Co-operatives National Law Application Act 2013 (Vic)
Version No. 004
Co-operatives National Law Application Act 2013
No. 9 of 2013
Version incorporating amendments as at
30 August 2017
TABLE OF PROVISIONS
Section Page
Part 1—Preliminary
1Purposes
2Commencement
3Definitions
Part 2—Application of Co-operatives National Law and Co‑operatives National Regulations
4Application of Co-operatives National Law and Co‑operatives National Regulations
5Meaning of certain terms in Co-operatives National Law for purposes of this jurisdiction
6Non-application of Co-operatives National Law to co-operative housing societies and other bodies
7Exclusion of legislation of this jurisdiction
8Disallowance of Co-operatives National Regulations (Victoria)
Part 3—Some matters referred to in Co‑operatives National Law (Victoria)
9Designated authority
10Designated instrument
11Designated tribunal
12Adjustment of date referred to in Corporations Act as applied
13Transfer or payment to the Registrar of consideration for shares compulsorily acquired
14Deregistration
15Warrants
16Costs of inquiry
17Secrecy
18Pecuniary penalty orders
19Duty on transfer of incorporation
20Registration fees
Part 4—Registrar
21Registrar of Co-operatives
22Official seal
23Agents of the Registrar
Part 5—General
24Orders and other instruments published in Gazette
25Proceedings for offences
26Proceedings for recovery of fines or penalties under co‑operatives rules
27Infringement notices
28Local regulations
28AModel rules for co-operatives in respect of which a government guarantee exists
Part 6—Transitional and savings provisions
29Regulations dealing with transitional matters
30General savings
31Registration of co-operatives
32Rule of certain co-operatives formed to carry on club may restrict voting rights
33Entitlements of former members of trading co‑operatives
34Entitlement to distribution from business for reserves of co‑operative
35Minimum paid up amount of shares
36Personal property security interests
37Government guarantees for co-operatives
38Inspectors
Part 7—Repeal and amendment of other Acts
Division 1—Repeal of Co-operatives Act 1996
39Repeal
Division 2—Amendment of Unclaimed Money Act 2008
40Definitions
41New Division 2A of Part 3 inserted
Division 3—Consequential amendments of other Acts
42Consequential amendments of other Acts
Schedules
Schedule 1—Designated instrument
Schedule 2—Consequential amendments
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Endnotes
1 General information
2 Table of Amendments
3 Amendments Not in Operation
4 Explanatory details
Annexure
Version No. 004
Co-operatives National Law Application Act 2013
No. 9 of 2013
Version incorporating amendments as at
30 August 2017
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The purposes of this Act are—
(a)to provide for the application of a national law relating to the formation, registration and operation of co-operatives; and
(b)to repeal the Co-operatives Act 1996 and to make related amendments to other Acts.
2Commencement
This Act comes into operation on a day or days to be proclaimed.
3Definitions
(1)In this Act—
Co-operatives National Law (Victoria) means the provisions applying in relation to this jurisdiction because of section 4(1);
Co-operatives National Regulations means the Co-operative National Regulations made under the Co-operatives National Law;
Co-operatives National Regulations (Victoria) means the provisions applying in relation to this jurisdiction because of section 4(2);
local regulations means the regulations made under section 28 or 29;
Registrar means the Registrar of Co-operatives referred to in section 21;
this jurisdiction means the State of Victoria.
(2)Terms used in this Act and also in the Co‑operatives National Law have the same meanings in this Act as they have in that Law.
Part 2—Application of Co-operatives National Law and Co‑operatives National Regulations
4Application of Co-operatives National Law and Co‑operatives National Regulations
(1)The Co-operatives National Law, as in force from time to time, set out in the Appendix to the Co‑operatives (Adoption of National Law) Act 2012 of New South Wales—
(a)subject to section 6, applies as a law of this jurisdiction; and
(b)as so applying, may be referred to as the Co‑operatives National Law (Victoria); and
(c)as so applying has effect as if it were an Act.
(2)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 (Victoria), subject to modifications prescribed by the local regulations; and
(b)as so applying may be referred to as the Co‑operatives National Regulations (Victoria).
Note
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 (Victoria). The regulations as so applying and referred to as the Co-operatives National Regulations (Victoria) are interpreted in accordance with that Law (and see in particular clauses 15 and 37 of Schedule 4 to that Law).
5Meaning of certain terms in Co-operatives National Law for purposes of this jurisdiction
In the Co-operatives National Law (Victoria)—
police officer has the same meaning as in the Victoria Police Act 2013;
public sector official means a public sector employee within the meaning of the Public Administration Act 2004;
Registrar has the same meaning as it has in this Act;
this jurisdiction means the State of Victoria.
6Non-application of Co-operatives National Law to co-operative housing societies and other bodies
Except as provided by the local regulations, the Co-operatives National Law (Victoria) does not apply to or in respect of a co-operative housing society within the meaning of the Co-operative Housing Societies Act 1958.
7Exclusion of legislation of this jurisdiction
The following Acts of this jurisdiction do not apply to the Co-operatives National Law (Victoria), the Co-operatives National Regulations (Victoria), the Co-operatives National Regulations or other instruments (excluding local regulations) made under that Law—
(a)the Interpretation of Legislation Act 1984;
(b)the Subordinate Legislation Act 1994 (except to the extent provided by section 8).
8Disallowance of Co-operatives National Regulations (Victoria)
Section 15(1) and Part 5 of the Subordinate Legislation Act 1994 apply to the Co-operatives National Regulations (Victoria) as if—
(a)the Co-operatives National Regulations (Victoria) were a statutory rule within the meaning of that Act; and
(b)a reference in section 15(1) of that Act to the publication of notice of the making of the statutory rule in the Government Gazette under section 17(2) of that Act were a reference to the later of—
(i)the publication of the Co-operatives National Regulations under section 614(1) of the Co-operatives National Law;
(ii)the day this section comes into operation.
Note
Section 15(1) of the Subordinate Legislation Act 1994 requires that a statutory rule be laid before each House of Parliament. Part 5 of that Act provides for the suspension or disallowance of statutory rules in certain circumstances.
Part 3—Some matters referred to in Co‑operatives National Law (Victoria)
9Designated authority
With respect to the definition of designated authority in the Co-operatives National Law (Victoria)—
(a)the Registrar is specified for the purposes of sections 15, 601 and 622 of that Law;
(b)the Minister is specified for the purposes of sections 492, 494 and 520 of that Law;
(c)a magistrate is specified for the purposes of sections 504 and 505 of that Law.
