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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
FINANCIAL
INTERMEDIARIES BILL 1995
Queensland
FINANCIAL INTERMEDIARIES BILL
1995
TABLE OF PROVISIONS
Section Page
PART 1--PRELIMINARY
Division 1--Introductory provisions
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Division 2--Interpretation
3 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4 Interpretation--meaning of "director" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5 Interpretation--meaning of "officer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Division 3--Operation of Act
6 Act binds the State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Division 4--Effect of Primary Producers' Cooperative Associations
Act 1923
7 Primary Producers' Cooperative Associations Act not to apply . . . . . . . . . 16
PART 2--FUNCTIONS OF QOFS'S BOARD
8 Functions of QOFS's board under this Act . . . . . . . . . . . . . . . . . . . . . . . . . . 16
9 Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
PART 3--STANDARDS
10 Making of standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
11 Procedures before making of standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
12 Urgent standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
13 Application of changed requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
14 Transitional arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
15 Matters for which standards may make provision . . . . . . . . . . . . . . . . . . . . . 19
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Financial Intermediaries
16 Publication of standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
17 Societies must comply with standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
PART 4--FUNCTIONS AND POWERS OF QOFS
Division 1--General
18 Functions of QOFS under this Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
19 General powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
20 Application of variation under standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
21 QOFS to keep Treasurer informed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
22 Inspection of documents at QOFS's public office . . . . . . . . . . . . . . . . . . . . . 22
23 Power of QOFS to reject documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
24 QOFS may require further information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
25 Extension or abridgment of time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Division 2--Specific powers
Subdivision 1--Enforcement powers
26 Appointment of inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
27 Powers of inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
28 Inspector's appointment terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
29 Inspector's identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
30 Production or display of inspector's identity card . . . . . . . . . . . . . . . . . . . . . 25
31 Entry to places by inspector . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
32 Consent to entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
33 Warrants to enter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
34 Warrants--applications made other than in person . . . . . . . . . . . . . . . . . . . 28
35 General powers after entering places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
36 Power to seize evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
37 Powers supporting seizure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
38 Receipt for seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
39 Return of seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
40 Access to seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
41 Impersonating inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
42 Obstruction of inspector . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
43 Power to require information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
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44 Power to require production of certain documents . . . . . . . . . . . . . . . . . . . . 33
45 Inspector to give notice of damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
46 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Subdivision 2--Special meetings and inquiries
47 Special meeting and inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Subdivision 3--Special power of intervention
48 Intervention by QOFS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Subdivision 4--Power to suspend operations of society
49 Power to suspend operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Subdivision 5--Administrators
50 Appointment of administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
51 Notice of change of administrator's particulars to be given to QOFS . . . . . 40
52 Effect of administrator's appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
53 Administrator's powers and functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
54 Revocation of administrator's appointment . . . . . . . . . . . . . . . . . . . . . . . . . . 40
55 Administrator's duty on revocation of appointment . . . . . . . . . . . . . . . . . . . 41
56 Expenses of administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
57 Administrator's liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
58 Additional powers of QOFS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
59 Stay of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
60 Administrator to report to QOFS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Subdivision 6--Supervision fund and levy
61 Cooperatives Supervision Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
62 Supervision levy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
63 Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
64 Failure to make payment an offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
PART 5--OBJECTS AND POWERS OF SOCIETIES
Division 1--Objects
65 Objects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Division 2--Powers
66 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
67 Control of certain financial transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
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68 Control of foreign currency transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
69 Raising funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Division 3--Guarantees
70 Treasurer's guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
71 Society must enter into agreement before guarantee executed . . . . . . . . . . 49
72 Provisions about guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
PART 6--SOCIETIES
Division 1--Formation and registration
73 Formation of societies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
74 Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
75 Certificate of incorporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
76 Effect of incorporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Division 2--Rules
77 Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
78 Copies of rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
79 Society and members to be bound by rules . . . . . . . . . . . . . . . . . . . . . . . . . . 53
80 Alteration of rules by special resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
81 Alteration of rules by board of directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
82 Registration of alteration of rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
83 Power of QOFS to require changes of rules . . . . . . . . . . . . . . . . . . . . . . . . . . 54
84 Power of QOFS to change rules to facilitate transfer of engagements . . . . 55
Division 3--Membership
85 Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
86 Members who are minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
87 Joint members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
88 Cessation of membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
89 Expulsion of member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
90 Liability of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
91 Financial accommodation to, and deposits from, members and others . . . 58
Division 4--Name and office
92 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
93 Society must have certain words as part of name . . . . . . . . . . . . . . . . . . . . . 59
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94 Change of name does not affect identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
95 QOFS may direct change of name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
96 Publication of name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
97 Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
98 Registered office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
PART 7--MANAGEMENT
Division 1--Directors and officers
99 Definition of "employee" for division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
100 Board of directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
101 Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
102 Number of directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
103 Election or appointment of directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
104 Alternate directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
105 Chairperson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
106 Qualifications of directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
107 Vacation of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
108 Removal of directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
109 Declaration of interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
110 Declaration of possible conflict of duty or interest . . . . . . . . . . . . . . . . . . . . 67
111 Recording and effect of declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
112 Reporting declarations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
113 Sections 109110 not of limiting effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
114 General duty to make disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
115 Financial accommodation to directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
116 Directors' remuneration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
117 Management contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
118 Duties of officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
119 Effect of contravention of s 118 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
120 Unlawfully acting as director . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
121 Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
122 Liability of, and indemnity for, officers and employees . . . . . . . . . . . . . . . . 73
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Division 2--Meetings
123 Annual general meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
124 Special general meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
125 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
126 Notice of meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
127 Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
128 Special resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
129 Registration of special resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
130 Minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Division 3--Registers and inspection
131 Registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
132 Register of directors etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
133 Register of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
134 Inspection of documents at society's registered office . . . . . . . . . . . . . . . . . 80
135 Members entitled to particulars of their financial position . . . . . . . . . . . . . 80
136 Members entitled to copies of registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Division 4--Accounts
137 Financial year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
138 Accounting records to be kept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
139 Inspection of accounting records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
140 Profit and loss account and balance sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
141 Audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
142 Directors to ascertain certain matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
143 Requirements applying to accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
144 Directors' statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
145 Directors' reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
146 Accounts and reports to be laid before annual general meeting . . . . . . . . . 88
147 Contravention of division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Division 5--Audit
148 Meaning of "officer" for ss 149150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
149 Person as society's auditor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
150 Firm as society's auditor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
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151 Person must not disqualify self etc. from acting as society's auditor . . . . . 93
152 Appointment of auditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
153 Nomination of auditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
154 Removal of auditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
155 Resignation of auditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
156 Notice of retirement etc. to be given . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
157 Effect of winding-up on office of auditor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
158 Fees and expenses of auditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
159 Auditor's report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
160 Powers and duties of auditor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
161 Final audit on merger or transfer of engagements . . . . . . . . . . . . . . . . . . . . 102
162 Obstruction of auditor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
163 Qualified privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Division 6--Returns and relief
164 Returns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
165 Relief from requirements as to accounts and audit . . . . . . . . . . . . . . . . . . . 105
PART 8--CHARGES
166 Registration of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
PART 9--MERGERS AND TRANSFERS OF ENGAGEMENTS
167 Definitions for part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
168 Application of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
169 Application for registration of merger or transfer of engagements . . . . . . . 108
170 QOFS may register merged society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
171 Certificate of confirmation (voluntary transfer) . . . . . . . . . . . . . . . . . . . . . 110
172 QOFS may direct a transfer of engagements . . . . . . . . . . . . . . . . . . . . . . . . 110
173 Society to comply with direction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
174 Certificate of confirmation (transfer by direction) . . . . . . . . . . . . . . . . . . . 112
175 Who receives the certificate of confirmation . . . . . . . . . . . . . . . . . . . . . . . 112
176 When transfer of engagements takes effect . . . . . . . . . . . . . . . . . . . . . . . . . 112
177 Cancellation of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
178 Effect of merger on societies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
179 Effect of transfer of engagements on societies . . . . . . . . . . . . . . . . . . . . . . 113
8
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180 Effect of merger or transfer of engagements on guarantees . . . . . . . . . . . . 113
PART 10--EXTERNAL ADMINISTRATION
Division 1--Receivers and managers
181 Receivers and managers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Division 2--Administration of society's affairs
182 Administration of society's affairs with view to executing deed of
arrangement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
Division 3--Winding-up
183 Winding-up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
184 Winding-up on certificate of QOFS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
185 Application of Corporations Law to winding-up . . . . . . . . . . . . . . . . . . . . . 117
186 Voluntary winding-up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
187 Vacancy in office of liquidator on voluntary winding-up . . . . . . . . . . . . . . 118
188 Remuneration of liquidator on voluntary winding-up . . . . . . . . . . . . . . . . . 118
189 Cancellation of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
PART 11--SPECIAL INVESTIGATIONS
190 Definition of "officer" for part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
191 Appointment of investigators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
192 Two or more investigators appointed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
193 Powers of investigators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
194 Examination of officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
195 Privileged communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
196 Failure of officer to comply with requirement of investigator . . . . . . . . . . 122
197 Recording of examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
198 Delegation of powers by investigator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
199 Report of investigator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
200 Proceedings following investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
201 Admission of investigator's report in evidence . . . . . . . . . . . . . . . . . . . . . . 126
202 Expenses of investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
203 Concealing etc. document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
PART 12--REVIEW OF DECISIONS AND APPEALS
204 QOFS to review certain decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
205 Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
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PART 13--MISCELLANEOUS
Division 1--Evidence
206 Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
207 Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
208 Registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
209 Minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
210 Entries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
Division 2--Offences
211 Defaults by societies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
212 Restrictions on powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
213 Interpretation provision for ss 214216 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
214 Offences by officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
215 Incurring debts not likely to be paid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
216 Powers of Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
217 Inducement to be appointed as liquidator . . . . . . . . . . . . . . . . . . . . . . . . . . 137
218 Falsification of records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
219 Frauds by officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
220 Definition of "relevant person" for ss 221222 . . . . . . . . . . . . . . . . . . . . . . 138
221 False or misleading statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
222 False, misleading or incomplete documents . . . . . . . . . . . . . . . . . . . . . . . . 139
223 Power of court to assess damages against certain persons . . . . . . . . . . . . . 139
224 False copies of rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
225 Fraud or misappropriation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
226 Commissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
227 Officers and other persons in default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Division 3--Legal proceedings
228 Indictable and summary offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
229 Proceedings for indictable offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
230 Limitation on who may summarily hear indictable offence proceedings . 143
231 Limitation on time for starting summary proceedings . . . . . . . . . . . . . . . . 143
232 Continuing offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
233 Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
10
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234 Power to grant relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Division 4--Other matters
235 Secrecy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
236 Abolition of doctrine of ultra vires . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
237 Persons having dealings with a society . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
238 Effect of fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
239 Abolition of doctrine of constructive notice . . . . . . . . . . . . . . . . . . . . . . . . 152
240 Approval of forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
Division 5--Regulations
241 Regulation making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
242 Specific regulation making powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
243 Further specific regulation making powers . . . . . . . . . . . . . . . . . . . . . . . . . 154
244 Transitional regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
PART 14--TRANSITIONAL
245 Continuing societies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
246 Application for certificate of incorporation . . . . . . . . . . . . . . . . . . . . . . . . . 155
247 Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
248 Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
249 Society started to have been formed under previous law . . . . . . . . . . . . . 156
250 Existing loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
251 Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
252 Management contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
254 Special resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
255 Appointment of auditor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
256 Special meeting or inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
257 Winding-up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
258 Act not to apply to certain continuing societies being wound-up . . . . . . . 160
PART 15--APPLICATION OF ACT WITH CHANGES TO
CERTAIN ENTITIES
259 Application of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
PART 16--REPEALS AND AMENDMENTS
260 Repeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
261 Amendment of Queensland Office of Financial Supervision Act 1992 . . . 161
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SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . 162
ACT APPLIES TO CERTAIN ENTITIES AS IF AMENDED
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . 186
TERMINATING BUILDING SOCIETIES
SCHEDULE 3 . . . . . . . . . . . . . . . . . . . . . . . 187
AMENDMENT OF QUEENSLAND OFFICE OF FINANCIAL
SUPERVISION ACT 1992
SCHEDULE 4 . . . . . . . . . . . . . . . . . . . . . . . 191
DICTIONARY
1995
A BILL
FOR
An Act to provide for the regulation of cooperative housing societies,
terminating building societies and The Cairns Cooperative
Weekly Penny Savings Bank Limited, and for other purposes
s1 14 s3
Financial Intermediaries
The Parliament of Queensland enacts-- 1
PART 1--PRELIMINARY 2
Division 1--Introductory provisions 3
title 4
Short
1. This Act may be cited as the Financial Intermediaries Act 1995. 5
6
Commencement
2. This Act commences on a day to be fixed by proclamation. 7
Division 2--Interpretation 8
9
Dictionary
3. The dictionary in schedule 4 defines particular words used in this Act.1 10
1 In some Acts, definitions are contained in a dictionary that appears as the last
schedule and forms part of the Act--Acts Interpretation Act 1954, section 14(4).
Words defined elsewhere in the Act are generally signposted by entries in the
dictionary. However, if a section has a definition that only applies to the section,
or a part of a section, it is generally not signposted by an entry in the dictionary.
If this type of definition is set out in a separate subsection, the subsection is
generally the last subsection of the section.
Signpost definitions in the dictionary alert the reader to the terms defined
elsewhere in the Act and tell the reader where these definitions can be found.
For example, the definition ` "approved entity" see section 70(1)', tells the
reader there is a definition of the term "approved entity" in section 70(1).
