Co-operatives (Adoption of National Law) Act 2012 (NSW)

Co-operatives (Adoption of National Law) Act 2012 No 29 An Act relating to the formation, registration and management of co-operatives; and for related purposes. Part 1 Preliminary 1 Name of Act This Act is the Co-operatives (Adoption of National Law) Act 2012. 2 Commencement (1) This Act commences on a day or days to be appointed by proclamation. (2) Different days may be appointed under subsection (1) for the commencement of different provisions of the Co-operatives National Law. 3 Definitions (1) For the purposes of this Act, the local application provisions of this Act are the provisions of this Act other than the Co-operatives National Law. (2) In the local application provisions of this Act— Co-operatives National Law (NSW) means the provisions applying in relation to this jurisdiction because of section 4 (1). Co-operatives National Regulations or National Regulations means the Co-operatives National Regulations made under the Co-operatives National Law. Co-operatives National Regulations (NSW) means the provisions applying in relation to this jurisdiction because of section 4 (2). instrument includes a document. local regulations means regulations made under section 18, but does not include the Co-operatives National Regulations and the Co-operatives National Regulations (NSW). Secretary means— (a) the Commissioner for Fair Trading, Department of Customer Service, or (b) if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department of Customer Service. this jurisdiction means the State of New South Wales. (3) Terms used in the local application provisions of this Act and also in the Co-operatives National Law have the same meanings in those provisions as they have in that Law. (4) The Appendix forms part of this Act but notes included in this Act (other than in the Appendix) do not form part of this Act. Part 2 Application of Co-operatives National Law and Co-operatives National Regulations 4 Adoption of Co-operatives National Law and Co-operatives National Regulations (1) The Co-operatives National Law, as in force from time to time, set out in the Appendix to this Act— (a) applies as a law of this jurisdiction, and (b) as so applying may be referred to as the Co-operatives National Law (NSW), and (c) so applies as if it were an Act. (2) The Co-operatives National Regulations, as in force from time to time— (a) apply as National Regulations in force for the purposes of the Co-operatives National Law (NSW), subject to modifications prescribed by the local regulations, and (b) as so applying may be referred to as the Co-operatives National Regulations (NSW). Note— The Co-operatives National Regulations as in force from time to time apply by virtue of this provision as National Regulations for the purposes of the Co-operatives National Law (NSW). The regulations as so applying and referred to as the Co-operatives National Regulations (NSW) are interpreted in accordance with that Law (and see in particular clauses 15 and 37 of Schedule 4 to that Law). 5 Meaning of certain terms in Co-operatives National Law for purposes of this jurisdiction In the Co-operatives National Law (NSW)— police officer means a member of the NSW Police Force who is a police officer within the meaning of the Police Act 1990. public sector official means a person employed in the Public Service. Registrar means the Secretary, who is designated by section 24 as the Registrar of Co-operatives. this jurisdiction means the State of New South Wales. 6 Exclusion of legislation of this jurisdiction The following Acts of this jurisdiction do not apply to the Co-operatives National Law (NSW), the Co-operatives National Regulations (NSW), the Co-operatives National Regulations or other instruments (excluding local regulations) made under that Law— (a) Interpretation Act 1987, (b) Subordinate Legislation Act 1989. Part 3 Some matters referred to in Co-operatives National Law (NSW) 7 Designated authority, designated instrument and designated tribunal (Co-operatives National Law s 4) (1) With respect to the definition of designated authority in the Co-operatives National Law (NSW)— (a) the Registrar is specified for the purposes of sections 15, 601 and 622 of that Law, and (b) the Secretary is specified for the purposes of sections 492, 494 and 520 of that Law, and (c) an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 is specified for the purposes of sections 504 and 505 of that Law. (2) With respect to the definition of designated instrument in the Co-operatives National Law (NSW)— (a) an order in writing in the approved form is specified for the purposes of the provisions of that Law