 |
Sections 1040A–1045A | Part 7.10 (Market misconduct and other prohibited conduct relating to financial products and financial services) | Debentures (and CCUs) of a co-operative | Section 337 |
Sections 1339–1343A | Part 9.7 (Unclaimed property) | Anything paid or transferred to the Registrar under section 436 (2) | Section 436 (3) |
The National Regulations may declare any matter relating to co-operatives or participating co-operatives to be an applied Corporations legislation matter for the purposes of the Corporations application legislation of this jurisdiction in relation to any provision of the Corporations legislation that does not apply of its own force to co-operatives or participating co-operatives (as the case may be).
The declaration is made subject to any modifications specified in the provision in which the declaration is made.
Additionally, the declaration is also made subject to—
(a) any modifications applying under section 15; and
(b) any modifications prescribed by the National Regulations; and
(c) any necessary modifications.
The National Regulations may also provide that a specified provision of the Corporations legislation (with any applicable modifications) that is the subject of the declaration—
(a) operates to the exclusion of a specified provision of this Law; or
(b) prevails over a specified provision of this Law to the extent of any inconsistency.
This section applies in relation to any provisions of the Corporations legislation (the
(a) a declaration under this Law, as referred to in section 13; or
(b) a declaration under the National Regulations, as referred to in section 14.
For the purposes of sections 13 and 14, the following modifications apply—
(a) a reference in the applied provisions to a corporation, company or public company is to be read as a reference to a co-operative;
(b) a reference in the applied provisions to ASIC is to be read as a reference to the Registrar;
(c) a reference in the applied provisions to the court is to be read as a reference to the Supreme Court;
(d) a reference in the applied provisions to the Commonwealth is to be read as a reference to this jurisdiction;
(e) a reference in the applied provisions to articles or memorandum of association or constitution or replaceable rules is to be read as a reference to rules;
(f) a reference in the applied provisions to the Gazette is to be read as a reference to the Government Gazette of this jurisdiction;
(g) a reference in the applied provisions to “prescribed” is to be read as a reference to “approved by the designated authority”, and (without limitation) a reference to a prescribed form is to be read as a reference to an approved form within the meaning of this Law;
(h) a reference in the applied provisions to a special resolution is to be read as a reference to a special resolution referred to in section 239 of this Law;
(i) a cross-reference in the applied provisions to another provision of the Corporations Act is, if that cross-reference is not appropriate (because, for example, the provision cross-referred to is not among the applied provisions), to be read as a cross-reference to the equivalent provision of this Law;
(j) a reference in the applied provisions (including section 311 of the Corporations Act) to a “contravention of this Act” is to be read as including a reference to a contravention of this Law;
(k) a reference in the applied provisions to the regulations is to be read as a reference to the National Regulations or local regulations, as the case requires;
(l) all notes in the applied provisions are to be ignored;
(m) any of the applied provisions that are not relevant to co-operatives or that are incapable of application to co-operatives or participating co-operatives are to be ignored.
Subsection (2) does not apply to the extent to which this Law or the National Regulations provide otherwise, whether expressly or by implication.
The National Regulations may make provision, in relation to co-operatives, participating co-operatives or associated matters, for or with respect to any matter for which a provision of the Corporations legislation has effect in relation to companies or associated matters.
A National Regulation made under subsection (1) may deal with a matter in a similar way as, or in a different way from, that in which the provision of the Corporations legislation has effect.
Subsection (1) does not apply in relation to a provision of the Corporations legislation that applies of its own force or by operation of other provisions of this Law.
Without limiting subsection (1) or (2), the National Regulations may confer jurisdiction on a court or tribunal to exercise any function conferred by the National Regulations made under subsection (1).
This section authorises the National Regulations to deal with a matter dealt with by Corporations legislation (with certain limitations) in a manner that does not involve the declaration of the matter to be an applied Corporations legislation matter. This procedure is contemplated by the Corporations application legislation of the various jurisdictions.
A body may be registered under this Law as a co-operative.