10Designated instrument
With respect to the definition of designated instrument in the Co-operatives National Law (Victoria)—
(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 Schedule 1 for the person or class (if any) or in the circumstances (if any) specified opposite in Column 3 of Schedule 1;
(b)a notice in the Government Gazette in the approved form is specified for the purposes of the provisions of that Law referred to in Column 2 of Schedule 1 for the person or class (if any) or in the circumstances (if any) specified opposite in Column 4 of Schedule 1;
(c)a written notice in the approved form is specified for the purposes of section 443(5) of that Law.
11Designated tribunal
(1)With respect to the definition of designated tribunal in the Co-operatives National Law (Victoria)—
(a)the Magistrates' 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 VCAT is specified for the purposes of Part 7.3 of that Law.
(2)In any proceeding under this Act in relation to which the Magistrates' Court is the designated tribunal, the Magistrates' Court may, on its own initiative or on application by a party to the proceeding—
(a)transfer the proceeding to the Supreme Court on the ground that the proceeding raises a complex question or matter of general importance; or
(b)reserve a question of law for determination by the Supreme Court.
(3)If a proceeding has been transferred to the Supreme Court under subsection (2)(a), it may be continued and completed as if steps taken in the proceeding prior to the transfer had been taken in the Supreme Court.
12Adjustment of date referred to in Corporations Act as applied
For the purposes of section 201(b) of the Co‑operatives National Law (Victoria), the reference to 23 June 1993 is to be read as the date on which this section comes into operation.
13Transfer or payment to the Registrar of consideration for shares compulsorily acquired
(1)This section applies in relation to an amount or other property paid or transferred to the Registrar under section 436(2) of the Co-operatives National Law (Victoria).
(2)The transferor of the amount or property must provide to the Registrar any details of the amount or property required by the Registrar to comply with the Unclaimed Money Act 2008.
(3)For the purposes of section 436(3)(b)(i) of the Co‑operatives National Law (Victoria), 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 or property in accordance with subsection (4).
(4)Anything paid or transferred to the Registrar under section 436(2) of the Co-operatives National Law (Victoria) is to be held on trust by the Registrar until such time as it is—
(a)dealt with in accordance with the Unclaimed Money Act 2008; or
(b)paid or transferred to a person under subsection (6).
(5)For the purposes of section 436(3)(b)(ii) of the Co-operatives National Law (Victoria), sections 1341(1) and (2) of the Corporations Act are taken to be replaced by subsection (6).
(6)If a person claims to be entitled to an amount or property held in trust by the Registrar under subsection (4) and the Registrar is satisfied that the person is entitled to that amount or property, the Registrar must pay the amount or transfer the property to the person.
(7)The Registrar is, following the payment of an amount or the transfer of property to a claimant under subsection (6), discharged from any further liability with respect to that amount or that property.
(8)If a person (the subsequent claimant) claims to be the owner of an amount or property subsequent to that amount or property being paid or transferred to another person (the first claimant) under subsection (6), the subsequent claimant may have recourse against the first claimant for that amount or property.
14Deregistration
(1)For the purposes of section 453(d) of the Co‑operatives National Law (Victoria), references in section 601AD to 601AF of the Corporations Act to the Commonwealth are to be read as references to the State of Victoria.
(2)For the purposes of section 453(e) of the Co‑operatives National Law (Victoria), 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 Consolidated Fund.
15Warrants
(1)Warrants under Part 6.4 of the Co-operatives National Law (Victoria) must be issued in accordance with Division 3 of Part 4 of the Magistrates' Court Act 1989.
(2)Part 6.4 of the Co-operatives National Law (Victoria) does not apply to the extent of any inconsistency with that Act.
16Costs of inquiry
For the purposes of section 530(3)(b) of the Co‑operatives National Law (Victoria), the prescribed entity is the State of Victoria.
17Secrecy
(1)For the purposes of section 537(4)(c) of the Co‑operatives National Law (Victoria), information may be divulged to—
(a)the Treasurer;
(b)the Commissioner of the State Revenue Office of Victoria;
(c)the Minister;
(d)the Auditor-General;
(e)a Victorian court, within the meaning of the Evidence Act 2008;
(f)a Royal Commission or a board to which Division 5 of Part I of the Evidence (Miscellaneous Provisions) Act 1958 applies;
(g)the Independent Broad-based Anti‑corruption Commission established under the Independent Broad-based Anti‑corruption Commission Act 2011;
(h)the person who, for the time being, is employed as Director of Consumer Affairs Victoria under the Public Administration Act 2004;
(i)the person who, for the time being, is employed as the Registrar of Incorporated Associations under the Public Administration Act 2004.
(2)For the purposes of the definition of former Act in section 537(6) of the Co-operatives National Law (Victoria), the Co-operatives Act 1996 is specified.
18Pecuniary penalty orders
(1)For the purposes of section 556(2) of the Co‑operatives National Law (Victoria), a pecuniary penalty ordered to be paid in this jurisdiction is to be paid and treated in accordance with this section.
(2)The penalty is a civil debt payable to the Registrar on behalf of the State.
(3)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 in a court of competent jurisdiction.
(4)The debt arising from the order is taken to be a judgment debt.
19Duty on transfer of incorporation
(1)This section applies if—
(a)a co-operative that transfers its incorporation under Division 2 of Part 4.3 of the Co‑operatives National Law (Victoria) 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)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).
(2)Any duty so paid is to be taken into account and included in assessing the duty payable on the incorporation or registration of the new body pursuant to the transfer.
20Registration fees
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 (Victoria) in respect of—
(a)a merger of co-operatives; or
(b)a transfer of engagements; or
(c)a transfer of incorporation.
Part 4—Registrar
21Registrar of Co-operatives
(1)Subject to the Public Administration Act 2004, there is to be a Registrar of Co-operatives for the purposes of—
(a)this Act; and
(b)the Co-operatives National Law (Victoria); and
(c)the Co-operatives National Regulations (Victoria); and
(d)the local regulations.
(2)The person employed as the Registrar of Co‑operatives under the Public Administration Act 2004 is a body corporate under the name "Registrar of Co-operatives".
(3)By that name, the Registrar of Co-operatives—
(a)has perpetual succession; and
(b)has an official seal; and
(c)may sue and be sued; and
(d)may acquire, hold and dispose of real and personal property; and
(e)may do and suffer all things that a body corporate may by law do and suffer.
22Official seal
(1)The official seal of the Registrar—
(a)must be kept as directed by the Registrar; and
(b)must not be used except as authorised by the Registrar.
