New South Wales: 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-operatives at all levels; and (f) to encourage the development, integration and strengthening of co-operatives at local, regional, national and international levels by supporting and fostering State, Territory and national peak organisations and co-operative instrumentalities. Part 1.2 Interpretation 4 Definitions In this Law— active member—see section 145. active membership provisions—see section 146 (1). active membership resolution—see section 146 (2). agreement means an agreement, arrangement or understanding— (a) whether formal or informal or partly formal and partly informal; or (b) whether written or oral or partly written and partly oral; or (c) whether or not having legal or equitable force and whether or not based on legal or equitable rights. another jurisdiction means a State or Territory other than this jurisdiction. approved form means a form approved under section 622. ASIC means the Australian Securities and Investments Commission. ASIC Act means the Australian Securities and Investments Commission Act 2001 of the Commonwealth. Australian legal practitioner means a person who— (a) is admitted to the legal profession under the law of a jurisdiction; and (b) holds a current practising certificate under a law of a jurisdiction authorising the person to engage in legal practice. authorised deposit-taking institution means an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth. board means the board of directors of a co-operative, and includes a person or committee exercising a power of the board delegated to the person or committee under the rules of the co-operative. books includes— (a) a register; and (b) minutes; and (c) any other record of information; and (d) financial reports or financial records, however compiled, recorded or stored; and (e) a document. carry on business has the same meaning in relation to a co-operative or participating co-operative as it has under the Corporations Act in relation to a company. Note— Division 3 of Part 1.2 of the Corporations Act contains provisions relating to carrying on business. CCU means a co-operative capital unit, as provided for by Division 2 of Part 3.4 (see section 345). chief executive officer of a co-operative or a subsidiary of a co-operative means the chief executive officer of the co-operative or subsidiary for the time being (by whatever name called), and whether or not the officer is a director or the secretary. civil penalty provision—see section 553. compensation order—see section 553. constituent documents of a corporation means the constitution of the corporation or any rules or other document constituting the corporation or governing its activities, and includes a memorandum or articles of association and replaceable rules or other rules. co-operative means a body registered under this Law as applying under the Co-operatives National Law Act of this jurisdiction as a co-operative (including a co-operative group). co-operative group means a co-operative that has a membership as described in section 111. co-operative principles—see section 10. Co-operatives National Law Act of a jurisdiction means the Act of that jurisdiction that applies this Law (whether with or without modification) as a law of that jurisdiction. corporation includes— (a) a company; and (b) any body corporate (whether incorporated in this jurisdiction or elsewhere); and (c) an unincorporated body that, under the law of its place of origin, may— (i) sue or be sued; or (ii) hold property in the name of its secretary or of an office holder of the body duly appointed for that purpose; but does not include— (d) an exempt public authority (within the meaning of the Corporations Act); or (e) a corporation sole. Note— A co-operative is a corporation within this definition. Corporations Act means the Corporations Act 2001 of the Commonwealth or, where appropriate, that Act as applying under this Law as a law of this jurisdiction. Corporations application legislation means— (a) for a State—Part 3 of the Corporations (Ancillary Provisions) Act 2001 of that State; or (b) for the Northern Territory—Part 4 of the Corporations Reform (Northern Territory) Act of that Territory; or (c) for the Australian Capital Territory—the provisions of a law of that Territory that are declared by the Co-operatives National Law Act of that Territory to be the Corporations application legislation of that Territory; unless a law of the State or Territory concerned provides otherwise. Corporations legislation means the Corporations legislation to which Part 1.1A of the Corporations Act applies. corresponding co-operatives law of another jurisdiction—see section 7. de facto partner has the meaning given by the Acts Interpretation Act 1901 of the Commonwealth in relation to an Act of the Commonwealth. debenture of a co-operative means a chose in action that includes an undertaking by the co-operative to repay as a debt money deposited with or lent to the co-operative. The chose in action may (but need not) include a security interest in property of the co-operative to secure repayment of the money. However, a debenture does not include— (a) an undertaking to repay money deposited with or lent to the co-operative by a person if— (i) the person deposits or lends the money in the ordinary course of a business carried on by the person; and (ii) the co-operative receives the money in the ordinary course of carrying on a business that neither comprises nor forms part of a business of borrowing money and providing finance; or (b) an undertaking by an Australian authorised deposit-taking institution