A co-operative may be either—
(a) a distributing co-operative; or
(b) a non-distributing co-operative.
A
A distributing co-operative must have share capital.
A distributing co-operative must have a membership of—
(a) in the case of a co-operative group—2 or more co-operatives; or
(b) in the case of any other distributing co-operative—
(i) if a lesser number than 5 is approved by the Registrar—at least that number of active members; or
(ii) otherwise—5 or more active members.
An approval under subsection (3) may be given in relation to a particular co-operative or class of co-operatives.
A
A non-distributing co-operative may or may not have share capital.
A non-distributing co-operative must have a membership of—
(a) in the case of a co-operative group—2 or more co-operatives; or
(b) in the case of any other non-distributing co-operative—
(i) if a lesser number than 5 is approved by the Registrar—at least that number of active members; or
(ii) otherwise—5 or more active members.
An approval under subsection (3) may be given in relation to a particular co-operative or class of co-operatives.
The Registrar may give one composite approval that operates as more than one of the following—
(a) an approval concerning the number of active members of a co-operative required under section 18 (3) or 19 (3);
(b) an approval concerning the number of persons required to hold the formation meeting of a co-operative under section 22 (2);
(c) an approval concerning the number of members required to sign the application for registration of a proposed co-operative under section 26 (1);
(d) an approval concerning the minimum number of members for a co-operative to continue to carry on business under section 119.
A composite approval may be given in relation to—
(a) a particular co-operative or proposed co-operative; or
(b) a particular class of co-operatives or proposed co-operatives; or
(c) all co-operatives or proposed co-operatives.
This section does not limit the power of the Registrar to give separate approvals under any of the relevant sections.
Before a proposed co-operative (other than an existing corporation) can be registered, a formation meeting must be held under this Division.
Before a formation meeting can be held for a proposed co-operative, a draft of the proposed rules and a draft of the proposed formation disclosure statement must be approved by the Registrar in accordance with Division 3.
At the formation meeting for a proposed co-operative—
(a) the proposed rules of the co-operative approved under section 24 for the proposed co-operative, including active membership provisions, must be passed by two-thirds of the proposed members of the proposed co-operative attending the meeting; and
(b) in the case of—
(i) a proposed distributing co-operative; or
(ii) a proposed non-distributing co-operative that is the subject of a direction under section 23 (2) (a);
a formation disclosure statement approved under section 25 must be presented to the meeting; and
(c) the proposed members of the proposed co-operative must sign the application for membership; and
(d) the proposed members must elect the first directors of the proposed co-operative under the proposed rules; and
(e) the proposed members must authorise a person—
(i) to apply to the Registrar for registration of the proposed co-operative; and
(ii) to do anything necessary to have the proposed co-operative registered.
The formation meeting must be held by—
(a) in the case of a co-operative group—not less than 2 co-operatives suitably qualified to be members of the proposed co-operative group; or
(b) in the case of any other co-operative—not less than 5 persons, or if a lesser number than 5 is approved by the Registrar not less than the approved number of persons, suitably qualified to be members of the proposed co-operative.
For the purposes of subsection (2), a person (including a co-operative) is suitably qualified to be a member if—
(a) there are reasonable grounds to believe the person will be an active member of the proposed co-operative; and
(b) in the case of an individual—the person is an adult; and
(c) the person satisfies any other requirements for membership in the proposed rules.
Each co-operative forming a proposed co-operative group may be represented at the formation meeting by one person.
An approval under subsection (2) may be given in relation to a particular co-operative or class of co-operatives or to all co-operatives.
The following documents must be submitted to the Registrar before the formation meeting—
(a) a draft of the rules proposed for the co-operative (including active membership provisions);
(b) in the case of—
(i) a distributing co-operative—a draft formation disclosure statement for the co-operative; or
(ii) a non-distributing co-operative—a draft formation disclosure statement for the co-operative if the Registrar so directs under subsection (2) (a);
(c) a written notice of intention to apply for registration as a co-operative.