s4 15 s5
Financial Intermediaries
of "director" 1
Interpretation--meaning
4.(1) Subject to subsection (2), for this Act, "director" of a society 2
includes a reference to-- 3
(a) a person (however described) occupying or acting in the position 4
of director of the society, and whether or not validly appointed to 5
occupy, or duly authorised to act in, the position; and 6
(b) a person under whose directions or instructions the society's 7
directors are accustomed to act. 8
(2) A person is not taken to be a person under whose directions or 9
instructions a society's directors are accustomed to act merely because the 10
directors act on advice given by the person in the proper performance of the 11
functions attaching to-- 12
(a) the person's professional capacity; or 13
(b) the person's business relationship with the directors or the 14
society. 15
of "officer" 16
Interpretation--meaning
5.(1) Subject to subsection (2), for the purposes of this Act, "officer" of 17
a society includes-- 18
(a) a director, secretary, executive officer or employee of the society; 19
and 20
(b) a receiver and manager, appointed under a power contained in an 21
instrument, of property of the society; and 22
(c) a liquidator of the society appointed in a voluntary windingup of 23
the society; and 24
(d) a trustee or other person administering a compromise or 25
arrangement made between the society and other persons. 26
(2) None of the following is an officer of the society-- 27
(a) a receiver who is not also a manager; 28
(b) a receiver and manager appointed by a court; 29
(c) a liquidator appointed by a court. 30
s6 16 s8
Financial Intermediaries
3--Operation of Act 1
Division
binds the State 2
Act
6.(1) This Act binds the State. 3
(2) However, this section does not permit the State to be prosecuted for 4
an offence. 5
Division 4--Effect of Primary Producers' Cooperative Associations Act 6
1923 7
Producers' Cooperative Associations Act not to apply 8
Primary
7. The Primary Producers' Cooperative Associations Act 1923 does not 9
apply to a society. 10
ART 2--FUNCTIONS OF QOFS'S BOARD 11
P
unctions of QOFS's board under this Act 12
F
8. The functions of QOFS's board under this Act are to-- 13
(a) institute, develop, and ensure the effective and efficient 14
implementation of, a system of prudential and other standards 15
for, and for the supervision of, societies; and 16
(b) advise, and make recommendations to, the Treasurer about-- 17
(i) changes to this Act; or 18
(ii) new laws, and changes to other existing laws, about or 19
affecting societies; and 20
(c) carry out the other functions conferred on it by this Act. 21
s9 17 s 11
Financial Intermediaries
1
Consultation
9. In performing its functions and exercising its powers under this Act, 2
QOFS's board must consult with the Treasurer, the Reserve Bank of 3
Australia, industry bodies and societies if it is appropriate and practicable to 4
consult with them. 5
PART 3--STANDARDS 6
aking of standards 7
M
10.(1) QOFS's board may, by resolution, make standards (whether 8
prudential or otherwise) about-- 9
(a) the business and affairs of societies; and 10
(b) the supervision of societies by QOFS; and 11
(c) any other matters about which this Act authorises or requires 12
(whether expressly or by implication) standards to be made. 13
(2) A resolution to make a standard takes effect from-- 14
(a) the day a copy of the resolution is gazetted; or 15
(b) a later day stated in the resolution. 16
before making of standards 17
Procedures
11.(1) A standard may be made only if this section or section 12 is 18
complied with for the resolution by which the standard is to be made. 19
(2) QOFS's board must, not later than 60 days before the passing of the 20
resolution, publish a notice in the gazette, and in a newspaper circulating 21
generally in the State, explaining succinctly the purpose, and intended 22
operation, of the resolution. 23
(3) The notice must invite-- 24
(a) written suggestions on the proposed resolution to be given to the 25
board within 30 days after publication of the gazette notice; and 26
s 12 18 s 12
Financial Intermediaries
(b) written comments on the suggestions to be given to the board 1
within 21 days after the end of the period of 30 days. 2
(4) The board must-- 3
(a) make copies of each suggestion and comment given to it available 4
for inspection and purchase at QOFS's public office; and 5
(b) take reasonable steps to ensure that copies of each suggestion and 6
comment given to it are available for inspection and purchase at 7
QOFS's public office. 8
(5) The board must comply with subsection (4) for a suggestion or 9
comment as soon as practicable after the suggestion or comment is given to 10
it. 11
(6) The board must consider all suggestions and comments given before 12
passing the resolution, and may change the proposed resolution to take 13
account of suggestions and comments. 14
(7) Contravention of this section for a resolution does not affect the 15
validity of the resolution. 16
standards 17
Urgent
12.(1) If QOFS's board decides it is necessary, because of urgent 18
circumstances, for a resolution making a standard to be passed without 19
complying with section 11,2 it may pass the resolution. 20
(2) If the board makes a decision under subsection (1), it must 21
immediately publish a copy of the decision in the gazette, together with a 22
succinct statement of the reasons for making the decision. 23
(3) A resolution made because of a decision under subsection (1) has 24
effect for only-- 25
(a) 120 days; or 26
(b) a lesser period stated in the resolution. 27
(Procedures before making of standards)
2 Section 11
s 13 19 s 15
Financial Intermediaries
of changed requirements 1
Application
13.(1) A standard may provide that its operation for a particular society 2
may be varied by QOFS by temporarily changing a requirement of the 3
standard as allowed under the standard. 4
(2) This section does not limit by implication the power of QOFS's 5
board to make standards. 6
arrangements 7
Transitional
14.(1) A standard imposing requirements, or increasing requirements 8
already imposed by a standard, may make transitional provision allowing 9
additional time to comply with the requirements. 10
(2) This section does not limit by implication the power of QOFS's 11
board to make standards. 12
for which standards may make provision 13
Matters
15.(1) A standard may make provision about a matter by applying, 14
adopting or incorporating (with or without changes) provisions of-- 15
(a) a law of the Commonwealth, a State or a foreign country; or 16
(b) a document. 17
(2) If a standard makes provision about a matter by applying, adopting or 18
incorporating provisions of a law or document, the provisions as in force at 19
the time are to be attached to the standard, and are taken to be incorporated 20
in the standard. 21
(3) A standard may-- 22
(a) apply generally to all persons and matters or be limited in its 23
application to-- 24
(i) particular persons or matters; or 25
(ii) particular classes of persons or matters; and 26
(b) otherwise apply generally or be limited in its application by 27
reference to stated exceptions or factors. 28
(4) A standard may-- 29
s 16 20 s 17
Financial Intermediaries
(a) make different provision for-- 1
(i) different persons or matters; or 2
(ii) different classes of persons or matters; or 3
(b) apply differently by reference to specified exceptions or factors. 4
(5) A standard may authorise a matter to be decided, applied or regulated 5
from time to time by a stated person or body. 6
(6) A standard may make provision about a particular aspect of a matter 7
even though provision is made by this Act about another aspect of the 8
matter or about another matter. 9
of standards 10
Publication
16.(1) When QOFS's board, by resolution, makes a standard, it must 11
immediately-- 12
(a) gazette a copy of the resolution; and 13
(b) prepare a summary of its terms; and 14
(c) publish a notice in a newspaper circulating generally in the 15
State-- 16
(i) notifying the making of the resolution; and 17
(ii) explaining succinctly the purpose, and intended operation, of 18
the resolution. 19
(2) QOFS must, as soon as practicable after the summary is prepared, 20
give a copy of the summary to each society affected by the standard. 21
(3) QOFS's board must take reasonable steps to ensure that copies of the 22
resolution are available for inspection and purchase at QOFS's public 23
office. 24
(4) Contravention of this section for a resolution does not affect the 25
validity of the resolution. 26
must comply with standards 27
Societies
17.(1) A society must comply with all relevant standards. 28
Maximum penalty--400 penalty units. 29
s 18 21 s 19
Financial Intermediaries
(2) If a society contravenes a standard, any officer of the society who is 1
in default commits an offence. 2
Maximum penalty--400 penalty units. 3
PART 4--FUNCTIONS AND POWERS OF QOFS 4
1--General 5
Division
unctions of QOFS under this Act 6
F
18. The functions of QOFS under this Act are to-- 7
(a) register, supervise and regulate societies; and 8
(b) supervise and enforce compliance by societies with this Act and 9
with standards; and 10
(c) ensure that an effective and efficient system of prudential 11
supervision is applied to societies; and 12
(d) protect the interests of members of societies; and 13
(e) administer the Cooperatives Supervision Fund; and 14
(f) facilitate or direct the transfer of engagements of, or the merger 15
of, societies; and 16
(g) otherwise undertake the administration and enforcement of this 17
Act; and 18
(h) give information and statistics to the Treasurer about societies; 19
and 20
(i) advise, and make recommendations to, the Treasurer; and 21
(j) carry out the other functions conferred on it by this Act. 22
powers 23
General
19.(1) QOFS has power to do all things necessary or convenient to be 24
done for, or in connection with, the performance of its functions under this 25
s 20 22 s 22
Financial Intermediaries
Act. 1
(2) Without limiting subsection (1), QOFS has the powers conferred on 2
it under this Act. 3
of variation under standards 4
Application
20.(1) If a standard provides that the operation of the standard for a 5
particular society may be varied by QOFS by temporarily changing a 6
requirement of the standard, QOFS may temporarily change the 7
requirement as allowed under the standard. 8
(2) Subsection (1) does not limit QOFS's other powers. 9
to keep Treasurer informed 10
QOFS
21. QOFS must-- 11
(a) keep the Treasurer informed of the operation, administration and 12
enforcement of this Act; and 13
(b) give the Treasurer reports and information about the matters as 14
the Treasurer requires. 15
of documents at QOFS's public office 16
Inspection
22.(1) QOFS must keep at its public office-- 17
(a) rules of societies; and 18
(b) documents required to be kept by it under this Act. 19
(2) A person may, on payment of the fee prescribed under a regulation-- 20
(a) inspect at QOFS's public office during QOFS's ordinary 21
business hours-- 22
(i) the rules of a society; and 23
(ii) other documents of a class prescribed under a regulation 24
filed with, created by or otherwise held by QOFS; and 25
(b) obtain from QOFS-- 26
(i) a certified copy of a society's certificate of incorporation and 27
s 23 23 s 25
Financial Intermediaries
a certified copy of, or of part of, a society's rules; or 1
(ii) a certified copy of, or extract from, another document that 2
the person may inspect under paragraph (a)(ii). 3
of QOFS to reject documents 4
Power
23.(1) This section applies if QOFS considers a document submitted to 5
it-- 6
(a) contains matter contrary to law; or 7
(b) contains matter that, in a material particular, is false or misleading 8
in the form or context in which it is included; or 9
(c) because of an omission or misdescription, has not been duly 10
completed; or 11
(d) does not comply with the requirements of this Act; or 12
(e) contains an error, alteration or erasure. 13
(2) QOFS may refuse to register, or may reject, the document. 14
(3) QOFS may ask-- 15
(a) that the document be appropriately amended or completed and 16
resubmitted; or 17
(b) that a fresh document be submitted in its place; or 18
(c) if the document has not been duly completed--that a 19
supplementary document be submitted. 20
may require further information 21
QOFS
24. QOFS may require a person who submits a document to it to also 22
produce another document, or to give any information, that QOFS 23
considers necessary to form an opinion whether it should refuse to register 24
or should reject the document. 25
or abridgment of time 26
Extension
25.(1) QOFS may, on receipt of written application by a society or of its 27
own initiative, extend or abridge the time within which anything is required 28
s 26 24 s 28
Financial Intermediaries
to be done under this Act or the society's rules. 1
(2) An application under subsection (1) may be made to QOFS even 2
though the time sought to be abridged or extended has ended. 3
2--Specific powers 4
Division
1--Enforcement powers 5
Subdivision
of inspectors 6
Appointment
26.(1) QOFS may appoint a person, or class of persons, to be an 7
inspector. 8
(2) QOFS may appoint a person under subsection (1) only if-- 9
(a) QOFS considers the person has the necessary expertise or 10
experience to be an inspector; or 11
(b) the person has satisfactorily finished a course of training 12
approved by QOFS. 13
of inspectors 14
Powers
27.(1) An inspector-- 15
(a) has the powers given under this Act; and 16
(b) is subject to the direction of QOFS in exercising the powers. 17
(2) The powers of an inspector may be limited-- 18
(a) under a regulation; or 19
(b) under a condition of appointment; or 20
(c) by written notice given by QOFS to the inspector. 21
appointment terms 22
Inspector's
28.(1) An inspector holds office on the terms stated in the instrument of 23
appointment. 24
s 29 25 s 30
Financial Intermediaries
(2) An inspector-- 1
(a) if the appointment provides for a term of appointment--ceases 2
holding office at the end of the term; and 3
(b) if the terms of appointment provide--ceases holding office on 4
ceasing to hold another office stated in the appointment terms (the 5
"main office"); and 6
(c) may resign by signed notice of resignation given to QOFS. 7
(3) However, an inspector may not resign from the office under this Act 8
(the "secondary office") if a term of employment to the main office 9
requires the inspector to hold the secondary office. 10
identity card 11
Inspector's
29.(1) QOFS must give each inspector an identity card. 12
(2) The identity card must-- 13
(a) contain a recent photo of the inspector; and 14
(b) be signed by the inspector; and 15
(c) identify the person as an inspector for this Act. 16
(3) A person who ceases being an inspector must return the person's 17
identity card to QOFS as soon as possible (but within 21 days) after the 18
person ceases being an inspector, unless the person has a reasonable excuse. 19
Maximum penalty--10 penalty units. 20
(4) This section does not prevent the giving of a single identity card to a 21
person for this and other Acts. 22
or display of inspector's identity card 23
Production
30.(1) An inspector may exercise a power in relation to someone only 24
if-- 25
(a) the inspector first produces the inspector's identity card for the 26
other person's inspection; or 27
(b) the inspector has the inspector's identity card displayed so it is 28
clearly visible to the other person. 29
s 31 26 s 32
Financial Intermediaries
(2) However, if for any reason it is not practicable to comply with 1
subsection (1) before exercising the power, the inspector must produce the 2
identity card for inspection by the other person at the first reasonable 3
opportunity. 4
to places by inspector 5
Entry
31.(1) An inspector may enter a place only if-- 6
(a) its occupier consents to the entry; or 7
(b) the entry is authorised by a warrant; or 8
(c) the place is premises occupied by a society and the entry is made 9
when the premises are open for conduct of business or otherwise 10
open for entry; or 11
(d) the place is premises occupied by a banker or liquidator of a 12
society and the entry is made when the premises are open for 13
conduct of business or otherwise open for entry; or 14
(e) the place is premises that are not occupied for residential 15
purposes, the inspector believes on reasonable grounds that 16
accounting records or other documents prescribed under a 17
regulation of, or any auditor's working papers relating to, a 18
society are kept or are to be found on the premises and the entry 19
is made when the premises are open for conduct of business or 20
otherwise open for entry. 21
(2) However, an inspector may, without the occupier's consent or a 22
warrant, enter-- 23
(a) a public place when the place is open to the public; or 24
(b) the land around premises to ask its occupier for consent to enter 25
the premises. 26
to entry 27
Consent
32.(1) This section applies if an inspector intends to ask an occupier of a 28
place to consent to the inspector or another inspector entering the place. 29
(2) Before asking for the consent, the inspector must tell the occupier-- 30
s 33 27 s 33
Financial Intermediaries
(a) the purpose of the entry; and 1
(b) that the occupier is not required to consent. 2
(3) If the consent is given, the inspector may ask the occupier to sign an 3
acknowledgment of the consent. 4
(4) The acknowledgment must state-- 5
(a) that the occupier was told-- 6
(i) the purpose of the entry; and 7
(ii) that the occupier is not required to consent; and 8
(b) the purpose of the entry; and 9
(c) that the occupier gives the inspector consent to enter the place and 10
exercise powers under this subdivision; and 11
(d) the time and date the consent was given. 12
(5) If the occupier signs an acknowledgment of consent, the inspector 13
must immediately give a copy to the occupier. 14
(6) Subsection (7) applies to a court if-- 15
(a) an issue arises, in a proceeding in or before the court, whether the 16
occupier of a place consented to an inspector entering the place 17
under this subdivision; and 18
(b) an acknowledgment under this section is not produced in 19
evidence for the entry; and 20
(c) it is not proved that the occupier consented to the entry. 21
(7) The court may presume that the occupier did not consent. 22
to enter 23
Warrants
33.(1) An inspector may apply to a magistrate for a warrant for a place. 24
(2) The application must be sworn and state the grounds on which the 25
warrant is sought. 26
(3) The magistrate may refuse to consider the application until the 27
inspector gives the magistrate all the information the magistrate requires 28
about the application in the way the magistrate requires. 29
s 34 28 s 34
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1
Example--
2
The magistrate may require additional information supporting the application to
3
be given by statutory declaration.
(4) The magistrate may issue a warrant only if the magistrate is satisfied 4
there are reasonable grounds for suspecting-- 5
(a) there is a particular thing or activity (the "evidence") that may 6
provide evidence of an offence against this Act; and 7
(b) the evidence is, or may be within the next 7 days, at the place. 8
(5) The warrant must state-- 9
(a) that a stated inspector may, with necessary and reasonable help 10
and force, enter the place and exercise the inspector's powers 11
under this subdivision; and 12
(b) the offence for which the warrant is sought; and 13
(c) the evidence that may be seized under the warrant; and 14
(d) the hours of the day or night when the place may be entered; and 15
(e) the date, within 7 days after the warrant's issue, when the warrant 16
ends. 17
made other than in person 18
Warrants--applications
34.(1) An inspector may apply for a warrant by phone, fax, radio or 19
other form of communication if the inspector considers it necessary because 20
of-- 21
(a) urgent circumstances; or 22
(b) other special circumstances, including, for example, the 23
inspector's remote location. 24
(2) Before applying for the warrant, the inspector must prepare an 25
application stating the grounds on which the warrant is sought. 26
(3) The inspector may apply for the warrant before the application is 27
sworn. 28
(4) After issuing the warrant, the magistrate must immediately fax a 29
copy to the inspector if it is reasonably practicable to fax the copy. 30
s 34 29 s 34
Financial Intermediaries
(5) If it is not reasonably practicable to fax a copy of the warrant to the 1
inspector-- 2
(a) the magistrate must-- 3
(i) tell the inspector what the terms of the warrant are; and 4
(ii) tell the inspector the date and time the warrant was issued; 5
and 6
(b) the inspector must complete a form of warrant ("warrant 7
form") and write on it-- 8
(i) the magistrate's name; and 9
(ii) the date and time the magistrate issued the warrant; and 10
(iii) the terms of the warrant. 11
(6) The facsimile warrant, or the warrant form properly completed by the 12
inspector, authorises the entry and the exercise of the other powers stated in 13
the warrant issued by the magistrate. 14
(7) The inspector must, at the first reasonable opportunity, send the 15
magistrate-- 16
(a) the sworn application; and 17
(b) if the inspector completed a warrant form--the completed 18
warrant form. 19
(8) On receiving the documents, the magistrate must attach them to the 20
warrant. 21
(9) Subsection (10) applies to a court if-- 22
(a) an issue arises, in a proceeding in or before the court, whether a 23
power exercised by an inspector was not authorised by a warrant 24
issued under this section; and 25
(b) the warrant is not produced in evidence. 26
(10) The court must presume that the exercise of the power was not 27
authorised by a warrant issued under this section, unless the contrary is 28
proved. 29
s 35 30 s 36
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powers after entering places 1
General
35.(1) This section applies to an inspector who enters a place. 2
(2) For monitoring or enforcing compliance with this Act, the inspector 3
may-- 4
(a) search any part of the place; or 5
(b) inspect or photograph any part of the place or anything at the 6
place; or 7
(c) copy a document at the place; or 8
(d) take into or onto the place any persons or equipment the inspector 9
reasonably requires for exercising a power under this subdivision; 10
or 11
(e) require the occupier of the place, or a person at the place, to give 12
the inspector reasonable help to exercise the powers under 13
paragraphs (a) to (d). 14
(3) A person must comply with a requirement under subsection (2)(e), 15
unless the person has a reasonable excuse. 16
Maximum penalty--80 penalty units. 17
(4) A requirement under subsection (2)(e) does not include a requirement 18
to produce a document or give information.3 19
to seize evidence 20
Power
36.(1) An inspector who enters a place with the occupier's consent may 21
seize a thing in the place if-- 22
(a) the inspector reasonably believes the thing is evidence of an 23
offence against this Act; and 24
(b) seizure of the thing is consistent with the purpose of entry as told 25
to the occupier when asking for the occupier's consent. 26
(2) An inspector who enters a place with a warrant may seize the 27
evidence for which the warrant was issued. 28
3 For the power to require documents to be produced see section 44. For the power
to require information see section 43.
s 37 31 s 38
Financial Intermediaries
(3) An inspector may also seize anything else at a place if the inspector 1
reasonably believes-- 2
(a) the thing is evidence of an offence against this Act; and 3
(b) the seizure is necessary to prevent the thing being hidden, lost, or 4
destroyed or used to continue or repeat the offence. 5
(4) Also, an inspector may seize a thing if the inspector reasonably 6
believes it has just been used in committing an offence against this Act. 7
supporting seizure 8
Powers
37.(1) Having seized a thing, an inspector may-- 9
(a) move the thing from the place where it was seized (the "place of 10
seizure"); or 11
(b) leave the thing at the place of seizure but take reasonable action to 12
restrict access to it. 13
14
Examples of restricting access to a thing--
15
1. Sealing a thing and marking it to show access to it is restricted.
16
2. Sealing the entrance to a room where the seized thing is situated and marking
17
it to show access to it is restricted.