(2)All courts, tribunals and other persons acting judicially—
(a)must take judicial notice of the official seal of the Registrar on a document; and
(b)until the contrary is proved, must presume that it was duly affixed.
23Agents of the Registrar
The Registrar may enter into arrangements or agreements with any person or body to act as the agent of the Registrar in the performance of the Registrar's functions under this Act.
Part 5—General
24Orders and other instruments published in Gazette
A copy of an order, notice, exemption or other instrument published in the Government Gazette purporting to have been given or issued under this Act, the Co-operatives National Law (Victoria), the Co-operatives National Regulations (Victoria) 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.
25Proceedings for offences
(1)Proceedings for an offence may be commenced—
(a)no later than 5 years after the alleged commission of the offence; and
(b)only by the Registrar or a person authorised in writing by the Registrar to commence proceedings.
(2)In this section—
offence means an offence under—
(a)this Act; or
(b)the local regulations; or
(c)the Co-operatives National Law (Victoria); or
(d)the Co-operatives National Regulations (Victoria).
26Proceedings for recovery of fines or penalties under co‑operatives rules
Proceedings for the recovery of any fine or penalty imposed by the rules of a co-operative may be commenced in the Magistrates' Court on application by the co-operative.
27Infringement notices
(1)An authorised officer may serve an infringement notice on any person who the officer has reason to believe has committed an offence against this Act, the Co-operatives National Law (Victoria), the Co-operatives National Regulations (Victoria) or the local regulations that is prescribed for the purposes of this subsection.
(2)An offence referred to in subsection (1) for which an infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006.
(3)The infringement penalty for an offence prescribed for the purposes of subsection (1) is the prescribed infringement penalty.
(4)In this section, authorised officer means—
(a)an inspector;
(b)a police officer;
(c)a person authorised in writing by the designated authority.
28Local regulations
(1)The Governor in Council may make regulations (the local regulations), for or with respect to—
(a)the administration of the Co-operatives National Law (Victoria);
(b)procedural matters relating to any aspects of the Co-operatives National Law (Victoria);
(c)without limiting paragraphs (a) and (b), administrative matters relating to the supervision and inspection of co-operatives;
(d)fees for the purposes of the Co-operatives National Law (Victoria) or the Co-operatives National Regulations (Victoria);
(e)any matter or thing—
(i)that is required or permitted to be prescribed or that is necessary to be prescribed to give effect to this Act; or
(ii)that by the Co-operatives National Law (Victoria) is required or permitted to be prescribed by the local regulations.
(2)The local regulations may—
(a)impose a penalty not exceeding the penalty specified in section 612(5) of the Co‑operatives National Law (Victoria) for a contravention of the local regulations;
(b)prescribe offences against this Act, the Co‑operatives National Law (Victoria), the Co-operatives National Regulations (Victoria) or the local regulations to be infringement offences;
(c)in relation to each infringement offence, prescribe the penalty that is payable to expiate the offence.
(3)The local regulations may—
(a)be of general or limited application;
(b)differ according to differences in time, place or circumstances;
(c)confer a discretionary authority or impose a duty on a specified person or a specified class of person.
(4)A power conferred by this Act to make local regulations providing for the imposition of fees may be exercised by providing for all or any of the following matters—
(a)specific fees;
(b)the payment of fees either generally or under specified conditions or in specified circumstances;
(c)the reduction, waiver or refund, in whole or in part, of the fees.
28AModel rules for co-operatives in respect of which a government guarantee exists
(1)The model rules of government guarantee co‑operatives (the local model rules) are the model rules prescribed under the Co‑operatives National Law (Victoria) for non-distributing co‑operatives with share capital subject to the modifications prescribed by the local regulations for the purposes of this section.
(2)The Co-operatives National Law (Victoria) applies to the local model rules as if they were model rules to which section 64 of that Law refers except that in section 66 of that Law a reference to the amendment of model rules is to be read as including a reference to any amendment to the local model rules made by the local regulations.
(3)In this section—
government guarantee co-operative means a co‑operative in respect of which a government guarantee exists under Division 6 of Part 3 of the Co‑operatives Act 1996;
Note
The operation of Division 6 of Part 3 of the Co‑operatives Act 1996 is preserved by virtue of section 37.
Part 6—Transitional and savings provisions
29Regulations dealing with transitional matters
(1)The Governor in Council may make local regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of this Act or any other Act that amends this Act.
(2)Regulations made under this section may—
(a)subject to subsection (3), have retrospective effect to the day on which this Act receives the Royal Assent;
(b)be of limited or general application;
(c)leave any matter or thing to be decided by a specified person or class of person;
(d)provide for the exemption of persons or things or a class of persons or things from any of the regulations made under this section.
(3)Regulations under this section have effect despite anything to the contrary—
(a)in any Act (other than the Charter of Human Rights and Responsibilities Act 2006); or
(b)in any subordinate instrument.
30General savings
Subject to this Act and the Co-operatives National Law (Victoria), each person, thing and circumstance appointed or created under the Co‑operatives Act 1996 or existing or continuing under that Act immediately before the commencement of relevant provisions of the Co‑operatives National Law (Victoria) continues to have the same status, operation and effect as it would have had if this Act had not been enacted.
31Registration of co-operatives
(1)A co-operative whose registration under the Co‑operatives Act 1996 is in force immediately before the commencement of this section is taken to be registered under the Co-operatives National Law (Victoria).
(2)A co-operative referred to in subsection (1) that was a trading co-operative immediately before the commencement of this section is taken to be a distributing co-operative.
(3)A co-operative referred to in subsection (1) that was a non-trading co-operative immediately before the commencement of this section is taken to be a non-distributing co-operative.
(4)A co-operative referred to in subsection (1) that was an association or federation immediately before the commencement of this section is taken to be a co-operative group.
32Rule of certain co-operatives formed to carry on club may restrict voting rights
(1)Subject to subsection (2), the rules of a co‑operative may provide for different classes of membership and restrict the voting rights attaching to membership of those different classes, but only if—
(a)the co-operative has as a primary activity the operation, maintenance and carrying on of a club; 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; and
(c)the NSW Registrar approves the provisions concerned.
Note
Under clause 5(3) of Schedule 1 to the Co-operatives (Adoption of National Law) Act 2012 of New South Wales, an approval that was given under section 177 of the Co‑operatives Act 1992 of New South Wales by the Co‑operatives Council constituted under that Act and that was effective immediately before the commencement of that clause has effect as if given by the NSW Registrar.