The Registrar may by written notice direct that—
(a) a draft formation disclosure statement for a proposed non-distributing co-operative must be submitted to the Registrar; and
(b) a formation disclosure statement approved under section 25 must be presented to the formation meeting for the co-operative.
The notice under subsection (2) is to be given to the person who submitted notice of intention to apply for registration as a co-operative and must specify the time by which the draft formation disclosure statement must be submitted to the Registrar.
This section applies to draft rules for a co-operative required to be submitted to the Registrar under section 23.
The rules must—
(a) be in accordance with section 56; and
(b) be in a form that may reasonably be approved.
If the rules do not make provision for any matter required by Schedule 1, the Registrar may approve the relevant provisions of the model rules as rules of the co-operative.
The Registrar may—
(a) approve the rules as submitted; or
(b) approve different rules to those submitted; or
(c) refuse to approve the rules; or
(d) require the person submitting the draft rules to give the Registrar any additional information the Registrar reasonably requires, and then act under paragraph (a), (b) or (c).
Subject to subsection (6), the Registrar approves of the rules by giving written notice of the approval of the rules to the person who submitted the draft rules to the Registrar.
The Registrar is taken to have approved the proposed rules (as submitted to the Registrar) at the end of the period of 28 days after they were submitted, unless before the end of that period the Registrar gives written notice to the person who submitted them that the Registrar—
(a) has approved different rules to those submitted; or
(b) is still considering the matter; or
(c) refuses to approve the proposed rules.
The Registrar must give the person who submitted the proposed rules to the Registrar written notice of the reasons for acting under subsection (6) (a) or (c).
This section applies to a draft formation disclosure statement for a co-operative required to be submitted to the Registrar under section 23.
The draft formation disclosure statement for a distributing co-operative must contain the information necessary to ensure prospective members are adequately informed of the nature and extent of a person’s financial involvement or liability as a member of the co-operative including so far as applicable—
(a) the estimated costs of formation; and
(b) the active membership provisions of the proposed co-operative; and
(c) the rights and liabilities attaching to shares in the proposed co-operative; and
(d) the capital required for the co-operative at the time of formation; and
(e) the projected income and expenditure of the co-operative for its first year of operation; and
(f) information about any contracts required to be entered into by the co-operative; and
(g) any other information that the Registrar directs to be included.
The draft formation disclosure statement for a non-distributing co-operative must contain the information that the Registrar directs to be included.
The Registrar may—
(a) approve the draft statement as submitted; or
(b) amend the draft, or require a specified amendment of the draft, and then approve the amended statement; or
(c) approve a different statement to that submitted; or
(d) refuse to approve the draft statement; or
(e) require the person submitting the draft statement to give the Registrar any additional information the Registrar reasonably requires, and then act under paragraph (a), (b), (c) or (d).
Approval may be given at any time before the formation meeting is held.
Approval may be given with or without conditions.
Subject to subsection (8), the Registrar approves of a formation disclosure statement by giving written notice of the approval of the statement to the person who submitted the draft statement to the Registrar.
The Registrar is taken to have approved the formation disclosure statement (as submitted to the Registrar) at the end of the period of 28 days after the day it was submitted to the Registrar, unless before the end of that period the Registrar gives written notice to the person who submitted the draft statement that the Registrar—
(a) has approved a different formation disclosure statement to that submitted; or
(b) is still considering the matter; or
(c) refuses to approve the formation disclosure statement.
The Registrar must give the person who submitted the draft statement to the Registrar written notice of the reasons for acting under subsection (8) (a) or (c).
Section 69 contains restrictions on advertising or publishing statements about an offer, or intended offer, of shares in a distributing co-operative unless a current formation disclosure statement relating to the shares is registered with or approved by the Registrar.
