Friendly Societies (New South Wales) Act 1997 (NSW)
New South Wales Friendly Societies (New South Wales)
Act 1997 No 11
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2 3 Definitions 2
4 Crown to be bound 3
Part 2 Friendly Societies (NSW) Code and Friendly
Societies (NSW) Regulations5 Application in New South Wales of the Friendly
Societies Code 4 6 Application in New South Wales of uniform
regulations under the Friendly Societies Code 4 7
Interpretation of some expressions in the Friendly Societies (NSW) Code and the Friendly Societies (NSW) Regulations 4
Friendly Societies (New South Wales) Act 1997 No 11
Contents
Page
Part 3 Conferral of functions and powers
8 Conferral of functions and powers on Commission 6 9 Conferral of functions and powers on Tribunal 6 10 FINCOM to be the State supervisory authority 6
Part 4 Levies, fees and other amounts
11 Fees 7 12 Levies 7
13 Payment of fees, fines and penalties 7 14 Distribution of residual assets 7
Part 5 General
15 Repeals 9 16 Amendment of other Acts 9 9 17 Savings, transitional and other provisions
18 Review of Act 9
Schedules
1 Amendment of other Acts 10 2 Savings, transitional and other provisions 19
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Friendly Societies (New South Wales) Act 1997 No 11
Contents
Note Friendly Societies Code PART 1—PRELIMINARY
Division 1—Introductory
1. Citation
2. Commencement
Division 2—Interpretation
3. Definitions
4. Associate
5. Director
6. Holding body corporate
7. Holding society
8. Making a decision
9. Officer
10. Related body corporate
11. Subsidiary
12. Qualified privilege
13. Carrying on business: otherwise than for profit
14. Businesses of a particular kind
15. Carrying on .a business: alone or together with others
16. Interpretation generally
Division 3—Operation of Friendly Societies Legislation
17. Extraterritorial operation of legislation
Division 4—Application and Adoption of Corporations Law
18. Definitions
19. Corporations Law applying under its own force
20. Corporations Law adopted under a regulation
21. Adopted provisions of Corporations Law
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Friendly Societies (New South Wales) Act 1997 No 11
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PART 2—FUNCTIONS AND POWERS OF SSA
Division 1—General
22. Functions of SSA
23. General powers
24. SSA to comply with standards
25. Application of variation under standards
26. SSA to keep Minister informed
27. Inspection of documents at public office
28. Power of SSA to reject documents
29. Extension or abridgment of time
Division 2—Specific Powers
Subdivision 1—Services corporations
30. Services corporation
Subdivision 2—Enforcement powers
31. Obtaining information
32. Obtaining evidence
33. Inspectors
34. Inspector to produce identity card
35. Entry and search—monitoring compliance
36. Entry and search—evidence of offences
37. General powers of inspector in relation to places
38. Monitoring warrants
39. Offence related warrants
40. Offence related warrant may be granted by telephone
41. Obstruction of inspectors
42. False or misleading statements
Subdivision 3—Special meeting and inquiry
43. Special meeting and inquiry
subdivision 4—Special power of intervention
44. Intervention by SSA
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Friendly Societies (New South Wales) Act 1997 No 19
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Subdivision 5—Power to suspend operations of society
45. Power to suspend operations
Subdivision 6—Administrators
46. Appointment of administrator
47. Additional powers of SSA
48. Stay of proceedings49. Administrator to report to SSA
Subdivision 7—Levies
50. Supervision Fund
51. Supervision levy 52. Consultation
53. Failure to make payment an offence
Subdivision 8—Control of Advertising
54. Restriction on initial advertisements
55. Power to control advertising
PART 3—SOCIETIES
Division 1—Objects
56. Primary objects
57. Objects of society must include primary objects
58. Dominant activities
Division 2—Formation and Registration
59. Formation of societies
60. Registration
61. Certificate of incorporation
62. Effect of incorporation
63. Powers of societies
64. Prohibition on issuing debenture
65. Restriction on reinsurance arrangements
66. Restriction on acting as trustee
67. Control of certain financial arrangements
68 Control of foreign currency transactions
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Friendly Societies (New South Wales) Act 1997 No 11
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Division 3—Rules
Subdivision 1—GeneraI
69. Rules
70. Copies of rules71. Society and members to be bound by rules
Subdivision 2—Amendment of rules
72. Amendment of rules by special resolution
73. Amendment of rules by board of directors
74. Registration of amendment of rules
75. Power of SSA to require modification of rules
Subdivision 3—Societies conducting health benefit funds
76. Definitions
77. Health benefit fund rules78. Registered society to give notice of rule changes
Division 4—Standards
79. Societies to comply with standards
Division 5—Membership
80. Members
81. Members who are minors
82. Joint members
83. Corporate membership
84. Cessation of membership
85. Expulsion of member
86. Limitation of liability of members
Division 6 Name and Office
87. Name
88. Abbreviations of society's name89. Change of name does not affect identity
90. Use of "friendly society"
91. Unregistered society not to carry on business
92. Publication of name
93. Common Seal
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94. Society may have duplicate common seal
95.
Registered off ice
PART 4A—BENEFIT FUNDS
Division 1—Provision of Benefits and Establishment of
Benefit Funds
96. Provision of benefits
99. Establishment of benefit fund
98. Approval to establish benefit fund
Division 2—Management of Benefit Funds
99. Assets of benefit funds
100. Payments to benefit funds
101. Application of benefit fund assets
102. Mortgaging assets of benefit fund
103. Investment of benefit funds
104. Payment of money into account
105. Funds inward clearing account
106. Funds outward clearing account
107. Transfer of an asset between funds
108. Distribution of surplus in benefit fund
109. Fair value of assets
Division 3—Restructure of Benefit Funds
110. Definitions
111. Approval of restructure of benefit funds
112. Rules
113. Lodgement of information with SSA
115. Effect of restructure
116. Notification of members114. When a restructure takes effect Division 4—Termination of Benefit Funds
117. Application of Division
118. Approval of termination proposal
119. Distribution of assets of benefit fund 120. Notification of members
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121. Rules
122. Lodgement of information with SSA
123. When termination takes effect
Division 5—Assignment of Benefits
124. Assignment of benefits
125. Payment to nominee of deceased member
PART 4B—OFFERING AND MARKETING OF BENEFITS
Division 1—Application and Interpretation
126. Definitions
127. Benefits advisory business
128. Application of this Part
129. Actuarial advice
130. Representatives
131. Involvement in contraventions
132. Conduct
133. References to doing acts
134. Misleading representation
Division 2—Disclosure Documents and Application Forms
135. Disclosure document to be lodged
136. Application form
137. Form of disclosure document and date of issue
138. Disclosure of interests
139. Liability in respect of disclosure document and interests
140. Content of disclosure document
141. Conditions requiring waiver of requirements void
142. Obligation to notify society of false etc statements
143. Correction of false or misleading statements etc by a supplementary or replacement disclosure document
144. Changes or new matters requiring the issue of a Supplementary replacement disclosure document
145. General provisions about supplementary disclosure documents
146. General provisions about replacement disclosure documents
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147. Consequences of lodging a supplementary disclosure document
148. Consequences of lodging a replacement disclosure document
149. Application made on out of date application form
150. Inclusion of documents in disclosure documents by reference
151. Disclosure document referring to information set out in current application form
152. Certain notices etc not to be published
153. Certain reports referring to disclosure documents not to be published
154. Evidentiary provisions etc
155. Documents to be kept
156. Expert’s consent to issue of disclosure document containing statement by the expert
157. Direction not to accept contributions
158. Exemptions and modifications
Division 3—Prohibited Conduct and Civil Liability
159. Statement in a disclosure document
160. Misleading or deceptive conduct
161. Misstatements and omissions in disclosure documents
162. Civil liability for contravention of this Division or Division 2
163. Civil liability for false or misleading statement in, or omission from, a disclosure document
164. No liability to person with knowledge of relevant matter
165. Non-consenting directors not liable
166. Directors not liable where they have reasonable grounds for believing disclosure document to be correct
169.
Liability of experts, auditors etc 168.
Liability of persons named in disclosure document 169.
