Co-operatives National Law (Queensland) (Qld)

Co-operatives National Law (Queensland)

Editor’s note—

The Co-operatives National Law is applied (with modifications) as a law of Queensland by the Co-operatives National Law Act 2020. This version is the law as it applies in Queensland—see the Co-operatives National Law Act 2020, section 4. It is intended a new reprint of the National Law will be prepared by the Office of the Queensland Parliamentary Counsel when any change in the National Law takes effect.

Chapter 1    Preliminary

Part 1.1    Introductory

1   Citation

This Law may be cited as the Co-operatives National Law (Queensland).

2   Commencement

This Law commences in a jurisdiction as provided by the Co-operatives National Law Act of that jurisdiction.

3   Objects

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.

Part 1.2    Interpretation

4   Definitions

In this Law—

active member—see section 145.

active membership provisions—see section 146 (1).

active membership resolution—see section 146 (2).

agreement means an agreement, arrangement or understanding—

(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.

another jurisdiction means a State or Territory other than this jurisdiction.

approved form means a form approved under section 622.

ASIC means the Australian Securities and Investments Commission.

ASIC Act means the Australian Securities and Investments Commission Act 2001 of the Commonwealth.

Australian legal practitioner means a person who—

(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.

authorised deposit-taking institution means an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth.

board means the board of directors of a co-operative, and includes a person or committee exercising a power of the board delegated to the person or committee under the rules of the co-operative.

books includes—

(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.

carry on business has the same meaning in relation to a co-operative or participating co-operative as it has under the Corporations Act in relation to a company.

Note.

Division 3 of Part 1.2 of the Corporations Act contains provisions relating to carrying on business.

CCU means a co-operative capital unit, as provided for by Division 2 of Part 3.4 (see section 345).

chief executive officer of a co-operative or a subsidiary of a co-operative means the chief executive officer of the co-operative or subsidiary for the time being (by whatever name called), and whether or not the officer is a director or the secretary.

civil penalty provision—see section 553.

compensation order—see section 553.

constituent documents of a corporation means the constitution of the corporation or any rules or other document constituting the corporation or governing its activities, and includes a memorandum or articles of association and replaceable rules or other rules.

co-operative means a body registered under this Law as applying under the Co-operatives National Law Act of this jurisdiction as a co-operative (including a co-operative group).

co-operative group means a co-operative that has a membership as described in section 111.

co-operative principles—see section 10.

Co-operatives National Law Act of a jurisdiction means the Act of that jurisdiction that applies this Law (whether with or without modification) as a law of that jurisdiction.

corporation includes—

(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.

Note.

A co-operative is a corporation within this definition.

Corporations Act means the Corporations Act 2001 of the Commonwealth or, where appropriate, that Act as applying under this Law as a law of this jurisdiction.

Corporations application legislation means—

(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.

Corporations legislation means the Corporations legislation to which Part 1.1A of the Corporations Act applies.

corresponding co-operatives law of another jurisdiction—see section 7.

de facto partner has the meaning given by the Acts Interpretation Act 1901 of the Commonwealth in relation to an Act of the Commonwealth.

debenture of a co-operative means a chose in action that includes an undertaking by the co-operative to repay as a debt money deposited with or lent to the co-operative. The chose in action may (but need not) include a security interest in property of the co-operative to secure repayment of the money. However, a debenture does not include—

(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.

deed of arrangement means a deed of arrangement executed by a co-operative under Part 5.3A of the Corporations Act as applying under this Law (see section 382 of this Law) or a deed of that type as varied and in force from time to time.

deposit-taking co-operative means a co-operative permitted under section 333 to accept money on deposit.

designated authority means (except in section 612) the person or body 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.

designated instrument means an instrument or document—

(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.

Note.

Examples are an order in writing served on a person and a notice published in the Gazette.

designated tribunal means the court or tribunal 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.

director of a co-operative includes—

(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.

distributing co-operative—see section 18.

entity includes a person and an unincorporated body.

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

file includes lodge.

financial records includes—

(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.

half-year—see section 296.

inactive member of a co-operative is a member of the co-operative who is not an active member of the co-operative.

inspector means a person appointed as an inspector under Part 6.4.

investigator means a person appointed under section 520 to hold an inquiry into the affairs of a co-operative.

involved in a contravention—see section 9.

jurisdiction means a State or Territory.

large co-operative means a co-operative that is not a small co-operative.

local Registrar means the Registrar for this jurisdiction.

local regulations means regulations made under the Co-operatives National Law Act of this jurisdiction, but does not include the National Regulations.

Ministerial Council means the MCCA as defined in the Australian Uniform Co-operative Laws Agreement, the parties to which are the States and Territories, and which came into force on 21 January 2012 (being the date when it has been executed by all the parties).