An application for registration of a proposed co-operative (other than an existing corporation) must—
(a) be made in the approved form; and
(b) be accompanied by the fee—
(i) prescribed by the National Regulations, unless subparagraph (ii) applies; or
(ii) prescribed by the local regulations; and
(c) be signed by—
(i) in the case of a co-operative group—at least 2 directors; and
(ii) in the case of any other proposed co-operative—at least 5, or if a lesser number than 5 is approved by the Registrar at least the approved number of, suitably qualified members, including 2 directors elected at the formation meeting; and
(d) be accompanied by—
(i) 2 copies of the proposed rules signed and certified by the persons who acted as chairperson and secretary at the formation meeting; and
(ii) in the case of—
(A) a proposed distributing co-operative; or
(B) a proposed non-distributing co-operative that is subject to a direction under section 23 (2);
a copy of the formation disclosure statement presented to the formation meeting signed and certified by the persons who acted as chairperson and secretary at the formation meeting; and
(iii) a statement listing the name, address, occupation and place and date of birth of each director; and
(iv) a statement of the address (located in this jurisdiction) of the co-operative’s registered office or proposed registered office; and
(v) any other particulars the Registrar may require in a particular case.
The application must be filed with the Registrar within 2 months after closure of the formation meeting for the proposed co-operative or within the extended period that the Registrar may allow.
If an application is made under this Division for registration of a proposed co-operative, the Registrar must register the co-operative and its rules if the Registrar is satisfied that the requirements for registration of the co-operative have been met.
The requirements for registration of a co-operative under this Division are as follows—
(a) the proposed rules of the proposed co-operative must be the rules approved by the Registrar under section 24;
(b) the requirements of this Law must have been complied with in relation to the proposed co-operative;
(c) the proposed co-operative must be designed to function under the co-operative principles or, if it is not designed to function entirely under the co-operative principles, the Registrar must be satisfied there are special reasons why the co-operative should be registered under this Law;
(d) there must be no reasonable cause for refusing registration of the proposed co-operative.
If the Registrar is not satisfied that the requirements for registration of the co-operative have been met, the Registrar may refuse to register the co-operative and its rules.
The Registrar must give to the applicant written notice of the refusal and the reasons for the refusal.
A co-operative becomes a corporation on being registered.
On the registration of the co-operative, the Registrar must issue a certificate of registration.
A corporation (other than a co-operative taken to be registered under this Law) may apply to the Registrar to be registered as a co-operative under this Law.
Before applying for registration as a co-operative, the corporation must, at the formation meeting, by a resolution approve of—
(a) the proposed registration; and
(b) any amendment of its existing constituent documents necessary to enable the corporation to comply with this Law; and
(c) the proposed rules of the proposed co-operative approved under section 24, including active membership provisions.
The formation disclosure statement approved under section 25 must be presented to the formation meeting, in the case of—
(a) a proposed distributing co-operative; or
(b) a proposed non-distributing co-operative that is the subject of a direction under section 23 (2).
A resolution under this section must have been passed by a two-thirds majority of eligible members present at the formation meeting.
Section 32 (5) provides that, despite anything to the contrary in this Division, the registration of a corporation as a co-operative does not take effect until the corporation ceases to be registered under the law under which it was previously registered.
An application for the registration of an existing corporation must—
(a) be in the approved form; and
(b) be accompanied by the fee—
(i) prescribed by the National Regulations, unless subparagraph (ii) applies; or
(ii) prescribed by the local regulations; and
(c) be accompanied by—
(i) a written declaration, signed no more than 28 days before the application for registration by the directors or committee of management of the corporation, stating that at a meeting of the directors or committee they formed the opinion that the corporation will be able to pay its debts as they fall due; and
(ii) a report in the approved form as to the affairs of the corporation and showing its assets and liabilities, made up to the latest practicable date before the application; and
(iii) a copy of the constituent documents of the corporation in force at the date of the application; and
(iv) 2 copies of the proposed rules of the co-operative, as provided for by the special resolution; and
(v) in the case of a proposed distributing co-operative or in the case of a proposed non-distributing co-operative that is subject to a direction under section 23 (2)—a copy of the formation disclosure statement presented to the meeting held under section 30, certified by the directors or committee of management of the corporation; and
If this Law authorises or requires the making of an instrument or decision—
(a) the power includes power to amend or repeal the instrument or decision; and
(b) the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.