(2) If an inspector restricts access to a seized thing, a person must not 18
tamper, or attempt to tamper, with the thing or something restricting access 19
to the thing without an inspector's approval. 20
Maximum penalty for subsection (2)--80 penalty units. 21
for seized things 22
Receipt
38.(1) As soon as practicable after an inspector seizes a thing, the 23
inspector must give a receipt for it to the person from whom it was seized. 24
(2) However, if for any reason it is not practicable to comply with 25
subsection (1), the inspector must leave the receipt in a conspicuous 26
position and in a reasonably secure way at the place of seizure. 27
(3) The receipt must describe generally each thing seized and its 28
condition. 29
(4) This section does not apply to a thing if it is impracticable or would 30
s 39 32 s 42
Financial Intermediaries
be unreasonable to give the notice required by the section given the thing's 1
nature, condition and value. 2
of seized things 3
Return
39.(1) The inspector must return a seized thing to its owner at the end 4
of-- 5
(a) 60 days; or 6
(b) if a proceeding for an offence involving it is started within the 7
60 days--the proceeding and any appeal from the proceeding. 8
(2) Despite subsection (1), the inspector must immediately return a thing 9
seized as evidence to its owner if the inspector stops being satisfied its 10
continued retention as evidence is necessary. 11
to seized things 12
Access
40.(1) Until a seized thing is returned, an inspector must allow its owner 13
to inspect it and, if it is a document, to copy it. 14
(2) Subsection (1) does not apply if it is impracticable or would be 15
unreasonable to allow the inspection or copying. 16
inspectors 17
Impersonating
41. A person must not pretend to be an inspector. 18
Maximum penalty--100 penalty units or 6 months imprisonment. 19
of inspector 20
Obstruction
42.(1) A person must not obstruct an inspector in the exercise of a 21
power, unless the person has a reasonable excuse. 22
Maximum penalty--800 penalty units or 7 years imprisonment. 23
(2) In this section-- 24
"obstruct" includes hinder, intimidate, resist or threaten. 25
s 43 33 s 44
Financial Intermediaries
to require information 1
Power
43.(1) This section applies if QOFS reasonably believes-- 2
(a) an offence against this Act has just been committed; and 3
(b) a society may be able to give information about the offence. 4
(2) QOFS may, by written notice given to the society, require the society 5
to give information about the offence. 6
(3) When making the requirement, QOFS must warn the society it is an 7
offence to fail to give the information, unless the society has a reasonable 8
excuse. 9
(4) The society must give the information, unless the society has a 10
reasonable excuse. 11
Maximum penalty--400 penalty units. 12
(5) It is a reasonable excuse for a society to fail to give information if 13
complying with the requirement might tend to incriminate the society. 14
to require production of certain documents 15
Power
44.(1) QOFS may, by written notice given to a person, require the 16
person to produce for inspection by an inspector a document issued, or 17
required to be kept, under this Act. 18
(2) The person must comply with the requirement, unless the person has 19
a reasonable excuse. 20
Maximum penalty--400 penalty units. 21
(3) An inspector to whom a document is produced may keep the 22
document to make a copy of it. 23
(4) If the inspector copies it, the inspector may require the person 24
responsible for keeping the document to certify the copy as a true copy of 25
the document. 26
(5) The person must certify the copy, unless the person has a reasonable 27
excuse. 28
Maximum penalty--80 penalty units. 29
(6) The inspector must return the document to the person as soon as 30
s 45 34 s 46
Financial Intermediaries
practicable after making the copy. 1
(7) It is a reasonable excuse for a person to fail to produce a document or 2
certify a copy of a document, if complying with the requirement may tend 3
to incriminate the person. 4
to give notice of damage 5
Inspector
45.(1) This section applies if-- 6
(a) an inspector damages something when exercising or purporting 7
to exercise a power; or 8
(b) a person (the "other person") acting under the direction of an 9
inspector damages something. 10
(2) The inspector must promptly give written notice of particulars of the 11
damage to the person who appears to be the owner of the thing. 12
(3) If the inspector believes the damage was caused by a latent defect in 13
the thing or circumstances beyond the inspector's or other person's control, 14
the inspector may state it in the notice. 15
(4) If, for any reason, it is impracticable to comply with subsection (2), 16
the inspector must leave the notice in a conspicuous position and in a 17
reasonably secure way where the damage happened. 18
(5) This section does not apply to damage the inspector reasonably 19
believes is trivial. 20
(6) In this section-- 21
"owner" of a thing includes the person in possession or control of it. 22
23
Compensation
46.(1) A person may claim compensation from the State if the person 24
incurs loss or expense because of the exercise or purported exercise of a 25
power under this subdivision, including, for example, in complying with a 26
requirement made of the person. 27
(2) Compensation may be claimed and ordered in a proceeding-- 28
(a) brought in a court with jurisdiction for the recovery of the amount 29
of compensation claimed; or 30
s 47 35 s 47
Financial Intermediaries
(b) for an offence brought against the person claiming compensation. 1
(3) A court may order compensation to be paid only if satisfied it is just 2
to make the order in the circumstances of the particular case. 3
(4) A regulation may prescribe matters that may, or must, be taken into 4
account by the court when considering whether it is just to make the order. 5
6
2--Special meetings and inquiries 7
Subdivision
meeting and inquiry 8
Special
47.(1) QOFS may, on the written application of a majority of the 9
directors of a society or of not less than 10% of the members of a society, 10
or on its own initiative-- 11
(a) call a special meeting of the society; or 12
(b) hold an inquiry into affairs (including the working and financial 13
condition) of the society. 14
(2) An application under subsection (1) must be supported by the 15
evidence that QOFS directs to show that-- 16
(a) the applicants have good reason for requiring the meeting or 17
inquiry; and 18
(b) the application is made without malicious motive. 19
(3) If QOFS directs, notice of the application must be given to the society 20
(4) Security for the expenses of a meeting or inquiry must be given-- 21
(a) if the meeting is called or inquiry is held on an application under 22
subsection (1)--by the applicants; or 23
(b) if paragraph (a) does not apply--by the persons and in the way 24
QOFS directs. 25
(5) QOFS may-- 26
(a) direct the time and place the meeting or inquiry is to be held; and 27
(b) direct what matters are to be discussed or decided; and 28
(c) despite the society's rules, give notice to members of the holding 29
s 48 36 s 48
Financial Intermediaries
of the meeting or inquiry as it considers appropriate. 1
(6) QOFS may, by written notice, direct the directors and the other 2
persons it requires to attend the meeting or inquiry. 3
(7) A person to whom a direction is given under subsection (6) must not 4
fail to comply with the direction, unless the person has a reasonable excuse. 5
Maximum penalty--800 penalty units or 4 years imprisonment. 6
(8) A meeting held under this section has all the powers of a meeting 7
called under the society's rules and has power to appoint a person to preside 8
at the meeting, despite any rule of the society to the contrary. 9
(9) QOFS, or a person nominated by it, may attend and address a 10
meeting held under this section. 11
(10) The expenses of and incidental to the meeting or inquiry may be 12
defrayed by the applicants, or out of the society's funds, or by an officer or 13
member, or former officer or member, in the proportions agreed to between 14
QOFS and those persons. 15
(11) The expenses may be recovered as a debt in a court having 16
jurisdiction for the recovery of debts up to the amount involved. 17
(12) In default of agreement under subsection (10), the expenses must be 18
defrayed by the persons, and in the proportions, that the Supreme Court, on 19
the application of QOFS, directs. 20
3--Special power of intervention 21
Subdivision
ntervention by QOFS 22
I
48.(1) QOFS may, by written notice given to a society, place it under 23
direction if QOFS considers that-- 24
(a) the society has contravened this Act and, after being given written 25
notice of the contravention by QOFS, has allowed the 26
contravention to continue or has again contravened this Act; or 27
(b) the society is trading unprofitably or has an accumulated deficit in 28
its profit and loss appropriation account; or 29
(c) the society's affairs are being conducted in an improper or 30
s 48 37 s 48
Financial Intermediaries
financially unsound way. 1
(2) QOFS may, by written notice given to the society, revoke the notice. 2
(3) While the society is under direction, QOFS may do all things it 3
considers necessary to do under this Act. 4
(4) Without limiting subsection (3), QOFS may-- 5
(a) order an audit of the society's affairs at the society's expense by 6
an auditor chosen by QOFS; or 7
(b) direct the society to change a practice QOFS considers is 8
undesirable or unsound; or 9
(c) direct the society to cease or limit the raising or lending of funds 10
or the exercise of other powers; or 11
(d) remove a director, or all the directors, of the society from office 12
and appoint another director or other directors; or 13
(e) remove an auditor of the society from office and appoint another 14
auditor; or 15
(f) give other directions about how the society's affairs are, or are 16
not, to be conducted. 17
(5) A director or auditor appointed under this section holds office for the 18
term directed by QOFS. 19
(6) A society and any officer of the society who is in default each 20
commit an offence if the society-- 21
(a) fails to comply with a direction given, or requirement made, 22
under this section to the extent the society is capable of doing so, 23
unless the society has a reasonable excuse; or 24
(b) obstructs, hinders or resists the exercise of QOFS's powers 25
under this section, unless the society has a reasonable excuse. 26
Maximum penalty for subsection (6)--1 600 penalty units or 7 years 27
imprisonment. 28
s 49 38 s 49
Financial Intermediaries
4--Power to suspend operations of society 1
Subdivision
to suspend operations 2
Power
49.(1) QOFS may act under subsection (2) if it considers that it is 3
necessary to do so-- 4
(a) in the interests of members, or persons who may become 5
members, of a society; or 6
(b) because a society has failed to comply with a standard. 7
(2) QOFS may, by written notice given to the society, direct the society 8
not to do all or any of the following-- 9
(a) give financial accommodation to members; 10
(b) raise funds; 11
(c) grant security over the society's assets. 12
(3) A notice under subsection (2) continues in force until it expires or is 13
withdrawn by QOFS. 14
(4) QOFS may, by a further written notice given to the society-- 15
(a) extend the period for which a notice under subsection (2) is to 16
have force; or 17
(b) amend the terms of the notice; or 18
(c) withdraw the notice. 19
(5) If a society fails to comply with a notice under this section, the 20
society and any officer of the society who is in default each commit an 21
offence. 22
Maximum penalty--1 600 penalty units or 7 years imprisonment. 23
(6) Subsection (5) does not apply if the failure to comply happens with 24
QOFS's written permission. 25
s 50 39 s 50
Financial Intermediaries
5--Administrators 1
Subdivision
of administrator 2
Appointment
50.(1) This section applies if-- 3
(a) QOFS considers that-- 4
(i) a society has contravened this Act or the society's rules and, 5
after being given written notice of the contravention by 6
QOFS, has allowed the contravention to continue or has 7
again contravened this Act or the rules; or 8
(ii) a society is trading unprofitably or has an accumulated 9
deficit in its profit and loss appropriation account; or 10
(iii) a society's affairs are being conducted in an improper or 11
financially unsound way; or 12
(b) after making the inquiries about a society QOFS considers 13
appropriate, QOFS is satisfied that it is in the interest of members 14
or creditors that the society's affairs be conducted by an 15
administrator; or 16
(c) QOFS has certified that any of the events mentioned in 17
section 184(1)(a), (b), (c) or (g)4 has happened in relation to a 18
society. 19
(2) QOFS may appoint an administrator to conduct a society's affairs. 20
(3) The appointment must be made by written notice. 21
(4) The notice of appointment must state-- 22
(a) the date of appointment; and 23
(b) the appointee's name; and 24
(c) the appointee's business address. 25
(5) An administrator holds office until the administrator's appointment is 26
revoked. 27
Section 184 (Winding-up on certificate of QOFS)
4
s 51 40 s 54
Financial Intermediaries
of change of administrator's particulars to be given to QOFS 1
Notice
51. If the administrator's name or business address changes, the 2
administrator must immediately give QOFS written notice of the change. 3
of administrator's appointment 4
Effect
52.(1) On the appointment of an administrator of a society-- 5
(a) the society's directors cease to hold office; and 6
(b) all contracts of employment with, or for providing administrative 7
or secretarial services to, the society are terminated; and 8
(c) the administrator may terminate a contract for providing other 9
services to the society. 10
(2) A director of a society may not be appointed or elected while the 11
administrator is in office except in the circumstances mentioned in 12
section 54(3). 13
powers and functions 14
Administrator's
53. An administrator of a society has the powers and functions of the 15
society's board, including the board's powers of delegation. 16
of administrator's appointment 17
Revocation
54.(1) QOFS may revoke an administrator's appointment. 18
(2) The revocation must happen by written notice. 19
(3) Before revoking an administrator's appointment, QOFS must-- 20
(a) appoint another administrator; or 21
(b) appoint a liquidator; or 22
(c) ensure directors have been elected under the society's rules at a 23
meeting called by the administrator under the rules; or 24
(d) appoint directors of the society. 25
(4) Directors elected or appointed under subsection (3)-- 26
(a) take office on the revocation of the administrator's appointment; 27
s 55 41 s 56
Financial Intermediaries
and 1
(b) for directors appointed under subsection (3)(d)--hold office, 2
subject to section 58,5 until the end of the society's next annual 3
general meeting. 4
duty on revocation of appointment 5
Administrator's
55.(1) Immediately on the revocation of an administrator's appointment, 6
the administrator must prepare and give QOFS a report showing how the 7
administration was carried out and, for that purpose, an administrator has 8
access to the society's records and documents. 9
(2) On giving the report and accounting fully for the society's 10
administration to QOFS's satisfaction, the administrator is released from 11
further duty to account for the society's administration other than because of 12
fraud, dishonesty, negligence or wilful failure to comply with this Act. 13
of administration 14
Expenses
56.(1) The expenses of conducting a society's affairs by an administrator 15
are payable from the society's funds. 16
(2) The expenses include-- 17
(a) if the administrator is not an employee of QOFS--the 18
administrator's remuneration at a rate approved by QOFS; or 19
(b) if the administrator is an employee of QOFS--the amount that 20
QOFS certifies should be paid to it as repayment of the 21
administrator's remuneration. 22
(3) An amount certified under subsection (2)(b) is a debt due to QOFS 23
and may be sued for and recovered in a court having jurisdiction for the 24
recovery of debts up to the amount involved. 25
(4) An administrator has, for the expenses of conducting a society's 26
affairs, the same priority on the winding-up of a society as the liquidator of 27
the society has. 28
5 Section 58 (Additional powers of QOFS)
s 57 42 s 58
Financial Intermediaries
liability 1
Administrator's
57.(1) If a society incurs a loss because of fraud, dishonesty, negligence 2
or wilful failure to comply with this Act or the society's rules by an 3
administrator, the administrator is liable for the loss. 4
(2) An administrator is not liable for other loss but must account for the 5
loss in a report given under section 55.6 6
dditional powers of QOFS 7
A
58.(1) If QOFS appoints directors of a society under section 54(3)(d),7 8
QOFS may, by written notice given to the society, state-- 9
(a) a time during which this section is to apply to the society; and 10
(b) the terms on which all or any of the directors hold office; and 11
(c) the rules that are to be the society's rules. 12
(2) While this section applies to a society, QOFS may-- 13
(a) from time to time remove and appoint directors; and 14
(b) vary, revoke or specify new terms in place of all or any of the 15
terms stated under subsection (1); and 16
(c) amend all or any of the rules stated under subsection (1). 17
(3) QOFS may, by written notice given to the society, extend the time 18
during which this section is to apply to a society. 19
(4) A rule stated by QOFS under this section as a rule of a society-- 20
(a) is not to be amended or revoked except in the way set out in this 21
section; and 22
(b) if it is inconsistent with any other rule of the society--prevails 23
over the other rule, and the other rule is to the extent of the 24
inconsistency invalid; and 25
(c) has the same evidentiary value as is by this Act given to the 26
society's rules and to copies of them. 27
6 Section 55 (Administrator's duty on revocation of appointment)
7 Section 54 (Revocation of administrator's appointment)
s 59 43 s 61
Financial Intermediaries
of proceedings 1
Stay
59.(1) This section applies if QOFS appoints an administrator to conduct 2
a society's affairs. 3
(2) A person must not begin or continue a proceeding in a court against 4
the society until the administrator's appointment is revoked except with the 5
leave of the Supreme Court and, if the court grants leave, under any terms 6
the court imposes. 7
(3) A person intending to apply for leave must give QOFS at least 8
10 days notice of intention to apply. 9
(4) On the hearing of an application for leave, QOFS may be represented 10
and may oppose the granting of the application. 11
to report to QOFS 12
Administrator
60. On the receipt of a request from QOFS, a society's administrator 13
must, without delay, prepare and give QOFS a report showing how the 14
administration is being carried out. 15
6--Supervision fund and levy 16
Subdivision
Supervision Fund 17
Cooperatives
61.(1) The Cooperatives Supervision Fund established under the 18
previous law continues and is taken to have been established under this Act. 19