to repay money deposited with it, or lent to it, in the ordinary course of its banking business; or (c) an undertaking to pay money under— (i) a cheque; or (ii) an order for the payment of money; or (iii) a bill of exchange; or (d) an undertaking by a co-operative to pay money to a related corporation; or (e) an undertaking to repay money that is prescribed by the regulations under the Corporations Act; or (f) another document of a class prescribed by the National Regulations as exempt from this definition. For the purposes of this definition, if a chose in action that includes an undertaking by a co-operative to pay money as a debt is offered as consideration for the acquisition of securities under an off-market takeover bid, or is issued under a compromise or arrangement under Part 4.4, the undertaking is taken to be an undertaking to repay as a debt money deposited with or lent to the co-operative. deed of arrangement means a deed of arrangement executed by a co-operative under Part 5.3A of the Corporations Act as applying under this Law (see section 382 of this Law) or a deed of that type as varied and in force from time to time. deposit-taking co-operative means a co-operative permitted under section 333 to accept money on deposit. designated authority means (except in section 612) the person or body specified or described in the Co-operatives National Law Act of this jurisdiction for the purposes of the provision in which the term is used. designated instrument means an instrument or document— (a) of the kind; and (b) made, served or published in the manner (if any); specified or described in the Co-operatives National Law Act of this jurisdiction for the purposes of the provision in which the term is used. Note— Examples are an order in writing served on a person and a notice published in the Gazette. designated tribunal means the court or tribunal specified or described in the Co-operatives National Law Act of this jurisdiction for the purposes of the provision in which the term is used. director of a co-operative includes— (a) a person who occupies or acts in the position of a director or member of the board of a co-operative, whether or not the person is called a director and whether or not the person is validly appointed or properly authorised to act in the position; and (b) a person under whose directions or instructions the directors or members of the board of directors of the co-operative are accustomed to act. distributing co-operative—see section 18. entity includes a person and an unincorporated body. evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. file includes lodge. financial records includes— (a) invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes and vouchers; and (b) documents of prime entry; and (c) working papers and other documents needed to explain— (i) the methods by which financial statements are made up; and (ii) adjustments to be made in preparing financial statements. half-year—see section 296. inactive member of a co-operative is a member of the co-operative who is not an active member of the co-operative. inspector means a person appointed as an inspector under Part 6.4. investigator means a person appointed under section 520 to hold an inquiry into the affairs of a co-operative. involved in a contravention—see section 9. jurisdiction means a State or Territory. large co-operative means a co-operative that is not a small co-operative. local Registrar means the Registrar for this jurisdiction. local regulations means regulations made under the Co-operatives National Law Act of this jurisdiction, but does not include the National Regulations. Ministerial Council means the MCCA as defined in the Australian Uniform Co-operative Laws Agreement, the parties to which are the States and Territories, and which came into force on 21 January 2012 (being the date when it has been executed by all the parties). Note— The Agreement includes the following definition— "MCCA" means the Ministerial Council on Consumer Affairs which for the purposes of this Agreement comprises the members in accordance with Part VIII of this Agreement or such body as succeeds it or for the time being performs the functions carried out by the Ministerial Council on Consumer Affairs as set out in this Agreement. model rules means model rules under Division 2 of Part 2.3. modification, in relation to an applied Corporations legislation matter, means a modification or change (as the case may be) within the meaning of the Corporations application legislation of this jurisdiction. mortgage includes a lien, charge or other security over property. National Regulations means the Co-operatives National Regulations made under this Law, as referred to in section 612. Note— Jurisdictional legislation may provide for the application of the National Regulations in individual jurisdictions. Section 6 of this Law deals with the case where the National Regulations are not applied in a jurisdiction in that manner but are separately made for that jurisdiction. non-distributing co-operative—see section 19. NSW legislation website means the website with the URL of www.legislation.nsw.gov.au, or any other website, used by the Parliamentary Counsel of New South Wales to provide public access to the legislation of New South Wales. officer of a co-operative or participating co-operative means— (a) a director or secretary of the co-operative; or (b) a person— (i) who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the co-operative; or (ii) who has the capacity to affect significantly the co-operative's financial standing; or (iii) in accordance with whose instructions or