If this Law authorises or requires the making of a statutory instrument in relation to a matter, a statutory instrument made under this Law may make provision for the matter by applying, adopting or incorporating (with or without modification) the provisions of—
(a) an Act or statutory instrument; or
(b) another document (whether of the same or a different kind);
as in force at a particular time or as in force from time to time.
If a statutory instrument applies, adopts or incorporates the provisions of a document, the statutory instrument applies, adopts or incorporates the provisions as in force from time to time, unless the statutory instrument otherwise expressly provides.
A statutory instrument may—
(a) apply generally throughout this jurisdiction or be limited in its application to a particular part of this jurisdiction; or
(b) apply generally to all persons, matters or things or be limited in its application to—
(i) particular persons, matters or things; or
(ii) particular classes of persons, matters or things; or
(c) otherwise apply generally or be limited in its application by reference to specified exceptions or factors.
A statutory instrument may—
(a) apply differently according to different specified factors; or
(b) otherwise make different provision in relation to—
(i) different persons, matters or things; or
(ii) different classes of persons, matters or things.
A statutory instrument may authorise a matter or thing to be from time to time determined, applied or regulated by a specified person or body.
If this Law authorises or requires a matter to be regulated by statutory instrument, the power may be exercised by prohibiting by statutory instrument the matter or any aspect of the matter.
If this Law authorises or requires provision to be made with respect to a matter by statutory instrument, a statutory instrument made under this Law may make provision with respect to a particular aspect of the matter despite the fact that provision is made by this Law in relation to another aspect of the matter or in relation to another matter.
A statutory instrument may provide for the review of, or a right of appeal against, a decision made under the statutory instrument, or this Law, and may, for that purpose, confer jurisdiction on any court, tribunal, person or body.
A statutory instrument may require a form prescribed by or under the statutory instrument, or information or documents included in, attached to or given with the form, to be verified by statutory declaration.
All conditions and preliminary steps required for the making of a statutory instrument are presumed to have been satisfied and performed in the absence of evidence to the contrary.
A statutory instrument is taken to be made under all powers under which it may be made, even though it purports to be made under this Law or a particular provision of this Law.
If this Law authorises or requires a person or body—
(a) to appoint a person to an office; or
(b) to appoint a person or body to exercise a power; or
(c) to appoint a person or body to do another thing;
the person or body may make the appointment by—
(d) appointing a person or body by name; or
(e) appointing a particular officer, or the holder of a particular office, by reference to the title of the office concerned.
An appointment of a particular officer, or the holder of a particular office, is taken to be the appointment of the person for the time being occupying or acting in the office concerned.
If this Law authorises a person or body to appoint a person to act in an office, the person or body may, in accordance with this Law, appoint—
(a) a person by name; or
(b) a particular officer, or the holder of a particular office, by reference to the title of the office concerned;
to act in the office.
The appointment may be expressed to have effect only in the circumstances specified in the instrument of appointment.
The appointer may—
(a) determine the terms and conditions of the appointment, including remuneration and allowances; and
(b) terminate the appointment at any time.
The appointment, or the termination of the appointment, must be in, or evidenced by, writing signed by the appointer.
The appointee must not act for more than one year during a vacancy in the office.
If the appointee is acting in the office otherwise than because of a vacancy in the office and the office becomes vacant, then, subject to subclause (2), the appointee may continue to act until—
(a) the appointer otherwise directs; or
(b) the vacancy is filled; or
(c) the end of a year from the day of the vacancy;
whichever happens first.
The appointment ceases to have effect if the appointee resigns by writing signed and delivered to the appointer.
While the appointee is acting in the office—
(a) the appointee has all the powers and other functions of the holder of the office; and
(b) this Law and other laws apply to the appointee as if the appointee were the holder of the office.
Anything done by or in relation to a person purporting to act in the office is not invalid merely because—
(a) the occasion for the appointment had not arisen; or
(b) the appointment had ceased to have effect; or
(c) the occasion for the person to act had not arisen or had ceased.