(2) The amount in credit in the fund immediately before the 20
commencement may be used under this Act. 21
(3) QOFS must pay into the fund-- 22
(a) all amounts received as supervision levy under this subdivision; 23
and 24
(b) income from the investment of amounts credited to the fund and 25
the proceeds of the sale of investments. 26
(4) QOFS must pay out of the fund-- 27
(a) payments for or towards the expenses of performing its functions 28
and exercising its powers under this Act; and 29
s 62 44 s 62
Financial Intermediaries
(b) expenses incurred in administering the fund. 1
(5) QOFS may invest amounts in the fund in the way it considers 2
appropriate. 3
levy 4
Supervision
62.(1) QOFS may decide that an amount must be paid to it by societies 5
as a supervision levy. 6
(2) The amount of the levy may be fixed by QOFS as-- 7
(a) a stated amount; or 8
(b) a stated percentage of an amount to be decided, on a stated day, 9
by reference to stated factors about societies (including, for 10
example, the number of members in a society, reserves, 11
obligations and debts and total assets); or 12
(c) both a stated amount and a stated percentage. 13
(3) If the levy is fixed, wholly or partly, as mentioned in 14
subsection (2)(b), QOFS may include in the decision directions about how 15
the levy is to be decided. 16
(4) QOFS may-- 17
(a) fix the amount of the levy differently for different societies; and 18
(b) decide that the levy is not payable by stated societies. 19
(5) QOFS may, in the decision, require the levy to be paid in 1 amount 20
by a stated time or permit the levy to be paid by stated instalments. 21
(6) If QOFS permits the levy to be paid by instalments, it may, in the 22
decision, allow a discount for payment in 1 amount by a stated time or 23
require payment of an additional amount or percentage, by way of interest, 24
in the instalments. 25
(7) QOFS may, in the decision, require the payment of amounts, by way 26
of late payment charge, interest or both, for amounts of levy not paid as 27
required by the decision. 28
(8) QOFS may include in the decision directions about how amounts of 29
late payment charge and interest are to be decided. 30
(9) Amounts of levy, when they are payable, are payable by the society 31
s 63 45 s 65
Financial Intermediaries
concerned to QOFS, and may be sued for and recovered in a court having 1
jurisdiction for the recovery of debts up to the amount of levy. 2
(10) On the application of a society, QOFS may change-- 3
(a) an amount of levy payable by the society; or 4
(b) the time within which an amount of levy is payable by the 5
society. 6
(11) An amount paid by a society as levy is treated as an expense in the 7
society's accounts. 8
(12) In subsections (9) to (11)-- 9
"levy" includes late payment charge and interest for levy. 10
11
Consultation
63. In deciding the amount to be paid as supervision levy under 12
section 62, QOFS may consult with industry bodies and societies if it is 13
appropriate and practicable to consult with them. 14
to make payment an offence 15
Failure
64. If a society does not make a payment required to be made for a 16
supervision levy, the society and any officer of the society who is in default 17
each commit an offence. 18
Maximum penalty--200 penalty units. 19
ART 5--OBJECTS AND POWERS OF SOCIETIES 20
P
1--Objects 21
Division
22
Objects
65.(1) The objects of a society are to apply its funds in providing 23
financial accommodation to its members-- 24
s 66 46 s 67
Financial Intermediaries
(a) for the purchase of residential premises, or for residential 1
development, by a member for the member's own use; or 2
(b) for the refinancing or consolidation of existing residential loans 3
provided by another society to a member; or 4
(c) for the refinancing of a residential loan provided to a member by 5
another entity; or 6
(d) for another purpose authorised by this Act, a regulation or a 7
standard. 8
(2) A society must not provide financial accommodation to a member 9
for another purpose. 10
Maximum penalty--400 penalty units. 11
(3) The application of the society's funds is subject to this Act, the 12
relevant standards and the society's rules. 13
Division 2--Powers 14
15
Powers
66.(1) Without limiting section 76,8 but subject to this Act and the 16
society's rules, a society has the powers mentioned in this division. 17
(2) The fact that the doing of an act by a society would not be, or is not, 18
in its best interests does not affect its power or legal capacity to do the act. 19
of certain financial transactions 20
Control
67.(1) In this section-- 21
"approved financial contracts" means-- 22
(a) futures contracts relating to-- 23
(i) securities issued or guaranteed by the Treasurer or the 24
Government of the State or by the Commonwealth or 25
another State; or 26
8 Section 76 (Effect of incorporation)
s 67 47 s 67
Financial Intermediaries
(ii) bills of exchange payable within 200 days that have been 1
accepted or endorsed by a bank prescribed under a 2
regulation; 3
but only if made or dealt in or on a futures market of a futures 4
exchange within the meaning of the Corporations Law; or 5
(b) interest rate swap contracts, or forward interest rate contracts, to 6
which a bank, or other body approved by QOFS for the purpose, 7
is a party; or 8
(c) options relating to contracts mentioned in paragraph (a) or (b); or 9
(d) other contracts of a kind approved by QOFS under 10
subsection (6). 11
(2) Except as provided by this section, a society must not engage in 12
transactions of the following kinds-- 13
(a) transactions relating to financial or other futures; 14
(b) options in futures transactions; 15
(c) forward interest rate transactions; 16
(d) interest rate swap transactions; 17
(e) other financial transactions of a kind specified in a standard. 18
Maximum penalty--800 penalty units. 19
(3) A society may enter into and deal in approved financial contracts only 20
if it does so to reduce the risk of adverse variations-- 21
(a) in the costs of raising funds by the society; or 22
(b) in the revenue obtainable by the society from investments made 23
or financial accommodation provided by the society. 24
(4) A society must not contravene subsection (3). 25
Maximum penalty--800 penalty units. 26
(5) A contract entered into by a society in contravention of this section 27
may be enforced as if it were an approved financial contract entered into for 28
a purpose mentioned in subsection (3) if another party to the contract 29
entered into it in good faith and, when the other party entered into the 30
contract, the other party did not suspect, and had no reason to suspect, the 31
contravention. 32
s 68 48 s 70
Financial Intermediaries
(6) QOFS may approve kinds of contracts under this section on terms it 1
considers appropriate. 2
of foreign currency transactions 3
Control
68. A society must not-- 4
(a) invest any of its funds in foreign currency; or 5
(b) carry out any of its activities in foreign currency. 6
Maximum penalty--800 penalty units. 7
aising funds 8
R
69.(1) A society may raise funds to carry out its objects. 9
(2) Funds may be raised from a financial institution or another entity 10
(including a trustee). 11
(3) A society may raise funds whether the repayment of the funds is 12
guaranteed by the Treasurer or not. 13
(4) However-- 14
(a) if a society has raised funds the repayment of which is guaranteed 15
and the funds have not been repaid--the society must not raise 16
further funds the repayment of which is not guaranteed; and 17
(b) if a society has raised funds the repayment of which is not 18
guaranteed and the funds have not been repaid--the society must 19
not raise further funds the repayment of which is guaranteed. 20
Maximum penalty for subsection (4)--800 penalty units. 21
3--Guarantees 22
Division
guarantee 23
Treasurer's
70.(1) The Treasurer may execute a guarantee in favour of a financial 24
institution or another entity (including a trustee) (an "approved entity") for 25
the repayment of funds raised by a society. 26
s 71 49 s 72
Financial Intermediaries
(2) The Treasurer may charge the society a fee prescribed under a 1
regulation for executing the guarantee. 2
must enter into agreement before guarantee executed 3
Society
71.(1) Before the Treasurer executes a guarantee, the society must first 4
enter into an agreement with QOFS about the conduct of the society's 5
affairs while the guarantee is in force. 6
(2) The agreement must contain the terms stated in the relevant standard. 7
about guarantees 8
Provisions
72.(1) The following provisions apply to a guarantee executed by the 9
Treasurer-- 10
(a) the guarantee is subject to the terms prescribed under a regulation 11
and to any other terms the Treasurer decides; 12
(b) the guarantee may include either or both of the following-- 13
(i) the interest, charges and expenses chargeable by the 14
approved entity against the principal debtor in the normal 15
course of its business; 16
(ii) the expenses of enforcing, obtaining, or trying to enforce or 17
obtain, payment of the debt guaranteed and the interest, 18
charges and expenses; 19
(c) the approved entity must obtain and take the security for the 20
payment of the principal debt (including any interest, charges and 21
expenses chargeable) that the Treasurer may require; 22
(d) the guarantee is enforceable against the Treasurer or against the 23
Consolidated Fund only if-- 24
(i) the approved entity has exhausted all other rights and 25
remedies for the recovery of the amount secured by the 26
guarantee; or 27
(ii) the approved entity becomes entitled to appoint a receiver for 28
the society; 29
(e) an assignment of, or charge on, the rights conferred by the 30
s 73 50 s 73
Financial Intermediaries
guarantee is effective against the Treasurer only if made with the 1
Treasurer's written consent; 2
(f) other provisions prescribed under a regulation. 3
(2) A liability arising under a guarantee is to be satisfied out of the 4
Consolidated Fund. 5
ART 6--SOCIETIES 6
P
1--Formation and registration 7
Division
of societies 8
Formation
73.(1) A body proposed to be a society may be formed by 5 or more 9
adults. 10
(2) A proposed society may be formed only if there has been a meeting 11
to form the society at which 5 or more adults were present. 12
(3) At the formation meeting, there must be presented-- 13
(a) a written statement showing-- 14
(i) the objects of the society; and 15
(ii) the reasons for believing that-- 16
(A) an application for registration of the society would be 17
granted; and 18
(B) if registered, the society will be able to carry out its 19
objects successfully; and 20
(b) a copy of the society's proposed rules. 21
(4) If, at the formation meeting or a subsequent or adjourned meeting, 22
5 or more adults, after considering the statement and the rules, approve the 23
rules (with or without amendment) and sign an application for membership, 24
they may proceed to elect the first directors of the society under the rules as 25
so approved. 26
s 74 51 s 74
Financial Intermediaries
(5) The expenses of, and incidental to, the formation of the society may 1
be paid out of the society's capital or income. 2
3
Registration
74.(1) A proposed society formed under this part may apply to QOFS, 4
under a regulation, to be registered under this Act as a society. 5
(2) An application for registration must-- 6
(a) be made within 2 months after the formation meeting at which 7
the first directors of the society were elected; and 8
(b) be accompanied by-- 9
(i) a statutory declaration by the person presiding at the 10
formation meeting and the secretary of the meeting, stating 11
that the requirements of section 73 have been complied with; 12
and 13
(ii) a copy of the statement presented to the meeting, signed by 14
the person presiding and the secretary; and 15
(iii) 2 copies of the proposed rules of the society, certified by the 16
person presiding and the secretary to be the rules approved at 17
the meeting; and 18
(iv) a list containing the full name, date and place of birth, 19
residential address and business occupation of each director; 20
and 21
(v) a list containing the full name, address and occupation of 22
each of 5 or more adults who attended the meeting and 23
applied for membership; and 24
(vi) such evidence as QOFS requires-- 25
(A) that the society is eligible for registration; and 26
(B) that the society, if registered, will be able to comply 27
with this Act and all relevant standards; and 28
(C) that the society, if registered, will be able to carry out its 29
objects successfully. 30
(3) QOFS may, for this section, accept a statutory declaration as adequate 31
s 75 52 s 76
Financial Intermediaries
evidence of matters mentioned in the declaration. 1
(4) If QOFS is satisfied that the society is eligible for registration, QOFS 2
must-- 3
(a) register the society as a cooperative housing society; and 4
(b) register its proposed rules. 5
(5) A society is eligible for registration only if-- 6
(a) the society's application for registration complies with this Act; 7
and 8
(b) the proposed rules of the society are not contrary to this Act; and 9
(c) there are reasonable grounds for believing the society will, if 10
registered-- 11
(i) be able to comply with all relevant standards; and 12
(ii) be able to carry out its objects successfully; and 13
(d) there is no good reason why the society and its rules should not 14
be registered. 15
of incorporation 16
Certificate
75.(1) On registering a society, QOFS must issue a certificate of 17
incorporation to the society. 18
(2) The certificate of incorporation is evidence that all requirements of 19
this Act about registration and matters precedent or incidental to registration 20
have been complied with. 21
of incorporation 22
Effect
76. On the issue of a certificate of incorporation to a society, the society 23
is a corporation with perpetual succession and-- 24
(a) has, subject to this Act and the society's rules, the legal capacity 25
of a natural person; and 26
(b) has a common seal; and 27
(c) may sue and be sued in its corporate name. 28
s 77 53 s 80
Financial Intermediaries
2--Rules 1
Division
2
Rules
77.(1) A society's rules must provide for the matters stated in a standard 3
made for this subsection. 4
(2) A society's rules may also provide for any matter that is necessary, 5
expedient or desirable for the society's purposes. 6
(3) If there is an inconsistency between a society's rule and this Act or a 7
standard, this Act or the standard prevails and the rule is invalid to the extent 8
of the inconsistency. 9
of rules 10
Copies
78.(1) A society must give a copy of its rules to a member or proposed 11
member who asks for a copy and has paid the fee (if any) payable under 12
subsection (2) to the society. 13
Maximum penalty--10 penalty units. 14
(2) A society may charge a fee for supplying the copy but only if the fee 15
has been approved by its board. 16
and members to be bound by rules 17
Society
79. A society's rules bind the society, all its members, and all persons 18
claiming through the society or a member, to the same extent as if-- 19
(a) each member had subscribed his or her name and attached his or 20
her seal to the rules; and 21
(b) there were contained in the rules a covenant on the part of each 22
member and the member's legal representative to observe all the 23
rules subject to this Act and the standards. 24
of rules by special resolution 25
Alteration
80.(1) A society's rules may be altered only if the alteration has been 26
s 81 54 s 83
Financial Intermediaries
approved by special resolution of the members. 1
(2) Subsection (1) applies subject to sections 81, 83 and 84.9 2
of rules by board of directors 3
Alteration
81.(1) A society's rules may be altered by a resolution of its board if the 4
alteration-- 5
(a) is required under this Act; or 6
(b) is to give effect to a standard. 7
(2) The society must give written notice of the alteration to its members 8
not later than the day on which notice is given of the society's next general 9
meeting. 10
Maximum penalty--10 penalty units. 11
(3) The notice may, with the written approval of QOFS, be given by 12
advertisement published in a newspaper circulating generally in the area of 13
the State in which the society operates. 14
of alteration of rules 15
Registration
82.(1) QOFS must register an alteration of a society's rules if QOFS is 16
satisfied-- 17
(a) the alteration is not contrary to this Act or the standards; and 18
(b) there is no good reason why the alteration should not be 19
registered. 20
(2) The alteration takes effect when it is registered. 21
(3) The society's rules must be read subject to any registered alteration. 22
of QOFS to require changes of rules 23
Power
83.(1) This section applies if QOFS considers that a society's rules 24
9 Section 81 (Alteration of rules by board of directors)
Section 83 (Power of QOFS to require changes of rules)
Section 84 (Power of QOFS to change rules to facilitate transfer of engagements)
s 84 55 s 84
Financial Intermediaries
should be altered-- 1
(a) to comply with this Act; or 2
(b) to give effect to a standard; or 3
(c) in the interests of the society's members; or 4
(d) in the public interest. 5
(2) QOFS may, by written notice given to the society, require it, within a 6
reasonable period stated in the notice, to alter its rules in a way stated in the 7
notice or otherwise in a way approved by QOFS. 8
(3) If the society fails to alter its rules as required by the notice, QOFS 9
may alter its rules by notation on the registered copy of the rules. 10
(4) QOFS must immediately give written notice to a society of-- 11
(a) an alteration of its rules made under this section; and 12
(b) the day on which the alteration starts. 13
(5) The society must give written notice of the alteration to its members 14
not later than the day on which notice is given of the society's next general 15
meeting. 16
Maximum penalty--80 penalty units. 17
(6) The notice may, with the written approval of QOFS, be given by 18
advertisement published in a newspaper circulating generally in the area of 19
the State in which the society operates. 20
of QOFS to change rules to facilitate transfer of engagements 21
Power
84.(1) If QOFS has directed a transfer of engagements under part 9,10 22
QOFS may alter the rules of the transferee society to the extent necessary to 23
ensure the rules are appropriate. 24
(2) QOFS must alter the rules by notation on the registered copy. 25
(3) QOFS must immediately give written notice to a society of-- 26
(a) an alteration of its rules made under this section; and 27
(b) the day on which the alteration starts. 28
10 Part 9 (Mergers and transfers of engagements)
s 85 56 s 86
Financial Intermediaries
(4) The society must give written notice of the alteration to its members 1
not later than the day on which notice is given of the society's next general 2
meeting. 3
(5) The notice may, with the written approval of QOFS, be given by 4
advertisement published in a newspaper circulating generally in the area of 5
the State in which the society operates. 6
Division 3--Membership 7
8
Members
85.(1) The members of a society are-- 9
(a) the persons who sign the application for membership on the 10
formation of the society; and 11