referred to in Column 2 of the table to this subsection and for the person or class (if any) or in the circumstances (if any) specified in that Column, and (b) a Gazette notice in the approved form is specified for the purposes of the provisions of that Law referred to in Column 3 of the table to this subsection and for the person or class (if any) or in the circumstances (if any) specified in that Column, and (c) a written notice in the approved form is specified for the purposes of section 443 (5) of that Law. Table Column 1 Column 2 Column 3 Item Designated instrument is an order in writing Designated instrument is a Gazette notice 1 … Section 33 (1) (certificate of registration) 2 Section 35 (5) (a) (exemption from special postal ballot for amendment of rules for conversion)—for individual co-operative Section 35 (5) (b) (exemption from special postal ballot for amendment of rules for conversion)—for class of co-operatives 3 … Section 60 (2) (specifying rule amendments requiring prior approval by Registrar) 4 Section 71 (1) (exemption from requirements of Division 2 of Part 2.4)—for individual co-operative Section 71 (1) (exemption from requirements of Division 2 of Part 2.4)—for class of co-operatives 5 Section 92 (6) (exemption from complying with disclosure direction) … 6 Section 171 (1) (exemption from requirements of Division 5 of Part 2.6)—for individual co-operative Section 171 (1) (exemption from requirements of Division 5 of Part 2.6)—for class of co-operatives 7 … Section 221 (1) (approval of omission of "Limited" or "Ltd" from name) 8 Section 226 (6) (exemption from requirement to display location notice)—for individual small co-operative Section 226 (6) (exemption from requirement to display location notice)—for class of or all small co-operatives) 9 Section 316 (1) (exemption for individual co-operative from accounting and auditing provisions) … 10 … Section 317 (1) (exemption for class of co-operatives from accounting and auditing provisions) 11 … Section 319 (1) (exemption for non-auditor members and former members of audit firms, and former employees of audit companies from accounting and auditing provisions) 12 … Section 320 (1) (exemption for classes of non-auditor members etc from accounting and auditing provisions) 13 … Section 322 (1) (exemption from National Regulations made under Part 3.3) 14 Section 338 (6) (exemption from compliance with section 338)—for individual co-operative Section 338 (6) (exemption from compliance with section 338)—for class of co-operatives 15 Section 343 (10) (exemption from compliance with section 343)—for individual co-operative Section 343 (10) (exemption from compliance with section 343)—for class of co-operatives 16 Section 359 (3) (exemption from compliance with section 359 or 248) … 17 Section 363 (2) (stating maximum greater than 20% of nominal value of issued share capital)—for individual co-operative Section 363 (2) (stating maximum greater than 20% of nominal value of issued share capital)—for class of co-operatives 18 … Section 372 (1) (exemption of person or class of persons from the operation of Division 1 of Part 3.5) 19 Section 380 (1) (exemption from compliance with Division 2 of Part 3.5 or section 248) … 20 Section 397 (4) (exemption from compliance with section 397) … 21 … Section 401 (7) (notification by Registrar of date of effect of transfer of engagements between co-operatives) 22 Section 404 (4) (exemption from compliance with section 404 or 248) … 23 Section 445 (3) (exemption from compliance with section 445 or 248)—for individual co-operative Section 445 (3) (exemption from compliance with section 445 or 248)—for class of co-operatives 24 Section 607 (3) (Registrar's approval)—for individual co-operative or person Section 607 (3) (Registrar's approval)—for class of co-operatives or persons (3) The following provisions have effect with respect to the definition of designated tribunal in the Co-operatives National Law (NSW)— (a) the Supreme Court is specified for the purposes of the provisions of that Law in which the term is used, except Part 7.3 of that Law, (b) the Civil and Administrative Tribunal is specified for the purposes of Part 7.3 of that Law. 8 Adjustment of date referred to in Corporations Act as applied (Co-operatives National Law ss 201, 444 and 451) For the purposes of sections 201 (b), 444 (3) (k) and 451 (1) (f) of the Co-operatives National Law (NSW), the reference to 23 June 1993 is to be read as a reference to 15 December 1995. 