(2)Subsection (1) applies only to a co-operative registered in NSW and operating in Victoria as a participating co-operative under Part 5 of the Co‑operatives National Law (Victoria) that—
(a)holds a club licence under the Liquor Act 2007 of New South Wales, whether the co‑operative was registered under—
(i)the Co-operatives Act 1992 of New South Wales; or
(ii)the Co-operatives National Law (NSW); or
(b)was registered under the Co-operatives Act 1992 of New South Wales before 17 December 1997 (being the date of assent to the Statute Law (Miscellaneous Provisions) Act (No 2) 1997 of New South Wales).
(3)In this section—
Co-operatives National Law (NSW) means the Co-operatives National Law as applied as a law of New South Wales by section 4 of the Co-operatives (Adoption of National Law) Act 2012 of New South Wales;
NSW Registrar means the Registrar within the meaning of the Co-operatives National Law (NSW).
33Entitlements of former members of trading co‑operatives
A reference in Division 5 of Part 2.6 of the Co‑operatives National Law (Victoria) 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.
34Entitlement to distribution from business for reserves of co‑operative
Any entitlement that a member or former member of a co-operative had immediately before the commencement of this section in relation to a surplus arising from the business of the co‑operative or a part of the reserves of the co‑operative continues in force until satisfied.
35Minimum paid up amount of shares
Section 78 of the Co-operatives National Law (Victoria) does not affect shares issued before the commencement of that section.
36Personal property security interests
The repeal of the Co-operatives Act 1996 does not affect the operation of Division 2 of Part 19 of that Act on and after the date of the repeal, and that Division so operates as if that Act had not been repealed.
37Government guarantees for co-operatives
(1)The repeal of the Co-operatives Act 1996 does not affect the operation of Division 6 of Part 3 of that Act on and after the date of the repeal, and, subject to subsection (3), that Division so operates as if that Act had not been repealed.
(2)Despite section 242(1) of the Co-operatives National Law (Victoria), if a government guarantee executed under Division 6 of Part 3 of the Co-operatives Act 1996 applies in respect of the borrowings of a co-operative, a special resolution relating to further borrowings has no effect until it is registered.
(3)On or after the commencement of this section, a reference in section 63 of the Co-operatives Act 1996 to section 306 of that Act is to be read as a reference to section 403 of the Co-operatives National Law (Victoria).
38Inspectors
A person whose appointment as an inspector under Part 15 of the Co-operatives Act 1996 is in force immediately before the commencement of this section is taken to have been appointed as an inspector under section 492 of the Co-operatives National Law (Victoria).
Part 7—Repeal and amendment of other Acts
Division 1—Repeal of Co-operatives Act 1996
39Repeal
The Co-operatives Act 1996 is repealed.
Division 2—Amendment of Unclaimed Money Act 2008
40Definitions
In section 3(1) of the Unclaimed Money Act 2008, in the definition of business, in paragraph (d) for "Co-operatives Act 1996" substitute "Co-operatives National Law (Victoria)".
41New Division 2A of Part 3 inserted
After Division 2 of Part 3 of the Unclaimed Money Act 2008 insert—
"Division 2A—Consideration obtained by compulsory acquisition of shares under Co‑operatives National Law (Victoria)
16ADivisions 1 and 2 do not apply to consideration obtained by co-operative
Divisions 1 and 2 do not apply to consideration that has been obtained by a co‑operative, within the meaning of the Co‑operatives National Law (Victoria), through a compulsory acquisition of shares while that consideration is held by the co‑operative.
Note
Under section 436 of the Co-operatives National Law (Victoria), consideration obtained by a co-operative through a compulsory acquisition of shares in the co‑operative that has been held in trust by the co‑operative for at least 2 years must be paid or transferred to the Registrar of Co-operatives.
16BApplication of Act to Registrar of Co‑operatives
(1)Division 1 applies to an amount paid to the Registrar of Co-operatives under section 436 of the Co-operatives National Law (Victoria) as if a reference in that Division to a business were a reference to the Registrar of Co‑operatives.
(2)Division 2 applies to consideration (other than money) transferred to the Registrar of Co‑operatives under section 436 of the Co‑operatives National Law (Victoria) as if a reference in that Division to a trustee were a reference to the Registrar of Co-operatives.
(3)For the purposes of section 14(1) as applied by subsection (2), the Registrar of Co‑operatives may deduct out of the unclaimed money payable to the Registrar an amount equivalent to the reasonable expenses incurred in holding or selling the property that constitutes the consideration referred to in subsection (2).
(4)This section does not operate to make the Registrar of Co-operatives subject to any penalty that would otherwise apply to a business or trustee or to impose any obligation or duty on the Registrar of Co‑operatives other than an obligation or duty imposed by, or under, Division 1 or 2.
(5)The Registrar of Co-operatives cannot make an application under section 29 for repayment of unclaimed money paid to the Registrar under section 12 or 14.
__________________".
Division 3—Consequential amendments of other Acts
42Consequential amendments of other Acts
An Act specified in the heading to an item in Schedule 2 is amended as set out in that item.