Note.

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.

model rules means model rules under Division 2 of Part 2.3.

modification, in relation to an applied Corporations legislation matter, means a modification or change (as the case may be) within the meaning of the Corporations application legislation of this jurisdiction.

mortgage includes a lien, charge or other security over property.

National Regulations means the Co-operatives National Regulations made under this Law, as referred to in section 612.

Note.

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.

non-distributing co-operative—see section 19.

NSW legislation website means the website with the URL of or any other website, used by the Parliamentary Counsel of New South Wales to provide public access to the legislation of New South Wales.

officer of a co-operative or participating co-operative means—

(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.

ordinary resolution—see section 238.

participating co-operative means a body that is registered and incorporated under, and is subject to, a corresponding co-operatives law of another jurisdiction.

participating jurisdiction means a jurisdiction in which a corresponding co-operatives law is in force.

participating Registrar means a person exercising the functions of a Registrar under a corresponding co-operatives law of another jurisdiction.

pecuniary penalty order—see section 553.

PPSA security interest (short for Personal Property Securities Act security interest) means a security interest within the meaning of the Personal Property Securities Act 2009 of the Commonwealth and to which that Act applies, other than a transitional security interest within the meaning of that Act.

Note 1.

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).

Note 2.

For the meaning of transitional security interest, see section 308 of the Personal Property Securities Act 2009 of the Commonwealth.

primary activity—see section 144.

prison includes a correctional centre or correctional complex.

public sector official has the meaning given by the Co-operatives National Law Act of this jurisdiction.

quoted security means a security that is quoted on a prescribed financial market (within the meaning of the Corporations Act).

receiver includes a receiver and manager.

Registrar for this jurisdiction has the meaning given by the Co-operatives National Law Act of this jurisdiction.

related (in the context of related corporations)—see Part 3 of Schedule 2.

relevant interest—see Part 1 of Schedule 2.

rules of a co-operative (otherwise than in the context of proposed rules or model rules) means the registered rules of the co-operative in force for the time being.

secretary of a co-operative means the person appointed under section 190 to be, or to act as, the secretary of the co-operative.

security interest means—

(a)a PPSA security interest; or

(b)a charge, lien or pledge.

serve includes give, send and similar terms.

small co-operative means a co-operative of a class or description prescribed by the National Regulations.

special postal ballot—see section 248.

special resolution—see section 239.

strict liability—see section 550.

subsidiary has the same meaning as it has in the Corporations Act.

Supreme Court means the Supreme Court of this jurisdiction.

surplus, in relation to a co-operative, means the excess of income over expenditure after making adequate allowance for taxation expense, for depreciation in value of the property of the co-operative and for future contingencies.

the Minister means—

(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.

this jurisdiction—see the definition of that term in the Co-operatives National Law Act of each jurisdiction that adopts this Law.

5   Miscellaneous provisions relating to the interpretation of this Law (Schedule 4)

Schedule 4 contains miscellaneous provisions relating to the interpretation of this Law.

6   References to regulations where National Regulations are not applied

(1)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.

(2)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.

7   Corresponding co-operatives law

(1)This section determines what (if any) law of another jurisdiction is a corresponding co-operatives law for the purposes of this Law.

(2)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.

(3)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.

8   Co-operatives National Law Act of this jurisdiction

(1)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.

Note.

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.

(2)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.

9   Involvement in contraventions (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.

Part 1.3    The co-operative principles

10   Co-operative principles

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.

Note.

The co-operative principles are those adopted by the International Co-operative Alliance.

11   Interpretation to promote co-operative principles

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.

Part 1.4    The Corporations legislation

Division 1 Exclusion of matters from the Corporations legislation

12   Excluded matter—co-operatives and participating co-operatives

(1)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.

Note.

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.

(2)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.

(3)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.

Division 2 Applied matters (applied Corporations legislation matters)

13   Applied Corporations legislation matters under this Law

(1)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.

(2)A declaration is made subject to any modifications specified in or in connection with the provision in which the declaration is made.

(3)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.

Note 1.

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.

Note 2.

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)

14   Applied Corporations legislation matters under the National Regulations

(1)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).

(2)The declaration is made subject to any modifications specified in the provision in which the declaration is made.

(3)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.

(4)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.

15   Modifications to applied provisions

(1)This section applies in relation to any provisions of the Corporations legislation (the applied provisions) that are the subject of—

(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.

(2)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.

(3)Subsection (2) does not apply to the extent to which this Law or the National Regulations provide otherwise, whether expressly or by implication.