wishes the directors of the co-operative are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person's professional capacity or their business relationship with the directors or the co-operative); or (c) a receiver, or receiver and manager, of property of the co-operative; or (d) an administrator of the co-operative; or (e) an administrator of a deed of arrangement executed by the co-operative; or (f) a liquidator of the co-operative; or (g) a trustee or other person administering a compromise or arrangement made between the co-operative and someone else. ordinary resolution—see section 238. participating co-operative means a body that is registered and incorporated under, and is subject to, a corresponding co-operatives law of another jurisdiction. participating jurisdiction means a jurisdiction in which a corresponding co-operatives law is in force. participating Registrar means a person exercising the functions of a Registrar under a corresponding co-operatives law of another jurisdiction. pecuniary penalty order—see section 553. PPSA security interest (short for Personal Property Securities Act security interest) means a security interest within the meaning of the Personal Property Securities Act 2009 of the Commonwealth and to which that Act applies, other than a transitional security interest within the meaning of that Act. Note 1— The Personal Property Securities Act 2009 of the Commonwealth applies to certain security interests in personal property. See the following provisions of that Act— (a) section 8 (Interests to which this Act does not apply); (b) section 12 (Meaning of security interest); (c) Chapter 9 (Transitional provisions). Note 2— For the meaning of transitional security interest, see section 308 of the Personal Property Securities Act 2009 of the Commonwealth. primary activity—see section 144. prison includes a correctional centre or correctional complex. public sector official has the meaning given by the Co-operatives National Law Act of this jurisdiction. quoted security means a security that is quoted on a prescribed financial market (within the meaning of the Corporations Act). receiver includes a receiver and manager. Registrar for this jurisdiction has the meaning given by the Co-operatives National Law Act of this jurisdiction. related (in the context of related corporations)—see Part 3 of Schedule 2. relevant interest—see Part 1 of Schedule 2. rules of a co-operative (otherwise than in the context of proposed rules or model rules) means the registered rules of the co-operative in force for the time being. secretary of a co-operative means the person appointed under section 190 to be, or to act as, the secretary of the co-operative. security interest means— (a) a PPSA security interest; or (b) a charge, lien or pledge. serve includes give, send and similar terms. small co-operative means a co-operative of a class or description prescribed by the National Regulations. special postal ballot—see section 248. special resolution—see section 239. strict liability—see section 550. subsidiary has the same meaning as it has in the Corporations Act. Supreme Court means the Supreme Court of this jurisdiction. surplus, in relation to a co-operative, means the excess of income over expenditure after making adequate allowance for taxation expense, for depreciation in value of the property of the co-operative and for future contingencies. the Minister means— (a) the Minister administering the Co-operatives National Law Act of this jurisdiction; or (b) if different Ministers are administering that Act in different respects—the Minister administering the Act in the relevant respect; or (c) if different Ministers are administering different portions of that Act—the Minister administering the relevant portion of the Act; or (d) if paragraphs (b) and (c) do not apply and 2 or more Ministers are administering that Act or a portion of that Act—any one of the Ministers administering the Act or portion of the Act. this jurisdiction—see the definition of that term in the Co-operatives National Law Act of each jurisdiction that adopts this Law. 5 Miscellaneous provisions relating to the interpretation of this Law (Schedule 4) Schedule 4 contains miscellaneous provisions relating to the interpretation of this Law. 6 References to regulations where National Regulations are not applied (1) This section applies where the Co-operatives National Law Act of a jurisdiction does not provide that the National Regulations apply as regulations for the purposes of this Law as applying in that jurisdiction. (2) A reference in this Law as applying in that jurisdiction to National Regulations is taken to be a reference to regulations made under that Act that are the same or substantially the same as the National Regulations. 7 Corresponding co-operatives law (1) This section determines what (if any) law of another jurisdiction is a corresponding co-operatives law for the purposes of this Law. (2) If this Law applies as a law of the other jurisdiction (whether with or without modification), this Law as so applying is a corresponding co-operatives law for the purposes of this Law. (3) If this Law does not apply as a law of the other jurisdiction, a law of the other jurisdiction is a corresponding co-operatives law for the purposes of this Law if the National Regulations declare that the law substantially corresponds to the provisions of this Law. 8 Co-operatives National Law Act of this jurisdiction (1) It is intended that this Law will or may be supplemented by provisions of the Co-operatives National Law Act of this jurisdiction where an intention of supplementation (however expressed) is indicated in this Law, including provisions designating— (a) a person or body to be a designated authority; or (b) an instrument or document to be a designated instrument; or (c) a court or tribunal to be a designated tribunal; for the purposes of particular provisions of this Law. Note— Other provisions of this Law express the intention that the Co-operatives National Law Act of this jurisdiction will or may provide for particular matters. (2) It is also intended that the National Regulations will or may be supplemented by provisions of the local regulations where an intention of supplementation is indicated in the National Regulations. 