9 Disposal of consideration for shares compulsorily acquired (Co-operatives National Law s 436) (1) For the purposes of section 436 (3) (b) (i) of the Co-operatives National Law (NSW), references in section 1339 of the Corporations Act to crediting an amount to the Companies and Unclaimed Moneys Special Account are to be read as references to dealing with the amount as unclaimed money in accordance with the Unclaimed Money Act 1995. (2) For the purposes of section 436 (3) (b) (ii) of the Co-operatives National Law (NSW), section 1341 (1) and (2) of the Corporations Act are taken to be replaced by subsection (3) of this section. (3) The amount is to be dealt with in accordance with the Unclaimed Money Act 1995, and accordingly applications for the payment of the amount may be made under that Act to the Chief Commissioner of State Revenue. 10 Deregistration (Co-operatives National Law s 453—sections 601AD, 601AE and 601AF of Corporations Act as applied) (1) For the purposes of section 453 (d) of the Co-operatives National Law (NSW), references in sections 601AD–601AF of the Corporations Act to the Commonwealth are to be read as references to the State of New South Wales. (2) For the purposes of section 453 (e) of the Co-operatives National Law (NSW), references in section 601AE of the Corporations Act to crediting an amount to a Special Account (within the meaning of the Financial Management and Accountability Act 1997 of the Commonwealth) are to be read as references to crediting the amount to the Special Deposits Account (within the meaning of the Government Sector Finance Act 2018). 11 Warrants (Co-operatives National Law ss 483 and 518) (1) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to warrants under Part 6.4 of the Co-operatives National Law (NSW). (2) Part 6.4 of the Co-operatives National Law (NSW) does not apply to the extent of any inconsistency with that Division. Note 1— Section 7 (1) (c) of this Act provides for authorised officers within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 to be designated authorities for the issue of warrants under the Law. Note 2— Section 518 of the Law contemplates that the Co-operatives National Law Act of a jurisdiction may contain machinery and other provisions for applications for, the issue of, and the execution of, warrants. Note 3— Section 483 of the Law provides that Part 6.4 (which includes section 518) applies to a jurisdiction except to the extent (if any) that the Co-operatives National Law Act of a jurisdiction provides otherwise, and with the modifications (if any) made by that Act. 12 Costs of inquiry (Co-operatives National Law s 530) For the purposes of section 530 (3) (b) of the Co-operatives National Law (NSW), the prescribed entity is the State of New South Wales. 13 Secrecy (Co-operatives National Law s 537) (1) For the purposes of section 537 (4) (c) of the Co-operatives National Law (NSW), information may be divulged to— (a) the Treasurer, or (b) the Chief Commissioner of State Revenue, or (c) the Auditor-General, or (d) the Independent Commission Against Corruption, or (e) any special commission (within the meaning of the Special Commissions of Inquiry Act 1983) if— (i) the Registrar has received a written request for information from the special commission, and (ii) the Minister has given written approval to the Registrar of the communication of that information, and (iii) the Registrar has given to the special commission written approval of the communication of that information. (2) For the purposes of the definition of former Act in section 537 (6) of the Co-operatives National Law (NSW), the Co-operatives Act 1992 is specified. 14 Pecuniary penalty orders (Co-operatives National Law s 556) (1) For the purposes of section 556 (2) of the Co-operatives National Law (NSW), a pecuniary penalty ordered to be paid in this jurisdiction is to be paid and treated in accordance with this section. (2) The penalty is a civil debt payable to the Registrar on behalf of the State. (3) The Registrar or the State may enforce the order as if it were an order made in civil proceedings against the person to recover a debt due by the person. (4) The debt arising from the order is taken to be a judgment debt. 15 Stamp duty (Co-operatives National Law s 620) (1) No duty is payable in respect of any of the following instruments— (a) in the case of a co-operative that— (i) has as its primary activity the providing of any community service or benefit, and (ii) was, before it was incorporated under the Co-operatives National Law (NSW), an unincorporated club, association or body operating to provide sporting or recreational facilities for its members and not carried on for the pecuniary benefit of its members, an instrument transferring to the co-operative any property that was, immediately before the co-operative was so incorporated, held by or on behalf of the