Division 3 Prescription by National Regulations of other matters dealt with by Corporations legislation

16   National Regulations may provide for matters dealt with by Corporations legislation

(1)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.

(2)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.

(3)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.

(4)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).

Note.

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.

Chapter 2    Formation, powers and constitution of co-operatives

Part 2.1    Formation

Division 1 Types of co-operatives

17   Types of co-operatives

(1)A body may be registered under this Law as a co-operative.

(2)A co-operative may be either—

(a)a distributing co-operative; or

(b)a non-distributing co-operative.

18   Distributing co-operatives

(1)A distributing co-operative is a co-operative that is not prohibited from giving returns or distributions on surplus or share capital.

(2)A distributing co-operative must have share capital.

(3)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.

(4)An approval under subsection (3) may be given in relation to a particular co-operative or class of co-operatives.

19   Non-distributing co-operatives

(1)A non-distributing co-operative is a co-operative that is prohibited from giving returns or distributions on surplus or share capital to members, other than the nominal value of shares (if any) at winding up.

(2)A non-distributing co-operative may or may not have share capital.

(3)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.

(4)An approval under subsection (3) may be given in relation to a particular co-operative or class of co-operatives.

20   Provisions regarding Registrar’s approvals about numbers

(1)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.

(2)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.

(3)This section does not limit the power of the Registrar to give separate approvals under any of the relevant sections.

Division 2 Formation meeting

21   Formation meeting

(1)Before a proposed co-operative (other than an existing corporation) can be registered, a formation meeting must be held under this Division.

(2)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.

22   Requirements regarding formation meeting

(1)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.

(2)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.

(3)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.

(4)Each co-operative forming a proposed co-operative group may be represented at the formation meeting by one person.

(5)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.

Division 3 Initial approval of rules and formation disclosure statement

23   Submission of draft rules and draft formation disclosure statement

(1)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.

(2)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.

(3)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.

24   Provisions relating to and approval of rules

(1)This section applies to draft rules for a co-operative required to be submitted to the Registrar under section 23.

(2)The rules must—

(a)be in accordance with section 56; and

(b)be in a form that may reasonably be approved.

(3)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.

(4)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).

(5)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.

(6)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.

(7)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).

25   Provisions relating to and approval of formation disclosure statement

(1)This section applies to a draft formation disclosure statement for a co-operative required to be submitted to the Registrar under section 23.

(2)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.

(3)The draft formation disclosure statement for a non-distributing co-operative must contain the information that the Registrar directs to be included.

(4)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).

(5)Approval may be given at any time before the formation meeting is held.

(6)Approval may be given with or without conditions.

(7)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.

(8)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.

(9)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).

Note.

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.

Division 4 Registration of proposed co-operative

26   Application for registration of proposed co-operative

(1)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.

(2)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.

27   Registration of proposed co-operative

(1)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.

(2)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.

(3)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.

(4)The Registrar must give to the applicant written notice of the refusal and the reasons for the refusal.

28   Incorporation and certificate of registration

(1)A co-operative becomes a corporation on being registered.

(2)On the registration of the co-operative, the Registrar must issue a certificate of registration.

Division 5 Registration of existing corporation

29   Existing corporation can be registered

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.

30   Formation meeting (existing corporation)

(1)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.

(2)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).

(3)A resolution under this section must have been passed by a two-thirds majority of eligible members present at the formation meeting.

Note.

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.

31   Application for registration of existing corporation

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

(vi)a list containing the name, address, occupation and place and date of birth of each director; and

(vii)evidence to the satisfaction of the Registrar of the incorporation of the corporation; and

(viii)a statement setting out the connection that the proposed co-operative would have to this jurisdiction; and

(ix)a statement of the address (located in this jurisdiction) of the co-operative’s registered office or proposed registered office; and

(x)any other particulars the Registrar may require in a particular case.

32   Requirements for registration

(1)When an application is made for the registration of a corporation as a co-operative under this Division, the Registrar must register the corporation as a co-operative under this Law and register its rules under this Law if the Registrar is satisfied the requirements for the registration of the corporation as a co-operative have been met.

(2)The requirements for the registration of a corporation as 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)there must be no reasonable cause for refusing registration of the proposed co-operative;

(d)the proposed co-operative must have a sufficient connection with this jurisdiction.

(3)If the Registrar is not satisfied the requirements for registration of the corporation as a co-operative have been met, the Registrar may refuse to register the proposed co-operative and its rules and must give to the applicant written notice of the refusal and the reasons for the refusal.

(4)If the Registrar has decided under this section to register a corporation under this Law, the corporation must notify the authority responsible for registering the corporation under the law under which it was previously registered of that decision.

(5)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.

