Credit Unions Act 1989 (SA)
SOUTH AUSTRALIA
CREDIT UNIONS ACT, 1989 CREDIT UNIONS ACT, 1989
being
Credit Unions Act, 1989, No. 42 of 1989
[Assented to 4 May 1989]
1 Came into operation 12 April 1990:
Gaz . 5 April 1990, p. 959.
The Parliament of South Australia enacts as follows:
PART I
PRELIMINARY
1. This Act may be cited as theCredit Unions Act, 1989 .
2. This Act will come into operation on a day to be fixed by proclamation.
3. (1) In this Act, unless the contrary intention appears—"accounting records" includes invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry, and books and records which record such entries, and also includes such working papers and other documents as are necessary to explain the methods and calculations by which accounts are made up:
"the Accounting Standards Review Board" means the body of that name established by the
Ministerial Council for Companies and Securities:
"accounts" means profit and loss accounts and balance-sheets, and includes statements, reports and notes, other than auditors’ reports or directors’ reports, attached to or intended to be read with any of those accounts or balance-sheets:
"amalgamated credit union" means a credit union or foreign credit union that is registered, or
continues to be registered, under this Act as a result of an amalgamation under Part III:
"approved accounting standard" means approved accounting standard as defined in Part VI of
the
Companies (South Australia) Code :"association" means an association of credit unions registered under Part V:
"authorized trustee investment" means an investment in which a trustee is authorized by law to
invest trust money:
"bank" means a body corporate authorized under the
Banking Act 1959 of the Commonwealthto carry on the business of banking, and includes the State Bank of South Australia:
"the Board" means the Credit Union Deposit Insurance Board established under Part VII:
"board", in relation to a credit union or association, means the board of directors of the credit
union or association:
"building society" means a building society registered under the
Building Societies Act, 1975 :"the Commission" means the Corporate Affairs Commission:
"corporation" means corporation as defined in section 5(1) of the
Companies (South Australia)
Code :"the Court" means the Supreme Court:
"credit union" means a credit union registered under Part III other than a foreign credit union
registered under Part III as a result of an amalgamation under that Part:
"date of amalgamation" means the date on which the Commission issues a certificate of
amalgamation in respect of an amalgamation under Part III:
"foreign credit union" means a body corporate registered as a foreign credit union under Part IX
or under Part III as a result of an amalgamation under that Part:
"the Fund" means the Credit Union Deposit Insurance Fund established under Part VII:
"group accounts", in relation to a holding credit union, means—
a set of consolidated accounts for the group in relation to which that credit union is the holding credit union; | |
two or more sets of consolidated accounts together covering that group; | |
separate accounts for each corporation in that group; | |
or | |
a combination of one or more sets of consolidated accounts and one or more separate accounts together covering that group: |
"loan" includes the provision of credit by any means and "borrow" has a corresponding
meaning:
"member", in relation to a credit union, means any person who holds, whether singly or jointly,
a share in the credit union:
"officer" in relation to a credit union, foreign credit union or association means a director, secretary, treasurer or manager of the credit union, foreign credit union or association and any other person empowered under the rules of the credit union, foreign credit union or association to give directions in relation to the management of its business:
"prescribed interest" means prescribed interest as defined in section 5(1) of the
Companies
(South Australia) Code :"profit or loss" means—
in relation to a credit union—the profit or loss resulting from the operations of the credit union; | |
or | |
in relation to a holding credit union and its subsidiaries—the profit or loss resulting from the operations of the group constituted of the credit union and its subsidiaries: |
"securities" includes shares, debentures, stock, bonds, bills, notes, options, rights or interests
under unit trusts, prescribed interests, and documents of any kind evidencing indebtedness:
"share" of a credit union means share in the share capital of the credit union:
(2) For the purposes of this Act—
a corporation is a subsidiary of a credit union if it would be a subsidiary of the credit union for the purposes of the | |
where a corporation is a subsidiary of a credit union, the credit union is a holding credit union in relation to the corporation; | |
and | |
the holding credit union and its subsidiaries constitute a group. |
4. (1) Except as otherwise expressly provided by or under this Act, the provisions of—
the | |
the | |
and | |
the |
do not apply to or in relation to a credit union or association.
(2) The regulations may apply specified provisions of the Codes referred to in subsection (1) to credit unions or associations, subject to such modifications as may be prescribed.
PART II
ADMINISTRATION
DIVISION I—THE COMMISSION
a register of credit unions registered under this Act; | |
a register of foreign credit unions registered under this Act; | |
and |
(c) such other registers as this Act may require or as the Commission considers appropriate. (2) Subject to this section, a person may, on payment of the prescribed fee—
inspect a register kept by the Commission under this Act; | ||||
inspect any document registered by, or filed or lodged with, the Commission under this Act; | ||||
or | ||||
obtain from the Commission— | ||||
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or
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(3) If the Commission adopts a system of record keeping that involves the making of reproductions or transparencies of certificates or other documents—
the Commission cannot be required to produce the document from which the reproduction or transparency was produced; | |
any such reproduction or transparency is equivalent to an original; | |
and | |
a copy produced from the reproduction or transparency is to be regarded as a copy of the original. |
(4) A person is not entitled by this section to inspect, or to obtain a copy of or extract from, a document in which information has been furnished pursuant to section 66 or 97(6).
(2) The Minister must within 12 sitting days after receipt of the report cause a copy of the report to be laid before each House of Parliament.
DIVISION II—POWERS OF INSPECTION
(2) Without limiting the effect of subsection (1), any such powers of inspection may be exercised—
in relation to— | ||||
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or
| ||
and | ||
either— | ||
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or
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PART III
CREDIT UNIONS
DIVISION I—CARRYING ON BUSINESS AS A CREDIT UNION
carry on business as a credit union; | |
carry on business under any name or title of which any of the expressions "credit union", "credit co-operative", "credit society" or "savings and loans society" forms a part; | |
or | |
in any manner hold out that its business is that of a credit union. |
Penalty: Division 4 fine.
(2) For the purposes of subsection (1)—
a person or body of persons is to be regarded as carrying on business as a credit union in the State if the person or body— | ||||
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or
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(A) advertises for share capital, deposits or loan funds in the State;
(B) | establishes or uses an office in the State for the receipt of share capital, deposits or loan funds; |
or | |
(C) | makes loans to members residing in the State; |
a body carrying on business as a credit union outside the State is not to be regarded as carrying on such a business in the State for the reason only that in the State it— | ||||||||||||||||
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or
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(3) This section does not apply to—
a person or body of persons (whether incorporated or unincorporated) exempted by the Minister from the provisions of this section; | |
a bank; | |
a building society; | |
or | |
a friendly society incorporated under the |
(4) The Minister may, by instrument in writing, grant a conditional or unconditional exemption for the purposes of subsection (3) and may, on non-compliance with a condition of the exemption, by instrument in writing, revoke the exemption.
DIVISION II—OBJECTS OF CREDIT UNIONS
10. The objects of a credit union are—
to operate as a financial co-operative; | |
to raise funds by subscription, or otherwise, as authorized by this Act; | |
to apply those funds, subject to this Act and the rules of the credit union, in making loans to members of the credit union; | |
and | |
to provide such other services to its members as the credit union believes would be of benefit to the members. |
DIVISION III—FORMATION AND REGISTRATION
(2) No credit union may be formed unless there has been a meeting for the purpose of forming the credit union at which there are present 25 or more natural persons of full age and capacity.
(3) At the meeting referred to in subsection (2), the following documents must be presented to the prospective members of the credit union:
a written statement showing the objects of the credit union and the reasons for believing that an application for registration of the credit union should be granted and that, if registered, the credit union would be able to carry out its objects successfully; | |
and | |
a copy of the rules that are to be tendered for registration. |
(4) If, at the formation meeting, or any subsequent or adjourned meeting, 25 or more persons of full age and capacity, after consideration of the statement and the rules, approve the rules with or without amendment, and sign an application for membership and shares, they may proceed to elect the first directors of the credit union in accordance with the rules as so approved.