Schedules
Schedule 1—Designated instrument
Section 10
| Column 1
| Column 2
| Column 3
| Column 4 Designated instrument is a notice in the Government Gazette |
| 1 | section 33(1) (certificate of registration) | — | for all cases |
| 2 | section 35(5) (exemption from special postal ballot for amendment of rules of conversion) | for individual co-operative | for class of co‑operatives |
| 3 | section 60(2) (specifying rule amendments requiring prior approval by Registrar) | — | for all cases |
| 4 | section 71(1) (exemption from requirements of Division 2 of Part 2.4) | for individual co-operative | for class of co‑operatives |
| 5 | section 92(6) (exemption from complying with disclosure direction) | for all cases | — |
| 6 | section 171(1) (exemption from requirements of Division 5 of Part 2.6) | for individual co-operative | for class of co‑operatives |
| 7 | section 221(1) (approval of omission of "Limited" or "Ltd" from name) | — | for all cases |
| Column 1
| Column 2
| Column 3
| Column 4 Designated instrument is a notice in the Government Gazette |
| 8 | section 226(6) (exemption from requirement to display location notice) | for individual small co-operative | for class of co‑operatives or all small co‑operatives |
| 9 | section 316(1) (exemption for individual co-operative from accounting and auditing provisions) | for all cases | — |
| 10 | section 317(1) (exemption for class of co-operatives from accounting and auditing provisions) | — | for all cases |
| 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) | — | for all cases |
| 12 | section 320(1) (exemption for classes of non-auditor members etc from accounting and auditing provisions) | — | for all cases |
| 13 | section 322(1) (exemption from National Regulations made under Part 3.3) | — | for all cases |
| 14 | section 338(6) (exemption from compliance with section 338) | for individual co-operative | for class of co‑operatives |
| Column 1
| Column 2
| Column 3
| Column 4 Designated instrument is a notice in the Government Gazette |
| 15 | section 343(10) (exemption from compliance with section 343) | for individual co-operative | for class of co‑operatives |
| 16 | section 359(3) (exemption from compliance with section 359 or 248) | for all cases | — |
| 17 | section 363(2) (stating maximum greater than 20% of nominal value of issued share capital) | for individual co-operative | 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) | — | for all cases |
| 19 | section 380(1) (exemption from compliance with Division 2 of Part 3.5 or section 248) | for all cases | — |
| 20 | section 397(4) (exemption from compliance with section 397) | for all cases | — |
| 21 | section 401(7) (notification by Registrar of date of effect of transfer of engagements between co-operatives) | — | for all cases |
| 22 | section 404(4) (exemption from compliance with section 404 or 248) | for all cases | — |
| Column 1
| Column 2
| Column 3
| Column 4 Designated instrument is a notice in the Government Gazette |
| 23 | section 445(3) (exemption from compliance with section 445 or 248) | for individual co-operative | for class of co‑operatives |
| 24 | section 607(3) (Registrar's approval) | for individual co-operative or person | for class of co‑operatives or persons |
Schedule 2—Consequential amendments
Section 42
1Accident Compensation Act 1985
In section 5I(a) for "Co-operatives Act 1996" substitute "Co‑operatives National Law (Victoria)".
2Associations Incorporation Reform Act 2012
In sections 10(1)(b), 22(3)(b)(iv) and 109 for "Co‑operatives Act 1996" substitute "Co‑operatives National Law (Victoria)".
3Australian Consumer Law and Fair Trading Act 2012
In Schedule 1 for "Co-operatives Act 1996" substitute "Co‑operatives National Law (Victoria)".
4Borrowing and Investment Powers Act 1987
In sections 29(1) and (2) for "Co-operatives Act 1996" substitute "Co‑operatives National Law (Victoria)".
5Bus Safety Act 2009
In section 3(1), in the definition of co-operative for "Co-operatives Act 1996" substitute "Co‑operatives National Law (Victoria)".
6Children, Youth and Families Act 2005
In section 66(2) for "Co-operatives Act 1996" substitute "Co‑operatives National Law (Victoria)".
7Duties Act 2000
(1)In section 3(1), in the definition of co-operative and in paragraph (b) of the definition of financial institution for "Co-operatives Act 1996" substitute "Co‑operatives National Law (Victoria)".
(2)In section 46(1)(b) for "Co-operatives Act 1996" substitute "Co‑operatives National Law (Victoria)".
(3)In section 46(2)(a) for "section 335 of the Co‑operatives Act 1996" substitute "section 413 of the Co‑operatives National Law (Victoria)".
(4)In sections 46(2)(b) and 46(2)(c) for "section 386 of the Co-operatives Act 1996" substitute "section 472 of the Co‑operatives National Law (Victoria)".
8Disability Act 2006
In section 101(2) for "Co-operatives Act 1996" substitute "Co‑operatives National Law (Victoria)".
9Fisheries Act 1995
In section 4(1), in the definition of co-operative for "Co-operatives Act 1996" substitute "Co‑operatives National Law (Victoria)".
10Gambling Regulation Act 2003
In section 1.3(1) in paragraph (b) of the definition of authorising officer and paragraph (b) of the definition of constituting document for "Co‑operatives Act 1996" substitute "Co‑operatives National Law (Victoria)".
11Housing Act 1983
(1)In section 4(1), in the definition of co-operative for "Co-operatives Act 1996" substitute "Co‑operatives National Law (Victoria)".
(2)In section 6(1)(g) for "non-trading co-operatives" substitute "non-distributing co-operatives".
(3)In section 129(2) for "Co-operatives Act 1996" substitute "Co‑operatives National Law (Victoria)".
(4)In section 132(12), in the definition of relevant regulatory body in paragraph (b) for
"Co-operatives Act 1996" substitute
"Co-operatives National Law (Victoria)".(5)In Part 1 of Schedule 8, in items 1(5), 1(10) and 1(11) for "Co-operatives Act 1996" substitute "Co‑operatives National Law (Victoria)".
12Liquor Control Reform Act 1998
In section 3(1), in the definition of co-operative for "Co-operatives Act 1996" substitute "Co‑operatives National Law (Victoria)".
13Partnership Act 1958
In sections 55(2)(b)(iv) and 89(4)(b)(iv) for "Co‑operatives Act 1996" substitute "Co‑operatives National Law (Victoria)".
14Personal Property Securities (Statute Law Revision and Implementation) Act 2010
(1)In section 17, in the definition of Registrar for "Co-operatives Act 1996" substitute "Co‑operatives National Law Application Act 2013".
(2)In the heading to section 20 for "Co-operatives Act 1996" substitute "Co‑operatives National Law (Victoria)".
(3)In section 20(1) for "Co-operatives Act 1996" substitute "Co‑operatives National Law (Victoria)".
15Property Law Act 1958
In section 28B(1)(a)(ii) for "Co-operatives Act 1996" substitute "Co‑operatives National Law (Victoria)".
16Supported Residential Services (Private Proprietors) Act 2010
In section 169(2) for "Co-operatives Act 1996" substitute "Co‑operatives National Law (Victoria)".
17Transfer of Land Act 1958
In sections 98CB(2)(c) and 98CC(1)(d) for "Co‑operatives Act 1996" substitute "Co‑operatives National Law (Victoria)".
18Transport (Compliance and Miscellaneous) Act 1983
In section 130A(1) in the definition of co‑operative for "Co-operatives Act 1996" substitute "Co‑operatives National Law (Victoria)".
═══════════════
Endnotes
1 General information
See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 7 February 2013
Legislative Council: 21 February 2013
The long title for the Bill for this Act was "A Bill for an Act to provide for the application of a national law relating to the formation, registration and operation of co-operatives, to repeal the Co-operatives Act 1996 and to make related amendments to other Acts and for other purposes."
The Co-operatives National Law Application Act 2013 was assented to on 13 March 2013 and came into operation on 3 March 2014: Special Gazette (No. 46) 18 February 2014 page 1.