(6)The corporation must notify the Registrar in writing within 7 days after ceasing to be registered under that other law.

33   Certificate of registration

(1)On the registration of the corporation as a co-operative, the Registrar must—

(a)issue a certificate of registration; and

(b)publish notice of the issue of the certificate by designated instrument.

(2)The corporate name of a corporation registered as a co-operative is the name approved by the Registrar, as stated in the certificate of registration issued by the Registrar.

34   Effect of registration

(1)The corporation is to be taken to be incorporated under this Law on its registration.

(2)Except as expressly provided in this Law, the registration and incorporation of the corporation as a co-operative does not prejudice any right of a member in relation to any shares held at the time of registration and incorporation.

(3)The change of registration and incorporation does not affect the identity of the corporation and it is taken to be the same body after registration as a co-operative as it was before and no act, matter or thing is affected by the change.

Division 6 Conversion of co-operative

35   Conversion of co-operative

(1)A co-operative may, by amendment of its rules, convert from—

(a)a co-operative with share capital to a co-operative without share capital, or vice versa; or

(b)a distributing co-operative to a non-distributing co-operative, or vice versa.

(2)An amendment of the rules for the conversion of a co-operative with share capital to a co-operative without share capital cannot be passed until at least 2 weeks after a notice has been published in a newspaper circulating generally in the district in which the registered office of the co-operative is situated advising of the proposal to submit the proposed amendment to members of the co-operative.

(3)An amendment of the rules for the conversion of a non-distributing co-operative to a distributing co-operative does not have effect without the prior approval of the Registrar under section 60.

(4)An amendment of the rules for the conversion of a co-operative must be approved by special resolution passed by a special postal ballot.

(5)The Registrar may exempt—

(a)a co-operative from subsection (4) by designated instrument; or

(b)a class of co-operatives from subsection (4) by designated instrument.

(6)An exemption may be given unconditionally or subject to conditions.

Division 7 General

36   Acceptance of money by proposed co-operative

(1)A proposed co-operative or any person on its behalf or otherwise who accepts money for the proposed co-operative before the proposed co-operative is registered must hold that money on trust until the co-operative is registered.

(2)If a co-operative is not registered within 3 months after the acceptance of money under subsection (1), the proposed co-operative or the person who accepted the money on its behalf must refund the money to the person who paid it.

Maximum penalty—$6,000.

37   Issue of duplicate certificate

The Registrar must issue a duplicate certificate of registration—

(a)if the Registrar is satisfied the original certificate is lost or destroyed; and

(b)on payment of the fee—

(i)prescribed by the National Regulations, unless subparagraph (ii) applies; or

(ii)prescribed by the local regulations.

Part 2.2    Legal capacity and powers

Division 1 General powers

38   Effect of incorporation

As a corporation, a co-operative—

(a)has perpetual succession; and

(b)may have a common seal; and

(c)may sue and be sued in its corporate name; and

(d)subject to this Law, is capable of taking, purchasing, leasing, holding, selling and disposing of real and personal property; and

(e)may do and suffer all acts and things that corporations may by law do and suffer and that are necessary or expedient.

39   Power to form companies and enter into joint ventures

Without limiting any other provision of this Law, a co-operative has power—

(a)to form or participate in the formation of a corporation or unit trust; and

(b)to acquire interests in and sell or otherwise dispose of interests in corporations, unit trusts and joint ventures; and

(c)to form or enter into a partnership, joint venture or other association with other persons or bodies.

Division 2 Doctrine of ultra vires not to apply

40   Interpretation

In this Division—

(a)a reference to the doing of an act by a co-operative includes a reference to the making of an agreement by the co-operative and a reference to a transfer of property to or by the co-operative; and

(b)a reference to legal capacity includes a reference to powers.

41   Doctrine of ultra vires not to apply

(1)The objects of this Division are—

(a)to provide that the doctrine of ultra vires does not apply to co-operatives; and

(b)without affecting the validity of a co-operative’s dealings with others—to ensure the co-operative’s officers and members give effect to the provisions of the rules of the co-operative relating to the primary activities or powers of the co-operative.

(2)This Division is to be construed and to have effect in accordance with subsection (1).

42   Legal capacity

(1)A co-operative has, both within and outside this jurisdiction, the legal capacity of an individual.

(2)Without limiting subsection (1), a co-operative has, both within and outside this jurisdiction, power—

(a)to issue and allot fully or partly paid shares in the co-operative; and

(b)to issue debentures and CCUs of the co-operative; and

(c)to distribute any of the property of the co-operative among the members, in kind or otherwise; and

(d)to give security by charging uncalled capital; and

(e)to grant a security interest in property of the co-operative; and

(f)to procure the co-operative to be registered or recognised as a corporation in any place outside this jurisdiction; and

(g)to do any other act it is authorised to do by any other law (including a law of a place outside this jurisdiction).