(5) No application for shares in a proposed credit union, made prior to the registration of that credit union, may be withdrawn, and every person who makes such an application is, on the registration of the credit union, liable to pay to the credit union—
the value of the shares for which the person applied; | |
or | |
the value of the minimum number of shares for which a member of the credit union is entitled to subscribe, |
whichever is the greater.
(6) The expenses of, and incidental to, the formation of the credit union may be paid out of the capital or income of the credit union.
(2) An application for registration—
must be made within two months after the formation meeting at which the first directors of the credit union were elected; | ||||||||||||
and | ||||||||||||
must be accompanied by— | ||||||||||||
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and
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(3) A copy of an application for registration and of all accompanying documents must be forwarded by the Commission to the Board.
(4) If, on due application for registration under this section, the Board recommends that the credit union be registered and the Commission is satisfied that the credit union is eligible for registration, the Commission must register the credit union and its rules and issue a certificate of incorporation in the prescribed form.
(5) A credit union is eligible for registration under this section if—
the proposed rules of the credit union are not contrary to this Act; | |
there are reasonable grounds for believing that, before the expiration of the period of three months from the date of its registration, the amount held by the credit union by way of deposits from its members would equal or exceed $500 000 or, if some other amount is prescribed, that amount; | |
there are reasonable grounds for believing that the credit union, if registered, would be able to comply with the requirements of this Act as to liquidity, reserves and future losses and carry out its objects successfully; | |
and | |
there is no good reason why the credit union or the proposed rules should not be registered. |
DIVISION IV—INCORPORATION AND GENERAL POWERS
has, subject to this Act and the rules of the credit union, the legal capacity of a natural person; | |
and | |
may sue and be sued in its corporate name. |
to raise money from its members— | ||||||
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to borrow money; | ||||||
to give security by mortgaging or granting a floating charge over the whole undertaking of the credit union or any rights or property of the credit union or by any other means; | ||||||
to acquire, hold, deal with and dispose of real and personal property; | ||||||
to enter into contracts of employment, partnerships, joint ventures or any other contracts or arrangements; | ||||||
to make loans to its members; | ||||||
to form or acquire subsidiaries for the carrying out of its objects; | ||||||
to acquire securities of, make loans to, or give guarantees on behalf of, a subsidiary of the credit union; |
(i) to act as a trustee and accept and hold in trust real and personal property;
to invest funds not immediately required for its objects or incidental purposes; | |
to carry on all or any of its operations as a credit union in another State or Territory of the Commonwealth (but in no other place) and, for that purpose, to exercise its other powers in such State or Territory; | |
to procure registration or recognition as a credit union in another State or Territory of the Commonwealth; | |
to distribute any property of the credit union among its members, in kind or otherwise; | |
and | |
to do any other thing authorized by this Act or the rules of the credit union. |
(2) The regulations may make provision for or with respect to the powers of credit unions and, in particular, may—
confer additional powers of a specified kind; | |
withdraw powers of a specified kind conferred by this Act or the rules of a credit union; | |
restrict the scope of powers of a specified kind conferred by this Act or the rules of a credit union; | |
and | |
make provisions of a savings or transitional nature in relation to any such withdrawal or restriction. |
DIVISION V—RULES
(2) A credit union must, within one month of the date of the meeting at which the special resolution approving an alteration was passed, apply to the Commission to have the alteration registered.
(3) Where the Commission is satisfied that the proposed alteration conforms with the requirements of this Act, the Commission must register the alteration.
19. (1) Where, in the opinion of the Commission, the rules of a credit union should be
altered—
to achieve conformity with any requirement of this Act; | |
or | |
in the interests of the members of the credit union, |
the Commission may, by instrument in writing served on the credit union, require it, within a period specified in the notice, to alter its rules in a manner specified in the instrument or otherwise in a manner approved by the Commission.
(2) A credit union may appeal to the Minister against a requirement that it alter its rules made for a purpose referred to in subsection (1)
(3) Where a credit union is required to alter its rules pursuant to subsection (1), the credit union is not required to do so by special resolution or to obtain the approval of its members.
(4) Where a credit union fails to comply with a requirement that it alter its rules, the
Commission may itself make the required alteration by notation on the registered copy of the rules.
(5) The Commission must give a credit union notice in writing of any alteration of the rules of
the credit union effected by the Commission pursuant to this section and of the date on which the
alteration comes into operation.
(6) Where the rules of a credit union are altered by the credit union or by the Commission pursuant to this section, the credit union must notify its members of the alteration—
within one month of the alteration by notice published on two separate days in a newspaper circulating generally in the State and, where the credit union is carrying on business as a credit union in another State or Territory of the Commonwealth, on two separate days in a newspaper circulating generally in that State or Territory; | |
and | |
by notice given at the next meeting of the credit union. |
DIVISION VI—APPEALS
the refusal of the Commission to register the credit union; | |
the refusal of the Commission to register its rules; | |
or | |
a requirement by the Commission that it alter its rules or an alteration made by the Commission to its rules. |
(2) The Court may determine an appeal under this section in such manner as it considers just
and may confirm, vary or revoke the decision of the Commission.
DIVISION VII—MEMBERSHIP
(2) A member of a credit union incurs no liability to the credit union by reason only of his or her membership of the credit union.
(2) A minor is not entitled to exercise any vote at any meeting of the credit union.
(2) A corporate member may, by instrument in writing (a copy of which must be served on the credit union), appoint a person to represent it at any meeting of members of the credit union.
(3) Any person appointed under subsection (2) is entitled to receive notice of all meetings in the same manner as a member of the credit union and is entitled to exercise the same rights of voting as a member of the credit union.
(2) Subsection (1) does not prevent a member who has been appointed to represent a corporate member of the credit union from voting both as a member and in that other capacity.
of determining who is qualified to vote on a resolution of a meeting of the credit union; | |
and | |
of determining the number or proportion of any members required to give effect to any provision of this Act or the rules of the credit union. |
(2) For the purposes of this section, the primary joint holder of shares in a credit union is the member whose name appears first in the register of members of the credit union.
(3) The joint holders of shares in a credit union are entitled to choose the order in which they are named in the register of members, but failing any such choice, the credit union may enter their names in such order as it thinks fit.
(4) Subject to the rules of a credit union, where all shares in a credit union held by a member are held jointly with another, any notice or other document may be given or sent by the credit union to that member by giving or sending it to the primary joint holder of the shares.
DIVISION VIII—SHARE CAPITAL
(2) The shares must be of one class ranking equally.
(3) Each member must hold the same number of shares and no shares may be issued except to a person who has paid their full nominal value in cash.
(4) Notwithstanding the provisions of subsection (3), where shares are to be issued to a person less than 18 years of age, the credit union may allow the person time to pay their full nominal value.
(5) Except as provided in subsection (4), a credit union must not be party to any arrangement under which it provides direct or indirect financial assistance to a person to acquire shares in its share capital.
(6) Subject to subsection (7), the rules of a credit union—
must provide that its share capital is withdrawable; | |
may provide for the cancellation of shares subject to the regulations; | |
and | |
must provide for repayment, in the event of winding up, of deposits in priority to share capital. |
(7) Any rules made by a credit union before the commencement of this Act that do not allow the withdrawal of share capital (except in the event of the winding up of the credit union) may continue to operate in relation to the shares issued pursuant to those rules before that commencement.