unincorporated club, association or body, (b) an instrument executed or registered for or with respect to a transfer of any property to give effect to section 413 or 481 of the Co-operatives National Law (NSW) in respect of— (i) a merger of co-operatives, or (ii) a transfer of engagements, (c) a share certificate or any other instrument issued or executed in connection with the capital of a co-operative. (2) If— (a) a co-operative that transfers its incorporation under Division 2 of Part 4.3 of the Co-operatives National Law (NSW) was before its registration as a co-operative under that Law a company under the Corporations Act or any corresponding previous law of this jurisdiction, and (b) stamp duty had been paid on its incorporation as such a company in respect of the amount of the nominal capital of the company (or if subsequently increased on the amount of its nominal capital as so increased), any stamp duty so paid is to be taken into account and included in assessing the stamp duty payable on its incorporation or registration pursuant to the transfer. (3) An instrument issued or executed in connection with a CCU of a co-operative is not exempt under subsection (2). 16 Registration fees (Co-operatives National Law s 620) No fee is chargeable under any Act for registration of an instrument executed or registered for or with respect to a transfer of any property to give effect to section 413 or 481 of the Co-operatives National Law (NSW) in respect of— (a) a merger of co-operatives, or (b) a transfer of engagements, or (c) a transfer of incorporation. Part 4 Regulations 17 National Regulations (1) The Governor is authorised to exercise the power to make Co-operatives National Regulations conferred by the Co-operatives National Law as applied by an Act of any jurisdiction. (2) The Executive Council of the State is authorised to advise the Governor in the exercise of the power referred to in subsection (1). (3) This section does not limit the power of the Governor to make local regulations conferred under the Co-operatives National Law (NSW). 18 Local regulations (1) The Governor may make regulations (the local regulations), not inconsistent with the local application provisions of this Act or the Co-operatives National Law (NSW), for or with respect to any matter— (a) that by the local application provisions of this Act is required or permitted to be prescribed by the local regulations or that is necessary or convenient to be prescribed by the local regulations for carrying out or giving effect to the local application provisions of this Act, or (b) that by the Co-operatives National Law (NSW) is required or permitted to be prescribed by the local regulations. (2) Without limitation, the local regulations may make provision for or with respect to— (a) the administration of the Co-operatives National Law (NSW), and (b) procedural matters relating to any aspects of the Co-operatives National Law (NSW), and (c) without limiting paragraphs (a) and (b), administrative matters relating to the supervision and inspection of co-operatives, and (d) the fees to be paid in respect of matters arising under this Act, the Co-operatives National Law (NSW) or the Co-operatives National Regulations (NSW), and (e) the waiver, reduction, postponement or refund by the Registrar of Co-operatives of fees payable or paid under— (i) this Act, or (ii) the Co-operatives National Law (NSW), or (iii) the Co-operatives National Regulations (NSW), or (iv) the local regulations. (3) The local regulations may create offences and impose penalties for an offence of not more than the amount specified in section 612 (5) of the Co-operatives National Law (NSW). Part 5 Miscellaneous 19 Non-application of Co-operatives National Law to co-operative housing societies and other bodies Except as provided by the local regulations, the Co-operatives National Law (NSW) does not apply to or in respect of— (a) a co-operative housing body under the Co-operative Housing and Starr-Bowkett Societies Act 1998, or (b) a body that is of the same nature as such a co-operative housing body but that is not registered under that Act. 20 Orders and other instruments published in Gazette A copy of an order, notice, exemption or other instrument published in the Gazette purporting to have been given or issued under this Act, the Co-operatives National Law (NSW), the Co-operatives National Regulations (NSW) or the local regulations is evidence of the giving or issuing of the order, notice, exemption or other instrument of which it purports to be a copy. 21 Proceedings for offences (1) In this section— offence means an offence under the local application provisions of this Act, the