(3)The fact that the doing of an act by a co-operative would not be, or is not, in its best interests does not affect its legal capacity to do the act.

(4)To avoid doubt, this section does not—

(a)authorise a co-operative to do an act that is prohibited by a law of this jurisdiction; or

(b)give a co-operative a right that a law of this jurisdiction denies the co-operative.

43   Rules may limit powers and set out objects (cf Corporations Act s 125)

(1)The rules of a co-operative may contain an express restriction on, or a prohibition of, the co-operative’s exercise of any of its powers, but the exercise of a power by the co-operative is not invalid merely because it is contrary to an express restriction or prohibition in the rules of the co-operative.

(2)The rules of a co-operative may set out the co-operative’s objects, but an act of the co-operative is not invalid merely because it is contrary to or beyond any objects in the rules of the co-operative.

Division 3 Persons having dealings with co-operatives

44   Entitlement to make assumptions

(1)A person may make the assumptions in section 45 in relation to—

(a)dealings with a co-operative; or

(b)dealings with a person who has, or purports to have, directly or indirectly acquired title to property from a co-operative.

(2)If a person may assume a matter, the co-operative or anyone referred to in subsection (1) (b) cannot assert in proceedings in relation to the dealings that the matter is incorrect.

45   Assumptions (cf Corporations Act s 129)

(1)A person may assume that the rules of a co-operative have been complied with.

(2)A person may assume that anyone who appears, from information provided by the co-operative that is available to the public from the Registrar, to be a director or secretary of the co-operative—

(a)has been duly appointed; and

(b)has authority to exercise the powers and perform the duties customarily exercised or performed by a director or secretary of a similar co-operative.

(3)A person may assume that anyone who is held out by the co-operative to be an officer or agent of the co-operative—

(a)has been duly appointed; and

(b)has authority to exercise the powers and perform the duties customarily exercised or performed by that kind of officer or agent of a similar co-operative.

(4)A person may assume that the officers and agents of the co-operative properly perform their duties to the co-operative.

(5)A person may assume that a document has been properly executed by the co-operative if it is signed by 2 people, one of whom is, or may be assumed to be, a director of the co-operative, and the other is, or may be assumed to be, a director or secretary of the co-operative.

(6)A person may assume that a document has been sealed by the co-operative if it bears what appears to be an impression of the co-operative’s common seal and the sealing of the document appears to be witnessed by 2 people, one of whom is, or may be assumed to be, a director of the co-operative, and the other is, or may be assumed to be, a director or secretary of the co-operative.

(7)A person may assume that anyone who is, or may be assumed to be, an officer or agent of the co-operative who has authority to issue a document or a certified copy of a document on its behalf also has authority to warrant that the document is genuine or is a true copy.

46   Person who knows or ought to know cannot make assumptions

This Division does not entitle a person to make an assumption, and does not prevent an assertion being made in relation to an assumption, if—

(a)the person has actual knowledge that the assumption is not correct; or

(b)the person ought to know that the assumption is not correct because of the nature of the person’s connection or relationship with the co-operative.

47   Filing of documents not to constitute constructive knowledge

(1)A person is not considered to have knowledge of the rules of a co-operative, any of the contents of the rules of a co-operative, a document, the contents of a document, or any particulars, merely because of either or both of the following—

(a)the rules, the document or the particulars have been filed with the Registrar;

(b)the rules, the document or the particulars are mentioned in any other document that has been filed with the Registrar, or filed with a person under a previous law corresponding to a provision of this Law.

(2)Despite subsection (1), a member of a co-operative is taken to have knowledge of the rules of the co-operative.

48   Effect of fraud

(1)A person’s entitlement under this Division to make an assumption is not affected merely by the fact that any person—

(a)has acted or is acting fraudulently in relation to the dealing, acquisition or purported acquisition of title to property to which the assumption relates; or

(b)has forged a document that appears to have been sealed on behalf of a co-operative.

(2)A person may not make an assumption if the person has actual knowledge of the fraudulent action or forgery referred to in subsection (1).

Division 4 Execution of documents

49   Execution of documents by co-operative (cf Corporations Act s 127)

(1)A co-operative may execute a document without using a common seal if the document is signed by—

(a)2 directors of the co-operative; or

(b)a director and the secretary of the co-operative.

(2)A co-operative with a common seal may execute a document if the seal is fixed to the document and the fixing of the seal is witnessed by—

(a)2 directors of the co-operative; or

(b)a director and the secretary of the co-operative.