(8) No share may be sold or transferred—
at more than its nominal value; | |
or | |
without the approval of the board of the credit union. |
(9) Any document that constitutes a receipt for the payment of a share, or subscription for a share, must contain a clear acknowledgement that it constitutes such a receipt.
(2) The charge created by this section may be enforced by the appropriation by the credit union of the share capital or other money subject to the charge.
(3) Any share in respect of which the whole of the capital has been so appropriated must be cancelled by the credit union.
DIVISION IX—NAME AND OFFICE
union for the time being registered under this Act.
(2) The Commission may not register proposed rules or an alteration of the rules of a credit union affecting the name of the credit union unless satisfied that the proposed name—
is not such as to be misleading as to the nature, objects or purposes of the credit union; | |
is not such as is likely to be confused with the name of any other body corporate or any registered business name; | |
is not undesirable as a name for a credit union; | |
and | |
conforms with any directions of the Minister as to the names of credit unions. |
(3) Where the Commission registers an alteration of the rules of a credit union changing the name of the credit union, the Commission, may, on the application of the credit union, amend its certificate of incorporation or issue a fresh certificate.
(4) Where the registered name of a credit union is changed pursuant to this Act, the credit union must publish the change of name in such manner as the Commission directs.
(5) The Commission may, on the application of a credit union, approve the use by a credit union of a name other than its registered name subject to such conditions limiting the area and circumstances in which the other name may be used as the Commission may determine.
(6) The Commission may, by notice in writing to a credit union, withdraw an approval given to the credit union under subsection (5).
(7) A credit union must not use a name other than—
its registered name; | |
or | |
subject to the conditions of the approval, a name approved under subsection (5). |
29. (1) Every credit union must have a registered office.
(2) The first registered office of a credit union is that appearing in the rules of the credit union at the time of registration.
(3) If a credit union desires to change its registered office, it must give notice in writing of the address of the new office to the Commission and, on registration by the Commission of the new address or on such later date as the credit union may specify, the office becomes the registered office of the credit union.
(4) A document may be served on a credit union or an officer of the credit union by leaving it at the registered office of the credit union with some person who appears to be responsible to the credit union or by post enclosed in a prepaid registered letter addressed to the credit union at its registered office.
(2) A credit union must paint or affix and keep painted or affixed on the outside of every office or place in which its business is carried on in a conspicuous position in letters easily legible its registered name or a name approved by the Commission under this Division and also, in the case of the registered office, the words "Registered Office".
DIVISION X—AMALGAMATION
31. In this Division—"credit union" means a local credit union or a foreign credit union:
"foreign credit union" means a credit union incorporated in another State or Territory of the
Commonwealth whether or not registered as a foreign credit union under this Act:
"local credit union" means a credit union registered and incorporated under this Act:
"property" includes all estates and interests in property, whether real or personal, vested or
contingent.
each of the credit unions concerned is dissolved and a new local credit union or foreign credit union is registered under this Act; | |
or | |
a local credit union or foreign credit union continues to be registered, or a foreign credit union is newly registered, under this Act and the other credit union or each of the other credit unions concerned is dissolved. |
(2) The application must be made in the prescribed form by each credit union concerned in the amalgamation and must be accompanied by—
two copies of the proposed rules or constitution of any credit union that is to be registered as a result of the amalgamation; | |
in the case of an application involving registration of a foreign credit union—the statements and documents required to accompany an application for registration of a foreign credit union under Part IX; | |
and | |
such other documents or information as the Commission may require. |
(3) Application may not be made under this section unless the terms of the proposed amalgamation have been approved by a special resolution of each local credit union that is a party to the application.
(4) Subsection (3) does not apply in relation to an application made by a local credit union pursuant to a direction of the Board given under Part VII.
(5) Each local credit union concerned in a proposed amalgamation must before making an application under this section send to each of its members a statement, the contents of which have been approved by the Commission, relating to—
its own financial position and the financial position of any other credit union concerned in the amalgamation; | |
any interest that its officers or the officers of any other credit union concerned may have in the amalgamation; | |
any compensation or other consideration proposed to be paid to its officers or the officers of any other credit union concerned arising out of the amalgamation; | |
the payments to be made to its members or the members of any other credit union concerned arising out of the amalgamation; | |
and | |
such other matters as the Commission may direct. |
(6) The part of a statement under subsection (5) relating to the financial position of a credit union must include—
the profit and loss account of the credit union for the period up until a day not more than three months before the proposed date of amalgamation, being an account that gives a true and fair view of the profit or loss of the credit union for that period; | |
a balance-sheet as at the end of the last day of the period to which the profit and loss account relates, being a balance-sheet that gives a true and fair view of the state of affairs of the credit union as at that date; | |
and | |
a report prepared by the auditor of the credit union containing prescribed statements and information relating to the accounts of the credit union for the financial year up to that date. |
(7) A statement under subsection (5) must be sent so that it will in due course of post reach each member not later than the time the member would receive notice of the meeting called to pass the special resolution approving the amalgamation.
(8) Where an application is made for an amalgamation under which a new local credit union is to be registered, a copy of the application and all accompanying documents must be forwarded by the Commission to the Board.
that the credit union is eligible to be registered according to the provisions governing eligibility for registration under Division III; | |
that the amalgamation as it affects any foreign credit union party to the application will proceed as proposed according to the law applying to the foreign credit union in its place of incorporation; | |
and | |
that there is no good reason why it should refuse to grant the application, |
the Commission must—
register the credit union and its rules and issue a certificate of incorporation in the prescribed form together with a certificate of amalgamation in the prescribed form to that credit union; | |
and | |
remove from the register the names of the other credit unions party to the application. |
(2) If, on due application for an amalgamation under which a new foreign credit union is to be registered, or a foreign credit union is to be newly registered, under this Act, the Commission is satisfied—
that the credit union is eligible to be registered according to the provisions governing eligibility for registration under Part IX; | |
that the amalgamation as it affects the credit union and any other foreign credit union party to the application will proceed as proposed according to the law applying to the foreign credit union in its place of incorporation; | |
and | |
that there is no good reason why it should refuse to grant the application, |
the Commission must—
register the credit union as a foreign credit union and issue a certificate of registration in the prescribed form together with a certificate of amalgamation in the prescribed form to that credit union; | |
and | |
remove from the register the names of the other credit unions party to the application. |
(3) If, on due application for an amalgamation under which a local credit union is to continue to be registered under this Act, the Commission is satisfied—
that there are reasonable grounds for believing that the credit union would be able to comply with the requirements of Part IV as to liquidity, reserves and future losses and carry out its objects successfully; | |
that the amalgamation as it affects any foreign credit union party to the application will proceed as proposed according to the law applying to the foreign credit union in its place of incorporation; | |
and | |
that there is no good reason why it should refuse to grant the application, |
the Commission must—
issue a certificate of amalgamation in the prescribed form to that credit union; | |
and | |
remove from the register the names of the other credit unions party to the application. |
(4) If, on due application for an amalgamation under which a foreign credit union is to continue to be registered under this Act, the Commission is satisfied—
that there are reasonable grounds for believing that the credit union would be able to comply with the same requirements as to liquidity, reserves and future losses as apply in relation to credit unions registered and incorporated under this Act; | |
that the amalgamation as it affects the credit union and any other foreign credit union party to the application will proceed as proposed according to the law applying to the foreign credit union in its place of incorporation; | |
and | |
that there is no good reason why the application should not be granted, |
the Commission must—
issue a certificate of amalgamation in the prescribed form to that credit union; | |
and | |
remove from the register the names of the other credit unions party to the application. |
(5) A local credit union is dissolved on removal of its name from the register pursuant to this
section.