(b) the other persons who are admitted to membership under the 12
society's rules. 13
(2) The members of a merged society are the persons who, on the day of 14
the merger, are members of a society that is a party to the merger, and the 15
other persons who are admitted to membership under the merged society's 16
rules. 17
(3) The members of a society to which another society has transferred its 18
engagements include the persons who, immediately before the transfer took 19
effect, were members of the transferor society. 20
(4) A person may exercise the rights of membership of a society only if 21
the person has complied with the requirements for membership under the 22
society's rules, including, for example, the payment of an amount. 23
who are minors 24
Members
86.(1) Subject to a society's rules, a minor may be a member. 25
(2) A member of a society who is a minor cannot hold office in a society 26
and cannot vote at a meeting of the society. 27
(3) A member of a society is not entitled, because of the member's 28
minority or former minority, to avoid the member's obligations or 29
liabilities-- 30
s 87 57 s 88
Financial Intermediaries
(a) as a member; or 1
(b) under a deed, mortgage, bill, lien, charge, contract, instrument or 2
other document entered into by the member as a member. 3
members 4
Joint
87.(1) Membership in a society may be joint if the society's rules 5
provide for it. 6
(2) If membership is joint, the following provisions apply-- 7
(a) the register of members must indicate that a person is a joint 8
member; 9
(b) the joint members may choose the order in which they are named 10
in the register of members but, if they do not choose, the society 11
may enter the names in the order it considers appropriate; 12
(c) the joint member who is named first in the society's register of 13
members is the primary joint member; 14
(d) subject to the society's rules, but without affecting the right of a 15
member to obtain a copy of the balance sheet from the society on 16
demand, a notice or other document may be given or sent to the 17
primary joint member; 18
(e) membership is taken to be solely that of the primary joint 19
member to determine-- 20
(i) who is qualified to vote on a resolution at a meeting of the 21
society; and 22
(ii) the number or proportion of members required to give effect 23
to a provision of this Act or the society's rules. 24
of membership 25
Cessation
88.(1) A person ceases to be a member of a society as provided by the 26
society's rules. 27
(2) If a member of a society dies, the member's estate remains liable to 28
pay an amount due by the member to the society under the society's rules. 29
s 89 58 s 91
Financial Intermediaries
of member 1
Expulsion
89. A member of a society may be expelled, or have the member's 2
membership rescinded, under the society's rules. 3
of members 4
Liability
90. A member of a society is not liable, because of the membership, to 5
contribute towards the payment of the debts and liabilities of the society or 6
the costs, charges and expenses of a winding-up of the society. 7
accommodation to, and deposits from, members and others 8
Financial
91.(1) A society may provide financial accommodation only to its 9
members. 10
(2) A society must not provide financial accommodation to a person who 11
is not a member of the society. 12
Maximum penalty--10 penalty units. 13
(3) A member of a society who wishes to obtain financial 14
accommodation must apply to the society in the way approved by the 15
society. 16
(4) In providing financial accommodation to a member, a society may 17
make a loan to a member only-- 18
(a) on condition that the member makes repayments of principal and 19
interest calculated on the outstanding loan balance; or 20
(b) in a way mentioned in the relevant standard; or 21
(c) in another way prescribed under a regulation. 22
Maximum penalty--40 penalty units. 23
(5) A society must not accept a deposit of money from any person. 24
Maximum penalty for subsection (5)--80 penalty units. 25
s 92 59 s 93
Financial Intermediaries
4--Name and office 1
Division
2
Name
92.(1) The registered name of a society is its name as stated in the 3
society's rules for the time being registered under this Act. 4
(2) QOFS must not register proposed rules, or an alteration of the rules 5
of a society affecting the society's name, if QOFS is satisfied that the 6
proposed name-- 7
(a) is undesirable; or 8
(b) is likely to be confused with the name of a corporation or a 9
registered business name. 10
(3) If QOFS registers an alteration of a society's rules changing the 11
society's name, QOFS may, on application by the society, amend its 12
certificate of incorporation or issue a new certificate. 13
(4) A society must publish a change of its name as directed by QOFS. 14
Maximum penalty--10 penalty units. 15
(5) A society must not use a name other than its registered name. 16
Maximum penalty--80 penalty units. 17
must have certain words as part of name 18
Society
93.(1) A society's registered name must include the word `Limited' at 19
the end of its name. 20
(2) A society's registered name must also include the words 21
`Cooperative Housing Society' as part of its name. 22
(3) A description of a society is not inadequate or incorrect merely 23
because the society's registered name is given using-- 24
(a) the abbreviation `Co-op' for the word `Cooperative'; or 25
(b) the abbreviation `Ltd' for the word `Limited'; or 26
(c) the abbreviation `No.' for the word `Number'; or 27
(d) the symbol `&' for the word `and'. 28
s 94 60 s 96
Financial Intermediaries
of name does not affect identity 1
Change
94.(1) A change of name of a society does not-- 2
(a) affect the society's identity; or 3
(b) affect a right or obligation of the society or of a member or other 4
person; or 5
(c) make defective legal proceedings by or against the society. 6
(2) A legal proceeding that might have been continued or started by or 7
against the society under its former name may be continued or started by or 8
against it under its new name. 9
may direct change of name 10
QOFS
95. QOFS may direct a society to change its name if, through 11
inadvertence or otherwise, the society is registered by a name that QOFS is 12
satisfied is likely to be confused with the name of another corporation or a 13
registered business name. 14
of name 15
Publication
96.(1) A society must ensure its registered name appears in legible letters 16
on-- 17
(a) all business letters, notices, advertisements and other publications 18
of the society; and 19
(b) all bills of exchange, cheques, promissory notes, endorsements, 20
orders for money or goods, invoices, receipts and other 21
documents required in the society's business. 22
Maximum penalty--80 penalty units. 23
(2) A society must ensure its registered name and the words `registered 24
office' are displayed in a conspicuous place and in legible letters, on the 25
outside of its registered office. 26
Maximum penalty--80 penalty units. 27
(3) A society must ensure its registered name is displayed in a 28
conspicuous place and in legible letters on the outside of every other office 29
s 97 61 s 98
Financial Intermediaries
or place in which its business is carried on. 1
Maximum penalty for subsection (3)--80 penalty units. 2
3
Seal
97.(1) A society must ensure its registered name appears in legible letters 4
on its seal. 5
Maximum penalty--80 penalty units. 6
(2) An officer of a society, or a person acting on its behalf, must not use 7
a seal, purporting to be the society's seal, on which its registered name does 8
not appear in legible letters. 9
Maximum penalty for subsection (2)--80 penalty units. 10
office 11
Registered
98.(1) A society must have a registered office. 12
(2) The first registered office of a society is the address appearing in the 13
society's rules at the time of registration. 14
(3) A society must give QOFS written notice of a proposed change of 15
address. 16
Maximum penalty--10 penalty units. 17
(4) The new address becomes the society's registered office-- 18
(a) at the end of the day the change of address is registered by 19
QOFS; or 20
(b) if a later day is specified in the notice--the later day. 21
s 99 62 s 101
Financial Intermediaries
ART 7--MANAGEMENT 1
P
1--Directors and officers 2
Division
of "employee" for division 3
Definition
99. In this division-- 4
"employee" of a society, includes a person, or an employee of a person, 5
who provides the society with services under a management contract. 6
of directors 7
Board
100.(1) The business and operations of a society are to be managed and 8
controlled by a board of directors, the majority of whom must be resident in 9
the State. 10
(2) The board may exercise all the powers of the society. 11
(3) However, the board's powers are subject to the restrictions imposed 12
by this Act, relevant standards and the society's rules. 13
(4) Every director acting in the society's business or operations under a 14
resolution duly passed by the board is taken to be acting as the society's 15
duly authorised agent. 16
(5) Anything done by or in relation to a director is not invalid merely 17
because of a defect or irregularity in the director's election or appointment. 18
19
Meetings
101.(1) Meetings of a society's board must be held as often as is 20
necessary for properly conducting the society's business. 21
(2) Meetings of the board must be held at intervals of not longer than 22
3 months. 23
(3) A quorum at a meeting of the board is the number of directors 24
prescribed by the society's rules, but must not be less than half the total 25
number of directors. 26
s 102 63 s 104
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(4) A meeting of the board may be conducted in the way prescribed in 1
the society's rules. 2
of directors 3
Number
102. The number of directors of a society must not be less than 5. 4
or appointment of directors 5
Election
103.(1) Subject to this Act, the directors of a society are elected or 6
appointed, hold and vacate office, and retire or are removed from office, as 7
prescribed by the society's rules. 8
(2) A director holds office for a term (not longer than 3 years) prescribed 9
by the society's rules. 10
(3) Despite subsection (2), for a director elected at an annual general 11
meeting of a society, the society's rules may specify a term of office ending 12
at the end of the third annual general meeting of the society happening after 13
the election. 14
(4) A director is eligible for re-election or reappointment at the end of the 15
director's term. 16
(5) The directors must be elected-- 17
(a) at the society's annual general meeting; or 18
(b) in another way prescribed by the society's rules. 19
directors 20
Alternate
104.(1) If authorised by a society's rules, a director may appoint a 21
person, who is eligible to be a director of the society, to be the alternate 22
director in place of that director. 23
(2) The alternate director may act as a director in the absence of the 24
director who appointed him or her. 25
(3) The alternate director must not be an alternate for another director. 26
s 105 64 s 107
Financial Intermediaries
1
Chairperson
105.(1) A chairperson of a society's board must be elected-- 2
(a) at the society's annual general meeting; or 3
(b) in another way prescribed by the society's rules. 4
(2) The chairperson-- 5
(a) must hold office; and 6
(b) must retire; and 7
(c) may be removed from office; 8
as prescribed by the society's rules. 9
of directors 10
Qualifications
106. A person is not eligible to be a director of a society if the person-- 11
(a) is a minor; or 12
(b) is bankrupt, has applied to take the benefit of a law for the relief 13
of bankrupt or insolvent debtors, compounded with his or her 14
creditors or made an assignment of his or her remuneration for 15
their benefit; or 16
(c) is prohibited from being a director of a corporation by the 17
Corporations Law for a reason other than the person's age; or 18
(d) has been convicted in the last 10 years-- 19
(i) of an indictable offence in relation to the promotion, 20
formation or management of a corporation; or 21
(ii) of an offence involving fraud or dishonesty; or 22
(iii) of a prescribed offence. 23
of office 24
Vacation
107.(1) The office of a director becomes vacant if the director-- 25
(a) dies; or 26
(b) becomes a person who, under section 106, is not eligible to be a 27
s 108 65 s 108
Financial Intermediaries
director; or 1
(c) is absent from 3 consecutive ordinary meetings of the board 2
without its leave; or 3
(d) resigns by written notice of resignation given to the board; or 4
(e) is 3 months in arrears for an amount payable to the society and 5
has failed to make arrangements for payment satisfactory to the 6
society; or 7
(f) is removed from office by a resolution under section 108;11 or 8
(g) completes a term of office. 9
(2) If a casual vacancy happens in the office of a director as mentioned in 10
subsection (1)(a) to (f), the board may appoint a person who is eligible to be 11
a director to fill the vacancy. 12
(3) The term of office of a director appointed to fill a casual vacancy ends 13
at the end of the next annual general meeting of the society after the 14
appointment. 15
(4) A director may not be removed from office, and the office of a 16
director does not become vacant, except as provided by this Act. 17
of directors 18
Removal
108.(1) A society may, by resolution, remove a director before the end of 19
the director's term of office, despite anything in the society's rules or in an 20
agreement between it and the director. 21
(2) The resolution may be passed only if the society has given notice to 22
members stating the proposed resolution and the day and time of the 23
meeting when it is proposed the resolution will be made (the "removal 24
meeting"). 25
(3) The society must also give a copy of the notice to the director. 26
(4) A society's rules may provide for-- 27
(a) the period of notice; and 28
(b) the way notice may be given to members; and 29
11 Section 108 (Removal of directors)
s 109 66 s 109
Financial Intermediaries
(c) any other relevant matter. 1
(5) The director may make written representations to the society (of a 2
reasonable length) before the removal meeting. 3
(6) The society must promptly send to each member a copy of any 4
written representations made by the director if-- 5
(a) the director asks the society to do so; and 6
(b) there is enough time for the copies to be received by the members 7
at least 2 days before the removal meeting. 8
(7) At the removal meeting, the director-- 9
(a) is entitled to be heard on the resolution to remove the director; and 10
(b) if the director has made written representations under 11
subsection (5) and a copy has not been sent to members under 12
subsection (6)--may require that the representations be read out. 13
of interest 14
Declaration
109.(1) A director of a society who is or becomes in any way (whether 15
directly or indirectly) interested in a contract, or proposed contract, with the 16
society must declare the nature and extent of the interest to the society's 17
board under this section. 18
Maximum penalty--400 penalty units or 2 years imprisonment. 19
(2) Subsection (1) does not apply to a contract to provide financial 20
accommodation if the provision of the financial accommodation does not 21
contravene section 115.12 22
(3) For a proposed contract, the declaration must be made-- 23
(a) at the meeting of the board at which the question of entering into 24
the contract is first considered; or 25
(b) if the director was not at that time interested in the proposed 26
contract--at the next meeting of the board held after the director 27
becomes interested in the proposed contract. 28
(4) If a director becomes interested in a contract with the society after it is 29
12 Section 115 (Financial accommodation to directors)
s 110 67 s 111
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made, the declaration must be made at the next meeting of the board held 1
after the director becomes interested in the contract. 2
(5) For this section, a director makes a sufficient declaration if the 3
director gives a general written notice to the board to the effect that the 4
director-- 5
(a) is a member of a specified entity; and 6
(b) is taken to be interested in a contract that may, after the giving of 7
the notice, be made with the entity. 8
of possible conflict of duty or interest 9
Declaration
110.(1) A director of a society who holds an office or has an interest in 10
property by which, whether directly or indirectly, duties or interests might 11
be created that could conflict with the director's duties or interests as 12
director must, under subsection (2), declare at a meeting of the society's 13
board the fact and the nature, character and extent of the conflict. 14
Maximum penalty--400 penalty units or 2 years imprisonment. 15
(2) The declaration must be made by the director-- 16
(a) if the director holds the office or has the interest when the director 17
becomes a director--at the first meeting of the board held after-- 18
(i) the director becomes a director; or 19
(ii) the relevant facts about holding the office or having the 20
interest come to the director's knowledge; 21
whichever is the later; or 22
(b) if the director starts to hold the office or acquires the interest after 23
the director becomes a director--at the first meeting of the board 24
held after the relevant facts about holding the office or having the 25
interest come to the director's knowledge. 26
and effect of declaration 27
Recording
111.(1) This section applies to a declaration under section 109 or 110. 28
(2) The declaration must be recorded in the minutes of the meeting at 29
which it was made and, unless the board otherwise determines, the director 30
s 112 68 s 113
Financial Intermediaries
must not-- 1
(a) be present during a deliberation of the board about the matter; or 2
(b) take part in a decision of the board about the matter. 3
(3) For making a determination of the board under subsection (2) about a 4
director who has made a declaration, the director must not-- 5
(a) be present during a deliberation of the board making the 6
determination; or 7
(b) take part in the making by the board of the determination. 8
declarations 9
Reporting
112.(1) This section applies to a declaration under section 109 or 110. 10
(2) The board must report the declaration-- 11
(a) to QOFS immediately after the making of the declaration; and 12
(b) to the society's members at the next annual general meeting after 13
the making of the declaration. 14
Maximum penalty--80 penalty units. 15
(3) A society must, within 3 months after the end of its financial year, 16
file with QOFS a return stating-- 17
(a) all declarations made to the board during that financial year; and 18
(b) all declarations in force at the end of the financial year. 19
Maximum penalty for subsection (3)--80 penalty units. 20
109110 not of limiting effect 21
Sections
113. Sections 109 and 110 are in addition to any rule of law or a 22
provision in a society's rules restricting a director from having an interest in 23
contracts with the society or from holding offices or having interests 24
involving duties or interests in conflict with the director's duties or interests 25