No liability for mistake etc if reasonable precautions taken
170. Indemnity
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Division 4—Regulation of Industry Participants
Subdivision 1—Conduct in relation to benefits
171. Dealing 172. Advising
Subdivision 2—Agreements with unlicensed persons
173. Certain persons not clients
174. Agreements with unlicensed persons
175. Client may give notice of rescission
176. Effect of notice under section 175
177. Client may apply to Court for partial rescission
178. Court may make consequential orders
179. Agreement unenforceable against client
180. Non-licensee not entitled to recover commission
181. Onus of establishing non-application of section 179 or 180
182. Client may recover commission paid to non-licensee
183. Remedies under this Subdivision
Subdivision 3—Representatives
184. Proper authority from society
185. Representatives of dealers
186. Representatives of investment advisers
187. Representatives of societies
188. Body corporate not to act as representative
189. Defence
190. Banned person not to act as representative
191. Society to keep register of holders of proper authorities
192. Society to notify SSA of location and contents of register
193. Inspection and copying of register
194. SSA may require production of authority
195. SSA may give society information about representative
196. Holder of authority may be required to return it
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Subdivision 4—Liability of principals for representatives’ conduct
197. Conduct engaged in as a representative
198. Liability where identity of principal unknown
199. Liability of principals where act done in reliance on representative’s conduct
200. Presumptions about certain matters
201. No contracting out of liability for representative’s conduct
202. Effect of Subdivision
Subdivision 5—Excluding persons from dealing with benefits
203. Power to make banning order
204. Nature of banning order
205. Exceptions to banning order
206. Variation or revocation of banning order on application
207. Revocation of banning order in certain cases
208. Effect and publication of orders under this Subdivision
209. Contravention of banning order
210. Opportunity for hearing211. Disqualification by the Court
Subdivision 6—Recommendations about benefits
212. Definition of adviser
213. Recommendation made by partner or officer
214. Client to be told if adviser’s interests may influence recommendation
215. Defences to alleged breach of section 214(2)
216. Adviser must have reasonable basis for recommendation
217. Adviser who breaches this Subdivision liable to compensate client
218. Qualified privilege for adviser when complying with this Subdivision
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PART 5—SHARES AND CHARGES
Division 1—Shares Generally
219. Share capital
220. Classes of shares, rights etc
221. Determination of share capital
222. Liability of shareholders
223. Board to approve sale or transfer unless rules provide otherwise
224. Restriction on application of capital
225. Power to make certain payments
226. Validation of shares improperly issued
Division 2—Permanent Shares
227. Issue of permanent shares
228. Issue of preference shares
229. Rights of holders of preference shares to be set out in rules
230. Cancellation of permanent shares
231. Dividends in relation to permanent shares
232. Requirements for issue of permanent shares
233. Allotment of permanent shares otherwise than for cash
234. Power to exempt in relation to non-cash consideration
235. Differences in calls, reserve liability etc
236. Calls and effect of non-compliance with calls on permanent shares
237. Sale of permanent shares forfeited for non-payment of call
238. Prohibition of allotment unless minimum subscription received
239. Return as to allotments
240. Issue of permanent shares at premium
241. Special resolution for reduction of permanent share capital
242. Society financing dealings in its permanent shares etc
243. Exceptions
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244. Consequences of society financing dealings in its permanent shares etc
245. Prohibition on subsidiary acquiring permanent shares of holding society
246. Options over permanent shares
Division 3—Redeemable Preference Shares
247. Application of certain provisions of this Code to redeemable preference shares
248. Issue of redeemable preference shares
Division 4—Shareholding Restrictions Subdivision 1—lnterpretative provisions
249. Application of Division
250. Extraterritorial operation of Division
251. What constitutes an “entitlement” to shares
252. What constitutes a “relevant interest” in shares 253. Meaning of “associate”
254. Meaning of voting power or right to vote 255. Inadvertence or mistake
Subdivision 2—Maximum shareholdings
256. Maximum permissible shareholding
257. Consequences of exceeding maximum permissible shareholding
258. Exceptions
Subdivision 3—Substantial shareholdings
259. Substantial shareholding and substantial shareholders
Subdivision 4—Power to obtain information
260. Power to obtain information
Subdivision 5—Enforcement
261. Court orders-substantial shareholdings 262. Power of SSA to exempt etc from Division
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Division 5—Issue of shares
263. Issuing of shares at a discount prohibited
264. Issuing of shares as partly paid up etc
265. Power of SSA to exempt etc from Division
Division 6—Title to and Transfer of Shares
266. Restricted application of this Division
267. Document of title to be evidence of title
268. Loss or destruction of documents
269. Instrument of transfer
270. Registration of transfer at request of transferor
271. Notice of refusal to register transfer
272. Remedy for refusal to register transfer or transmission
273. Certification of transfers
274. Duties of society in relation to issue of certificates
275. Exemption
Division 7—Registration of Charges
276. Registration of charges
277. Directions by AFlC and SSA
278. SSA approval of charges necessary in certain circumstances
PART 6—MANAGEMENT
Division 1—Interpretation
279. Definition
280. When one entity controls another
Division 2—Directors and Officers
281. Board of directors
282. Meetings of directors
283. Minutes
284. Number of directors
285. Election of directors286. Employee directors
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287. Alternate directors
288. Chairperson
289. Qualifications of directors
290. Vacation of office
291. Removal of directors
292. Declaration of interest
293. General duty to make disclosure
294. Certain financial accommodation to officers prohibited
295. Financial accommodation to directors and associates
296. Director’s remuneration
297. Management contracts
298. Duties of directors and officers
299. Prohibition on transfer of money
300. Unlawfully acting as director
Division 3—Meetings of Members of a Society
301. Annual general meeting
302. Special general meeting
303. Quorum
304. Notice of meeting
385. Voting
306. Proxy votes
307. Special resolutions of societies
308. Minutes
Division 4—Meetings of Members of a Benefit Fund
309. Application of Division
310. Quorum
311. Notice of meeting
312. Voting313. Proxy votes
314. Special resolutions of benefit funds
315. Minutes
Division 5—Registers and Inspection
316. Registers
317. Register of directors etc
318. Register of members to be kept 319. Registers of members
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320. Register of holders of permanent shares
321. Power of Court to rectify register of holders of permanent shares
322. Register of options
323. Inspection of rules and other documents
324. Location of registers on computers
325. Form and evidentiary value of registers
Division 6—Accounts
326. Financial year
327. Financial years of groups
328. Accounting records to be kept
329. Inspection of accounting records
330. Profit and loss accounts and balance sheets
331. Group accounts
332. Audit
333. Directors to ascertain certain matters
334. Requirements applying to accounts and group accounts
335. Directors’ statement
336. Directors’ reports
337. Directors of holding society must obtain information from entities controlled by the society
338. Accounts and reports to be laid before annual general meeting
339. Contravention of Division
Division 7—Audit
340. Qualifications of auditors
341. Appointment of auditors
342. Nomination of auditors
343. Removal and resignation of auditors
344. Effect of winding up on office of auditor
345. Fees and expenses of auditors
346. Auditor’s report
347. Powers and duties of auditor
348. Final audit on merger, etc
349. Auditors and entities controlled by societies
350. Obstruction of auditor
351. Qualified privilege
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Division 8—Actuaries
352. Appointment of actuaries
353. Cessation of appointment
354. Notification of appointment etc
355. Powers of actuary
356. Actuary’s obligation to report to SSA
357. Qualified privilege of actuary
358. Actuarial investigations
359. Additional actuarial investigations
Division 9—Returns and Relief
360. Returns
361. Relief from requirements as to accounts, audit and actuaries
PART 7—MERGERS OF SOCIETIES AND TRANSFERS OF
ENGAGEMENTS
Division 1—Preliminary
362. Definitions
363. Application of Part
Division 2—Mergers and Transfers of Engagements between
Societies364. Application for registration of merger or transfer
365. SSA may register merged society
366. Certificate of confirmation (voluntary transfer)
367. §SA may direct a transfer of engagements between societies
368. SSA may modify rules to facilitate transfer of engagements
369. Society to comply with direction
370. Certificate of confirmation (transfer by direction)
371. Who receives the certificate of confirmation
372. When transfer of engagements takes effect
373. Cancellation of registration after total transfer
394. Effect of merger
375. Effect of transfer of engagements
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Division 3—Mergers and transfers of engagements involving foreign societies
376. Definition
377. Transfer of engagements
378. Application for registration of merger or transfer of engagements
379. SSA may register merged society
380. Certificate of confirmation
381. Who receives the certificate of confirmation
382. When transfer of engagements takes effect
383. Effect of merger
384. Effect of transfer of engagements
385. Society must pass special resolution
PART 8—CONVERSIONS TO COMPANIES AND INCORPORATED
ASSOCIATIONS
Division 1—Conversion to Company
386. Society may convert to company
387. Proposal to convert by society to be approved by members
388. SSA may direct as to percentage
389. Application by society to SSA for approval of proposal
390. Conversion of society to company
391. Surrender of certificate of incorporation and cancellation of registration of society
392. Certificate of SSA
Division 2—Conversion to Incorporated Association
393. Society without benefit fund may convert to incorporated association
394. Proposal to convert to be approved by members or society’s board
395. Application by society to SSA for approval of proposal
396. Conversion of society to incorporated association
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397. Surrender of certificate of incorporation and cancellation of registration of society
398. Certificate of SSA
PART 9—EXTERNAL ADMINISTRATION
399. Arrangements and reconstructions
400. Receivers and other controllers of property of societies
401. Winding-up
402. Winding-up on certificate of SSA
403. Application of Corporations Law to winding-up
404. Voluntary winding-up
405. Vacancy in office of liquidator on voluntary winding-up
406. Remuneration of liquidator on voluntary winding-up
407. Priority on winding-up
408. Determination of amounts to be treated as liabilities
409. Cancellation of registration
PART 10—SPECIAL INVESTIGATIONS
410. Definition
411. Appointment of investigators
412. Investigation of affairs of related body corporate
413. Powers of investigators
414. Examination of officers
415. Self-incrimination
416. Privileged communications
417. Failure of officer to comply with requirement of investigator
418. Recording of examination
419. Delegation of powers by investigator
420. Report of investigator
421. Proceedings following investigation
422. Admission of investigator’s report in evidence
423. Expenses of investigation
424. Offences
425. Defence
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PART 11—FOREIGN SOCIETIES
426. Definitions
427. Registration
428. Agents
429. Removal of agent
430. Liability of agent
431. Service on agent
432. Application of Code to foreign societies
433. SSA to be notified of certain changes
434. Balance sheets
435. Cessation of business
436. Society proposing to register as foreign society
437. SSA to provide certain documents
PART 12—ASSOCIATIONS
438. Formation of associations
439. Objects of associations
440. Registration
441. Certificate of incorporation
442. Effect of incorporation
443. Membership
444. Share capital
445. Meetings
446. Application of Code to associations
PART 13—REVIEW OF DECISIONS
447. Reviewable decisions
448. Application for review of decisions
449. Application of AFlC Code
450. SSA to review certain decisions
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PART 14—MISCELLANEOUS
Division 1—Evidence
451. Certificates etc
452. Rules
453. Registers
454. Minutes455. Entries
Division 2—Offences
456. Defaults by societies
457. Restrictions on powers
458. Offences by officers
459. Incurring debts not likely to be paid
460. Powers of Court
461. Inducement to be appointed as liquidator
462. Falsification of records
463. Frauds by officers
464. False or misleading information
465. Power to examine defaulting officers
466. Power of Court to assess damages against certain persons
469. False copies of rules
468. Fraud or misappropriation
469. Commissions
470. Officers and other persons in default
Division 3—Proceedings
471. Proceedings for offences
472. Reciprocity in relation of offences
473. Continuing offences
474. Injunctions
475. Penalty notices
476. Power to grant relief
Division 4—Other matters
477. Secrecy
478. Powers about money of members who have died
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479. Limitation of doctrine of ultra vires
480. Abolition of doctrine of constructive notice
PART 15—TRANSITIONAL
481. Continuing societies
482. Application for certificate of incorporation
483. Benefit funds
484. Rules
485. Subsidiaries
486. Directors
487. Annual general meeting
480. Special resolutions
489. Registers
490. Winding-up
491. Documents
492. Disclosure documents
493. Interstate society carrying on business in this State
SCHEDULE A
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New South Wales
Friendly Societies (New South Wales)
Act 1997 No 11
Act No 11, 1997
An Act to provide for the formation, registration, management and regulation of friendly societies; and to consequentially repeal and amend certain other legislation. [Assented to 21 May 1997]
Section 1 Friendly Societies (New South Wales) Act 1997 No 11 Part 1 Preliminary The Legislature of New South Wales enacts:
Part 1 Preliminary 1 Name of Act This Act is the Friendly Societies (New South Wales) Act 1997.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
(1) In this Act: friendly societies legislation of New South Wales means:
(a) this Act and the regulations under this Act, and (b) the Friendly Societies (NSW) Code, and (c) the Friendly Societies (NSW) Regulations, and (d) the AFIC (NSW) Code, the AFIC (NSW) Regulations, the Financial Institutions (NSW) Code and the Financial Institutions (NSW) Regulations, as applying to the Code
and regulations referred to in paragraphs (b) and (c).