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).
• Examples, diagrams or notes
All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).
• Punctuation
All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).
• Provision numbers
All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).
2 Table of Amendments
This publication incorporates amendments made to the Co-operatives National Law Application Act 2013 by Acts and subordinate instruments.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Consumer Affairs Legislation Amendment Act 2013, No. 57/2013
Assent Date: 22.10.13 Commencement Date: S. 8 on 23.10.13: s. 2(3) Current State: This information relates only to the provision/s amending the Co-operatives National Law Application Act 2013
Statute Law Revision Act 2013, No. 70/2013
Assent Date: 19.11.13 Commencement Date: S. 3(Sch. 1 item 8) on 1.12.13: s. 2(1) Current State: This information relates only to the provision/s amending the Co-operatives National Law Application Act 2013
Victoria Police Amendment (Consequential and Other Matters) Act 2014, No. 37/2014
Assent Date: 3.6.14 Commencement Date: S. 10(Sch. item 21) on 1.7.14: Special Gazette (No. 200) 24.6.14 p. 2 Current State: This information relates only to the provision/s amending the Co-operatives National Law Application Act 2013
Veterans and Other Acts Amendment Act 2015, No. 12/2015
Assent Date: 21.4.15 Commencement Date: S. 18 on 15.6.15: Special Gazette (No. 144) 9.6.15 p. 1 Current State: This information relates only to the provision/s amending the Co-operatives National Law Application Act 2013
Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017, No. 38/2017
Assent Date: 29.8.17 Commencement Date: S. 77 on 30.8.17: s. 2(1) Current State: This information relates only to the provision/s amending the Co-operatives National Law Application Act 2013
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
3 Amendments Not in Operation
There are no amendments which were Not in Operation at the date of this publication.
4 Explanatory details
No entries at date of publication.
Annexure
Co-operatives (Adoption of National Law) Act 2012
Note
This Act has been amended by the following Acts of New South Wales:
No 42 Statute Law (Miscellaneous Provisions) Act 2012
No 95 Statute Law (Miscellaneous Provisions) Act (No 2) 2012
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The object of this Bill is to enact co-operatives legislation applying in this State. It does so as part of a proposed substantively uniform scheme of legislation applying the Co-operatives National Law in the States and Territories (jurisdictions).
The Bill contains the Co-operatives National Law, set out in the Appendix, which operates as a template for all jurisdictions. Each jurisdiction has agreed to enact legislation applying the National Law in its jurisdiction or to enact consistent legislation. The intention is that there will be a substantively uniform scheme of legislation for co-operatives applying in all jurisdictions, based on the National Law. Some features of the National Law are set out below.
In addition to applying the Co-operatives National Law, this Bill and the application legislation of other jurisdictions would specify local administration details such as the appointment of a Registrar of Co-operatives, specifying which courts deal with various matters, and stating how official notices are published.
National Regulations supporting the Co-operatives National Law would be made by the Governor of New South Wales. Each jurisdiction has agreed to adopt, or make regulations consistent with, the National Regulations.
Existing co-operatives legislation in all jurisdictions is based on Core Consistent Provisions developed by the Standing Committee of Attorneys-General. The proposed Co-operatives National Law continues the major features of the existing legislation, while also removing variations between jurisdictions and updating some provisions—particularly provisions that apply parts of the Corporations Act 2001 of the Commonwealth (the Corporations Act).
Outline of provisions
Part 1Preliminary
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act by proclamation.
Clause 3 defines certain words and expressions used in the proposed Act.
Part 2Application of Co-operatives National Law and Co-operatives National Regulations
Clause 4 applies the Co-operatives National Law as a law of this jurisdiction called the Co-operatives National Law (NSW). The clause applies the Co-operatives National Regulations as regulations called the Co-operatives National Regulations (NSW).
Clause 5 defines certain words and expressions used in the Co-operatives National Law (NSW).
Clause 6 excludes the operation of the Interpretation Act 1987 and Subordinate Legislation Act 1989 from applying to the applied provisions and the Co-operatives National Regulations and other instruments made under the Co-operatives National Law. The clause makes it clear that it does not affect local regulations made under the proposed Act.
Part 3Some matters referred to in the Co operatives National Law (NSW)
Clause 7 specifies for this jurisdiction the meaning of certain terms used in the Co-operatives National Law. These terms are designated authority, designated instrument, and designated tribunal. It is intended that each jurisdiction will make appropriate provision for these terms in jurisdictional legislation applying the National Law.
Clause 8 provides that a reference to a particular date in provisions of the Corporations Act as applied in this jurisdiction is to be read as a reference to a specified different date. The specified different date relates to changes to the liability of directors under insolvent trading provisions in the Corporations Act that were not adopted by the Co-operatives Act 1992 until a later time.
Clause 9 provides that unclaimed money from the disposal of shares compulsorily acquired is to be dealt with under the Unclaimed Money Act 1995.
Clause 10 results in certain property of a deregistered co-operative vesting in the State of New South Wales. The clause achieves this by providing that the specified entity referred to in section 453 (d) of the Co-operatives National Law (NSW) is the State of New South Wales. By way of explanation, section 453 of the Co-operatives National Law applies provisions of the Corporations Act that refer to the Commonwealth, and clause 10 (1) has the effect of substituting the State of New South Wales for this purpose. Clause 10 (2) replaces references to a Special Account under Commonwealth legislation with references to the Special Deposits Account under State legislation.
Clause 11 provides for the application of legislation of this jurisdiction to warrants issued under the Co-operatives National Law.
Clause 12 provides that the costs of an inquiry under Part 6.5 of the Co-operatives National Law (NSW) may be directed to be paid to the State.
Clause 13 provides that information obtained in the course of administering the Co-operatives National Law (NSW) or the Co-operatives Act 1992 may be divulged to certain specified persons.
Clause 14 provides that a pecuniary penalty ordered to be paid in the State is a civil debt payable to the Registrar of Co-operatives on behalf of the State, and is recoverable accordingly.
Clause 15 provides that stamp duty is not payable on certain instruments associated with co-operatives, and stamp duty already paid is to be taken into account in respect of certain other instruments associated with co-operatives.
Clause 16 provides that registration fees are not chargeable under any Act in respect of certain instruments associated with co-operatives.
Part 4Regulations
Clause 17 authorises the Governor to make regulations (National Regulations) under the power conferred by the Co-operatives National Law as applied in each jurisdiction to make Co-operatives National Regulations. The Co-operatives National Regulations in that form take effect only to the extent they are applied or adopted by individual jurisdictions (see clause 4 in the case of this jurisdiction).