(3)A co-operative may execute a document as a deed if the document is expressed to be executed as a deed and is executed in accordance with subsection (1) or (2).

(4)This section does not limit the ways in which a co-operative may execute a document (including a deed).

50   Agent exercising co-operative’s power to make contracts (cf Corporations Act s 126)

(1)A co-operative’s power to make, vary, ratify or discharge a contract may be exercised by an individual acting with the co-operative’s express or implied authority and on behalf of the co-operative.

(2)The power may be exercised without using a common seal.

(3)This section does not affect the operation of a law that requires a particular procedure to be complied with in relation to the contract.

51   Other requirements as to consent or sanction not affected

This Division does not affect the operation of a law that requires some consent or sanction to be obtained, or some procedure to be complied with, in relation to the making, varying or discharging of a contract.

Division 5 Pre-registration contracts

52   Contracts before registration

(1)If a person enters into, or purports to enter into, a contract on behalf of, or for the benefit of, a proposed co-operative (pre-registration contract), the co-operative becomes bound by the contract and entitled to its benefit if the co-operative, or a co-operative that is reasonably identifiable with it, is registered and ratifies the contract—

(a)within a reasonable period after the contract is entered into; or

(b)within any period agreed to by the parties to the contract.

(2)The person is released from any liability under the pre-registration contract if the co-operative enters into another contract in substitution for it—

(a)within a reasonable period after the pre-registration contract is entered into; or

(b)within any period agreed to by the parties to the pre-registration contract.

(3)The person is liable to pay damages to each other party to the pre-registration contract if a co-operative is not registered, or a co-operative is registered but does not ratify the contract or enter into a substitute for it—

(a)within a reasonable period after the contract is entered into; or

(b)within the period agreed to by the parties to the contract.

(4)The maximum amount of damages the person is liable to pay to a party is the amount the co-operative would be liable to pay to the party if the co-operative had been registered and had ratified the contract and then completely failed to perform it.

(5)If proceedings are brought to recover damages under subsection (3) because the co-operative is registered but does not ratify the pre-registration contract or enter into a substitute for it, the court may do anything it thinks just in the circumstances, including ordering the co-operative—

(a)to pay all or part of the damages the person is liable to pay; or

(b)to transfer property the co-operative received because of the contract to a party to the contract; or

(c)to pay an amount to a party to the contract.

(6)If the co-operative ratifies the pre-registration contract but fails to perform all or part of it, the court may order the person to pay all or part of the damages that the co-operative is ordered to pay.

53   Person may be released from liability but is not entitled to indemnity

(1)Any of the parties to the pre-registration contract may release the person who entered into, or purported to enter into, the contract from any liability in relation to that contract.

(2)The release must be in writing.

(3)The party giving the release cannot recover damages under section 52 from the person.

(4)Despite any rule of law or equity, the person does not have a right of indemnity against the co-operative in relation to the person’s liability under this Division even if the person was acting, or purporting to act, as trustee for the co-operative.

54   This Division replaces other rights and liabilities

This Division replaces any rights or liabilities anyone would otherwise have in relation to the pre-registration contract.

Part 2.3    Rules

Division 1 Rules of a co-operative

55   Effect of rules

(1)The rules of a co-operative have the effect of a contract under seal—

(a)between the co-operative and each member; and

(b)between the co-operative and each director, the chief executive officer and the secretary of the co-operative; and

(c)between a member and each other member.

(2)Under the contract, each of those persons agrees to observe and perform the provisions of the rules as in force for the time being so far as those provisions apply to the person.

56   Content of rules

(1)The rules of a co-operative must state or otherwise make provision for the matters included in Schedule 1.

(2)The rules must be divided into consecutively numbered paragraphs.

(3)The rules may state the objects of the co-operative.

(4)The rules may adopt by reference all or any of the provisions of the model rules, as provided in Division 2.

(5)The rules may provide for the imposition of a fine on a member for an infringement of the rules.

(6)If the rules provide for the imposition of a fine, the rules must state the maximum fine that may be imposed on a member.

(7)The maximum fine fixed by the rules must not be more than any amount prescribed by the National Regulations as the maximum fine.

(8)The rules may contain other provisions not inconsistent with this Law.

57   Purchase and inspection of copy of rules

(1)Any member is entitled to obtain from a co-operative a copy of its rules on payment of the amount required by the rules of the co-operative or, if the rules do not prescribe an amount, on payment of $5.

(2)The amount required by the rules must not be more than the fee—

(a)prescribed by the National Regulations, unless paragraph (b) applies; or

(b)prescribed by the local regulations;

for obtaining a copy of the rules from the Registrar.