Friendly Societies (NSW) Code means the provisions applying
because of section 5.
Friendly Societies (NSW) Regulations means the provisions
applying because of section 6.
Friendly Societies (Victoria) Act means the Friendly Societies
(Victoria) Act 1996 of Victoria.Ministerial Council means the Ministerial Council established
under the financial institutions agreement within the meaning of
the Financial Institutions (NSW) Code.
(2)
Words and expressions used in the Friendly Societies (NSW) Code and in this Act have the same respective meanings in this Act as they have in that Code.
(3) Subsection (2) does not apply to the extent that the context or
subject-matter otherwise indicates or requires.
Friendly Societies (New South Wales) Act 1997 No 11 Section 4 Preliminary Part 1 4 Crown to be bound (1)
The friendly societies legislation of New South Wales binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.
(2) Nothing in this section permits the Crown in any of its capacities
to be prosecuted for an offence.
Section 5 Friendly Societies (New South Wales) Act 1997 No 11 Part 2 Friendly Societies (NSW) Code and Friendly Societies (NSW)
RegulationsPart 2 Friendly Societies (NSW) Code and
Friendly Societies (NSW) Regulations5 Application in New South Wales of the Friendly Societies Code
The Friendly Societies Code set out in Schedule 1 to the Friendly
Societies (Victoria) Act, as in force €or the time being:
(a) applies as a law of New South Wales, and (b) as so applying, may be referred to as the Friendly Societies (NSW) Code.
6 Application in New South Wales of uniform regulations under the Friendly Societies Code
The regulations in force for the time being under Part 4 of the
Friendly Societies (Victoria) Act:
(a) apply as regulations in force for the purposes of the Friendly Societies (NSW) Code, and
(b) as so applying, may be referred to as the Friendly Societies (NSW) Regulations.
7 Interpretation of some expressions in the Friendly Societies (NSW) Code and the Friendly Societies (NSW) Regulations
( 1) In the Friendly Societies (NSW) Code and the Friendly Societies (NSW) Regulations:
continuing society means a society to which the Friendly
Societies Act 1989 applied immediately before the commencement of this section.
Corporations Law and Corporations Regulations have the
meanings provided for by Part 3 of the Corporations (New SouthWales) Act 1990.
Legislature of this State means the Legislature of New South
Wales.
pharmacy law of this State means the Pharmacy Act 1964.
Supreme Court means the Supreme Court of New South Wales.
Friendly Societies (New South Wales) Act 1997 No 11 Section 7 Friendly Societies (NSW) Code and Friendly Societies (NSW) Part 2 Regulations the Code or this Code means the Friendly Societies (NSW) Code.
the jurisdiction means New South Wales.
the previous law means the Friendly Societies Act 1989, as in
force immediately before the commencement of this section.
(2)
The Corporations (New South Wales) Act 1990, and the applicable provisions of New South Wales within the meaning of that Act, are prescribed for the purposes of section 19 (4) of the
Friendly Societies (NSW) Code.
Section 8 Friendly Societies (New South Wales) Act 1997 No 11 Part 3 Conferral of functions and powers Part 3 Conferral of functions and powers 8 Conferral of functions and powers on Commission
The Australian Financial Institutions Commission (established under the Australian Financial Institutions Commission Act 1992 of Queensland) has the functions and powers conferred or expressed to be conferred on it by or under the friendly societies legislation of New South Wales.
9 Conferral of functions and powers on Tribunal
The Australian Financial Institutions Appeals Tribunal (established under the Australian Financial Institutions
Commission Act 1992 of Queensland) has the functions and
powers conferred or expressed to be conferred on it by or under
the friendly societies legislation of New South Wales.
10 FINCOM to be the State supervisory authority
The New South Wales Financial Institutions Commission (established under the Financial Institutions Commission Act 1992) is the State supervisory authority (referred to in the friendly societies legislation of New South Wales as the SSA) for New South Wales.
Friendly Societies (New South Wales) Act 1997 No 11 Section 11 Levies, fees and other amounts Part 4 Part 4 Levies, fees and other amounts 11 Fees This section imposes the fees prescribed by the Friendly
Societies (NSW) Regulations or by the AFIC (NSW) Regulationsin respect of the matters referred to in the friendly societies
legislation of New South Wales.
12 Levies
(1) This section imposes:
(a) the levy payable under sections 119 and 120 of the AFIC
(NSW) Code by a society, and
(b) the supervision levy payable under section 51 of the Friendly Societies (NSW) Code by a society.
(2) An expression has in subsection ( 1) the meaning it would have if this section were in the FIC (NSW) Code or the Friendly
Societies (NSW) Code, as the case requires.13 Payment of fees, fines and penalties
All fees, fines, penalties and other money which, under or by virtue of the friendly societies legislation of New South Wales, are authorised or directed to be imposed on a person and are not, under that legislation, fees, levies or other amounts payable to a specified person must be paid to the State.
14 Distribution of residual assets
(1) This section:
(a) applies to the distribution of residual assets in connection with the winding up of a society that does not issue
permanent shares, as referred to in section 227 of the
Friendly Societies (NSW) Code, and
(b) in its application to the distribution of such assets, modifies the operation of section 407 of the Friendly Societies (NSW) Code (a provision that deals with the priority in which a society’s assets are to be dealt with on winding up).
Section 14 Friendly Societies (New South Wales) Act 1997 No 11 Part 4 Levies, fees and other amounts
(2) Any assets that remain after the application of section 407 (subsection (4) excepted) of the Friendly Societies (NSW) Code to the winding up of a society are to be transferred to one of the following, if nominated for the purpose by a special resolution of the society being wound up:
(a) another society, (b) an association of societies, (c) an unincorporated or incorporated body, approved by the SSA:
(i) that has similar objects to those of the society being wound up, or
(ii) that provides services or benefits for the community in which the society operated.
(3)
If no such nomination is made, the assets are to be transferred to such one or more of the bodies referred to in subsection (2) as the SSA may direct.
(4) Section 407 (4) of the Friendly Societies (NSW) Code (a provision that deals with the distribution of assets remaining in a society’s fund after the liabilities referable to that fund have been discharged) does not apply to a society to which this section applies.
Friendly Societies (New South Wales) Act 1997 No 11 Section 45 General Part 5 Part 5 General 15 Repeals The following Acts and regulation are repealed:
(a) the Friendly Societies Act 1989, (b) the Friendly Societies Dispensaries Enabling Act 1945, (c) the Friendly Societies General Regulation 1990.
16 Amendment of other Acts
Each Act referred to in Schedule 1 is amended as set out in that
Schedule.
17 Savings, transitional and other provisions
Schedule 2 has effect.
18 Review of Act
(1)
The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the
period of 5 years from the date of assent to this Act.(3)
A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.
Friendly Societies (New South Wales) Act 1997 No 11
Schedule 1 Amendment of other Acts Schedule 1 Amendment of other Acts (Section 16)
1.1 Anti-Discrimination Act 1977 No 48 [1] Section 54 Acts done under statutory authority Omit section 54 (3) (c). Insert instead:
(c) the Friendly Societies (NSW) Code or the Friendly Societies (NSW) Regulations,
[2] Section 57 Voluntary bodies
Omit section 57 (1) (c). Insert instead:
(c) a society registered under the Friendly Societies (NSW) Code,
1.2 Associations Incorporation Act 1984 No 143 Section 7 Eligibility for incorporation Omit “Friendly Societies Act 1912” from section 7 (2) (e).