as a director. 26
s 114 69 s 115
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duty to make disclosure 1
General
114.(1) A director of a society must give written notice to the society-- 2
(a) of particulars about contracts necessary to enable the society to 3
comply with section 132;13 and 4
(b) of particulars of any change in the particulars mentioned in 5
paragraph (a), including the consideration (if any) received 6
because of the event giving rise to the change. 7
(2) The notice must be given-- 8
(a) if the notice is under subsection (1)(a)--within 14 days after the 9
person-- 10
(i) became a director; or 11
(ii) entered into the contracts; 12
whichever happens last; and 13
(b) if the notice is under subsection (1)(b)--within 14 days after the 14
person becomes aware of the happening of the event giving rise 15
to the change. 16
(3) A society must, within 7 days after receiving a notice, send a copy to 17
each of the other directors of the society. 18
(4) A director or society must not contravene this section. 19
Maximum penalty for subsection (4)--400 penalty units. 20
accommodation to directors 21
Financial
115.(1) A society must not provide financial accommodation to a 22
director unless it is-- 23
(a) provided in the ordinary course of business; and 24
(b) subject to the terms normally imposed by the society in similar 25
dealings; and 26
(c) approved by a majority of at least two-thirds of the directors 27
present and voting on the matter at a meeting of the board at 28
13 Section 132 (Register of directors etc..)
s 116 70 s 118
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which a quorum is present. 1
Maximum penalty--800 penalty units. 2
(2) A director must not obtain financial accommodation given in 3
contravention of subsection (1). 4
Maximum penalty--800 penalty units or 4 years imprisonment. 5
(3) In this section, a reference to-- 6
(a) the provision of financial accommodation to a director; or 7
(b) the obtaining of financial accommodation by a director; 8
includes a reference to a provision of financial accommodation to, or an 9
obtaining of financial accommodation by, the director jointly with another 10
person. 11
remuneration 12
Directors'
116. A director of a society must not knowingly receive remuneration 13
that is not a fee, concession or other benefit approved at a general meeting 14
of the society. 15
Maximum penalty--80 penalty units. 16
contracts 17
Management
117.(1) A society must not enter into a management contract without 18
QOFS's written approval. 19
Maximum penalty--800 penalty units. 20
(2) QOFS may give its approval on terms. 21
(3) A management contract entered into in contravention of 22
subsection (1) is void. 23
of officers 24
Duties
118.(1) An officer of a society must at all times act honestly in 25
performing the functions and exercising the powers of the office. 26
Maximum penalty-- 27
s 118 71 s 118
Financial Intermediaries
(a) 1 600 penalty units or 7 years imprisonment-- 1
(i) if because of the contravention-- 2
(A) the society is, or its members are, deceived or 3
defrauded; or 4
(B) a creditor of the society, or a creditor of any other 5
person, is deceived or defrauded; or 6
(ii) if paragraph (a) does not apply but the contravention was 7
committed-- 8
(A) with the intention of deceiving or defrauding the society 9
or its members, a creditor of the society or a creditor of 10
any other person; or 11
(B) for any other fraudulent purpose; or 12
(b) 800 penalty units or 4 years imprisonment, in any other case. 13
(2) An officer of a society must at all times exercise a reasonable degree 14
of care and diligence in performing the functions and exercising the powers 15
of the office and in protecting the interests of the society's members. 16
Maximum penalty--400 penalty units. 17
(3) An officer or employee of a society, or a former officer or employee 18
of a society, must not make improper use of information acquired because 19
of his or her position as an officer or employee to gain, directly or 20
indirectly, an advantage for himself or herself or for any other person, or to 21
cause detriment to the society. 22
Maximum penalty--800 penalty units or 4 years imprisonment. 23
(4) An officer or employee of a society must not make improper use of 24
his or her position as an officer or employee, to gain, directly or indirectly, 25
an advantage for himself or herself or for any other person, or to cause 26
detriment to the society. 27
Maximum penalty--800 penalty units or 4 years imprisonment. 28
(5) Section 514 applies to subsection (2) as if, in subsection (1)(a) of the 29
section, the words ", executive officer or employee" were omitted and the 30
words "or executive officer" were substituted. 31
14 Section 5 (Interpretation--meaning of "officer")
s 119 72 s 120
Financial Intermediaries
of contravention of s 118 1
Effect
119.(1) If-- 2
(a) a person is convicted of an offence against section 118; and 3
(b) the court by which the person is convicted is satisfied that the 4
society has suffered loss or damage because of the act or 5
omission that constituted the offence; 6
the court may, in addition to imposing a penalty, order the convicted person 7
to pay compensation to the society of an amount stated by the court. 8
(2) The order may be enforced as if it were a judgment of the court. 9
(3) If a person contravenes section 118, the society may, whether or not 10
the person has been convicted of an offence against the section for the 11
contravention, recover from the person as a debt due to the society by action 12
in a court having jurisdiction for the recovery of debts up to the amount 13
involved-- 14
(a) if that person or any other person has made a profit because of the 15
contravention--an amount equal to that profit; and 16
(b) if the society has suffered loss or damage because of the 17
contravention--an amount equal to that loss or damage. 18
(4) This section and section 118 are in addition to and do not derogate 19
from any other rule of law about the duties of officers and employees of a 20
society. 21
acting as director 22
Unlawfully
120.(1) A person must not purport to act as a director of a society unless 23
the person is a director of the society, or the alternate director of a director of 24
the society. 25
Maximum penalty--400 penalty units or 2 years imprisonment. 26
(2) A director of a society must not permit a person who is not a director 27
of the society, or the alternate director of a director of the society, to purport 28
to act as a director of the society. 29
Maximum penalty for subsection (2)--400 penalty units or 2 years 30
imprisonment. 31
s 121 73 s 122
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1
Secretary
121.(1) The board of a society must appoint an individual who is 18 or 2
more and who is resident in the State to be the secretary of the society. 3
(2) If the office of secretary is vacant or for some other reason the 4
secretary is not capable of acting, an act or thing required or authorised to be 5
done by or in relation to the secretary may be done by or in relation to an 6
assistant or deputy secretary or, if there is no assistant or deputy secretary or 7
no assistant or deputy secretary is capable of acting, by or in relation to an 8
officer of the society authorised by the directors to act as secretary either 9
generally or in relation to the doing of the act or thing. 10
(3) A provision of this Act or the rules requiring or authorising an act or 11
thing to be done by or in relation to a director and the secretary is not 12
satisfied by its being done by or in relation to the same person acting both 13
as director and as, or in place of, the secretary. 14
of, and indemnity for, officers and employees 15
Liability
122.(1) A rule of, or contract with, a society is void if it purports to-- 16
(a) exempt an officer or employee of the society from a liability to 17
the society for negligence, default, breach of duty or breach of 18
trust; or 19
(b) indemnify an officer or employee of the society against a liability 20
mentioned in paragraph (a). 21
(2) However, a society may indemnify an officer or employee of the 22
society against a liability incurred by the officer or employee-- 23
(a) in defending civil proceedings about the society's affairs and 24
resulting in judgment in favour of the officer or employee; or 25
(b) in defending criminal proceedings about the society's affairs and 26
resulting in the officer or employee being acquitted; or 27
(c) for an application in proceedings mentioned in paragraph (a) or 28
(b) in which relief is, under this Act, granted to the officer or 29
employee by the Supreme Court. 30
(3) Subsection (1) does not apply to-- 31
(a) a contract of insurance unless the premiums are paid by the 32
s 123 74 s 125
Financial Intermediaries
society; and 1
(b) compulsory professional indemnity insurance even if the 2
premiums are paid by the society. 3
Division 2--Meetings 4
general meeting 5
Annual
123.(1) A society must hold its first annual general meeting within 6
18 months after it is registered under this Act. 7
Maximum penalty--80 penalty units. 8
(2) A society must hold every subsequent annual general meeting within 9
5 months after the close of its financial year, or within a further time 10
allowed by QOFS or prescribed under a regulation. 11
Maximum penalty for subsection (2)--80 penalty units. 12
general meeting 13
Special
124.(1) The board of a society may call a special general meeting of the 14
society. 15
(2) The board of a society must immediately proceed to call a special 16
general meeting of the society if required to do so by not less than the 17
number of members prescribed for the purpose by the society's rules. 18
uorum 19
Q
125.(1) A general meeting of a society may deal with an item of business 20
only if a quorum is present. 21
(2) Subsection (1) does not apply to an item of business that may be 22
dealt with by postal voting under the society's rules. 23
(3) A quorum is as prescribed by the society's rules. 24
s 126 75 s 128
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of meeting 1
Notice
126.(1) Written notice of a general meeting of a society must be given 2
personally or by post to each member of the society-- 3
(a) for an annual general meeting--at least 14 days before the date of 4
the meeting; and 5
(b) for a special general meeting--at least 7 days before the date of 6
the meeting. 7
(2) However, if the society's rules so provide, notice of an annual general 8
meeting or special general meeting may be given to the society's members 9
by advertisement published in a newspaper circulating generally in the area 10
of the State in which the society operates. 11
(3) Notice of a general meeting of a society must be displayed in a 12
conspicuous place at the registered office and each other office of the 13
society-- 14
(a) for an annual general meeting--for at least 14 days immediately 15
before the date of the meeting; and 16
(b) for a special general meeting--for at least 7 days immediately 17
before the date of the meeting. 18
(4) The failure by a member of a society to receive notice of a general 19
meeting required to be given to the member by this Act does not invalidate 20
the meeting. 21
(5) A society must give notice of an annual general meeting, or a special 22
general meeting, or display notice of an annual general meeting in 23
accordance with this section. 24
Maximum penalty for subsection (5)--80 penalty units. 25
26
Voting
127. A member of a society may not exercise more than 1 vote on a 27
question arising for determination by the society's members. 28
resolutions 29
Special
128.(1) For this Act, a special resolution is a resolution passed by a 30
s 129 76 s 129
Financial Intermediaries
majority of not less than two-thirds of the members who, being entitled to 1
vote-- 2
(a) in any case--are present personally at a meeting at which a 3
motion for the passing of the resolution is moved and vote on the 4
resolution; or 5
(b) for a merger or transfer of engagements under part 915--vote on 6
the resolution by a postal ballot conducted-- 7
(i) under the society's rules; or 8
(ii) under a regulation; or 9
(iii) in a way approved by QOFS. 10
(2) For a special resolution passed at a meeting, unless a poll is 11
demanded, a declaration by the person presiding at the meeting that a 12
resolution has been carried by a stated majority is evidence of the fact. 13
(3) Written notice of a proposed special resolution, stating its terms, 14
must be given personally or by post to each member of the society who is 15
entitled to vote on the resolution at least 21 days before the date of the 16
meeting or close of the postal ballot. 17
(4) However, if a society's rules so provide, notice of a proposed special 18
resolution, stating its terms, may be given to the members of the society 19
entitled to vote on the resolution by advertisement published in a newspaper 20
circulating generally in the area of the State in which the society operates. 21
(5) A purported special resolution for which notice has not been given 22
under subsection (3) or (4) is of no effect. 23
(6) However, the failure by a member to receive notice of a proposed 24
special resolution does not invalidate the passing of the resolution. 25
(7) This section applies only to the matters required by this Act or a 26
society's rules to be passed or approved by a special resolution. 27
of special resolution 28
Registration
129.(1) A society must, within 1 month after a special resolution has 29
been passed, submit the resolution to QOFS for registration. 30
15 Part 9 (Mergers and transfers of engagements)
s 130 77 s 132
Financial Intermediaries
(2) A special resolution is of no effect until registered. 1
(3) QOFS must register a special resolution of a society if satisfied 2
that-- 3
(a) the special resolution is not contrary to-- 4
(i) this Act; or 5
(ii) a standard; and 6
(b) there is no good reason why the special resolution should not be 7
registered. 8
inutes 9
M
130. A society must cause full and accurate minutes to be kept of every 10
meeting of its board, and of every meeting of its members. 11
Maximum penalty--80 penalty units. 12
3--Registers and inspection 13
Division
14
Registers
131.(1) A society must keep the registers prescribed under a regulation. 15
Maximum penalty--160 penalty units. 16
(2) All registers required to be kept by a society under this Act must be 17
kept at the society's registered office and be kept in the way, and contain the 18
particulars, prescribed under a regulation. 19
Maximum penalty--80 penalty units. 20
(3) With the written consent of QOFS, all or any of the registers may be 21
kept at an office of the society other than its registered office. 22
(4) All registers must be kept within the State at all times. 23
of directors etc. 24
Register
132.(1) A society must keep a register of its directors, principal executive 25
officer and secretary and enter in the register for each director, principal 26
s 132 78 s 132
Financial Intermediaries
executive officer and secretary-- 1
(a) the person's present given name and surname; and 2
(b) the person's former given name or surname (if any); and 3
(c) the person's date and place of birth; and 4
(d) the person's usual residential address; and 5
(e) the person's business occupation (if any). 6
Maximum penalty--160 penalty units. 7
(2) A society must, within 1 month after a director, principal executive 8
officer or secretary of the society changes his of her usual residential 9
address, advise QOFS of the new usual residential address of the director, 10
principal executive officer or secretary. 11
Maximum penalty--10 penalty units. 12
(3) A society must, within 7 days after receiving notice from a director 13
under section 114(1)(a),16 enter in its register, for the director, the 14
particulars of contracts to which the notice relates and, for contracts entered 15
into after the person became a director-- 16
(a) the consideration for the transaction (if any) because of which an 17
entry is required to be made in the register; and 18
(b) the date of-- 19
(i) the agreement for the transaction or, if it is later, the 20
completion of the transaction; or 21
(ii) if there was no transaction--the happening of the event 22
because of which an entry is required to be made in the 23
register. 24
Maximum penalty--160 penalty units. 25
(4) A society must, within 3 days after receiving a notice from a director 26
under section 114(1)(b), enter in its register the particulars of the change 27
specified in the notice. 28
Maximum penalty--160 penalty units. 29
16 Section 114 (General duty to make disclosure)
s 133 79 s 133
Financial Intermediaries
(5) Within 1 month beginning on the day on which a person becomes or 1
ceases to be a director, the principal executive officer or secretary of a 2
society, the society must file with QOFS a return in the approved form 3
advising that fact and containing for a new director, principal executive 4
officer or secretary the matters required by subsection (1) to be shown in 5
the register. 6
Maximum penalty--10 penalty units. 7
(6) A register kept by a society under this section must be open for 8
inspection-- 9
(a) by a member of the society, without fee; and 10
(b) by another person, on payment for each inspection of the amount 11
(if any) prescribed by the society's rules. 12
(7) A society must produce its register at the start of each annual general 13
meeting of the society and keep it open and accessible during the meeting to 14
all persons attending the meeting. 15
Maximum penalty--160 penalty units. 16
(8) It is a defence to a prosecution for failing to comply with 17
subsection (3) or (4) in relation to particulars about a director if the 18
defendant proves that the failure was due to the failure of a director to 19
comply with section 114 in relation to those particulars. 20
of members 21
Register
133.(1) A society must keep a register of members of the society and 22
enter in the register-- 23
(a) the names and addresses of the members; and 24
(b) the date of admission to membership; and 25
(c) any other prescribed information. 26
Maximum penalty--160 penalty units. 27
(2) The register of members is evidence of membership of the society. 28
(3) A member is entitled to have access only to the part of the register of 29
members in which particulars of his or her membership are entered. 30
(4) Subject to subsection (3), a society may refuse to allow a person to 31
s 134 80 s 135
Financial Intermediaries
have access to the register of members unless the person satisfies the 1
society that the person requires access to-- 2
(a) call a meeting of members; or 3
(b) undertake some other activity approved by QOFS. 4
(5) Before a society allows a person, who has satisfied the society under 5
subsection (4), to have access to the register of members, the society may 6
require the person to enter into a contract with the society under which the 7
person undertakes-- 8