local regulations, the Co-operatives National Law (NSW) or the Co-operatives National Regulations (NSW). (2) Proceedings for an offence are to be disposed of summarily before— (a) the Local Court, or (b) the Supreme Court in its summary jurisdiction. (3) The maximum penalty that may be imposed by the Local Court for an offence is 50 penalty units or imprisonment for 12 months, or both. (4) Proceedings for an offence under the local application provisions of this Act or the local regulations may be— (a) started no later than 5 years after the alleged commission of the offence, and (b) started only by the Registrar or a person authorised in writing by the Registrar to start the proceedings. Note— See sections 551 and 552 of the Co-operatives National Law about starting proceedings for an offence under that Law or the National Regulations. (5) Nothing in this section affects the operation of the Director of Public Prosecutions Act 1986. 22 Proceedings for recovery of fines or penalties under co-operative's rules (1) Proceedings for the recovery of any fine or penalty imposed by the rules of a co-operative are to be disposed of summarily before the Local Court. (2) Proceedings for the recovery of a fine or penalty imposed by the rules of a co-operative may be instituted only by the co-operative. 23 Particular officials protected from liability (1) In this section— official means— (a) the Minister, or (b) the Registrar, or (c) a public sector official (within the meaning of section 5) engaged in the administration of the local application provisions of this Act or the Co-operatives National Law (NSW). (2) An official does not incur civil liability for an act done, or omission made, honestly and without negligence under the local application provisions of this Act, the local regulations, the Co-operatives National Law (NSW) or the Co-operatives National Regulations (NSW). (3) If subsection (2) prevents a civil liability attaching to an official, the liability attaches instead to the State. 24 Registrar of Co-operatives (1) The Secretary is designated as the Registrar of Co-operatives and may exercise the functions of the Registrar of Co-operatives expressed to be conferred or imposed on the Registrar by or under the local application provisions of this Act, the local regulations, the Co-operatives National Law (NSW) or the Co-operatives National Regulations (NSW). (2) For that purpose, a reference in the local application provisions of this Act, the local regulations, the Co-operatives National Law (NSW) or the Co-operatives National Regulations (NSW) to the Registrar is to be read as a reference to the Secretary, but those functions are to be exercised under the title of the Registrar of Co-operatives. 25 Investigators under Fair Trading Act 1987 taken to be inspectors A person appointed as an investigator under section 18 of the Fair Trading Act 1987 is taken to have been appointed as an inspector under section 492 of the Co-operatives National Law (NSW). Schedule 1 Savings and transitional provisions Part 1 Preliminary 1 Local regulations for savings or transitional matters (1) The local regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act. (2) Any such provision may, if the local regulations so provide, take effect from the date of assent to the Act concerned or a later date. (3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as— (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication. Part 2 Provisions consequent on enactment of this Act 2 Definition In this Part— repealed Act means the Co-operatives Act 1992. 3 General savings Subject to the local application provisions of this Act and the Co-operatives National Law (NSW), each person, thing and circumstance appointed or created under the repealed Act or existing or continuing under that Act immediately before the commencement of relevant provisions of the Co-operatives National Law (NSW) continues to have the same status, operation and effect as it would have had if this Act had not been enacted. 4 Registration of co-operatives (1) A co-operative whose registration under the repealed Act is in force immediately before the commencement of this clause is taken to be registered under the Co-operatives National Law (NSW). (2) A co-operative referred to in subclause (1) that was a trading co-operative immediately before the commencement of this clause is taken to be a distributing co-operative. (3) A co-operative referred to in subclause (1) that was a non-trading co-operative immediately before the commencement of this clause is taken to be a non-distributing co-operative. 