34. (1) Where a certificate of amalgamation is issued under this Division, then, by virtue of this
section—
the property of any local credit union that is dissolved as part of the amalgamation vests in the amalgamated credit union on the issue of the certificate without any conveyance, transfer or assignment; | |
and | |
the property in this State of any foreign credit union dissolved as part of the amalgamation vests in the amalgamated credit union on the dissolution of the foreign credit union without any conveyance, transfer or assignment. |
(2) The Registrar-General must—
on application by an amalgamated credit union; | |
and | |
on the production of the certificate of amalgamation and such duplicate certificates of title and other documents as the Registrar-General may require, |
register the vesting of any estate or interest in land in the amalgamated credit union pursuant to
this section.
(3) Any property vested in an amalgamated credit union pursuant to this section remains subject to any debt, liability or obligation affecting the property.
(4) All debts and liabilities of the credit unions dissolved as part of the amalgamation are debts and liabilities of the amalgamated credit union.
(5) The vesting of property in an amalgamated credit union pursuant to this section, and any instrument evidencing or giving effect to that vesting, are exempt from stamp duty.
(2) The Commission may, on non-compliance with a condition of an exemption under this section, by instrument in writing, revoke the exemption.
PART IV
PROVISIONS GOVERNING FINANCIAL ACTIVITIES OF CREDIT UNIONS
DIVISION I—RAISING FUNDS
(2) The Commission may, by instrument in writing, exempt a credit union from the provisions of subsection (1) for a period specified by the Commission.
the amount for the time being comprising reserves of the credit union pursuant to Division III; | |
and | |
the amounts of the share capital and the deposits held by the credit union not included in the amount referred to in paragraph |
(2) The Commission may, on the recommendation of the Board, give approval to a credit union to borrow money beyond the limit specified in subsection (1).
(3) A credit union must not borrow money otherwise than in Australian currency or undertake to repay moneys borrowed otherwise than in Australian currency.
(4) A credit union must, in accordance with the regulations, furnish the Commission with returns containing prescribed information relating to its borrowings.
(5) The Commission must maintain a register recording such information as is prescribed in relation to the borrowings of each credit union.
39. (1) A credit union must not—
offer to its members for subscription or purchase; | |
invite its members to subscribe for or purchase; | |
or | |
issue to its members, |
any securities, whether or not being securities of the credit union, unless the credit union, prior to or at the time of making any such offer or issuing any such invitation in respect of the securities, issues to its members a disclosure statement in the prescribed form containing the prescribed information relating to the securities and the body by which or on whose behalf the securities are to be issued, together with such other information and reports as the Commission requires.
(2) Subsection (1) does not apply—
in relation to shares of the credit union or, subject to the regulations, money accepted on deposit by the credit union; | |
in relation to any offer or invitation if a prospectus or statement is required to be registered by the Commission for the purposes of Division 1 or 6 of Part IV of the | |
or | |
in any case or circumstances of a prescribed kind. |
(3) For the purposes of this section, a reference to an invitation to subscribe for or purchase securities includes a reference to an invitation to make an offer to subscribe for or purchase securities.
(4) A credit union must not issue a disclosure statement that includes a statement purporting to be made by an expert or to be based on a statement made by an expert unless—
the expert has consented in writing to the issue of the disclosure statement with that statement included in the form and context in which it is included and has not withdrawn that consent before the disclosure statement is issued by the credit union; | |
and | |
there appears in the disclosure statement a statement that the expert has given, and has not withdrawn, that consent. |
(5) Where a disclosure statement—
includes any statement— | ||
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or
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or | ||
omits any matter or thing that is required to be included, |
any person who authorized or caused the disclosure statement to be issued is guilty of an offence.
Penalty: Division 4 fine or division 4 imprisonment.
(6) It is a defence to a charge of an offence against subsection (5) if the defendant proves—
that the statement or omission was immaterial; | |
that he or she had reasonable grounds to believe, and did at the time of the issue of the disclosure statement believe, that the statement was not false or misleading or that the omission was immaterial; | |
or | |
in the case of an omission—that the omission was inadvertent. |
(7) For the purposes of subsection (5)—
a statement is to be regarded as part of a disclosure statement if it is contained in any report or memorandum that appears on the face of, or is issued with, the disclosure statement, or is incorporated by reference in the disclosure statement, whether the reference occurs in the disclosure statement or in any other document; | |
and | |
a person is not to be taken to have authorized or caused the issue of a disclosure statement by reason only of the fact that the person consented to its issue as required under subsection (4). |
40. (1) Subject to this section, where a disclosure statement is issued by a credit union, a person
who—
is an officer of the credit union at the time of the issue of the disclosure statement; | |
or | |
authorized or caused the issue of the disclosure statement, |
is liable to pay compensation to any person who subscribes for or purchases securities on the faith
of the disclosure statement for any loss or damage sustained by reason of—
any statement in the disclosure statement— | ||
|
or
| ||
or | ||
any omission from the disclosure statement of any matter or thing that was required to be included and of which he or she had knowledge and knew to be material. |
(2) Notwithstanding anything in subsection (1), an expert whose consent to the issue of a disclosure statement is required and who has given that consent is not, by reason only of having given that consent, liable under subsection (1) as a person who has authorized or caused the issue of the disclosure statement except in respect of—
a false or misleading statement in the disclosure statement purporting to be made by him or her as an expert; | |
or | |
an omission from the disclosure statement of any material matter or thing for which he or she is responsible in his or her capacity or purported capacity as an expert. |
(3) For the purposes of subsection (1), a statement is to be regarded as part of a disclosure statement if it is contained in any report or memorandum that appears on the face of, or is issued with, the disclosure statement, or is incorporated by reference in the disclosure statement, whether the reference occurs in the disclosure statement or in any other document.
(4) Subject to subsection (5), a person other than a person to whom subsection (6) applies, is not liable under subsection (1) if he or she proves—
that the disclosure statement was issued without his or her knowledge or consent and— | ||
|
or
|
as the case may be;
that, after the issue of the disclosure statement, and before any securities to which the disclosure statement related were issued, he or she on becoming aware of any false or misleading statement in the disclosure statement, withdrew his or her consent to the issue of the disclosure statement and gave reasonable public notice of the withdrawal and of the reason for the withdrawal; | ||||
or | ||||
that— | ||||
|
(A) | it fairly represented the statement, or was a correct and fair copy of, or extract from, the report or valuation; |
and | |
(B) | he or she had reasonable grounds to believe, and did until the time of the issue of the disclosure statement believe, that the person making the statement was competent to make it and that the person had given the consent required by section 39 to the issue of the disclosure statement and had not withdrawn that consent before the issue of the disclosure statement, or, to his or her knowledge, before any, securities to which the disclosure statement related were issued; |
and
(iii) as regards every false or misleading statement purporting to be a statement made by an official person or contained in what purports to be a copy of, or extract from, a public official document, it was a correct and fair representation of the statement or a correct and fair copy of, or extract from, the document.
(5) Subsection (4) does not apply in the case of a person who is liable, as a person who authorized or caused the issue of a disclosure statement by giving a consent required under section 39, in respect of a false or misleading statement purporting to have been made by him or her as an expert.