9 Involvement in contraventions (cf Corporations Act s 79) A person is involved in a contravention if, and only if, the person— (a) has aided, abetted, counselled or procured the contravention; or (b) has induced, whether by threats or promises or otherwise, the contravention; or (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention; or (d) has conspired with others to effect the contravention. Part 1.3 The co-operative principles 10 Co-operative principles The co-operative principles are the following principles— 1 Voluntary and open membership Co-operatives are voluntary organisations, open to all persons able to use their services and willing to accept the responsibilities of membership, without gender, social, racial, political or religious discrimination. 2 Democratic member control Co-operatives are democratic organisations controlled by their members, who actively participate in setting their policies and making decisions. Men and women serving as elected representatives are accountable to the membership. In primary co-operatives members have equal voting rights (1 member, 1 vote) and co-operatives at other levels are organised in a democratic way. 3 Member economic participation Members contribute equitably to, and democratically control, the capital of their co-operative. At least part of the capital is usually the common property of the co-operative. They usually receive limited compensation (if any) on capital subscribed as a condition of membership. Members allocate surpluses for any or all of the following purposes— (a) developing the co-operative, possibly by setting up reserves, part of which at least would be indivisible; (b) benefiting members in proportion to their transactions with the co-operative; (c) supporting other activities approved by the membership. 4 Autonomy and independence Co-operatives are autonomous, self-help organisations controlled by their members. If they enter into agreements with other organisations, including governments, or raise capital from external sources, they do so on terms that ensure democratic control by their members and maintain their co-operative autonomy. 5 Education, training and information Co-operatives provide education and training for their members, elected representatives, managers and employees so they can contribute effectively to the development of their co-operatives. They inform the general public, particularly young people and opinion leaders, about the nature and benefits of co-operation. 6 Co-operation among co-operatives Co-operatives serve their members most effectively and strengthen the co-operative movement by working together through local, national, regional and international structures. 7 Concern for the community While focusing on member needs, co-operatives work for the sustainable development of their communities through policies accepted by their members. Note— The co-operative principles are those adopted by the International Co-operative Alliance. 11 Interpretation to promote co-operative principles In the interpretation of a provision of this Law, a construction that would promote the co-operative principles is to be preferred to a construction that would not promote the co-operative principles. Part 1.4 The Corporations legislation Division 1 Exclusion of matters from the Corporations legislation 12 Excluded matter—co-operatives and participating co-operatives (1) A co-operative and a participating co-operative are each declared to be an excluded matter for the purposes of section 5F of the Corporations Act in relation to the whole of the Corporations legislation other than to the extent specified in this section. Note— This section ensures that neither the Corporations Act nor Part 3 of the ASIC Act will apply in relation to a co-operative or participating co-operative, other than to the extent specified in this section. Section 5F of the Corporations Act provides that if a State or Territory law declares a matter to be an excluded matter in relation to the whole of the Corporations legislation other than to a specified extent, then that legislation will not apply, except to the specified extent, in relation to that matter in the State or Territory concerned. However, other provisions of this Part provide for the application of provisions of the Corporations legislation to co-operatives or participating co-operatives as laws of this jurisdiction. (2) Subsection (1) does not exclude the application of the following provisions of the Corporations legislation to co-operatives or participating co-operatives to the extent that the provisions would otherwise be applicable to them— (a) provisions relating to a matter that the National Regulations provide is not to be excluded from the operation of the Corporations legislation; (b) provisions relating to the role of a co-operative or participating co-operative in the formation of a company; (c) provisions relating to the registration of a co-operative as a company under Chapter 5B