5 Rules of certain co-operatives formed to carry on club may restrict voting rights (1) The rules of a co-operative that has as a primary activity the operation, maintenance or carrying on of a club may provide for different classes of membership and restrict the voting rights attaching to membership of those different classes, but only if— (a) the Registrar approves of the provisions concerned, and (b) the membership of the class or classes entitled to full voting rights constitutes at least 40% of the total membership of the co-operative. (2) Any such provision in the rules of a co-operative must not be amended except with the prior approval of the Registrar. (3) An approval that was given under section 177 of the repealed Act by the Co-operatives Council constituted under that Act, and that was operative immediately before the commencement of this clause, has effect as if given by the Registrar. (4) This clause applies only to— (a) a co-operative that holds a club licence under the Liquor Act 2007 (regardless of when it was registered as a co-operative), or (b) a co-operative that was registered under the repealed Act before 17 December 1997 (being the date of assent to the Statute Law (Miscellaneous Provisions) Act (No 2) 1997). 6 Entitlements of former members of trading co-operatives (Co-operatives National Law Sch 3, clause 1) A reference in Division 5 of Part 2.6 of the Co-operatives National Law (NSW) to the period of 2 years is taken to be a reference to a period of 5 years in a case where the cancellation of membership occurred before the commencement of that Division. 7 Entitlement to distribution from business or reserves of co-operative Any entitlement that a member or former member of a co-operative had immediately before the commencement of this clause in relation to a surplus arising from the business of the co-operative or a part of the reserves of the co-operative continues in force until satisfied. 8 Minimum paid up amount of shares (Co-operatives National Law s 78 (4)) Section 78 of the Co-operatives National Law (NSW) does not affect shares issued before the commencement of that section. 9 Personal property security interests The repeal of the Co-operatives Act 1992 does not affect the operation of Part 6 of Schedule 6 to that Act on and after the date of the repeal, and that Part so operates as if that Act had not been repealed. Part 3 Provisions consequent on enactment of Better Regulation and Customer Service Legislation Amendment (Bushfire Relief) Act 2020 10 Definitions In this Part— amendment Act means the Better Regulation and Customer Service Legislation Amendment (Bushfire Relief) Act 2020. relevant period means the period— (a) starting on 18 July 2019, and (b) ending immediately before the commencement of the amendment Act. 11 Waiver, reduction, postponement or refund of fees before commencement (1) This clause applies if, during the relevant period, the Registrar of Co-operatives waived, reduced, postponed or refunded, in whole or part, a fee payable or paid by a person under this Act or the regulations on the ground the Registrar was satisfied it was appropriate because— (a) the person was suffering financial hardship, or (b) special circumstances existed. (2) The waiver, reduction, postponement or refund is taken to have been as valid as if it had happened after the commencement of the amendment Act. 12 Power to waive, reduce, postpone or refund fees applies to events before commencement To remove any doubt, the power of the Registrar of Co-operatives to waive, reduce, postpone or refund, in whole or part, a fee payable or paid under this Act or the regulations applies in relation to— (a) a person who was suffering financial hardship— (i) during the relevant period, or (ii) because of events that happened during the relevant period, or (b) special circumstances— (i) that existed during the relevant period, or (ii) that exist because of events that happened during the relevant period. Appendix Co-operatives National Law (Section 4) Chapter 1 Preliminary Part 1.1 Introductory 1 Citation This Law may be cited as the Co-operatives National Law. 2 Commencement This Law commences in a jurisdiction as provided by the Co-operatives National Law Act of that jurisdiction. 3 Objects The objects of this Law are— (a) to enable the formation, registration and operation of co-operatives; and (b) to promote co-operative philosophy, principles, practices and objectives; and (c) to protect the interests of co-operatives, their members and the public in the operations and activities of co-operatives; and (d) to ensure directors of co-operatives are accountable for their actions and decisions to the members of co-operatives; and (e) to encourage and facilitate self-management by co-operativ