Insert instead “Friendly Societies (NSW) Code”.1.3 Co-operation Act 1923 (1924 No 1) [1]
Section 17AC Guarantee where loan made to co-operative housing society
Omit section 17AC (1) (b). Insert instead:
(b) any friendly society, or
Friendly Societies (New South Wales) Act 1997 No 11
Amendment of other Acts Schedule 1 [2] Section 66 Loans and deposits
Omit “society registered under the Friendly Societies Act 1912”
from section 66 (7B).
Insert instead "friendly society”.1.4 Co-operatives Act 1992 No 18 Section 316 Application for transfer
Omit section 316 (1) (c), (d) and (e). Insert instead:
(c) a building society, (d) a credit union, (e) a friendly society,
1.5 Dentists Act 1989 No 139 Section 5 Professional misconduct. Omit section 5 (4) (c). Insert instead:
(c) a friendly society,
1.6 Financial Institutions Commission Act 1992 No 47 [1] Section 3 Definitions Insert in alphabetical order in section 3 (1): financial institution has the same meaning as it has in
the Financial Institutions (NSW) Code.
financial institutions legislation has the same meaning
as it has in the AFIC (NSW) Code.
Friendly Societies (New South Wales) Act 1997 No 11
Schedule 1 Amendment of other Acts friendly societies legislation has the same meaning as it
has in the Friendly Societies (NSW) Code.
friendly society has the meaning given to society in the Friendly Societies (NSW) Code, and includes an association within the meaning of that Code.
[2] Section 4
Omit the section. Insert instead:
4 Words and expressions used in Financial Institutions
(NSW) Code and Friendly Societies (NSW) Code
(1) Words and expressions used in this Act in connection with the administration of the financial institutions legislation have the same meanings as they have in the Financial Institutions (NSW) Code. (2) Words and expressions used in this Act in connection with the administration of the friendly societies legislation have the same meanings as they have in the Friendly Societies (NSW) Code.
[3] Sections 6, 7 (2) and 34 (1)
Insert “and the friendly societies legislation” after “financial institutions legislation” wherever occurring.
[4] Section 6
Omit “the Friendly Societies Act 1989”.
[5] Sections 8, 21 (4) and (5) and 35 (1)
Insert “or the friendly societies legislation” after “financial institutions legislation” wherever occurring.
Friendly Societies (New South Wales) Act 1997 No 11
Amendment of other Acts Schedule 1 [6] Section 14 Qualifications of members
Insert “or friendly societies” after “financial institutions” wherever occurring in section 14 (1).
[7] Sections 14 (2), 21 (4) and (5), 23 (2) and clause 5 (1) (i) of Schedule 1
Insert “or friendly society” after “financial institution” [8] Section 28 Determination of Commission’s budget
Insert after section 28 (2) (a):
(a1) the amount of supervision levy that the Commission intends to impose in the financial year under section 51 of the Friendly Societies
(NSW) Code, and
[9] Section 30 Expenses payable out of Supervision Fund
Omit “and the Friendly Societies Act 1989” from section 30 ( 1).
[10] Section 33 Delegation of functions
Insert “or section 51 (Supervision levy) of the Friendly Societies
(NSW) Code” after “Financial Institutions (NSW) Code” in section
33 (1).
[11] Section 35 Evidentiary previsions
Insert “or under section 51 of the Friendly Societies (NSW) Code” after “Financial Institutions (NSW) Code” in section 35 (2) (a).
1.7 Frustrated Contracts Act 1978 No 105 Section 6 Act does not apply to certain contracts Omit section 6 (2) (d) (iii) Insert instead: (iii) the Friendly Societies (NSW) Code, or
Friendly Societies (New South Wales) Act 1997 No 11
Schedule 1 Amendment of other Acts 1.8 Funeral Funds Act 1979 No 106 [1] Section 6 Registrar Omit “Public Service Act 1902" and, until that appointment is made, the Registrar of Friendly Societies shall be the Registrar and the office of the Registrar of Friendly Societies shall be the office of the Registrar” from section 6 (2). Insert instead “Public Sector Management Act 1988”. [2] Section 7 Deputy Registrar Omit “Public Service Act 1902 and, until that appointment is made, the Deputy Registrar of Friendly Societies shall be the Deputy Registrar” from section 7 (2). Insert instead “Public Sector Management Act 1988”. [3] Section 11 Contributory funeral benefit business to be carried on only by companies registered under this Act Omit section 11 (3) (a) (i). Insert instead: (i) a friendly society,
1.9 Government Guarantees Act 1934 No 57 [1]
Section 3 Authority for Treasurer to guarantee certain overdraft accounts etc
Omit “or of any society registered under the Friendly Societies Act 1912 (in this Act referred to as “friendly society”)” from section 3 (2). [2] Section 3 (2) Omit “, friendly society”. Friendly Societies (New South Wales) Act 1997 No 11
Amendment of other Acts Schedule 1 [3] Section 4 Prowisions relating to guarantees given under this Act
Omit “, friendly society” wherever occurring,
1.10 Interpretation Act 1987 No 15 Section 21 Meaning of commonly used words and expressions Insert in alphabetical order in section 21 (1): Friendly Societies (NSW) Code means the provisions
applying because of section 5 of the Friendly Societies
(New South Wales) Act 1997.
Friendly Societies (NSW) Regulations means the
provisions applying because of section 6 of the Friendly
Societies (New South Wales) Act 1997.
friendly society means a society that is registered as a
friendly society under the Friendly Societies (NSW)
Code or under a law of another State, or of a Territory,
that corresponds to that Code.
1.11 Land Tax Management Act 1956 No 26 Section 10 Land exempted from tax Omit section 10 (1) (k). Insert instead:
(k) land owned by a friendly society,
1.12 Optical Dispensers Act 1963 No 35 Section 28 Practice by unlicensed persons prohibited Omit “registered under the Friendly Societies Act 1912” from section 28 (2) (a).
Friendly Societies (New South ‘Wales) Act 1997 No 11
Schedule 1 Amendment of other Acts 1.13 Pharmacy Act 1964 No 48 [1]
Section 16 Qualifications for registration—New South Wales apprentices
Omit “Friendly Society’’ from section 16 (a).
Insert instead “friendly society”.[2] Section 27A Insert after section 27: 27A Exemptions for certain friendly societies
(1)
Sections 24C, 25 and 26 do not apply to the carrying on of the business of a pharmacist by a friendly society at the same premises as, or at premises within 1.6 kilometres of, premises at which the friendly society operated a pharmacy on 31 July 1945.
(2)
Sections 24C, 25 and 26 do not apply to the carrying on of the business of a pharmacist by a friendly society in accordance with a written approval given by the Minister.
(3) Such an approval is not to be given unless the Minister is
satisfied that:
(a)
the net profits arising from the operation of the pharmacy will be applied solely to the provision of benefits (other than benefits in the form of dividends or shares) to members of the friendly society, and
(b)
the operation of the pharmacy is justified in the interests of members of the friendly society or of members of the public, or both.
(4)
The Minister may give such an approval unconditionally or subject to conditions, and may at any time vary or revoke such an approval.
Friendly Societies (New South Wales) Act 1997 No 91
Amendment of other Acts Schedule 1
(5) Such an approval:
(a)
is taken to be in force in respect of any pharmacy that, immediately before the repeal of the Friendly
Societies Dispensaries Enabling Act 1945, was
being lawfully operated by a friendly society in reliance on section 2 (2A) and (2B) of that Act, and
(b) may be amended or revoked accordingly.
1.14 Public Sector Management Act 1988 No 33 Section 80 Officer not to engage in other employment without permission (1979 Act, s 99)
Omit “society established under the law relating to friendly
societies” from section 80 (6).
Insert instead “friendly society established”.1.15 Search Warrants Act 1985 No 37 Section 10 Definitions Omit “section 119 of the Friendly Societies Act 1989;” from the definition of search warrant.
1.16 Stamp Duties Act 1920 No 47 [1] Second Schedule Omit “Friendly Societies Act 1912, as amended” from paragraph (8) of the General Exemptions from Stamp Duty under Part 3 at the end of the Schedule.
Insert instead “Friendly Societies (NSW) Code”.
Friendly Societies (New South Wales) Act 1997 No 11
Schedule 1 Amendment of other Acts [2] Second Schedule
Insert at the end of paragraph (8) of the General Exemptions from
Stamp Duty under Part 3 at the end of the Schedule:This paragraph does not apply to any instrument that relates to the business of a pharmacist (within the meaning of the Pharmacy Act 1964) that is carried on by a friendly society.
[3] Second Schedule
Omit “Friendly Societies Act 1912” from paragraph (8A) of the General Exemptions from Stamp Duty under Part 3 at the end of the Schedule.
Insert instead “Friendly Societies (NSW) Code”.
[4] Second Schedule
Insert at the end of paragraph (8A) of the General Exemptions from
Stamp Duty under Part 3 at the end of the Schedule:This paragraph does not apply to any instrument that relates to the business of a pharmacist (within the meaning of the Pharmacy Act 1964) that is carried on by a friendly society.
1.17 Teaching Services Act 1980 No 23 Section 89 Officers and temporary employees prohibited from engaging in employment except under this Act
Omit “society founded under the law relating to friendly societies”
from section 89 (2) (b).
Insert instead “friendly society established” .1.18 Trustee Act 1925 No 14 Section 97 Life assurance companies Omit “a society registered under the Acts relating to friendly
societies” from section 97 (3).