Clause 18 authorises the Governor to make regulations (local regulations) for the purposes of the proposed Act or as contemplated by the Co-operatives National Law as applying in this jurisdiction.
Part 5Miscellaneous
Clause 19 provides that the Co-operatives National Law does not apply to certain co-operative housing bodies.
Clause 20 contains evidentiary provisions relating to the making of orders, notices, exemptions and other instruments published in the Gazette.
Clause 21 provides for the procedure for the prosecution of offences under the proposed Act and the Co-operatives National Law (NSW).
Clause 22 provides for the recovery of fines and penalties imposed by the rules of a co-operative.
Clause 23 gives protection from civil liability for certain persons.
Clause 24 specifies the officer who is to exercise functions as the Registrar of Co-operatives under the proposed Act or the Co-operatives National Law (NSW).
Clause 25 repeals the Co-operatives Act 1992, the Co-operatives Amendment Act 1997, and the Co-operatives Regulation 2005.
Schedule 1Savings and transitional provisions
This Schedule contains some specific savings and transitional provisions, and also enables local regulations of a savings or transitional nature to be made.
Appendix Co-operatives National Law
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
This Appendix sets out the Co-operatives National Law. It is divided into Chapters and Schedules, which are briefly summarised below.
Chapter 1 Preliminary
This Chapter sets out the principles used by a co-operative organisation. The principles are those agreed by the International Co-operative Alliance and incorporated into Recommendation 193 of the International Labour Organization. The Chapter contains interpretation provisions and also sets out the relationship between the Co-operatives National Law and the Corporations Act. The provisions of the Corporations Act that are applied throughout the Co-operatives National Law are collected in a note and cross-referenced in tabular form along with relevant modifications for ease of reference.
Chapter 2Formation, powers and constitution of co‑operatives
This Chapter provides the mechanism for incorporating a co-operative and specifies the legal powers of the incorporated body as well as the legal assumptions that underpin a co-operative’s dealings with third parties. It identifies the matters that must be included in the rules of a co-operative and authorises the Registrar of Co-operatives to publish model rules that a co-operative can adopt. The Chapter also sets out the nature of share capital of a co-operative and establishes the legal notions of membership and active membership. Member rights and obligations as well as the circumstances in which membership is cancelled and any rights accompanying cancellation are dealt with in the Chapter.
Chapter 3 Management and operation of co-operatives
This Chapter deals with corporate governance of a co-operative. Matters such as the board as the managing organ, directors and their duties and meetings are included. Matters relating to financial reporting and auditing are contained in the Chapter along with provisions governing fundraising from members and the public.
Chapter 4 Structural and other events for co-operatives
This Chapter deals with corporate structural events such as external administration, mergers, schemes of arrangement and transfers of incorporation. Relevant provisions of the Corporations Act are applied and modified to achieve consistency of treatment in most external administration processes. Special provisions for caretaker-type administration and administrative powers of the Registrar of Co-operatives leading to a winding up are also located here.
Chapter 5 Participating co-operatives
This Chapter replaces the existing system of multiple registration to enable cross-border trade by co-operatives with a mutual recognition scheme for co-operatives from jurisdictions that participate in the Co-operatives National Law scheme.
Chapter 6 Supervision and protection of co-operatives
This Chapter establishes the powers of the Registrar of Co-operatives, inspectors and special investigators and the procedures that must be used when conducting an investigation. The Co-operatives National Law will introduce consistent powers and procedures across jurisdictions. If necessary, however, a particular jurisdiction will be able to modify provisions in this Chapter to account for local circumstances.
Chapter 7 Legal proceedings and other matters
This Chapter establishes nationally consistent provisions for offences, civil penalty provisions, appeals against administrative decisions, and the use of evidence in proceedings.
Chapter 8 General
This Chapter deals with administrative and other miscellaneous matters such as those relating to the office of Registrar of Co-operatives, the service and filing of documents, and the making of National Regulations.
Schedules
Schedule 1 sets out the matters that must be addressed in the rules of a co-operative.
Schedule 2 defines terms used in provisions that regulate interests and control in shares of a co-operative.
Schedule 3 contains savings and transitional provisions.
Schedule 4 sets out interpretation provisions that are nationally consistent and are used in place of the interpretation legislation in each jurisdiction.
Co-operatives (Adoption of National Law) Act 2012
Contents
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Part 1Preliminary
1Name of Act
2Commencement
3Definitions
Part 2Application of Co-operatives National Law and Co-operatives National Regulations
4Adoption of Co-operatives National Law and Co-operatives National Regulations
5Meaning of certain terms in Co-operatives National Law for purposes of this jurisdiction
6Exclusion of legislation of this jurisdiction
Part 3Some matters referred to in Co-operatives National Law (NSW)
7Designated authority, designated instrument and designated tribunal (Co-operatives National Law s 4)
8Adjustment of date referred to in Corporations Act as applied (Co-operatives National Law ss 201, 444 and 451)
9Disposal of consideration for shares compulsorily acquired (Co-operatives National Law s 436)
10Deregistration (Co-operatives National Law s 453—sections 601AD, 601AE and 601AF of Corporations Act as applied)
11Warrants (Co-operatives National Law ss 483 and 518)
12Costs of inquiry (Co-operatives National Law s 530)
13Secrecy (Co-operatives National Law s 537)
14Pecuniary penalty orders (Co-operatives National Law s 556)
15Stamp duty (Co-operatives National Law s 620)
16Registration fees (Co-operatives National Law s 620)
Part 4Regulations
17National Regulations
18Local regulations
Part 5Miscellaneous
19Non-application of Co-operatives National Law to co-operative housing societies and other bodies
20Orders and other instruments published in Gazette
21Proceedings for offences
22Proceedings for recovery of fines or penalties under co-operative’s rules
23Particular officials protected from liability
24Registrar of Co-operatives
25Repeals
Schedule 1Savings and transitional provisions
AppendixCo-operatives National Law
Chapter 1Preliminary
Part 1.1Introductory
1Citation
2Commencement
3Objects
Part 1.2Interpretation
4Definitions
5Miscellaneous provisions relating to the interpretation of this Law (Schedule 4)
(2)The delegation may be:
(a)general or limited; and
(b)made from time to time; and
(c)revoked, wholly or partly, by the delegator.
(3)The delegation, or a revocation of the delegation, must be in, or evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for the purpose.