If this Law authorises the appointer to appoint a person to act during a vacancy in the office, an appointment to act in the office may be made by the appointer whether or not an appointment has previously been made to the office.
If this Law authorises or requires a person or body to appoint a person to an office—
(a) the power may be exercised from time to time as occasion requires; and
(b) the power includes—
(i) power to remove or suspend, at any time, a person appointed to the office; and
(ii) power to appoint another person to act in the office if a person appointed to the office is removed or suspended; and
(iii) power to reinstate or reappoint a person removed or suspended; and
(iv) power to appoint a person to act in the office if it is vacant (whether or not the office has ever been filled); and
(v) power to appoint a person to act in the office if the person appointed to the office is absent or is unable to discharge the functions of the office (whether because of illness or otherwise).
The power to remove or suspend a person under subclause (1) (b) may be exercised even if this Law provides that the holder of the office to which the person was appointed is to hold office for a specified period.
The power to make an appointment under subclause (1) (b) may be exercised from time to time as occasion requires.
An appointment under subclause (1) (b) may be expressed to have effect only in the circumstances specified in the instrument of appointment.
If this Law authorises a person or body to delegate a function, the person or body may, in accordance with this Law and any other applicable law, delegate the function to—
(a) a person or body by name; or
(b) a specified officer, or the holder of a specified office, by reference to the title of the office concerned.
The delegation may be—
(a) general or limited; and
(b) made from time to time; and
(c) revoked, wholly or partly, by the delegator.
The delegation, or a revocation of the delegation, must be in, or evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for the purpose.
A delegated function may be exercised only in accordance with any conditions to which the delegation is subject.
The delegate may, in the exercise of a delegated function, do anything that is incidental to the delegated function.
A delegated function that purports to have been exercised by the delegate is taken to have been properly exercised by the delegate unless the contrary is proved.
A delegated function that is properly exercised by the delegate is taken to have been exercised by the delegator.
If, when exercised by the delegator, a function is dependent on the delegator’s opinion, belief or state of mind, then, when exercised by the delegate, the function is dependent on the delegate’s opinion, belief or state of mind.
If—
(a) the delegator is a specified officer or the holder of a specified office; and
(b) the person who was the specified officer or holder of the specified office when the delegation was made ceases to be the holder of the office;
then—
(c) the delegation continues in force; and
(d) the person for the time being occupying or acting in the office concerned is taken to be the delegator for the purposes of this clause.
If—
(a) the delegator is a body; and
(b) there is a change in the membership of the body;
then—
(c) the delegation continues in force; and
(d) the body as constituted for the time being is taken to be the delegator for the purposes of this clause.
If a function is delegated to a specified officer or the holder of a specified office—
(a) the delegation does not cease to have effect merely because the person who was the specified officer or the holder of the specified office when the function was delegated ceases to be the officer or the holder of the office; and
(b) the function may be exercised by the person for the time being occupying or acting in the office concerned.
A function that has been delegated may, despite the delegation, be exercised by the delegator.
The delegation of a function does not relieve the delegator of the delegator’s obligation to ensure that the function is properly exercised.
Subject to subclause (15), this clause applies to a subdelegation of a function in the same way as it applies to a delegation of a function.
If this Law authorises the delegation of a function, the function may be subdelegated only if the Law expressly authorises the function to be subdelegated.
If a provision of this Law (the
(a) to make an appointment; or
(b) to make a statutory instrument of a legislative or administrative character; or
(c) to do another thing;
then—
(d) the power may be exercised; and
(e) anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment, instrument or other thing into effect;
before the empowering provision commences.
If a provision of a New South Wales Act (the
(a) to make an appointment; or
(b) to make a statutory instrument of a legislative or administrative character; or
(c) to do another thing;
then—
(d) the power may be exercised; and
(e) anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment, instrument or other thing into effect;
before the empowering provision commences.