(6) A person who, apart from this subsection, would under subsection (1) be liable, as a person who authorized or caused the issue of a disclosure statement by giving a consent required under section 39, in respect of a false or misleading statement purporting to be made by him or her as an expert is not so liable if he or she proves—
that, having given his or her consent under section 39 to the issue of the disclosure statement, he withdrew it in writing before the disclosure statement was issued; | |
that, after the disclosure statement was issued and before any securities to which the disclosure statement related were issued, he or she, on becoming aware of the false or misleading statement, withdrew his or her consent in writing and gave reasonable public notice of the withdrawal and of the reasons for the withdrawal; | |
or | |
that he or she was competent to make the statement and had reasonable grounds to believe, and did until the time of the issue of securities to which the disclosure statement related believe, that the statement was true and not misleading. |
(7) Where—
a disclosure statement contains the name of a person as an officer of the credit union and the person has not authorized or consented to the issue of the disclosure statement; | |
or | |
the consent of a person is required under section 39 to the issue of a disclosure statement and the person has not given that consent or has withdrawn it before the issue of the disclosure statement, |
the officers of the credit union, except any without whose knowledge or consent the disclosure statement was issued, and any other person who authorized or caused the issue of the disclosure statement are jointly and severally liable to indemnify the person so named or whose consent was so required against all damages, costs and expenses to which he or she may be made liable—
by reason of his or her name having been so inserted in the disclosure statement; | |
by reason of the inclusion in the disclosure statement of a statement purporting to be made by him or her as an expert; | |
or | |
in defending any action or other legal proceeding brought against him or her by reason of his or her name having been so inserted in the disclosure statement or the inclusion in the disclosure statement of such a statement. |
DIVISION II—LOANS
of the credit union.
(2) A credit union must not charge interest on a loan to a member at a rate exceeding a maximum rate fixed pursuant to subsection (1) that applies to that loan.
that may be lent by a credit union to any member; | |
or | |
that may be lent by a credit union to a member under a loan of a particular class. |
(2) A credit union must not lend money to a member in contravention of the terms of a notice under subsection (1).
(3) This section does not affect a transaction that was lawful at the time it was entered into.
(2) Notwithstanding any Act or law to the contrary, but subject to subsection (3), where a loan is made pursuant to this section to a director of a credit union—
the director is not obliged to report the loan to any general meeting of the members of the credit union; | |
and | |
failure so to report the loan does not affect the validity of the loan contract or render the director liable to account for any profits arising from the loan contract. |
(3) The rules of a credit union may provide that an officer or employee of the credit union must report any loan obtained pursuant to this section to the annual general meeting of the credit union next following the making of the loan.
(4) This section does not derogate from the provisions of section 68.
10 per cent, or, if some other percentage is prescribed, that percentage, of the total assets of the credit union; | ||
or | ||
the sum of— | ||
|
and
|
whichever is the lesser.
(2) A credit union must not make to a member, or to members that are associates of each other, a commercial loan or commercial loans of an amount, or amounts in aggregate, exceeding one per cent, or, if some other percentage is prescribed, that percentage, of the total assets of the credit union.
(3) A credit union must not make a commercial loan to an officer of the credit union.
(4) A credit union must ensure that no commercial loan is made by it except with the prior approval of a member of its staff who has successfully undertaken a course of instruction of a prescribed kind.
(5) A credit union must, by writing in the prescribed form, report to the Board during each month every prescribed loan made to a member during the preceding month of an amount that, by itself, or when aggregated with other prescribed loans made by it (whether during the same month or earlier) to the same member or to an associate of the member, exceeds—
$100 000, or, if some other amount is prescribed, that amount; | |
or | |
0.5 per cent, or, if some other percentage is prescribed, that percentage, of the total assets of the credit union, |
whichever is the lesser.
(6) In this section—
"commercial loan" means a loan made by a credit union to a member of the credit union for a purpose connected with a business conducted or to be conducted by the member or an associate of the member where the amount lent exceeds $30 000, or, if some other amount is prescribed, that amount, but does not include—
a loan where the credit union has obtained in respect of repayment of the total amount repayable under the loan an indemnity or guarantee granted by an insurance company carrying on business pursuant to the | ||
a loan of an amount not exceeding $100 000, or, if some other amount is prescribed, that amount, where— | ||
|
(A) by a registered first mortgage over land on which a dwelling
house is erected;
or
(B) by a charge over authorized trustee investments;
and
(ii) the amount borrowed does not exceed 85 per cent of the market value of the land or investments subject to the mortgage or charge:
or
a loan to a subsidiary of the credit union: |
"prescribed loan" means—
a commercial loan; | |
or | |
a loan made pursuant to section 44, |
but does not include a loan where repayment of the total amount repayable under the loan is secured by a registered first mortgage over land on which there is a dwelling house occupied by the borrower:
"total assets" means the amount of the total assets of the credit union as recorded in its
accounts.
(7) For the purposes of this section, a person is an associate of another if—
they are partners; | |
one is a spouse, parent or child of the other; | |
they are both trustees or beneficiaries of the same trust, or one is a trustee and the other is a beneficiary of the same trust; | |
one is a corporation and the other is a director of the corporation; | |
one is a corporation and the other is a person who has a legal or equitable interest in five per cent or more of the share capital of the corporation; | |
they are related corporations for the purposes of the | |
or | |
a chain of relationships can be traced between them under any one or more of the above paragraphs. |
the loan is made jointly to the minor and his or her parent or guardian; | |
and | |
the minor and his or her parent or guardian are jointly and severally liable on the contract. |
DIVISION III—LIQUIDITY AND RESERVES
the paid up share capital of the credit union; | |
the deposits held by the credit union; | |
and | |
the total amount borrowed by the credit union and not repaid (disregarding amounts raised by overdraft). |
(2) In this section—
"liquid funds" means—
cash in hand; | ||||
deposits with— | ||||
|
or
| ||
investments with a dealer in the short term money market, approved by the Reserve Bank of Australia as an authorized dealer and having established lines of credit with that bank as a lender of last resort; | ||
investments in withdrawable shares of a building society; | ||
or | ||
investments of a prescribed class, |
but does include investments of a class declared by regulation not to be liquid funds.
(3) In determining the amount of liquid funds held at any time by a credit union—
deposits and investments must be taken into account at their current market value; | |
deposits and investments that cannot be withdrawn or converted into cash within 90 days of application must be disregarded; | |
and | |
the total amount raised by overdraft must be deducted from the amount that would otherwise constitute the total amount of the liquid funds held by the credit union. |
48. (1) A credit union must maintain reserves comprising—
share capital of the credit union that is not withdrawable and is repayable, in the event of the winding up of the credit union, after any withdrawable share capital has been repaid and the claims of creditors have been met; | |
capital gains realized by the credit union; | |
increases in the value of real property of the credit union as disclosed by revaluation carried out or confirmed by an independent valuer within the preceding three years; | |
and | |
revenue profits realized by the credit union. |
(2) Revenue profits of a credit union do not constitute reserves for the purposes of this section unless transferred or appropriated to a single separate account described in the accounts of the credit union as a statutory reserve account.
(3) Subject to this Act, a credit union must ensure that—
as at the end of the third complete financial year after the relevant date or any subsequent financial year, the total amount of its reserves is not less than five per cent, or, if some other percentage is prescribed, that percentage of the total assets of the credit union as at the end of that financial year; | ||
and | ||
as at the end of each financial year after the relevant date but before the third complete financial year after the relevant date, the total amount of its reserves (as compared with that amount as at the end of the preceding financial year) has increased by— | ||
|
or
| ||
whichever is the lesser. |
(4) In determining the total amount of the reserves at any time, if the amount of the reserves representing increases in the value of real property exceeds three-sevenths of the balance of the amount of the reserves, that excess must be disregarded.
(5) The Commission may, on the recommendation of the Board, in the case of a credit union registered as a result of an amalgamation under this Act, by instrument in writing, exempt the credit union, conditionally or unconditionally, from a requirement of subsection (3).
(6) The Commission may, on non-compliance with a condition of an exemption under subsection (5), by instrument in writing, revoke the exemption.
(7) A credit union must not, except on the winding up of the credit union, distribute to its members any amount comprising reserves pursuant to this section.