(4)A delegated function may be exercised only in accordance with any conditions to which the delegation is subject.
(5)The delegate may, in the exercise of a delegated function, do anything that is incidental to the delegated function.
(6)A delegated function that purports to have been exercised by the delegate is taken to have been properly exercised by the delegate unless the contrary is proved.
(7)A delegated function that is properly exercised by the delegate is taken to have been exercised by the delegator.
(8)If, when exercised by the delegator, a function is dependent on the delegator’s opinion, belief or state of mind, then, when exercised by the delegate, the function is dependent on the delegate’s opinion, belief or state of mind.
(9)If:
(a)the delegator is a specified officer or the holder of a specified office; and
(b)the person who was the specified officer or holder of the specified office when the delegation was made ceases to be the holder of the office;
then:
(c)the delegation continues in force; and
(d)the person for the time being occupying or acting in the office concerned is taken to be the delegator for the purposes of this clause.
(10)If:
(a)the delegator is a body; and
(b)there is a change in the membership of the body;
then:
(c)the delegation continues in force; and
(d)the body as constituted for the time being is taken to be the delegator for the purposes of this clause.
(11)If a function is delegated to a specified officer or the holder of a specified office:
(a)the delegation does not cease to have effect merely because the person who was the specified officer or the holder of the specified office when the function was delegated ceases to be the officer or the holder of the office; and
(b)the function may be exercised by the person for the time being occupying or acting in the office concerned.
(12)A function that has been delegated may, despite the delegation, be exercised by the delegator.
(13)The delegation of a function does not relieve the delegator of the delegator’s obligation to ensure that the function is properly exercised.
(14)Subject to subclause (15), this clause applies to a subdelegation of a function in the same way as it applies to a delegation of a function.
(15)If this Law authorises the delegation of a function, the function may be subdelegated only if the Law expressly authorises the function to be subdelegated.
30Exercise of powers between enactment and commencement
(1)If a provision of this Law (the empowering provision) that does not commence on its enactment would, had it commenced, confer a power:
(a)to make an appointment; or
(b)to make a statutory instrument of a legislative or administrative character; or
(c)to do another thing;
then:
(d)the power may be exercised; and
(e)anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment, instrument or other thing into effect;
before the empowering provision commences.
(2)If a provision of a New South Wales Act (the empowering provision) that does not commence on its enactment would, had it commenced, amend a provision of this Law so that it would confer a power:
(a)to make an appointment; or
(b)to make a statutory instrument of a legislative or administrative character; or
(c)to do another thing;
then:
(d)the power may be exercised; and
(e)anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment, instrument or other thing into effect;
before the empowering provision commences.
(3)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).
(4)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.
(5)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.
(6)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.
(7)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.
(8)In the application of this clause to a statutory instrument, a reference to the enactment of the instrument is a reference to the making of the instrument.
Part 5Distance, time and age
31Matters relating to distance, time and age
(1)In the measurement of distance for the purposes of this Law, the distance is to be measured along the shortest road ordinarily used for travelling.
(2)If a period beginning on a given day, act or event is provided or allowed for a purpose by this Law, the period is to be calculated by excluding the day, or the day of the act or event, and:
(a)if the period is expressed to be a specified number of clear days or at least a specified number of days—by excluding the day on which the purpose is to be fulfilled; and
(b)in any other case—by including the day on which the purpose is to be fulfilled.
(3)If the last day of a period provided or allowed by this Law for doing anything is not a business day in the place in which the thing is to be or may be done, the thing may be done on the next business day in the place.
(4)If the last day of a period provided or allowed by this Law for the filing or registration of a document is a day on which the office is closed where the filing or registration is to be or may be done, the document may be filed or registered at the office on the next day that the office is open.
(5)If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the prescribed occasion happens.
(6)If, in this Law, there is a reference to time, the reference is, in relation to the doing of anything in a jurisdiction, a reference to the legal time in the jurisdiction.
(7)For the purposes of this Law, a person attains an age in years at the beginning of the person’s birthday for the age.
Part 6Effect of repeal, amendment or expiration
32Time of Law ceasing to have effect
If a provision of this Law is expressed:
(a)to expire on a specified day; or
(b)to remain or continue in force, or otherwise have effect, until a specified day;
the provision has effect until the last moment of the specified day.
33Repealed Law provisions not revived
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.
34Saving of operation of repealed Law provisions
(1)The repeal, amendment or expiry of a provision of this Law does not:
(a)revive anything not in force or existing at the time the repeal, amendment or expiry takes effect; or
(b)affect the previous operation of the provision or anything suffered, done or begun under the provision; or
(c)affect a right, privilege or liability acquired, accrued or incurred under the provision; or
(d)affect a penalty incurred in relation to an offence arising under the provision; or
(e)affect an investigation, proceedings or remedy in relation to such a right, privilege, liability or penalty.
(2)Any such penalty may be imposed and enforced, and any such investigation, proceedings or remedy may be begun, continued or enforced, as if the provision had not been repealed or amended or had not expired.
35Continuance of repealed provisions
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.
36Law and amending Acts to be read as one
This Law and all New South Wales Acts amending this Law are to be read as one.
Part 7Instruments under this Law
37Schedule applies to statutory instruments
(1)This Schedule applies to a statutory instrument, and to things that may be done or are required to be done under a statutory instrument, in the same way as it applies to this Law, and things that may be done or are required to be done under this Law, except so far as the context or subject matter otherwise indicates or requires.
(2)The fact that a provision of this Schedule refers to this Law and not also to a statutory instrument does not, by itself, indicate that the provision is intended to apply only to this Law.
Part 8Application to coastal sea
38Application
This Law has effect in and in relation to the coastal sea of this jurisdiction as if that coastal sea were part of this jurisdiction.
Part 9Offences under this Law
39Penalty at foot of provision
In this Law, a penalty specified at the foot of:
(a)a section (whether or not the section is divided into subsections); or
(b)a subsection (but not at the end of a section); or
(c)a section or subsection and expressed in such a way as to indicate that it applies only to part of the section or subsection;
indicates that an offence referred to in the section, subsection or part is punishable on conviction or, if no offence is mentioned, a contravention of the section, subsection or part constitutes an offence against the provision that is punishable, on conviction, by a penalty not more than the specified penalty.
40Penalty other than at foot of provision
In this Law, a penalty specified for an offence, or a contravention of a provision, indicates that the offence is punishable on conviction, or that the contravention constitutes an offence against the provision that is punishable, on conviction, by a penalty not more than the specified penalty.
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