Insert instead “a friendly society”.Friendly Societies (New South Wales) Act 1997 No 11
Savings, transitional and other provisions Schedule 2 Schedule 2 Savings, transitional and other
provisions
(Section 17)
1 Definitions
In this Schedule:
relevant repeal date, in relation to a provision of the 1989 Act,
means the day on which that provision is repealed.
the 1989 Act means the Friendly Societies Act 1989. the Code means the Friendly Societies (NSW) Code.
the Regulations means the Friendly Societies (NSW)
Regulations.
2 Voting entitlements under the 1989 Act
(1) In relation to the voting rights of its members:
(a)
nothing in section 305 or 484 of the Code requires a continuing society to change its rules, as in force at the commencement of this Act or as subsequently amended, and
(b)
the SSA may not, in the exercise of its functions under section 75 of the Code, require a continuing society to change its rules,
and those rules continue to have effect according to their terms.
(2) Subject to section 74 (1) (a) and (c) of the Code, the SSA must register an amendment of a continuing society’s rules in relation to the voting rights of its members, even if the amended rules do not comply with the friendly societies legislation of New South Wales, so long as the amended rules do not fail to comply with the friendly societies legislation to a greater extent than the unamended rules. 3 Exemptions under section 11 of the 1989 Act with respect to the use of the words “friendly society”
An exemption that, immediately before the relevant repeal date,
was in force under section 11 of the 1989 Act is taken to be an exemption granted under section 90 of the Code and may be varied or revoked accordingly.
Friendly Societies (New South Wales) Act 1997 No 11
Schedule 2 Savings, transitional and other provisions 4 Assignments of benefits under section 61 of the 1989 Act
An assignment of a contract that, immediately before the relevant repeal date, was in force under section 61 of the 1989 Act is taken to be an assignment of an entitlement to benefits under section 124 of the Code.
5 Nomination of persons to whom benefits are payable under section 62 of the 1989 Act
A nomination of a person that, immediately before the relevant repeal date, was in force under section 62 of the 1989 Act is taken to be a nomination under section 125 of the Code and may be varied or revoked accordingly.
6 Transfers of engagements commenced under Division 1 of Part
6 of the 1989 Act
(1) Action commenced under Division 1 of Part 6 of the 1989 Act may be continued and completed under that Division as if this Act had not been enacted. (2) A transfer of engagements completed in accordance with this clause is taken to be a transfer of engagements completed under Division 2 of Part 7 of the Code. 7 Amalgamations commenced under Division 2 of Part 6 of the 1989 Act
(1) Action commenced under Division 2 of Part 6 of the 1989 Act may be continued and completed under that Division as if this Act had not been enacted. (2) An amalgamation of societies completed in accordance with this clause is taken to be a merger of societies completed under Division 2 of Part 7 of the Code. 8 Investigations commenced under Division 4 of Part 7 of the 1989 Act
An investigation commenced under Division 4 of Part 7 of the 1989 Act may be continued and completed under that Division as if this Act had not been enacted.
Friendly Societies (New South Wales) Act 1997 No 11
Savings, transitional and other provisions Schedule 2 9 Administrators appointed under Division 1 of Part 8 of the 1989 Act
Action commenced under Division 1 of Part 8 of the 1989 Act may be continued and completed under that Division as if this Act had not been enacted.
10 Directions for suspension of operations under Division 2 of Part 8 of the 1989 Act
A direction that was in force under section 105 of the 1989 Act immediately before the relevant repeal date is taken to be a direction under section 45 of the Code, and may be extended, amended or withdrawn accordingly.
11 Windings up commenced under Part 9 of the 1989 Act
Action commenced under Part 9 of the 1989 Act may be continued and completed under that Part as if this Act had not been enacted.
12 Reviews commenced under section 118 of the 1989 Act
Section 118 of the 1989 Act applies to any decision under the 1989 Act that is made as a consequence of the continuation of that Act under this Schedule.
13 Interstate societies carrying on business in NSW before the commencement of the Code
(1)
For the purposes of section 493 of the Code, interstate society means a body that, immediately before the commencement of this Act:
(a)
was incorporated as a friendly society in another State, and
(b)
was the subject of an approval in force under section 1 16 of the 1989 Act.
(2)
The definition of interstate society in subclause (1) applies instead of the definition of that expression contained in section 493 (4) of the Code.
Friendly Societies (New South Wales) Act 1997 No 11
Schedule 2 Savings, transitional and other provisions 14 References to repealed Acts
(1)
A reference in any Act, in any instrument made under an Act or in any document to an Act, or a provision of an Act, repealed by section 15 is to be read as a reference to the Friendly Societies
(NSW) Code or to the corresponding provision of that Code. (2) This clause does not apply to a reference in the friendly societies
legislation of New South Wales.15 Regulations
(1)
The Governor, on the recommendation of the Minister made with the approval of the Ministerial Council, may make regulations of a savings or transitional nature consequent on the enactment of this Act.
(2)
If the regulations so provide, they have effect despite any provision of the Friendly Societies (NSW) Code or the Friendly
Societies (NSW) Regulations. (3)
A provision of a regulation made under this clause may, if the regulation so provides, take effect from the date of assent to this Act or from a later day.
(4)
To the extent to which a provision takes effect from a day earlier than the day of the regulation’s publication in the Gazette, the provision does not operate to the disadvantage of a person (other than the State or a State authority) by:
(a) decreasing the person’s rights, or (b) imposing liabilities on the person. Friendly Societies (New South Wales) Act 1997 No 11
Friendly Societies Code Note Section 1. Note Friendly Societies Code PART 1—PRELIMINARY Division l—Introductory
1. Citation
This Code may be cited as the Friendly Societies Code.
2. Commencement
This Code comes into operation as provided in section 2 of the Friendly
Societies (Victoria) Act 1996 of Victoria.
Division 2—Interpretation
3. Definitions
In this Code—
"accounting records" include—
(a)
invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry; and
(b) documents and records that record such entries; and (c)
such working papers and other documents as are necessary to explain the methods and calculations by which accounts are made up;
"accounting standard" has the meaning given by section 9 of the
Corporations Law;"accounts" means profit and loss accounts and balance sheets, and includes statements, reports and notes (other than a directors' reports) attached to or intended to be read with any of those accounts or balance sheets;
"advertisement" includes matter that is not in writing but because of the
form or context in which it appears conveys a message;
"affairs", in relation to a body corporate, has the meaning given by section
53 of the Corporations Law;
"AFIC" means the Australian Financial Institutions Commission;
"AFIC Code" means the Code set out in section 21 of the Australian Financial Institutions Commission (Queensland) Act 1992 of Queensland;
Friendly Societies (New South Wales) Act 1997 No 11
Note Friendly Societies Code Section 3. "applicable accounting standard" means an accounting standard as applying under section 334 (Requirements applying to accounts and group accounts);
"Appeals Tribunal" means the Australian Financial Institutions Appeals Tribunal established under the Australian Financial Institutions Commission (Queensland) Act 1992 of Queensland;
"association" means a body registered as an association under Part 12 of
this Code;
"bank" means—
(a) a bank as defined by section 5 of the Banking Act 1959 of the Commonwealth; or (b) a bank constituted under a law of a State; "benefit", in relation to a society, means an interest in a benefit fund of the society in accordance with the rules of the society relating to that fund; "benefit fund" in relation to a society, means a fund established by the society in accordance with Part 4A;
"board", in relation to a society, means the board of directors of the
society;
"body" includes an entity;
"body corporate" means any body corporate whether formed orincorporated within or outside this State, but does not include—
(a)
a body corporate that is incorporated within Australia or an external Territory and is a public authority or an instrumentality or agency of .the Crown; or
(b) a corporation sole; "borrow" means to obtain financial accommodation;
"building society" means a building society within the meaning of the
Financial Institutions (Victoria) Code or a law of another State that
corresponds to that Code;
"certificate of confirmation" has the meaning given by section 362;
"company" means a company incorporated, or taken to be incorporated,
under the Corporations Law;
"consolidated accounts", in relation to a society, means all of thefollowing—
(a)
a consolidated profit and loss account that section 331 (Group accounts) requires to be made out in relation to a financial year of the society;
(b)
a consolidated balance sheet that section 331 (Group accounts) requires to be made out in relation to the financial year of the society;
a
Friendly Societies (New South Wales) Act 1997 No 11
Note Friendly Societies Code Section 3.