(a) to restrict access to the information obtained by the person from 9
the register to persons identified in the contract; and 10
(b) to restrict use of the information obtained by the person from the 11
register to a stated purpose. 12
of documents at society's registered office 13
Inspection
134. A society must keep a copy of the following documents at its 14
registered office available for inspection without fee by members of the 15
society, persons eligible for membership of the society and its creditors-- 16
(a) this Act and the regulation; 17
(b) the society's rules; 18
(c) each management contract for the society; 19
(d) the society's last accounts, together with a copy of the report of 20
the auditor on the accounts; 21
(e) the last directors' report under section 145.17 22
entitled to particulars of their financial position 23
Members
135. A society must, on being asked by a member of the society, give 24
the member particulars of the person's financial position with the society as 25
a member or borrower. 26
17 Section 145 (Directors' reports)
s 136 81 s 138
Financial Intermediaries
entitled to copies of registers 1
Members
136.(1) This section applies if a member of a society asks the society to 2
give the member a copy of a register or a part of a register kept by the 3
society under this Act. 4
(2) This section is subject to section 133(4).18 5
(3) The society must send the copy to the member-- 6
(a) if the society requires payment of an amount prescribed by the 7
rules--within 21 days after payment of the amount is received by 8
the society, or within a longer period approved by QOFS; or 9
(b) if the society does not require payment of an amount--within 10
21 days after the request is made, or within a longer period 11
approved by QOFS. 12
Maximum penalty for subsection (3)--80 penalty units. 13
4--Accounts 14
Division
year 15
Financial
137.(1) The financial year of a society is from 1 January to 16
31 December. 17
(2) If a society is registered (other than because of a merger) on a day 18
falling between 1 July and 31 December in any year, its first financial year 19
may, if the society elects, extend to 31 December in the following year. 20
records to be kept 21
Accounting
138. A society must-- 22
(a) keep accounting records that correctly record and explain the 23
society's transactions and financial position; and 24
(b) keep the accounting records in a way that will enable-- 25
(i) true and fair accounts of the society to be prepared 26
18 Section 133 (Register of members)
s 139 82 s 140
Financial Intermediaries
periodically; and 1
(ii) the society's accounts to be conveniently and properly 2
audited under this part; and 3
(c) keep the accounting records for 7 years after the completion of the 4
transactions to which they relate; and 5
(d) keep the accounting records in writing in the English language or 6
so as to enable the records to be readily accessible and readily 7
convertible into writing in the English language; and 8
(e) keep the accounting records at the society's registered office. 9
Maximum penalty--400 penalty units. 10
of accounting records 11
Inspection
139.(1) A society must make its accounting records available at all 12
reasonable times for inspection without fee by a director of the society and 13
by anyone else authorised or permitted under this Act to inspect the 14
accounting records. 15
Maximum penalty--160 penalty units. 16
(2) The Supreme Court may, on application by a director of a society, 17
make an order authorising a registered company auditor acting for the 18
director to inspect the society's accounting records. 19
(3) A registered company auditor who inspects accounting records under 20
a court order must not disclose to a person other than the director on whose 21
application the order was made information acquired during the inspection. 22
Maximum penalty--160 penalty units. 23
(4) The cost of an inspection conducted under a court order must be met 24
by the society. 25
and loss account and balance sheet 26
Profit
140. The directors of a society must, before the day on which notice of 27
an annual general meeting of the society is given or, if an annual general 28
meeting is not held within the period within which it is required by 29
s 141 83 s 142
Financial Intermediaries
section 12319 to be held, not less than 3 weeks before the end of the period, 1
cause to be prepared-- 2
(a) a profit and loss account for the last financial year giving a true 3
and fair view of the society's profit or loss for that financial year; 4
and 5
(b) a balance sheet as at the end of the last financial year giving a true 6
and fair view of the society's state of affairs as at the end of that 7
financial year. 8
9
Audit
141.(1) The directors of a society must take reasonable steps to ensure 10
the society's accounts are audited as required by this part before the day 11
before which the accounts are required by this division to have been 12
prepared. 13
(2) The directors of a society must cause to be attached to, or endorsed 14
on, the accounts the auditor's report given to the directors under 15
division 5.20 16
to ascertain certain matters 17
Directors
142. Before the profit and loss account and balance sheet are prepared, 18
the directors of a society must take reasonable steps-- 19
(a) to ascertain what action has been taken in relation to the writing 20
off of bad debts and the making of provisions for doubtful debts 21
and to cause all known bad debts to be written off and adequate 22
provision to be made for doubtful debts; and 23
(b) to ascertain whether any current assets, other than current assets 24
to which paragraph (a) applies, are unlikely to realise in the 25
ordinary course of business their value as shown in the society's 26
accounting records and, if so, to cause-- 27
(i) those assets to be written down to an amount they might be 28
expected so to realise; or 29
19 Section 123 (Annual general meeting)
20 Division 5 (Audit)
s 143 84 s 144
Financial Intermediaries
(ii) adequate provision to be made for the difference between the 1
amount of the value as so shown and the amount they might 2
be expected so to realise; and 3
(c) to ascertain whether any non-current asset is shown in the 4
society's documents at an amount that, having regard to its value 5
to the society as a going concern, is more than the amount it 6
would have been reasonable for the society to spend to acquire the 7
asset as at the end of the financial year and, unless adequate 8
provision for writing down the asset is made, to cause to be 9
included in the accounts information and explanations to prevent 10
the accounts from being misleading because of the overstatement 11
of the amount of the asset. 12
applying to accounts 13
Requirements
143.(1) The directors of a society must ensure the accounts-- 14
(a) comply with the requirements prescribed under a regulation; and 15
(b) comply with applicable accounting standards. 16
(2) The Treasurer may, by gazette notice, declare an accounting standard 17
to be an applicable accounting standard for a society's accounts, with the 18
changes stated in the notice. 19
(3) The Treasurer may, by gazette notice, vary or revoke the notice. 20
(4) If accounts prepared under subsection (1) would not otherwise give a 21
true and fair view of the matters required by this section to be dealt with in 22
the accounts, the society's directors must add the information and 23
explanations necessary to give a true and fair view of the matters. 24
statement 25
Directors'
144.(1) The directors of a society must cause to be attached to the 26
accounts required to be laid before an annual general meeting, before the 27
auditor reports on those accounts, a statement made under a resolution of 28
the directors and signed by not less than 2 directors stating whether in the 29
opinion of the directors-- 30
(a) the profit and loss account is drawn up so as to give a true and 31
fair view of the society's profit or loss for the financial year; and 32
s 145 85 s 145
Financial Intermediaries
(b) the balance sheet is drawn up so as to give a true and fair view of 1
the society's state of affairs as at the end of the financial year; and 2
(c) as at the date of the statement, there are reasonable grounds to 3
believe that the society will be able to pay its debts as and when 4
they are payable. 5
(2) The directors of a society must-- 6
(a) in forming an opinion on the matters mentioned in 7
subsection (1)(a) and (b) for a statement under the 8
subsection--have regard to circumstances that have arisen and 9
information that has become available, since the end of the 10
financial year to which the accounts relate, being circumstances or 11
information that would, if the accounts were being prepared when 12
the statement is made, have affected the determination of an 13
amount or a particular in the accounts; and 14
(b) if adjustments have not been made in the accounts to reflect 15
circumstances or information of a kind mentioned in 16
paragraph (a), being circumstances or information relevant to an 17
understanding of the accounts, or of an amount or particular in the 18
accounts--include in the statement information and explanations 19
to prevent the accounts, or the amount or particular, from being 20
misleading as a result of the adjustments not having been made. 21
reports 22
Directors'
145.(1) The directors of a society must, before (but not more than 23
3 weeks before) the day before which the accounts for its last financial year 24
are required under this division to be prepared, cause to be prepared a 25
report, prepared under a resolution of the directors and signed by at least 26
2 directors-- 27
(a) stating the names of the directors in office at the date of the report 28
and stating for each director-- 29
(i) the qualifications, experience and special responsibilities (if 30
any) of the director; and 31
(ii) any interest of the director in a contract or proposed contract 32
with the society, being an interest declared by the director 33
s 145 86 s 145
Financial Intermediaries
under division 121 since the commencement or the date on 1
which particulars were last given under this paragraph; and 2
(b) stating that-- 3
(i) the society keeps a register under section 13222 containing 4
information about the directors; and 5
(ii) the register is open for inspection-- 6
(A) by a member of the society, without fee; and 7
(B) by anyone else, on payment of the amount (if any) 8
prescribed by the society's rules; and 9
(c) stating-- 10
(i) the society's principal activities during its last financial year 11
and any significant change in the nature of the activities that 12
happened during that financial year; and 13
(ii) the net amount of the society's profit or loss for that 14
financial year after provision for income tax; and 15
(d) containing a review of the society's operations during that 16
financial year and of the results of the operations; and 17
(e) giving particulars of any significant change in the society's state 18
of affairs that happened during that financial year; and 19
(f) giving particulars of any matter or circumstance that has arisen 20
since the end of that financial year and that has significantly 21
affected or may significantly affect-- 22
(i) the society's operations; or 23
(ii) the results of those operations; or 24
(iii) the society's state of affairs; 25
in financial years after that financial year; and 26
(g) referring to-- 27
(i) likely developments in the society's operations; and 28
21 Division 1 (Directors and officers)
22 Section 132 (Register of directors etc.)
s 145 87 s 145
Financial Intermediaries
(ii) the expected results of those operations; 1
in financial years after that financial year. 2
(2) If, in the opinion of the directors of a society, it would prejudice the 3
society's interests if particular information required under subsection (1)(g) 4
were to be included in a report-- 5
(a) the information need not be so included; and 6
(b) the report must contain a statement that some or all of the 7
information required under subsection (1)(g) has not been 8
included in the report. 9
(3) The report must state whether or not, during the financial year or 10
since the end of the financial year, a director has received, or has become 11
entitled to receive, a benefit because of a contract made (during that or any 12
other financial year) with the society by-- 13
(a) the director; or 14
(b) a firm of which the director is a member; or 15
(c) an entity in which the director has a substantial financial interest. 16
(4) If so, the report must state the general nature of each benefit that a 17
director has received or to which a director has become entitled. 18
(5) Subsections (3) and (4) do not apply to-- 19
(a) a benefit included in the total amount of emoluments received, or 20
due and receivable, by directors shown under a regulation in force 21
under section 143(1)(a);23 or 22
(b) the fixed salary of a full-time employee of the society; or 23
(c) the provision of financial accommodation to a director that-- 24
(i) does not contravene section 115;24 and 25
(ii) is shown in the society's accounts as required by an 26
applicable accounting standard. 27
(6) Subsection (7) applies if there is attached to or included with a report 28
of the directors (the "first report") laid before a society at its annual general 29
23 Section 143 (Requirements applying to accounts)
24 Section 115 (Financial accommodation to directors)
s 146 88 s 147
Financial Intermediaries
meeting a statement, report or other document about the society's affairs, 1
not being a statement, report or document required by this Act to be laid 2
before the society in general meeting. 3
(7) For section 222,25 the statement, report or other document, is taken to 4
be part of the first report. 5
and reports to be laid before annual general meeting 6
Accounts
146.(1) The directors of a society must cause to be laid before each 7
annual general meeting of the society-- 8
(a) a copy of the accounts made out under section 140 26 for the 9
society's last financial year; and 10
(b) a copy of the auditor's report required by section 14127 to be 11
attached to or endorsed upon the accounts; and 12
(c) a copy of the statement by the directors required by section 14428 13
to be attached to the accounts; and 14
(d) a copy of the directors' report made out under section 14529 for 15
that financial year. 16
(2) Copies of the accounts, statements and reports required to be laid 17
before an annual general meeting by subsection (l) must be made available 18
to the society's members at the registered office from the day before which 19
the documents are required under this division to have been prepared until 20
the holding of the annual general meeting. 21
of division 22
Contravention
147.(1) A director of a society must take reasonable steps to comply with 23
or secure compliance with a provision of this division. 24
25 Section 222 (False, misleading or incomplete documents)
26 Section 140 (Profit and loss account and balance sheet)
27 Section 141 (Audit)
28 Section 144 (Directors' statement)
29 Section 145 (Directors' reports)
s 148 89 s 148
Financial Intermediaries
Maximum penalty-- 1
(a) 1 600 penalty units or 2 years imprisonment, if the offence is 2
committed with intent to deceive or defraud creditors of the 3
society or creditors of any other person or for a fraudulent 4
purpose; or 5
(b) 400 penalty units in any other case. 6
(2) In a proceeding against a person for an offence against subsection (1) 7
arising out of the accounts of a society not complying with an applicable 8
accounting standard, the onus of proving that the accounts would not, if 9
prepared under the standard, have given a true and fair view of the matters 10
required by this division to be dealt with in the accounts lies on that person. 11
(3) In a proceeding for an offence against subsection (1) arising out of an 12
omission from the accounts of a society, it is a defence to prove that the 13
information omitted was immaterial and did not affect the giving of a true 14
and fair view of the matters required by this division to be dealt with in the 15
accounts. 16
(4) Subsection (5) applies if, after the end of the period within which the 17
accounts of a society or a report of the directors of a society is or are 18
required under this division to be prepared, QOFS, by written notice to each 19
of the directors, requires the directors to produce the accounts or report to a 20
person stated in the notice on a stated date and at a stated place, and the 21
directors fail to produce the accounts or report as required by the notice. 22
(5) In a proceeding for a failure to comply with the requirements of this 23
division, proof of the failure to produce the accounts or report as required 24
by the notice is evidence that the accounts or report were not prepared 25
within the period. 26
Division 5--Audit 27
of "officer" for ss 149150 28
Meaning
148.(1) In sections 149 and 15030-- 29
"officer" of a society includes a receiver who is not also a manager. 30
30 Sections 149 (Person as society's auditor) and 150 (Firm as society's auditor)
s 149 90 s 149
Financial Intermediaries
(2) For sections 149 and 150(1), a person is taken to be an officer of a 1
society if the person has, at any time during the last 12 months, been an 2
officer or promoter of the society. 3
(3) However, QOFS may direct that subsection (2) does not apply to the 4
person. 5
(4) For sections 149 and 150, a person is not taken to be an officer of a 6
society only because of-- 7
(a) being, or having been, the liquidator of the society; or 8
(b) having been appointed as auditor of the society; or 9
(c) being, or having been, authorised to accept, on behalf of the 10
society, service of process or notices required to be served on the 11
society. 12
as society's auditor 13
Person
149. A person must not-- 14
(a) consent to be appointed as auditor of a society; or 15
(b) act as auditor of a society; or 16
(c) prepare a report required by this Act to be prepared by a 17
registered company auditor or by an auditor of a society; 18
if-- 19
(d) the person is not a registered company auditor; or 20
(e) the person is not ordinarily resident in the State; or 21
(f) the person is indebted in an amount of more than $5 000 to the 22
society; or 23
(g) the person-- 24
(i) is an officer of the society; or 25
(ii) is a partner, employer or employee of an officer of the 26
society; or 27
(iii) is a partner or employee of an employee of an officer of the 28
society. 29
Maximum penalty--160 penalty units. 30
s 150 91 s 150
Financial Intermediaries
as society's auditor 1
Firm
150.(1) A firm must not-- 2
(a) consent to be appointed as auditor of a society; or 3
(b) act as auditor of a society; or 4
(c) prepare a report required by this Act to be prepared by a 5
registered company auditor or by an auditor of a society; 6
unless-- 7
(d) at least 1 member of the firm is a registered company auditor 8
who is ordinarily resident in the State; and 9