(3)Any person is entitled to obtain from the Registrar a copy of the rules of a co-operative on payment of the fee—

(a)prescribed by the National Regulations, unless paragraph (b) applies; or

(b)prescribed by the local regulations.

58   False copies of rules

(1)A person must not give to a member of a co-operative or to a person intending or applying to become a member of a co-operative a copy of any rules or any amendments of rules, other than those that have been registered, representing that they are binding on the members of the co-operative.

(2)A person must not amend any of the rules of a co-operative after they have been registered and circulate the amended rules representing that they have been registered when they have not been.

Maximum penalty—$1,000.

59   Rules can only be amended under this Law

The rules of a co-operative cannot be amended except under this Law.

60   Approval of certain rule amendments

(1)This section applies to—

(a)an amendment of rules that is referred to in subsection (2); and

(b)an amendment of rules that are referred to in section 35 (3) relating to the conversion of a non-distributing co-operative to a distributing co-operative.

(2)The Registrar may, by designated instrument, specify for the purposes of this section classes of amendments that must not be made to the rules of a co-operative without the prior approval of the Registrar, and without limitation may do so by reference to classes or subclasses of matters referred to in Schedule 1.

(3)A proposed amendment to which this section applies must be approved by the Registrar before the resolution amending the rules is passed by a co-operative or the board of a co-operative.

(4)A draft of the proposed amendment must be submitted to the Registrar before—

(a)the notice of the proposed special resolution amending the rules is given to the members by the co-operative; or

(b)the resolution is passed by the board of the co-operative.

(5)The proposed amendment must—

(a)be in accordance with section 56; and

(b)be in a form that may reasonably be approved; and

(c)be accompanied by a statement stating the reasons for the amendment.

(6)The Registrar may—

(a)approve the amendment as submitted; or

(b)approve a different amendment to that submitted; or

(c)refuse to approve the amendment; or

(d)require the person submitting the draft amendment to give the Registrar any additional information the Registrar reasonably requires, and then act under paragraph (a), (b) or (c).

(7)Subject to subsection (8), the Registrar approves of the amendment by giving written notice of the approval of the amendment to the person who submitted the draft amendment to the Registrar.

(8)The Registrar is taken to have approved the proposed amendment (as submitted to the Registrar) at the end of the period of 28 days after it was submitted, unless before the end of that period the Registrar gives written notice to the person who submitted it that the Registrar—

(a)has approved a different amendment to that submitted; or

(b)is still considering the matter; or

(c)refuses to approve the proposed amendment.

(9)The Registrar must give the person who submitted the draft amendment to the Registrar written notice of the reasons for acting under subsection (8) (a) or (c).

61   Amendment by special resolution

The rules of a co-operative may only be amended by special resolution unless this Law otherwise provides.

62   Amendment by resolution of board

(1)The rules of a co-operative may be amended by a resolution passed by the board if the amendment does no more than give effect to a requirement, direction, restriction or prohibition imposed or given under the authority of this Law.

(2)If the rules of a co-operative are amended under this section, the co-operative must cause the amendment to be notified in writing to its members as soon as practicable after the amendment takes effect and in any event no later than the day when notice of the next annual general meeting of the co-operative after the amendment takes effect is given to the members.

63   Amendment does not take effect until registered

(1)An amendment of the rules of a co-operative does not take effect unless and until it is registered by the Registrar.

(2)An application for registration of an amendment must—

(a)be made in the approved form; and

(b)be made within 28 days, or a shorter or longer time prescribed by the National Regulations, after the amendment is made; and

(c)be accompanied by a consolidated copy of the rules of the co-operative, including the amendment.

(3)The Registrar must register the amendment unless—

(a)the Registrar is satisfied the amendment is contrary to this Law; or

(b)the Registrar has other reasonable cause to refuse to register the amendment.

(4)A certificate of registration of an amendment of the rules of a co-operative given by the Registrar is, in favour of any person advancing money to the co-operative on the faith of the certificate or a guarantor of that advance, evidence that the amendment in the rules was properly made.

Division 2 Model rules

64   Model rules

(1)The National Regulations may prescribe model rules.

(2)The model rules may make provision for anything for which the rules of a co-operative may make provision.

(3)A model rule commences on—

(a)the day occurring 28 days after the date of publication of the National Regulations containing the model rule; or

(b)a later day specified in, or ascertained in accordance with, the model rule or the National Regulations.

(4)A model rule may apply generally or be limited in its application to a specified class of co-operatives.

65   Adoption of model rules

The rules of a co-operative may adopt by reference all or any of the provisions of the model rules—

(a)as in force from time to time, unless paragraph (b) applies; or

(b)as in force at a particular time, if the rules so provide.