(b)
the friendly societies legislation of the other participating States, namely—
(i)
the Acts and regulations of the other participating States that apply, complement or otherwise give effect to any part of the friendly societies legislation of Victoria; and
(ii)
the friendly societies legislation of Victoria as applying in those States;
"fund", in relation to a society, means—
(a) a benefit fund of the society; or (b) the management fund of the society; "group" means an economic entity of which a society is a part;
"group accounts", in relation to a holding society, means a set of
consolidated accounts for the group in relation to which the society is the
holding society;
"holding body corporate" has the meaning given by section 6;
"holding society" has the meaning given by section 7;
"inspector" means a person authorised under section 77 (Inspectors);
"issue" includes circulate, distribute and disseminate;
"management fund", in relation to a society, means the fund of the
society consisting of the assets and liabilities of the society that do not
form part of a benefit fund of the society;"member"—
(a)
in relation to a society, means a person who is a member of the society under Division 5 of Part 3; and
(b)
in relation to a benefit fund of a society, means a person entitled to a benefit from that fund in accordance with the rules of the society;
"national business names register" has the meaning given by the
Corporations Law;
"officer'' has the meaning given by section 9;
“participating” State'' means—(a) Victoria;
(b)
any other State in which there is in force a law corresponding to Part 2 of the Friendly Societies (Victoria) Act 1996;
"permanent share", in relation to a society, means a share in the society
other than a redeemable preference share;"profit or loss" means—
(a) in relation to an entity, the profit or loss resulting from operations of the entity; and (b) in relation to 2 or more entities or an economic entity constituted by 2 or more entities, the profit or loss resulting from the operations of
those entities;
Friendly Societies (New South Wales) Act 1997 No 11
Friendly Societies Code Note Section 3. "publish"—
(a)
in relation to a notice under Part 4B, means publish by any means, including in a newspaper or periodical, by broadcasting or televising or in a cinematograph film; and
(b) in any case, includes issue; "redeemable preference share" means a preference share in a society that
is, or at the society's option is, liable to be redeemed;
"registered company auditor" means a person registered as an auditor, or
taken to be registered as an auditor, under Part 9.2 of the Corpoations
Law;
"relevant agreement" means an agreement, arrangement orunderstanding—
(a) whether formal or informal or partly formal and partly informal; (b) whether written or oral or partly written and partly oral; and (c)
whether or not having legal or equitable force and whether or not based on legal or equitable rights;
"rules", in relation to a society, means rules of the society under this Code
as in force from time to time;
"securities" has the meaning given by section 92 of the Corporations Law;
"services corporation" means a body corporate declared to be a services
corporation under section 30 (Services corporation);
"share" means a share in the share capital of a body corporate;
"society" means a body registered under this Code as a society;
"SSA", in relation to a State, means the person or body declared by the
friendly societies legislation of the State to be the State supervisory
authority for the State;
"standard" means a standard in force under section 28 (Making etc. of
standards) of the AFIC Code;
"State" means a State or Territory;
"subsidiary" has the meaning given by section 11;
"transferee society" has the meaning given by section 362;
"transferor society" has the meaning given by section 362.
4. Associate
(1)
For the purposes of this Code, except Division 4 of Part 5 (Shareholding restrictions) and section 295 (Financial accommodation to directors and associates), a person is an "associate" of another, or is associated with another, if—
(a) they are partners; or (b) one is a spouse, parent or child of the other; or
Friendly Societies (New South Wales) Act 1997 No 11
Note Friendly Societies Code Section 4.
(c) 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; or (d) one is a body corporate or other entity (whether inside or outside Australia) and the other is a director or member of the governing body of the body or entity; or (e) one is a body corporate or other entity (whether inside or outside Australia) and the other is a person who has a legal or equitable interest in 5% or more of the share capital of the body or entity; or (f) they are related bodies corporate within the meaning of section 11; or (g) a relationship of a prescribed kind exists between them; or (h) a chain of relationships can be traced between them under any one or more of the above paragraphs. (2) For the purposes of Part 4B, a person is an "associate" of another, or is associated with another, if—-
(a)
the person is such an associate, or is so associated, under sub-section (1); or
(b)
the other person is a director of a body corporate of which the first-mentioned person is also a director and which carries on a business of dealing in benefits.
5. Director
(1) Subject to sub-section (2), for the purposes of this Code, "director", in relation to a body corporate, includes a reference —
(a) a person occupying or acting in the position of director of the body, by whatever name called and whether or not validly appointed to occupy, or duly authorised to act in, the position; and (b) a person in accordance with whose directions or instructions the directors of the body corporate are accustomed to act; and (c) in the case of a body corporate incorporated outside Australia—
(i) a member of the body's board; and (ii) a person occupying or acting in the position of member of the body's board, by whatever name called and whether or not validly appointed to occupy, or duly authorised to act in, the position; and (iii) a person in accordance with whose directions or instructions the members of the body's board are accustomed to act. (2) A person is not to be regarded as a person in accordance with whose directions or instructions—
(a) a body corporate's directors; or (b)
the members of the board of a body corporate incorporated outside Australia—
Friendly Societies (New South Wales) Act 1997 No 11
Friendly Societies Code Note Section 5. are accustomed to act merely because the directors or members act on advice given by the person in the proper performance of the functions attaching to—
(c) the person's professional capacity; or (d)
the person's business relationship with the directors, the members of the board or the body.
6. Holding body corporate
A reference in this Code to the holding body corporate of another body corporate is a reference to a body corporate of which the other body corporate is a subsidiary.
7. Holding society
A society is a holding society in respect of a financial year of the society if the society controls another entity during all or part of the financial year.
8. Making a decision
A reference in this Code to the making of a decision includes a reference
to—
(a)
making, suspending, revoking or refusing to make an order or determination; or
(b)
giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; or
(c)
issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; or
(d) imposing a condition or restriction; or (e) making a declaration, demand or requirement; or (f) retaining, or refusing to deliver up, an article; or (g) doing or refusing to do anything else.
9. Officer
(1) Subject to sub-section (2), for the purposes of this Code, "officer", in
relation to a body corporate or entity, includes—
(a) a director, secretary, executive officer or employee of the body or entity; and
(b)
a receiver and manager, appointed under a power contained in an instrument, of property of the body or entity; and
(c)
a liquidator of the body or entity appointed in a voluntary winding-up of the body or entity; and
(d)
a trustee or other person administering a compromise or arrangement made between the body or entity and other persons.
Friendly Societies (New South Wales) Act 1997 No 11
Note Friendly Societies Code Section 9. (2) None of the following is an officer of the body corporate or entity—
(a) a receiver who is not also a manager; (b) a receiver and manager appointed by a court; (c) a liquidator appointed by a court.
10. Related body corporate
If a body corporate is—
(a) the holding body corporate of another body corporate; or (b) a subsidiary of another body corporate; or (c)
a subsidiary of the holding body corporate of another body corporate—
the first body corporate and the other body corporate are related to each
other.
11. Subsidiary
(1) Subject to sub-section (5), a body corporate is a subsidiary of a society if—
(a) the society— (i) controls the composition of the body corporate’s board of directors; or
(ii) is in a position to cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of the body corporate; or
(iii) holds more than 50% of the issued share capital of the body corporate (other than any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or
(b)
the body corporate is a subsidiary of a body corporate that is a subsidiary of the society (including a body corporate that is a subsidiary of the society by another application of this paragraph).
(2) The composition of a body corporate’s board of directors is controlled by a society if the society can appoint or remove all or a majority of the directors by the exercise of a power exercisable with or without the consent or concurrence of another person. (3) For the purposes of sub-section (2), a society is taken to have power to make an appointment of directors if—
(a) a person cannot be appointed as director without the exercise of such a power by the society in the person’s favour; or (b) a person’s appointment as a director follows necessarily from the person being a director or other officer of the society. (4) Sub-section (2) does not limit by implication the circumstances in which the composition of a body corporate’s board of directors is taken to be controlled by a society.
Friendly Societies (New South Wales) Act 1997 No 11
Friendly Societies Code Note. Section 11. (5) In determining whether a body corporate is a subsidiary of a society—
(a) any shares held or power exercisable by the society in a fiduciary capacity must be treated as not held or exercisable by it; and (b) subject to paragraphs (c) and (d), any shares held or power exercisable—
(i) by any person as a nominee €or the society; or (ii) by, or by a nominee for, a subsidiary of the society (other than a subsidiary that is concerned only in a fiduciary capacity)— must be treated as held or exercisable by the society; and
(c)
any shares held or power exercisable by a person under a debenture, or a trust deed for securing the issue of debentures, must be disregarded; and
(d)
any shares held or power exercisable by, or by a nominee for, the society or a subsidiary of a society merely by way of security given for the purposes of a transaction entered into in the ordinary course of business in connection with providing financial accommodation must be disregarded.
(6) If it is relevant to determine for the purposes of this Code whether a body corporate is a subsidiary of another body corporate that is not a society and sub-section (1) does not apply, the first body corporate is a subsidiary of the other body corporate if it would be such a subsidiary under the Corporations Law.
12. Qualified privilege
(1)
Where this Code provides that a person has qualified privilege in respect of an act, matter or thing, the person, in respect of that act, matter or thing—
(a) has qualified privilege in proceedings for defamation; or (b)
is not, in the absence of malice on the person's part, liable to an action for defamation at the suit of a person.
(2) In sub-section (1)—
"malice" includes ill-will to the person concerned or any other improper
motive.
(3) Neither this section nor a provision of this Code that provides as mentioned in sub-section (1) limits or affects any right, privilege or immunity that a person has, apart from this section or such a provision, as defendant in proceedings, or an action, for defamation.
13. Carrying on business: otherwise than for profit
A reference in this Code to a person carrying on business, carrying on a business, or carrying on a business of a particular kind, includes a reference to the person carrying on business, carrying on a business, or carrying on a business of that kind, as the case may be-
(a) in any case, otherwise than for profit; or (b) in the case of a body corporate, otherwise than for the profit of the members or corporators of the body.
Friendly Societies (New South Wales) Act 1997 No 11
Note Friendly Societies Code Section 14. 14. Businesses of a particular kind
A reference in this Code to a business of a particular kind includes a reference to a business of that kind that is part of, or is carried on in conjunction with, any other business.
15. Carrying on a business: alone or together with others
A reference in this Code to a person carrying on a business, or a business of a particular kind, is a reference to the person carrying on a business, or a business of that kind, whether alone or together with any other person or persons.
16. Interpretation generally
Schedule A contains miscellaneous provisions relating to the interpretation of this Code.
Division 3—Operation of Friendly Societies Legislation
17. Extraterritorial operation of legislation
The friendly societies legislation applies—
(a) throughout Australia; and (b) both within and outside Australia. Division 4—Application and Adoption of Corporations Law
18. Definitions
In this Division—
"Corporations Law" includes the Corporations Regulations.