(8) In this section—
"independent valuer" means a person licensed or duly authorized to act as a land valuer under the
Land Agents, Brokers and Valuers Act, 1973 , or under a law of another State or Territory of the Commonwealth, not being a person who is an employee of the credit union:"relevant date" means—
in the case of a credit union incorporated after the commencement of this Act otherwise than as a result of an amalgamation under this Act—the date on which the credit union is so incorporated; | |
or | |
in any other case—the date of commencement of this Act: |
"total assets" in relation to a financial year, means the amount of the total assets of the credit
union as recorded in its audited balance-sheet for that financial year.
not less than— | ||
|
or
|
whichever is the greater;
and | ||
not less than— | ||
| ||
or | ||
| ||
whichever is the greater. |
(2) Subsection (1) imposes a minimum requirement only and does not derogate from the duty of the directors of a credit union to cause adequate provision to be made for doubtful debts as required according to the particular circumstances of the credit union from time to time.
DIVISION IV—PROPERTY AND INVESTMENT
50. (1) A credit union may not exercise its powers to—
acquire real property; | |
carry out improvements to real property; | |
or | |
acquire vehicles, equipment and other goods, |
except as reasonably necessary for the establishment of premises from which it will conduct its
business or for the proper and efficient management of that business.
(2) A credit union must not, without the prior approval of the Board, enter into any transaction (other than a lease) of a kind to which subsection (1) applies where the cost of the transaction would exceed five per cent of the sum of—
the amount for the time being comprising reserves of the credit union pursuant to Division III; | |
and | |
the amounts of the share capital and the deposits held by the credit union not included in the amount referred to in paragraph |
in authorized trustee investments; | |
on deposit with an association of which it is a member; | |
in withdrawable shares in a building society; | |
or | |
in investments of a prescribed class. |
(2) Subsection (1) does not prevent a credit union from applying its funds as it considers appropriate for carrying out its objects—
in forming or acquiring a subsidiary; | |
or | |
in acquiring securities of, making loans to, or guaranteeing liabilities of, a subsidiary of the credit union. |
(3) A credit union must not, without the prior approval of the Board—
allow the sum of— | ||
|
and
|
to exceed five per cent of the sum of—
|
and
| ||
or | ||
advance money to, or deposit money with, another credit union. |
(4) In determining amounts referred to in subsection (3)
(a) (i) and (ii)—
the amounts initially applied or invested by the credit union are to be taken into account (rather than the value of such investments from time to time); | |
and | |
where a credit union has provided a guarantee, the credit union is to be regarded as having applied an amount for that purpose equal to the full amount of the liability guaranteed. |
(5) A credit union must notify the Board in writing at least seven days before—
applying any funds as referred to in subsection (2); | |
or | |
investing any amounts as prescribed for the purposes of subsection (3). |
(6) A credit union must not invest funds in any security that matures on a certain date unless that date is less than 15 years from the date of the investment.
(7) This section does not affect or render unlawful any investment made by a credit union prior to the commencement of this Act.
(2) Before classifying an account as dormant, the credit union must notify the member of its intention to do so and of the subsequent action proposed by the credit union—
by registered letter to the member’s last known address; | |
or | |
by advertisement in a newspaper circulating generally throughout the State. |
(3) Unless within one month of the posting of the letter or publication of the advertisement, whichever is the later, the member gives notice in writing to the credit union expressing a desire to remain a member, the credit union may, subject to this section—
cancel the membership of the member; | |
and | |
transfer the share capital and funds of the member to a special account (entitled "the suspense account") established by the credit union for the purposes of this section. |
(4) A person whose membership has been cancelled pursuant to this section may within a period of six years after the date of cancellation require the credit union to refund the money held in the suspense account representing the value of shares formerly held by that person and the amount formerly held on deposit on his or her behalf.
(5) Where a member fails to claim a refund under subsection (4), the credit union must pay the money to the Board for payment into the Fund.
(6) The Board must, on the application of a person entitled to money paid to the Board pursuant to subsection (5), refund that money to that person.
PART V
ASSOCIATIONS
(2) The objects of an association are such of the following as are authorized by the rules of the association:
to promote the interests of and strengthen co-operation among credit unions and associations; | |
to render services to and act on behalf of its members in such ways as may be specified in, or authorized by, the rules of the association; | |
to advocate and promote such practices and reforms as may be conducive to any of the objects of the association; | |
to co-operate with other bodies with similar objects; | |
to promote the formation of credit unions; | |
to encourage the formulation, adoption and observance by credit unions of standards and conditions governing the carrying on of their business; | |
to supervise the affairs of its members in accordance with the rules of the association; | |
and | |
to perform such other functions as may be prescribed. |
56. (1) An application for the registration of an association—
must be made in the prescribed form and must be under the common seals of all the credit unions that are to be members of the association on its formation; | |
and | |
must be accompanied by the rules of the proposed association. |
(2) If the Commission is satisfied—
that the rules as submitted are not contrary to the provisions of this Act; | |
that there are reasonable grounds for believing that the association if registered would be able to carry out its objects successfully; | |
and | |
that there is no good reason why the association and its rules should not be registered, |
the Commission must register the association and its rules and issue a certificate of incorporation
in the prescribed form.
(3) On the issue of a certificate of incorporation, the association is a body corporate and—
has, subject to this Act and the rules of the association, the legal capacity of a natural person; | |
may sue and be sued in its corporate name; | |
and | |
has the powers, duties or functions conferred or imposed by this Act and the rules of the association. |
(2) A body formed and registered as a credit union in the Northern Territory and carrying on its business principally in that Territory may be admitted to membership of an association, in accordance with the rules of the association, as if it were a credit union registered under this Act.
(2) No member of an association may, unless exempted by the Commission from the provisions of this subsection, hold shares representing more than one-quarter of the total share capital of the association.
59. (1) An association may, subject to this Act and the rules of the association—
raise money by accepting deposits from its members; | |
borrow money and give such security in respect of the borrowing as it thinks fit; | |
lend money to its members, or its officers and employees, upon such terms as it thinks fit; | |
lend money to the members, officers or employees of its members, upon such terms as it thinks fit; | |
and | |
otherwise apply its funds in the furtherance of its objects. |
(2) Notwithstanding any Act or law to the contrary, but subject to subsection (3), where a loan is made pursuant to this section to a director of the association—
the director is not obliged to report the loan to any general meeting of the members of the association; | |
and | |
failure so to report the loan does not affect the validity of the loan contract or render the director liable to account for any profits arising from the loan contract. |
(3) The rules of an association may require an officer or employee of the association to report any loan obtained pursuant to this section to the annual general meeting of the association next following the making of the loan.
(4) This section does not derogate from the provisions of section 68.
(5) An association must provide for the maintenance of liquid funds in accordance with its
rules. (6) An association has power to acquire property and invest its funds in accordance with its
rules.
(7) The Board may direct an association to report details of its monetary policies from time to time to the Board and the Board may make recommendations and give advice to the association on those policies.
(8) An association must not donate money for any purposes other than charitable purposes.
(2) A member of an association is, at any such meeting, entitled—
to be represented in such manner; | |
and | |
to exercise such voting rights, |
as may be prescribed by the rules of the association.
(3) An association must cause full and accurate minutes to be kept of every meeting of the board, and of every meeting of the members, of the association.
Divisions V, VI, IX and X of Part III; | |
Divisions I, III, IV, V, VI and VII of Part VI; | |
Division III of Part VII; | |
and | |
Parts VIII and X. |
PART VI
MANAGEMENT
DIVISION I—DIRECTORS AND OFFICERS
(2) The powers of the board are subject to any restrictions imposed upon it by this Act, by rules of the credit union or by a resolution of a general meeting of the credit union.
(3) A majority of the directors of a credit union must reside permanently in the State.
(4) A credit union must not have less than five directors.
(2) The board of a credit union, if so authorized by the rules of the credit union, may appoint a person to be a deputy of a director and such a person may act as a director of the credit union in the absence of the person of whom he or she is deputy.