66   Relationship of this Division to Division 1

If the rules of a co-operative adopt a model rule as in force from time to time and the model rule is amended, Division 1 does not require the amendment (so far as it affects the rules of the co-operative) to be approved or registered before the amendment takes effect in relation to the co-operative.

Part 2.4    Shares

Division 1 Nature of share

67   Nature of share in co-operative

(1)A share or other interest in a co-operative—

(a)is personal property; and

(b)is transferable or transmissible as provided by this Law and the rules of the co-operative; and

(c)is, subject to the rules of the co-operative, capable of devolution by will or by operation of law.

(2)Subject to subsection (1)—

(a)the laws applying to ownership of and dealing with personal property apply to a share or other interest of a member in a co-operative as they apply to other property; and

(b)equitable interests in a share or other interest of a member in a co-operative may be created, dealt with and enforced as in the case of other personal property.

Division 2 Disclosure requirements for distributing co-operatives

68   Registration of current disclosure statement

(1)A distributing co-operative must take all reasonable steps to ensure that it has a current disclosure statement registered with the Registrar.

(2)The disclosure statement 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 active membership provisions of the co-operative; and

(b)the rights and liabilities attaching to shares in the co-operative; and

(c)any other information that the Registrar directs to be included.

(3)A formation disclosure statement approved by the Registrar under section 25 is taken to be registered with the Registrar for the purposes of this section until it stops being current under subsection (4).

(vi)the subparagraph, designated by the number, of the paragraph in which the reference occurs; and

(vii)the sub-subparagraph, designated by the number, of the subparagraph in which the reference occurs; and

(viii)the clause, subclause, item, column, table or form, designated by the number, of or in the Schedule in which the reference occurs;

      as the case requires.

(2)If a provision of a Schedule to this Law refers to a section by a number and without reference to this Law and the Schedule is divided into sections—the reference is (despite subclause (1) (a)) a reference to the section designated by that number of the Schedule.

21   Reference to provisions of this Law or an Act is inclusive

In this Law, a reference to a portion of this Law or an Act includes—

(a)a reference to the Chapter, Part, Division, Subdivision, section, subsection or other provision of this Law or the Act referred to that forms the beginning of the portion; and

(b)a reference to the Chapter, Part, Division, Subdivision, section, subsection or other provision of this Law or the Act referred to that forms the end of the portion.

Note.

For example, a reference to “sections 5 to 9” includes both section 5 and section 9. It is not necessary to refer to “sections 5 to 9 (both inclusive)” to ensure that the reference is given an inclusive interpretation.

Part 4    Functions

22   Exercise of statutory functions

(1)If this Law confers a function on a person or body, the function may be exercised from time to time as occasion requires.

(2)If this Law confers a function on a particular officer or the holder of a particular office, the function may be exercised by the person for the time being occupying or acting in the office concerned.

(3)If this Law confers a function on a body (whether or not incorporated), the exercise of the function is not affected merely because of vacancies in the membership of the body.

23   Power to make instrument or decision includes power to amend or repeal

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.

24   Matters for which statutory instruments may make provision

(1)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.

(2)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.

(3)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.

(4)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.

(5)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.

(6)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.

(7)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.

(8)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.

(9)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.

25   Presumption of validity and power to make statutory instrument

(1)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.

(2)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.

26   Appointments may be made by name or office

(1)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.

(2)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.

27   Acting appointments

(1)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.

(2)The appointment may be expressed to have effect only in the circumstances specified in the instrument of appointment.

(3)The appointer may—

(a)determine the terms and conditions of the appointment, including remuneration and allowances; and

(b)terminate the appointment at any time.

(4)The appointment, or the termination of the appointment, must be in, or evidenced by, writing signed by the appointer.

(5)The appointee must not act for more than one year during a vacancy in the office.

(6)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.

(7)The appointment ceases to have effect if the appointee resigns by writing signed and delivered to the appointer.

(8)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.

(9)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.

(10)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.

28   Powers of appointment imply certain incidental powers

(1)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).

(2)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.

(3)The power to make an appointment under subclause (1) (b) may be exercised from time to time as occasion requires.

(4)An appointment under subclause (1) (b) may be expressed to have effect only in the circumstances specified in the instrument of appointment.

29   Delegations

(1)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.

(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.

30   Exercise 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 5    Distance, time and age

31   Matters 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 6    Effect of repeal, amendment or expiration

32   Time 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.

33   Repealed 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.

34   Saving 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.

35   Continuance 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.

36   Law 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 7    Instruments under this Law

37   Schedule 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 8    [Repealed]

38   [Repealed]

Part 9    Offences under this Law

39   Penalty 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.

40   Penalty 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.