19. Corporations Law applying under its own force
(1) The provisions of the Corporations Law (other than the provisions of the Corporations Law mentioned in sub-section (2)) are excluded from applying under their own force to and with respect to societies. (2) However, the following provisions of the Corporations Law are not excluded from applying under their own force—
(a) provisions applying to, or about, the following— (i) bodies; (ii) bodies corporate; (iii) disclosing entities; (iv) eligible bodies;
Friendly Societies (New South Wales) Act 1997 No 11
Friendly Societies Code Note Section 19. (v) persons;
(vi) securities, including securities of a particular type;(vii) securities, including securities of a particular type of a body corporate;
(b) provisions applying to or about bodies or bodies corporate included in the official list of a securities exchange (including provisions of Chapter 6 (Acquisition of shares) applying to or about a company as defined for that Chapter); (c) Part 7.11 (Conduct in relation to securities); (d) Part 7.12 (Offering securities for subscription or purchase); (e) provisions—
(i) about the interpretation of a provision mentioned in paragraphs (a) to (d) (“non-excluded Corporations Law provision”), including a provision defining a word used in the non-excluded Corporations Law provision; or (ii) vesting power in the Australian Securities Commission, but only to the extent that they vest power for the purposes of a non-excluded Corporations Law provision; or (iii) empowering a court to make an order (including an order curing a procedural irregularity), but only to the extent that they empower the court to make an order for the purposes of a non-excluded Corporations Law provision; or (iv) otherwise about the administration of a non-excluded Corporations Law provision.
(3) Sub-section (2) does not apply provisions of the Corporations Law that would not otherwise apply to societies or the securities of societies.
(4) Sub-sections (1) to (3) have effect despite any law of this State prescribed
for the purposes of this sub-section.(5) The expressions used in sub-section (2)(a), (b) and (e) have the meanings
given by the Corporations Law.(6) Sub-sections (1) to (3) are not intended to affect the operation, as intended under the Corporations Law, of a provision of the Corporations Law expressly excluding a provision of the corporations Law from having application to societies. 20. Corporations Law adopted under a regulation
(1) A regulation may adopt, with or without modification, a provision of the
Corporations Law for application to societies or the securities of societies.
(2)
However, a regulation may not adopt a provision of the Corporations Law to the extent that the provision as adopted would be inconsistent with a provision of the friendly societies legislation.
Friendly Societies (New South Wales) Act 1997 NO 11
Note Friendly Societies Code Section 20.
(3)
A regulation made as permitted by this section may create an offence with a maximum penalty of not more than the maximum penalty for the equivalent offence under the Corporations Law.
21. Adopted provisions of Corporations Law
(1)
This section applies if a provision of the Corporations Law (the "adopted provision") is adopted for application to societies or the securities of societies with or without modification, under a provision (the "adopting provision") of this Code (including a regulation permitted by section 20 (Corporations Law adopted under a regulation)).
(2)
Unless the adopting provision otherwise provides, definitions and other interpretation provisions of the Corporations Law relevant to the adopted provision are taken also to be adopted.
(3) "Gazette" and "Minister" in an adopted provision has the meaning given
in this Code.(4)
Neither the adopting provision nor the adopted provision gives power to the Australian Securities Commission to administer the adopted provision for this Code.
PART 2—FUNCTIONS AND POWERS OF SSA
Division 1—General
22. Functions of SSA
The functions of the SSA under this Code are to—
(a) register, supervise and regulate societies; and (b) supervise and enforce compliance by societies with this Code and with standards; and (c) ensure that an effective and efficient system of prudential supervision is applied to societies; and (d) protect the interests of members of societies; and (e) facilitate or direct the transfer of engagements of, or the conversion or merger of, societies; and (f) otherwise undertake the administration and enforcement of the financial institutions scheme so far as it relates to societies; and (g) provide information and statistics to AFIC relating to—
(i) societies; and (ii) the operation, administration and enforcement of the financial institutions scheme so far as it relates to societies; and (h) advise, and make recommendations to, AFIC; and (i) carry out such other functions as are conferred on it by or under the friendly societies legislation.
Friendly Societies (New South Wales) Act 1997 No 11
Friendly Societies Code Note Section 23. 23. General powers
(1) The SSA has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions under this Code. (2) Without limiting sub-section (l), the SSA has such powers as are conferred
on it by or under the friendly societies legislation.
24. SSA to comply with standards
In performing its functions, and exercising its powers, the SSA must comply with all applicable standards.
Friendly Societies (New South Wales) Act 1997 No 11
Note Friendly Societies Code—Schedule A Section 22. 22. References to officers and holders of officers
In this Code, a reference to a particular officer, or to the holder of a
particular office, includes a reference to the person for the time being
occupying or acting in the office concerned.
23. Reference to certain provisions of this Code
If a provision of this Code refers—
(a) to a Part, section or Schedule by a number and without reference to this Code, the reference is a reference to the Part, section or Schedule, designated by the number, of or to this Code; or (b) to a Schedule without reference to it by a number and without reference to this Code, the reference, if there is only one Schedule to this Code, is a reference to the Schedule; or (c) to a Division, Subdivision, subsection, paragraph, sub-paragraph, sub-subparagraph, clause, sub-clause, item, column, table or form by a number and without reference to this Code, the reference is a reference to—
(i) the Division, designated by the number, of the Part in which the reference occurs; and (ii) the Subdivision, designated by the number, of the Division in which the reference occurs; and (iii) the sub-section, designated by the number, of the section in which the reference occurs; and (iv) the paragraph, designated by the number, of the section, subsection, Schedule or other provision in which the reference occurs; and (v) the paragraph, designated by the number, of the clause, sub-clause, item, column, table or form of or in the Schedule in which the reference occurs; and (vi) the sub-paragraph, 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 section, clause, sub-clause, item, column, table or form, designated by the number, of or in the Schedule in which the reference occurs— as the case requires.
24. Words that form part of provision
The word "and", "or" or "but", or a similar word, at the end of a paragraph, subparagraph or sub-subparagraph or another provision of this Code forms part of the provision concerned.
Friendly Societies (New South Wales) Act 1997 No 11
Friendly Societies Code-Schedule A Note Section 25. 25. Reference to provisions of a Code or an Act is inclusive
In this Code, a reference to a portion of this Code or the AFIC Code or an
Act includes—
(a)
a reference to the Chapter, Part, Division, Subdivision, section, sub-section or other provision of this Code, the AFIC Code or the Act referred to that forms the beginning of the portion; and
(b)
a reference to the Chapter, Part, Division, Subdivision, section, sub-section or other provision of this Code, the AFIC Code or the Act referred to that forms the end of the portion.
PART 4—FUNCTIONS AND POWERS
26. Performance of statutory functions
(1) If this Code confers a function or power on a person or body, the function may be performed, or the power may be exercised, from time to time as occasion requires. (2) If this Code confers a function or power on a particular officer or the holder of a particular office, the function may be performed, or the power may be exercised, by the person for the time being occupying or acting in the office concerned. (3) If this Code confers a function or power on a body (whether or not incorporated), the performance of the function, or the exercise of the power, is not affected merely because of vacancies in the membership of the body.
27. Power to make instrument or decision includes power to amend or repeal
Except as otherwise provided in this Code, if this Code 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.
28. Matters for which statutory instruments may make provision
( 1 )
If this Code authorises or requires the making of a statutory instrument in relation to a matter, a statutory instrument made under this Code 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.
Friendly Societies (New South Wales) Act 1997 No 11
Note Friendly Societies Code-Schedule A Section 28. If a statutory instrument applies, adopts or incorporates the provisions of a document, the statutory instrument applies, adopts or incorporates the provisions as in force from time to time, unless the statutory instrument otherwise expressly provides.
A statutory instrument may—
(a)
apply generally throughout this State or be limited in its application to a particular part of this State; or
(b)
apply generally to all persons, matters or things or be limited in its application to—
(i) particular persons, matters or things; or (ii) particular classes of persons, matters or things; or (c)
otherwise apply generally or be limited in its application by reference to specified exceptions or factors.
A statutory instrument may—
(a) apply differently according to different specified factors; or (b) otherwise make different provision in relation to—
(i) different persons, matters or things; or (ii) different classes of persons, matters or things. A statutory instrument may authorise a matter or thing to be from time to matter by statutory instrument, a statutory instrument made under this Code may make provision with respect to a particular aspect of the matter despite the fact that provision is made by this Code in relation to another
time determined, applied or regulated by a specified person or body.
If this Code authorises or requires a matter to be regulated by statutory
instrument, the power may be exercised by prohibiting by statutoryinstrument the matter or any aspect of the matter.
aspect of the matter or in relation to another matter. A statutory instrument made or in force under this Code may provide for the review of, or a right of appeal against, a decision made under the statutory instrument or this Code and may, for that purpose, confer jurisdiction on any court, tribunal, person or body.
A statutory instrument may require a form prescribed by or under the statutory instrument, or information or documents included in, attached to or given with the form, to be verified by statutory declaration.
29. Presumption of validity and power to make
(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.
Friendly Societies (New South Wales) Act 1997 No 11
Friendly Societies Code-Schedule A Note Section 29.
(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 Code or a particular provision of this Code.
30. Appointments may be made by name or office
(1) If this Code 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.
31. Acting appointments
(1)
If this Code authorises a person or body to appoint a person to act in an office, the person or body may, in accordance with this Code, 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 sub-section (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.
Friendly Societies (New South Wales) Act 1997 No 11
Note Friendly Societies Code—Schedule A Section 31.
(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 o f f i c e
(a) the appointee has all the powers and functions of the holder of the office; and (b) this Code 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 Code 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.