(2) A person is not eligible to be a director of a credit union if that person—
has not attained the age of 18 years; | ||||
has attained the age of 70 years; | ||||
is not a member of the credit union; | ||||
is a bankrupt or insolvent debtor or is bound by a composition in favour of creditors; | ||||
is prohibited from being a director of a corporation pursuant to the | ||||
or | ||||
has been convicted within the preceding period of 10 years— | ||||
|
or
|
(3) The office of a director becomes vacant if the director—
dies; | |
completes a term of office and is not reappointed; | |
is absent from three consecutive ordinary meetings of the board without its leave; | |
ceases to be a member of the credit union; | |
resigns by instrument in writing addressed to the board; | |
is four months in arrears in respect of money due to the credit union and has failed to make arrangements for payment satisfactory to the credit union; | |
becomes a bankrupt or insolvent debtor, is bound by a composition in favour of creditors or applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; | |
is prohibited from being a director of a corporation pursuant to the |
(i) is convicted—
|
or
| ||
or | ||
is removed from office by resolution of a general meeting of the credit union. |
(4) The office of a director becomes vacant at the annual general meeting next following the day on which the director attains the age of 70 years.
(5) A director may not be removed from office, and the office of a director will not become vacant, except as provided by this Act.
(2) In the case of a proposed contract, the declaration must be made at the meeting of directors at which the question of entering into the contract is first considered, or if the director was not at the date of that meeting interested in the proposed contract, at the next meeting of the directors held after he or she becomes interested in the proposed contract.
(3) Where a director becomes interested in a contract with the credit union after it is made, the declaration must be made at the first meeting of the directors held after he or she becomes interested in the contract.
(4) For the purposes of this section, a general notice in writing given to the board by a director to the effect that he or she is a member of a specified company or firm, and is to be regarded as interested in any contract which may, after the date of the notice, be made with that company or firm, is a sufficient declaration.
(5) Any declaration made pursuant to this section must be reported by the board—
forthwith to the Commission; | |
and | |
to the members at the annual general meeting next following the making of the declaration. |
(6) Nothing in this section prejudices any rule of law affecting the validity of contracts between a body corporate and a director of the body corporate or affecting the obligations of a director to account for any profits arising from any such contract.
(5) For the purposes of subsections (1) and (3), where—
at a meeting, a person votes in favour of a resolution approving, or otherwise approves, a document required by or for the purposes of this Act or required to be lodged with or submitted to the Commission; | |
and | |
the document contains a statement that, to the person’s knowledge, is false or misleading in a material particular, or omits any matter or thing without which the document is, to the person’s knowledge, misleading in a material respect, |
the person is to be regarded as having authorized the making of the statement or the omission of
the matter or thing.
a director, auditor or member, of the credit union or foreign credit union; | |
or | |
in the case of a subsidiary of a credit union—an auditor of the holding credit union, |
being information, whether in documentary or any other form, that relates to the affairs of the
credit union or foreign credit union and that, to the knowledge of the officer—
is false or misleading in a material particular; | |
or | |
has omitted from it a matter or thing the omission of which renders the information misleading in a material respect, |
is guilty of an offence.
Penalty: Division 4 fine or division 4 imprisonment.
(2) An officer of a credit union or foreign credit union who makes available or furnishes information, or authorizes or permits the making available or furnishing of information, to—
a director, auditor or member of the credit union or foreign credit union; | |
or | |
in the case of a subsidiary of a credit union—an auditor of the holding credit union, |
being information, whether in documentary or any other form, relating to the affairs of the credit
union or foreign credit union and that—
is false or misleading in a material particular; | |
or | |
has omitted from it a matter or thing the omission of which rendered the information misleading in a material respect, |
without having taken reasonable steps to ensure that the information—
was not false or misleading in a material particular; | |
and | |
did not have omitted from it a matter or thing the omission of which rendered the information misleading in a material respect, |
is guilty of an offence.
Penalty: Division 4 fine or division 4 imprisonment.
(3) The references in subsections (1) and (2) to a person making available or furnishing, or authorizing or permitting the making available or furnishing of, information relating to the affairs of a credit union or foreign credit union include references to a person making available or furnishing, or authorizing or permitting the making available or furnishing of, information as to the state of knowledge of that person with respect to the affairs of the credit union or foreign credit union.
(4) Where information is made available or furnished to a person referred to in subsections (1)
144. (1) Where—
an investigation is being carried out for the purposes of this Act in relation to an act or omission by a person that constitutes or may constitute— | ||
|
or
| ||
a prosecution has been instituted against a person for an offence of a kind referred to in paragraph | ||
or | ||
civil proceedings have been instituted against a person whether under this Act or otherwise in relation to an act or omission done or made in the course of or in connection with the affairs of a credit union or foreign credit union, |
and the Court considers it necessary or desirable to do so for the purpose of protecting the interests of any persons to whom the person referred to in paragraph
an order prohibiting, either absolutely or subject to conditions, a person who is indebted to the relevant person or to any person associated with the relevant person from making a payment in total or partial discharge of the debt to, or to another person at the direction or request of, the person to whom the debt is owed; | ||
an order prohibiting, either absolutely or subject to conditions, a person holding money, or securities or other property, on behalf of the relevant person or on behalf of any person associated with the relevant person from paying all or any of the money, or transferring, or otherwise parting with possession of, the securities or other property, to, or to another person at the direction or request of, the person on whose behalf the money, or the securities or other property, is or are held; | ||
an order prohibiting, either absolutely or subject to conditions, the taking or sending by any person out of the State of money of the relevant person or of any person associated with the relevant person; | ||
an order prohibiting, either absolutely or subject to conditions, the taking, sending or transfer by any person of securities or other property of the relevant person or of any person associated with the relevant person from a place in the State to a place outside the State (including the transfer of securities from a register in the State to a register outside the State); | ||
an order appointing— | ||
|
or
|
(i) where the relevant person is a natural person—an order prohibiting that person from leaving the State without the consent of the Court.
(2) Where an application is made to the Court for an order under subsection (1), the Court may, if in the opinion of the Court it is desirable to do so, before considering the application, grant an interim order, being an order of the kind applied for that is expressed to have effect pending the determination of the application.
(3) Where the Commission makes an application to the Court for the making of an order under subsection (1), the Court may not require the Commission or any other person, as a condition of granting an interim order under subsection (2), to give undertakings as to damages.
(4) Where the Court has made an order under this section, the Court may, on application by the Commission or by any person affected by the order, make a further order rescinding or varying the first mentioned order.
(5) An order made under subsection (1) or (4) may be expressed to operate for a period specified in the order or until the order is rescinded by a further order under subsection (1) or (4).
the Commission; | |
or | |
any person whose interests have been, are or would be affected by the conduct, |
grant an injunction restraining the first mentioned person from engaging in the conduct and, if in
the opinion of the Court it is desirable to do so, requiring that person to do any act or thing.
(2) Where a person has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do an act or thing that the person is required by this Act to do, the Court may, on the application of—
the Commission; | |
or | |
any person whose interests have been, are or would be affected by the refusal or failure to do that act or thing, |
grant an injunction requiring the first mentioned person to do that act or thing.
(3) Where an application is made to the Court for an injunction under subsection (1), the Court may, if in the opinion of the Court it is desirable to do so, before considering the application, grant an interim injunction restraining a person from engaging in conduct of the kind referred to in subsection (1) pending the determination of the application.
(4) The Court may rescind or vary an injunction granted under subsection (1), (2) or (3).