If—
(a) this Law has commenced and confers a power to make a statutory instrument (the
basic instrument-making power ); and(b) a provision of a New South Wales Act that does not commence on its enactment would, had it commenced, amend this Law so as to confer additional power to make a statutory instrument (the
additional instrument-making power );
then—
(c) the basic instrument-making power and the additional instrument-making power may be exercised by making a single instrument; and
(d) any provision of the instrument that required an exercise of the additional instrument-making power is to be treated as made under subclause (2).
If an instrument, or a provision of an instrument, is made under subclause (1) or (2) that is necessary for the purpose of—
(a) enabling the exercise of a power referred to in the subclause; or
(b) bringing an appointment, instrument or other thing made or done under such a power into effect;
the instrument or provision takes effect—
(c) on the making of the instrument; or
(d) on such later day (if any) on which, or at such later time (if any) at which, the instrument or provision is expressed to take effect.
If—
(a) an appointment is made under subclause (1) or (2); or
(b) an instrument, or a provision of an instrument, made under subclause (1) or (2) is not necessary for a purpose referred to in subclause (4);
the appointment, instrument or provision takes effect—
(c) on the commencement of the relevant empowering provision; or
(d) on such later day (if any) on which, or at such later time (if any) at which, the appointment, instrument or provision is expressed to take effect.
Anything done under subclause (1) or (2) does not confer a right, or impose a liability, on a person before the relevant empowering provision commences.
After the enactment of a provision referred to in subclause (2) but before the provision’s commencement, this clause applies as if the references in subclauses (2) and (5) to the commencement of the empowering provision were references to the commencement of the provision referred to in subclause (2) as amended by the empowering provision.
In the application of this clause to a statutory instrument, a reference to the enactment of the instrument is a reference to the making of the instrument.
In the measurement of distance for the purposes of this Law, the distance is to be measured along the shortest road ordinarily used for travelling.
If a period beginning on a given day, act or event is provided or allowed for a purpose by this Law, the period is to be calculated by excluding the day, or the day of the act or event, and—
(a) if the period is expressed to be a specified number of clear days or at least a specified number of days—by excluding the day on which the purpose is to be fulfilled; and
(b) in any other case—by including the day on which the purpose is to be fulfilled.
If the last day of a period provided or allowed by this Law for doing anything is not a business day in the place in which the thing is to be or may be done, the thing may be done on the next business day in the place.
If the last day of a period provided or allowed by this Law for the filing or registration of a document is a day on which the office is closed where the filing or registration is to be or may be done, the document may be filed or registered at the office on the next day that the office is open.
If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the prescribed occasion happens.
If, in this Law, there is a reference to time, the reference is, in relation to the doing of anything in a jurisdiction, a reference to the legal time in the jurisdiction.
For the purposes of this Law, a person attains an age in years at the beginning of the person’s birthday for the age.
If a provision of this Law is expressed—
(a) to expire on a specified day; or
(b) to remain or continue in force, or otherwise have effect, until a specified day;
the provision has effect until the last moment of the specified day.
If a provision of this Law is repealed or amended by a New South Wales Act, or a provision of a New South Wales Act, the provision is not revived merely because the Act or the provision of the Act—
(a) is later repealed or amended; or
(b) later expires.
The repeal, amendment or expiry of a provision of this Law does not—
(a) revive anything not in force or existing at the time the repeal, amendment or expiry takes effect; or
(b) affect the previous operation of the provision or anything suffered, done or begun under the provision; or
(c) affect a right, privilege or liability acquired, accrued or incurred under the provision; or
(d) affect a penalty incurred in relation to an offence arising under the provision; or
(e) affect an investigation, proceedings or remedy in relation to such a right, privilege, liability or penalty.
Any such penalty may be imposed and enforced, and any such investigation, proceedings or remedy may be begun, continued or enforced, as if the provision had not been repealed or amended or had not expired.
If a New South Wales Act repeals some provisions of this Law and enacts new provisions in substitution for the repealed provisions, the repealed provisions continue in force until the new provisions commence.
This Law and all New South Wales Acts amending this Law are to be read as one.