of the Corporations Act; (d) provisions relating to substantial shareholdings, by or involving a co-operative or participating co-operative, in a company; (e) provisions conferring or imposing functions on a co-operative or participating co-operative as a member, or former member, of a corporation; (f) provisions relating to dealings by a co-operative or participating co-operative in financial products of a corporation, other than financial products of the co-operative or participating co-operative itself; (g) provisions conferring or imposing functions on a co-operative or participating co-operative in its dealings with a corporation, not being dealings in financial products of the co-operative or participating co-operative; (h) provisions relating to financial products of a co-operative, other than shares in, CCUs of, debentures of, or deposits with, a co-operative or participating co-operative; (i) provisions relating to financial markets and participants in financial markets; (j) provisions relating to financial services licensees whose licence covers dealing in, or providing advice about, financial products; (k) provisions relating to carrying on a financial services business; (l) provisions relating to financial statements, and audits of financial statements, of financial services licensees whose licence covers dealing in, or providing advice about, financial products; (m) provisions relating to clients of financial services licensees whose licence covers dealing in, or providing advice about, financial products; (n) provisions relating to registers of interests in financial products; (o) provisions relating to powers of a court to cure procedural irregularities and to make other orders. (3) To avoid doubt, it is declared that subsection (1) does not operate so as to exclude the operation of the following provisions of the Corporations Act, except in relation to shares in, CCUs issued by, debentures of, or deposits with, a co-operative or participating co-operative— (a) Part 1.2A; (b) Chapter 2L; (c) Chapter 6CA; (d) Chapter 6D; (e) Part 7.10. Division 2 Applied matters (applied Corporations legislation matters) 13 Applied Corporations legislation matters under this Law (1) Other provisions of this Law declare matters to be applied Corporations legislation matters for the purposes of the Corporations application legislation of this jurisdiction in relation to provisions of the Corporations Act specified in those provisions. (2) A declaration is made subject to any modifications specified in or in connection with the provision in which the declaration is made. (3) Additionally, a declaration is also made subject to— (a) any modifications applying under section 15; and (b) any modifications prescribed by the National Regulations; and (c) any necessary modifications. Note 1— The Corporations application legislation of this jurisdiction provides for the application of provisions of the Corporations Act and Part 3 of the ASIC Act as laws of this jurisdiction in respect of any matter declared by a law of this jurisdiction (whether with or without modification) to be an applied Corporations legislation matter for the purposes of the Corporations application legislation in relation to those Commonwealth provisions. The Corporations application legislation ensures that a declaration made for the purposes of that legislation only operates so as to apply a provision of the Corporations legislation to a matter as a law of this jurisdiction if that provision does not already apply to the matter as a law of the Commonwealth. If a provision referred to in a declaration already applies as a law of the Commonwealth, nothing in the declaration will affect its continued operation as a law of the Commonwealth. Note 2— The following Table indicates the location and subject matter of declarations made under other provisions of this Law. Table Applied provisions of Corporations Act Location of applied provisions in Corporations Act Matter to which applied provision applies Provision of this Law that makes the declaration Sections 111AA–111AX Part 1.2A (Disclosing entities) Debentures (and CCUs) of a co-operative Section 337 Sections 283AA–283HB Chapter 2L (Debentures) Debentures (and CCUs) of a co-operative Section 337 Section 295A Part 2M.3, Division 1 (Annual financial reports and directors' reports) A co-operative with quoted securities Section 277 Sections 299A–300A Part 2M.3, Division 1 (Annual financial reports and directors' reports) A co-operative with quoted securities Section 281 Sections 302–306 Part 2M.3, Division 2 (Half-year financial report and directors' report) A co-operative that is a disclosing entity Section 282 Sections 307–313 Part 2M.3, Division 3 (Audit and auditor's report) A co-operative Section 283 Section 315 (1) Part 2M.3, Division 4 (Annual financial reporting to members) A co-operative that is a disclosing entity Section 285 Section 318 Part 2M.3, Division 4 (Annual financial reporting to members) A co-operative Section 288 Sections 323–323C Part 2M.3, Division 6 (Special provisions about consolidated financial statements) A co-operative Section 294 Sections 324AA–324DD (except section 324BD) Part 2M.4 (Appointment and removal of auditors), Divisions 1–5 A co-operative Section 297 Sections 416–434G Part 5.2 (Receivers, and other controllers, of property of corporations) A co-operative Section 393 Sections 435A–451D (except section 446B) Part 5.3A (Administration of a company's affairs with a view to executing a deed of company arrangement) A co-operative Section 382 Part 5.4 (Winding up in insolvency) Part 5.4A (Winding up by the court on other grounds)