(5) Where an application is made to the Court for the grant of an injunction restraining a person from engaging in conduct of a particular kind, the power of the Court to grant the injunction may be exercised—
if the Court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; | |
or | |
if it appears to the Court that, in the event that an injunction is not granted, it is likely the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the first mentioned person engages in conduct of that kind. |
(6) Where an application is made to the Court for a grant of an injunction requiring a person to do a particular act or thing, the power of the Court to grant the injunction may be exercised—
if the Court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; | |
or | |
if it appears to the Court that, in the event that an injunction is not granted, it is likely the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing. |
(7) Where the Commission makes an application to the Court for the granting of an injunction under this section, the Court may not require the Commission or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages.
(8) Where the Court has power under this section to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do a particular act or thing, the Court may, either in addition to or in substitution for the grant of the injunction, order that person to pay damages to any other person.
146. (1) If a person contravenes or fails to comply with—
a provision of this Act for which no penalty is specifically provided; | |
or | |
in the case of a credit union or foreign credit union, a rule of the credit union or foreign credit union, |
the person is guilty of an offence.
Penalty: Division 6 fine.
(2) If a credit union or foreign credit union refuses or neglects to furnish any return or information lawfully required by the Commission, the Board, or by any other person, it is guilty of an offence.
Penalty: Division 6 fine.
(3) Where a person is convicted of an offence against this Act and after that conviction the act or omission of the person that constituted the offence continues, the person is guilty of a further offence and liable to an additional penalty for each day on which the act or omission continues of an amount not exceeding one-tenth of the maximum penalty for the offence of which the person was convicted.
(4) For the purposes of subsection (3), an obligation to do something is to be regarded as continuing until the act is done notwithstanding that any period within which, or time before which, the act is required to be done has expired or passed.
149. (1) An offence against this Act that is not punishable by imprisonment is a summary
offence.
(2) An offence against this Act that is punishable by imprisonment is, subject to subsection (3), an indictable offence.
(3) Where—
proceedings for an offence against this Act that is punishable by imprisonment are brought in a court of summary jurisdiction; | |
and | |
the prosecutor requests the court to hear and determine the proceedings, |
the offence is to be taken to be a summary offence and must be heard and determined as such.
(4) A court of summary jurisdiction may not—
impose, in respect of any one offence against this Act, a period of imprisonment exceeding two years; | |
or | |
impose, in respect of offences against this Act, cumulative periods of imprisonment that, in aggregate, exceed five years. |
(5) Nothing in this section renders a person liable to be punished more than once in respect of the same offence.
(6) A prosecution for an offence against this Act—
may be commenced— | ||||
|
or
| ||
and | ||
must be commenced within three years after the date on which the offence is alleged to have been committed or such further period as the Minister may, in a particular case, allow. |
(7) A document apparently signed by the Minister and stating—
that the Minister consents to a particular prosecution; | |
or | |
that the Minister allows a specified extension of the period for commencing a particular prosecution, |
is to be accepted, in the absence of proof to the contrary, as proof of the fact so stated.
(8) In any proceedings for an offence against this Act, an allegation in the complaint that the complainant is an officer or employee of the Commission is, in the absence of proof to the contrary, to be accepted as proved.
the policy, or a copy of the policy; | |
or | |
a statement of the risks covered by the policy. |
call a special meeting of a credit union; | |
or | |
hold an inquiry into the affairs (including the working and financial conditions) of a credit union. |
(2) An application under subsection (1) must be supported by such evidence as the Commission directs for the purpose of showing that the applicants have good reason for requiring the meeting or inquiry and that the application is made without malicious motive.
(3) Notice of the application must be given to the credit union as the Commission directs.
(4) The applicants must give such security for the expenses of the meeting or inquiry as the Commission directs.
(5) The Commission may—
direct at what time and place the meeting or inquiry is to be held; | |
direct what matters are to be discussed or determined; | |
and | |
notwithstanding the rules of the credit union, give such notice to members of the holding of the meeting or inquiry as it considers appropriate. |
(6) The Commission may direct the directors and such other persons as it requires to attend the meeting or inquiry.
(7) A person to whom a direction is given under subsection (6) must comply with the direction. (8) A meeting held under this section has all the powers of a meeting called in accordance with the rules of a credit union and has power to appoint a person to preside at the meeting, notwithstanding any rule of the credit union to the contrary.
(9) The Commission or any person nominated by it may attend and address a meeting held under this section.
(10) All expenses of and incidental to the meeting or inquiry may be defrayed by the applicants or out of the funds of the credit union or by any officer or member, or former officer or member, in such proportions as may be agreed between the Commission and those persons, and may be recovered as a debt in a court of competent jurisdiction.
(11) In default of agreement under subsection (10), the expenses must be defrayed by such persons, and in such proportions, as the Court, on the application of the Commission, directs.
(2) Without limiting the generality of subsection (1), those regulations may—
prescribe model rules for credit unions; | |
prescribe any form for the purposes of this Act; | |
provide for advisory committees to assist the Minister, the Board or the Commission; | |
prescribe the manner in which a rate of interest is to be calculated for the purposes of this Act; | |
prescribe, and provide for the recovery of, fees in respect of an application under this Act; | |
limit the charges that may be made by a credit union in respect of the granting of a loan by the credit union, or for any work done by a credit union in relation to the granting of a loan; | |
require credit unions, or credit unions of a prescribed class, to keep their offices open to the public throughout prescribed periods; | |
make any provision in relation to the administration of a credit union by an administrator appointed under this Act, or the winding up of a credit union; |
(i) regulate the manner in which meetings of the Board are to be convened and held;
otherwise regulate the transaction of business by the Board; | |
regulate the monetary policies of associations; | |
provide for the imposition and recovery of fees for the late lodgement of returns or reports required under this Act; | |
and | |
prescribe penalties, not exceeding a division 7 fine, for breach of, or non-compliance with, any regulation. |
SCHEDULE
1. The
Credit Unions Act, 1976 , is repealed.
2. (1) Subject to this Act, a credit union or association registered under the repealed Act immediately before the commencement of this Act continues in existence as if it were a credit union or association registered under this Act.
(2) Subject to this Act, the Credit Union Deposit Insurance Board established under Part VII is the same body corporate and continues with the same membership as the Credit Union Stabilization Board established under Part VIII of the repealed Act.
(3) Subject to this Act, the Credit Union Deposit Insurance Fund established under Part VII is the same fund and continues to consist of the same money as the Credit Union Stabilization Fund under Part VIII of the repealed Act.
(4) Subject to this Act, a register kept by the Registrar of Credit Unions under the repealed Act, continues as a register kept by the Commission under this Act.
(5) Subject to this Act, a certificate or document issued or registered by, or filed or lodged with, the Registrar of Credit Unions under the repealed Act has effect as if it were a certificate or document issued or registered by, or filed or lodged with, the Commission under this Act.
(6) An exemption granted by the Minister under Division I of Part III of the repealed Act has effect as if it were an exemption granted by the Minister under Division I of Part III of this Act.
(7) A notice issued by the Minister and published in the
(8) An exemption granted by the Registrar under Part VI of the repealed Act has effect as if it were an exemption granted by the Commission under Part V of this Act.
(9) A nomination made by a member of an industrial and provident society under section 25 of the
(10) A nomination referred to in subclause (9) may be varied or revoked by the nominator by notice in writing to the credit union.
(11) The
(12) In this clause—
"the repealed Act" means the
Credit Unions Act, 1976 , repealed by clause 1.
Divisional Penalties
At the date of assent to this Act divisional penalties are, as provided by section 28a of the
Division | Maximum | Maximum |
imprisonment | fine |
1 | 15 years | $60 000 |
2 | 10 years | $40 000 |
3 | 7 years | $30 000 |
4 | 4 years | $15 000 |
5 | 2 years | $8 000 |
6 | 1 year | $4 000 |
7 | 6 months | $2 000 |
8 | 3 months | $1 000 |
9 | - | $500 |
10 | - | $200 |
11 | - | $100 |
12 | - | $50 |
0
0
0