This Schedule applies to a statutory instrument, and to things that may be done or are required to be done under a statutory instrument, in the same way as it applies to this Law, and things that may be done or are required to be done under this Law, except so far as the context or subject matter otherwise indicates or requires.
The fact that a provision of this Schedule refers to this Law and not also to a statutory instrument does not, by itself, indicate that the provision is intended to apply only to this Law.
This Law has effect in and in relation to the coastal sea of this jurisdiction as if that coastal sea were part of this jurisdiction.
In this Law, a penalty specified at the foot of—
(a) a section (whether or not the section is divided into subsections); or
(b) a subsection (but not at the end of a section); or
(c) a section or subsection and expressed in such a way as to indicate that it applies only to part of the section or subsection;
indicates that an offence referred to in the section, subsection or part is punishable on conviction or, if no offence is mentioned, a contravention of the section, subsection or part constitutes an offence against the provision that is punishable, on conviction, by a penalty not more than the specified penalty.
In this Law, a penalty specified for an offence, or a contravention of a provision, indicates that the offence is punishable on conviction, or that the contravention constitutes an offence against the provision that is punishable, on conviction, by a penalty not more than the specified penalty.
Co-operatives (Adoption of National Law) Act 2012 No 29. Assented to 18.5.2012. Date of commencement, 3.3.2014, sec 2 (1) and 2014 (43) LW 14.2.2014. This Act has been amended as follows—
No 42 | Statute Law (Miscellaneous Provisions) Act 2012. Assented to 21.6.2012. Date of commencement of Sch 2.11, 6.7.2012, sec 2 (1). | |
No 95 | Statute Law (Miscellaneous Provisions) Act (No 2) 2012. Assented to 21.11.2012. Date of commencement of Sch 2, 4.1.2013, sec 2 (1). | |
No 95 | Civil and Administrative Legislation (Repeal and Amendment) Act 2013. Assented to 20.11.2013. Date of commencement, 1.1.2014, sec 2. | |
No 58 | Statute Law (Miscellaneous Provisions) Act (No 2) 2015. Assented to 24.11.2015. Date of commencement of Sch 3, 15.1.2016, sec 2 (3). | |
No 70 | Government Sector Finance Legislation (Repeal and Amendment) Act 2018. Assented to 22.11.2018. Date of commencement of Sch 4.18, 1.7.2019, sec 2 (1) and 2019 (254) LW 21.6.2019. |
No 14 | Statute Law (Miscellaneous Provisions) Act (No 2) 2019. Assented to 21.11.2019. Date of commencement of Sch 1.5, 14 days after assent, sec 2(1). | |
No 3 | Better Regulation and Customer Service Legislation Amendment (Bushfire Relief) Act 2020. Assented to 25.3.2020. Date of commencement, assent, sec 2. | |
No 30 | Statute Law (Miscellaneous Provisions) Act 2020. Assented to 27.10.2020. Date of commencement of amendments made by Sch 1.12, 11.12.2020, sec 2(3). | |
No 59 | Statute Law (Miscellaneous Provisions) Act (No 2) 2022. Assented to 26.10.2022. Date of commencement, 13.1.2023, sec 2. |
This Act has been amended by sec 30C of the Interpretation Act 1987 No 15.
Sec 3 | Am 2015 No 58, Sch 3.25 [1]; 2022 No 59, Sch 3.16. |
Sec 5 | Am 2015 No 58, Sch 3.25 [2] [3]. |
Sec 7 | Am 2013 No 95, Sch 2.39; 2015 No 58, Sch 3.25 [3]. |
Sec 10 | Am 2018 No 70, Sch 4.18. |
Sec 18 | Am 2019 No 14, Sch 1.5; 2020 No 3, Sch 1.10[1]. |
Sec 24 | Am 2015 No 58, Sch 3.25 [3]. |
Sec 25 | Rep 1987 No 15, sec 30C. Ins 2020 No 30, Sch 1.12. |
Sch 1 | Am 2020 No 3, Sch 1.10[2]. |
Appendix | Am 2012 No 42, Sch 2.11 [1] [2]; 2012 No 95, Sch 2.7. |
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