32. Powers of appointment imply certain incidental powers
(1) If this Code 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 sub-clause (1)(b) may be exercised even if this Code 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 sub-clause (1)(b) may be exercised from time to time as occasion requires.
(4) An appointment under sub-clause (1)(b) may be expressed to have effect only in the circumstances specified in the instrument of appointment.
Friendly Societies (New South Wales) Act 1997 No 11
Friendly Societies Code-Schedule A Note Section 33. 33. Delegation of powers If this Code authorises a person or body to delegate a power, the person or body may, in accordance with this Code, delegate the power to—
(a) a person or body by name; or (b)
a particular officer, or the holder of a particular office, by reference to the title of the office concerned.
The delegation may be—
(a) general or limited; and (b) made from time to time; and (c) revoked, wholly or partly, by the delegator. The delegation or a revocation of the delegation, must be in, or evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for the purpose.
A delegated power may be exercised only in accordance with any conditions to which the delegation is subject.
The delegate may, in the exercise of a delegated power, do anything that is
incidental to the delegated power.
A delegated power that purports to have been exercised by the delegate is taken to have been duly exercised by the delegate unless the contrary is proved.
A delegated power that is duly exercised by the delegate is taken to have been exercised by the delegator.
If, when exercised by the delegator, a power is, under this Code, dependent on the delegator’s opinion, belief or state of mind in relation to a matter, the power when exercised by the delegate, is dependent on the delegate’s opinion, belief or state of mind in relation to the matter.
If a power is delegated to a particular officer or the holder of a particular office—
(a) the delegation does not cease to have effect merely because the
holder of the office; and office when the power was delegated ceases to be the officer or the person who was the particular officer or the holder of the particular
(b) the power may be exercised by the person for the time being occupying or acting in the office— concerned. -delegated only if this Code expressly authorises the power to be sub-delegated.
A power that has been delegated may, despite the delegation, be exercised sub
by the delegator.
Subject to sub-clause (12), this section applies to a sub-delegation of a
power in the same way as it applies to a delegation of a power.
Friendly Societies (New South Wales) Act 1997 No 11
Note Friendly Societies Code—Schedule A Section 34. 34. Exercise of power between enactment and commencement (1) If a provision of this Code (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 Victorian Act (the "empowering provision") that does not commence on its enactment would, had it commenced, amend a provision of this Code 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 Code has commenced and confers a power to make a statutory instrument (the "basic instrument-making power"); and (b) a provision of a Victorian Act that does not commence on its enactment would, had it commenced, amend this Code 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 sub-clause (2).
Friendly Societies (New South Wales) Act 1997 No 11
Friendly Societies Code-Schedule A Note Section 34.
(4) If an instrument, or a provision of an instrument, is made under sub-clause
(1) or (2) that is necessary for the purpose of—
(a) enabling the exercise of a power mentioned in the subsection; 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 sub-clause (1) or (2); or (b)
an instrument, or provision of an instrument, made under sub- clause (1) or (2) is not necessary for a purpose mentioned in
sub-clause the appointment, instrument or provision takes effect—
(4)-
(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 sub-clause (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 mentioned in sub-clause (2) but before the provision’s commencement, this section applies as if the references in sub-clauses (2) and (5) to the commencement of the empowering provision were references to the commencement of the provision mentioned in sub-clause (2) as amended by the empowering provision.
(8)
In the application of this section 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
35. Matters relating to distance, time and age
(1)
In the measurement of distance for the purposes of this Code, 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 Code, 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.
Friendly Societies (New South Wales) Act 1997 No 11
Note Friendly Societies Code—Schedule A Section 35. (3) If the last day of a period provided or allowed by this Code for doing
anything is not a business day in the place in which the thing is to be ormay 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 Code 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 Code, there is a reference to time, the reference is, in relation to the doing of anything in a State, a reference to the legal time in the State.
(7) For the purposes of this Code, a person attains an age in years at the beginning of the person's birthday for the age.
PART 6—SERVICE OF DOCUMENTS
36. Service of documents
(1) If this Code requires or permits a document to be served on a person (whether the expression "deliver", "give", "notify", "send" or "serve" or another expression is used), the document may be served—
(a) on an individual—
(i) by delivering it to the person personally; or (ii)
by leaving it at, or by sending it by post, telex, facsimile or similar facility to, the address of the place of residence or business of the person last known to the person serving the document; or
(b) on a body corporate—
(i)
by leaving it at the registered office of the body corporate with an offcer of the body corporate; or
(ii)
by sending it by post, telex, facsimile or similar facility to its registered office.
(2) Nothing in sub-clause (1)—
(a)
affects the operation of another law that authorises the service of a document otherwise than as provided in the sub-section; or
(b)
affects the power of a court or tribunal to authorise service of a document otherwise than as provided in the sub-section.
37. Meaning of service by post
(1)
If this Code requires or permits a document to be served by post (whether the expression "deliver", "give", "notify", "send" or "serve" or another expression is used), service-
~~ ~ Friendly Societies (New South Wales) Act 1997 No 11
Friendly Societies Code-Schedule A Note Section 37.
(a) may be effected by properly addressing, prepaying and posting the document as a letter; and (b) is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved.
(2) If this Code requires or permits a document to be served by a particular postal method (whether the expression "deliver", "give", "notify", "send" or "serve" or another expression is used), the requirement or permission is taken to be satisfied if the document is posted by that method or, if that method is not available, by the equivalent, or nearest equivalent, method provided for the time being by Australia Post.
38. T h e of provision of Code ceasing to have effect
If a provision of this Code 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.
PART 7—EFFECT OF REPEAL, AMENDMENT OR EXPIRATION
39. Repealed or amended provision of Code not revived
If a provision of this Code is repealed or amended by a Victorian Act or a provision of a Victorian Act, the provision is not revived merely because the Victorian Act or the provision of the Victorian Act—
(a) is later repealed or amended; or (b) later expires.
40. Saving of operation of repealed provision of Code
(1) The repeal, amendment or expiry of a provision of this Code 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, proceeding 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, proceeding or remedy may be begun, continued or enforced,
as if the provision had not been repealed or amended or had not expired.
Friendly Societies (New South Wales) Act 1997 No 11
Note Friendly Societies Code—Schedule A Section 41. 41. Continuance of repealed provisions
If a Victorian Act repeals some or all of the provisions of this Code and
enacts new provisions in substitution for the repealed provisions, the repealed provisions continue in force until the new provisions commence.
42. Code and amending Acts to be read as one
This Code and all Victorian Acts amending this Code are to be read as one.
PART 8—OFFENCES UNDER CODE
43. Penalty at end of provision
In this Code, a penalty specified at the end of—
(a) a section (whether or not the section is divided into sub-sections); or (b) a subsection (but not at the end of a section); or (c) a section or sub-section and expressed in such a way as to indicate that it applies only to part of the section or sub-section— indicates that an offence mentioned in the section, sub-section 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
punishable on conviction—
if a minimum as well as a maximum penalty is specified, by a
penalty not less than the minimum and not more than themaximum; or
in any other case, by a penalty not more than the specified penalty.
44. Penalty other than at end of provision
(1) In this Code, a penalty specified for an offence, or a contravention of a provision, indicates that the offence is punishable on conviction, or the contravention constitutes an offence against the provision that is punishable on conviction—
(a)
if a minimum as well as a maximum penalty is specified, by a penalty not less than the minimum and not more than the maximum; or
(b) in any other case, by a penalty not more than the specified penalty.
(2) This clause does not apply to a penalty to which clause 43 applies.
45. Indictable offences and summary offences
(1) An offence against this Code that is not punishable by imprisonment is punishable summarily.
(2) An offence against this Code that is punishable by imprisonment is, subject
to sub-section (3), punishable on indictment.
P a g e 306 Friendly Societies (New South Wales) Act 1997 No 11
Friendly Societies Code-Schedule A Note Section 45. (3) If—
(a)
a proceeding for an offence against this Code that is punishable by imprisonment is brought in a court of summary jurisdiction; and
(b)
the prosecutor requests the court to hear and determine the proceeding—
the offence is punishable summarily and the court must hear and determine
the proceeding.
(4) A court of summary jurisdiction must not—
(a) impose, in relation to a single offence against this Code, a period of imprisonment of more than 2 years; or (b) impose, in relation to offences against this Code, cumulative periods of imprisonment that are, in total, more than 5 years. (5) Nothing in this clause renders a person liable to be punished more than once in relation to the same offence.
46. Double jeopardy
If an act or omission constitutes an offence—
(a) under this Code; or (b) under another law of this State or a law of another State— and the offender has b e e n punished in relation to the offence under a law mentioned in paragraph (b), the offender is not liable to be punished in relation to the offence under this Code.
47. Aiding and abetting, attempts etc.
(1)
A person who aids, abets, counsels or procures, or by act or omission is in any way directly or indirectly concerned in or a party to, the commission of an offence against this Code is taken to have committed that offence and is liable to the penalty for the offence.
(2)
A person who attempts to commit an offence against this Code commits an offence and is punishable as if the attempted offence had been committed.
PART 9—INSTRUMENTS UNDER CODE
48. 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 Code, and things that may be done or are required to be done under this Code, except so far as the context or subject matter indicates or requires.
Friendly Societies (New South Wales) Act 1997 No 11
Note Friendly Societies Code—Schedule A Section 48.
(2)
The fact that a provision of this Schedule refers to this Code and not also to a statutory instrument does not, by itself, indicate that the provision is intended to apply only to that Code.
[Minister’s second reading speech made in-
Legislative Assembly on 9 April 1997 Legislative Council on 14 May 1997]
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