(e) if the business name under which the firm is carrying on business 10
is not registered under the law of the State relating to business 11
names--there has been filed with QOFS a return in the approved 12
form showing, for each member of the firm, the member's full 13
name and address as at the time when the firm so consents, acts 14
or prepares a report; and 15
(f) neither the firm nor the member of the firm responsible for 16
conducting the audit, or signing the report, is indebted in an 17
amount of more than $5 000 to the society; and 18
(g) no member of the firm is-- 19
(i) an officer of the society; or 20
(ii) a partner, employer or employee of an officer of the society; 21
or 22
(iii) a partner or employee of an employee of an officer of the 23
society; and 24
(h) no officer of the society receives remuneration from the firm for 25
acting as a consultant to it on accounting or auditing matters. 26
(2) The appointment of a firm as auditor of a society is taken to be an 27
appointment of all persons who are members of the firm and are registered 28
company auditors, whether resident in Australia or not, as at the date of the 29
appointment. 30
(3) If a firm that has been appointed as auditor of a society is 31
reconstituted because of the death, retirement or withdrawal of a member or 32
members or because of the admission of a new member or new members, 33
s 150 92 s 150
Financial Intermediaries
or both-- 1
(a) a person who was auditor because of subsection (2) and who has 2
retired or withdrawn from the firm as previously constituted is 3
taken to have resigned as auditor as from the day of the retirement 4
or withdrawal but, unless the person was the only member of the 5
firm who was a registered company auditor and, after the 6
person's retirement or withdrawal, there is no member of the 7
firm who is a registered company auditor, sections 155 and 15631 8
do not apply to the resignation; and 9
(b) a person who is a registered company auditor and who is 10
admitted to the firm is taken to have been appointed as an auditor 11
of the society as from the date of admission to the firm; and 12
(c) the reconstitution of the firm does not affect the appointment of 13
the continuing members of the firm who are registered company 14
auditors as auditors of the society. 15
(4) Subsection (3) does not affect the operation of subsection (1). 16
(5) Except as provided by subsection (3), the appointment of the 17
members of a firm as auditors of a society because of the appointment of 18
the firm as auditor of the society is not affected by the dissolution of the 19
firm. 20
(6) A report or notice purporting to be made or given by a firm appointed 21
as auditor of a society is not taken to be duly made or given unless it is 22
signed in the firm name and in his or her own name by a member of the 23
firm who is a registered company auditor. 24
(7) Each member of a firm must ensure the firm does not, in 25
contravention of this section, consent to be appointed, or act as, auditor of a 26
society, or prepare a report required by this Act to be prepared by an auditor 27
of a society. 28
Maximum penalty for subsection (7)--80 penalty units. 29
31 Sections 155 (Resignation of auditors) and 156 (Noticement of retirement etc. to
be given)
s 151 93 s 152
Financial Intermediaries
must not disqualify self etc. from acting as society's auditor 1
Person
151. A person must not-- 2
(a) if appointed auditor of a society--knowingly disqualify himself 3
or herself while the appointment continues from acting as auditor 4
of the society; or 5
(b) if a member of a firm that has been appointed auditor of a 6
society--knowingly disqualify the firm while the appointment 7
continues from acting as auditor of the society. 8
of auditors 9
Appointment
152.(1) In this section, a reference to the appointment of a person or firm 10
as auditor of a society includes a reference to the appointment of persons, 11
firms, or a person or persons and a firm or firms, as auditors of the society. 12
(2) Within 1 month of incorporation, the directors of a society must 13
appoint, unless the society at a general meeting has appointed, a person or 14
firm as auditor of the society. 15
(3) Within 14 days of the appointment of the auditor, the society must 16
give QOFS written notice of the appointment. 17
Maximum penalty--80 penalty units. 18
(4) A person or firm appointed as auditor under subsection (2) holds 19
office, subject to this division, until the society's first annual general 20
meeting. 21
(5) A society must-- 22
(a) at its first annual general meeting appoint a person or firm as 23
auditor of the society; and 24
(b) at each subsequent annual general meeting, if there is a vacancy in 25
the office of auditor, appoint a person or firm to fill the vacancy. 26
Maximum penalty--160 penalty units. 27
(6) A person or firm appointed as auditor under subsection (5) holds 28
office-- 29
(a) until ceasing to be capable of acting as auditor because of 30
s 152 94 s 152
Financial Intermediaries
section 149 or 150(1);32 or 1
(b) until death or removal or resignation from office under 2
section 154 or 155.33 3
(7) Within 1 month after a vacancy happens in the office of auditor of a 4
society (other than a vacancy caused by the removal of an auditor from 5
office), the directors must, if there is no surviving or continuing auditor of 6
the society, appoint a person or firm to fill the vacancy unless the society at 7
a general meeting has appointed a person or firm to fill the vacancy. 8
(8) While a vacancy in the office of auditor continues, the surviving or 9
continuing auditor (if any) may act. 10
(9) A society must not, and the directors of a society must not, appoint a 11
person or firm as auditor of the society unless the person or firm has, 12
before the appointment, consented by written notice given to the society or 13
to the directors to act as auditor and has not withdrawn consent by written 14
notice given to the society or to the directors. 15
(10) A notice given by a firm must be signed in the firm name and in his 16
or her own name by a member of the firm who is a registered company 17
auditor. 18
(11) A purported appointment of a person or firm as auditor of a society 19
in contravention of subsection (9) has no effect. 20
(12) If an auditor of a society is removed from office at a general 21
meeting under section 154-- 22
(a) the society may at that meeting (without adjournment), by a 23
resolution passed by a majority of its members as, being entitled 24
so to do, vote in person, immediately appoint as auditor a person 25
or firm to whom has been sent a copy of the notice of nomination 26
under section 153; or 27
(b) if a resolution mentioned in paragraph (a) is not passed at that 28
meeting, or could not be passed at that meeting only because a 29
copy of the notice of nomination mentioned in the paragraph had 30
not been sent to a person-- 31
32 Section 149 (Person as society's auditor) or 150 (Firm as society's auditor)
33 Section 154 (Removal of auditors) or 155 (Resignation of auditors)
s 153 95 s 153
Financial Intermediaries
(i) the meeting may be adjourned to a date not earlier than 20 1
days and not later than 30 days after the day of the meeting; 2
and 3
(ii) the society may, at the adjourned meeting, by ordinary 4
resolution, appoint as auditor a person or firm notice of 5
whose nomination for appointment as auditor has been 6
received by the society from a member of the society at least 7
14 clear days before the date of the adjourned meeting. 8
(13) If after the removal from office of an auditor, the society fails to 9
appoint another auditor under subsection (12), the society must, within 10
7 days after the failure, notify QOFS of the failure. 11
Maximum penalty--160 penalty units. 12
(14) As soon as practicable after receiving a notice under subsection (13), 13
QOFS must, unless there is another auditor of the society whom QOFS 14
believes is able to carry out the responsibilities of auditor alone and who 15
agrees to continue as auditor, appoint as auditor a person or firm that has 16
consented to be appointed. 17
(15) Subject to subsection (14), if a society does not appoint an auditor 18
when required by this division to do so, QOFS may, on the written 19
application of a member of the society, appoint as auditor of the society a 20
person or firm that has consented to be appointed. 21
(16) A person or firm appointed as auditor of a society under 22
subsection (7), (12), (14) or (15) holds office, subject to this division, until 23
the society's next annual general meeting. 24
(17) A director of a society must take all reasonable steps to comply 25
with, or to secure compliance with, subsection (2) or (7). 26
Maximum penalty--160 penalty units. 27
(18) A society that contravenes subsection (9) commits an offence. 28
Maximum penalty for subsection (18)--80 penalty units. 29
of auditors 30
Nomination
153.(1) A society must not appoint a person or firm as auditor of the 31
society at its annual general meeting, not being a meeting at which an 32
auditor is removed from office, unless written notice of nomination of the 33
s 154 96 s 154
Financial Intermediaries
person or firm as auditor was given to the society by a member-- 1
(a) before the meeting was called; or 2
(b) not less than 3 weeks before the meeting. 3
(2) A purported appointment of a person or firm as auditor of the society 4
in contravention of subsection (1) has no effect. 5
(3) If a society contravenes subsection (1), the society and any officer of 6
the society who is in default each commit an offence. 7
Maximum penalty--10 penalty units. 8
(4) If notice of nomination of a person or firm for appointment as auditor 9
is received by the society, whether for appointment at a meeting or an 10
adjourned meeting mentioned in section 152(12) or at an annual general 11
meeting, the society must not less than 7 days before the meeting or when 12
notice of the meeting is given-- 13
(a) send a copy of the notice of nomination to each person or firm 14
nominated and to each auditor of the society; and 15
(b) cause a copy of the notice of nomination to be displayed in a 16
conspicuous place at the society's registered office until the day of 17
the meeting. 18
Maximum penalty--10 penalty units. 19
of auditors 20
Removal
154.(1) An auditor of a society may only be removed from office by-- 21
(a) special resolution at a general meeting of the society; or 22
(b) QOFS under section 48(4)(e).34 23
(2) If notice of a special resolution to remove an auditor is given, the 24
society must immediately send a copy of the notice to the auditor and to 25
QOFS. 26
Maximum penalty--80 penalty units. 27
(3) Within 7 days after receiving a copy of the notice, the auditor may 28
34 Section 48 (Intervention by QOFS)
s 155 97 s 155
Financial Intermediaries
make written representations of not more than a reasonable length to the 1
society and ask that a copy of the representations be displayed by the society 2
in a conspicuous place at the society's registered office until the day of the 3
meeting at which the resolution is to be considered. 4
(4) Unless QOFS, on the application of the society orders otherwise, the 5
society must display a copy of the representations as required by the 6
auditor, and the auditor may, without prejudice to the right to be heard orally 7
or, if a firm is the auditor, to have a member of the firm heard orally on its 8
behalf, require that the representations be read out at the meeting. 9
Maximum penalty for subsection (4)--80 penalty units. 10
of auditors 11
Resignation
155.(1) An auditor of a society may, by written notice given to the 12
society, resign if the auditor-- 13
(a) by written notice given to QOFS, has applied for consent to the 14
resignation and stated the reasons for the application; and 15
(b) at or about the same time as the auditor gave QOFS the notice, 16
has given the society written notice of the application; and 17
(c) has received QOFS's consent to the resignation. 18
(2) QOFS must, as soon as practicable after receiving a notice from an 19
auditor, notify the auditor and the society whether it consents to the 20
resignation. 21
(3) A statement made by an auditor in an application to QOFS for 22
consent to the resignation or in answer to an inquiry by QOFS relating to 23
the reasons for the application-- 24
(a) is not admissible in evidence in a civil or criminal proceeding 25
against the auditor; and 26
(b) may not be made the ground of a prosecution, action or suit 27
against the auditor. 28
(4) A certificate by QOFS that a statement was made in the application or 29
in the answer to an inquiry by QOFS is evidence that the statement was 30
made. 31
(5) The resignation of an auditor takes effect on whichever of the 32
s 156 98 s 157
Financial Intermediaries
following dates happens last-- 1
(a) the date (if any) stated for the purpose in the notice of resignation; 2
(b) the date on which QOFS gives its consent to the resignation; 3
(c) the date (if any) fixed by QOFS for the purpose. 4
of retirement etc. to be given 5
Notice
156.(1) If, on the retirement or withdrawal from a firm of a member, the 6
firm will no longer be capable, because of section 150(1)(d)35 of acting as 7
auditor of a society, the member retiring or withdrawing must give the 8
society reasonable notice of retirement or withdrawal. 9
Maximum penalty--80 penalty units. 10
(2) On receipt of the notice by the society, the office of auditor becomes 11
vacant. 12
(3) Within 14 days after the removal of an auditor or the receipt of a 13
notice of resignation, retirement or withdrawal from an auditor, the society 14
must give QOFS a notice of the removal, resignation, retirement or 15
withdrawal in the approved form. 16
Maximum penalty for subsection (3)--10 penalty units. 17
of winding-up on office of auditor 18
Effect
157. An auditor of a society ceases to hold office if-- 19
(a) a special resolution is passed for the voluntary winding-up of the 20
society; or 21
(b) an order is made by the court for the winding-up of the society; or 22
(c) QOFS issues a certificate under section 18436 for the society. 23
35 Section 150 (Firm as society's auditor)
36 Section 184 (Winding-up on certificate of QOFS)
s 158 99 s 159
Financial Intermediaries
and expenses of auditors 1
Fees
158. A society must pay the reasonable fees and expenses of an auditor, 2
including the auditor's expenses in giving a report required to be given by 3
this Act. 4
report 5
Auditor's
159.(1) An auditor of a society must report to the members on the 6
accounts required to be laid before the society at the annual general meeting 7
and on the society's accounting records and other records relating to the 8
accounts. 9
(2) The auditor must state in the report-- 10
(a) whether the accounts are in the auditor's opinion properly 11
prepared-- 12
(i) so as to give a true and fair view of the matters required by 13
section 14037 to be dealt with in the accounts; and 14
(ii) under this Act; and 15
(iii) under applicable accounting standards; and 16
(b) if, in the auditor's opinion, the accounts have not been prepared 17
under a particular applicable accounting standard-- 18
(i) whether, in the auditor's opinion, the accounts would, if 19
prepared under that standard, have given a true and fair view 20
of the matters required by section 140 to be dealt with in the 21
accounts; and 22
(ii) if, in the auditor's opinion, the accounts would not, if so 23
prepared, have given a true and fair view of those 24
matters--the reasons for the opinion; and 25
(iii) if the directors have caused a statement to be attached to the 26
accounts giving particulars of the quantified financial effect 27
on the accounts of the failure to so prepare the accounts--the 28
auditor's opinion of the particulars; and 29
(iv) if neither subparagraph (ii) nor (iii) applies--particulars of 30
37 Section 140 (Profit and loss account and balance sheet)
s 159 100 s 159
Financial Intermediaries
the quantified financial effect on the accounts of the failure to 1
so prepare the accounts; and 2
(c) any defect or irregularity in the accounts and any matter not set 3
out in the accounts without regard to which a true and fair view of 4
the matters dealt with by the accounts would not be obtained; and 5
(d) if the auditor is not satisfied as to a matter mentioned in paragraph 6
(a) or (b)--the reasons for not being satisfied. 7
(3) The auditor of a society has a duty to form an opinion on each of the 8
following matters-- 9
(a) whether the auditor has obtained all the information and 10
explanations the auditor required; 11
(b) whether proper accounting records and other records, including 12
registers, have been kept by the society as required by this Act. 13
(4) The auditor must state in the auditor's report particulars of any 14
deficiency, failure or shortcoming for any matter mentioned in 15
subsection (3). 16
(5) The auditor must give the auditor's report to the society's directors in 17
sufficient time to enable the society to comply with the requirements of 18
section 14138 for the report. 19
(6) The auditor's report-- 20
(a) must be attached to or endorsed on the accounts; and 21
(b) if a member so requires--must be read before the society at the 22
annual general meeting; and 23
(c) must be open to inspection by a member at any reasonable time. 24
(7) The auditor must, when giving the auditor's report, also give the 25
society's directors a report as to-- 26
(a) the adequacy, in the auditor's opinion, of the systems adopted by 27
the society to monitor and manage risks associated with its 28
financial activities; and 29
(b) any other matter of a kind prescribed in a standard made for this 30
subsection. 31
38 Section 141 (Audit)
s 160 101 s 160
Financial Intermediaries
(8) When an auditor gives the society's directors a report under 1
subsection (7), the auditor must also give QOFS a copy of the report. 2
(9) An auditor of a society must not contravene this section. 3
Maximum penalty for subsection (9)--80 penalty units. 4
and duties of auditor 5
Powers
160.(1) An auditor of a society has a right of access at all reasonable 6
times to the accounting records and other records and registers of the 7
society. 8
(2) The auditor is entitled to require from an officer of the society any 9
information and explanation that the auditor requires for the audit. 10
(3) An auditor of a society, or an agent authorised by the auditor in 11
writing for the purpose, is entitled to-- 12
(a) attend a general meeting of the society; and 13
(b) receive all notices of, and other communications about, a general 14
meeting that a member is entitled to receive; and 15
(c) be heard at a general meeting that he or she attends on any part of 16
the business of the meeting concerning the auditor in the capacity 17
of auditor; and 18
(d) be heard at a meeting mentioned in paragraph (c) even though-- 19
(i) the auditor retires at the meeting; or 20
(ii) a resolution to remove the auditor from office is passed at 21
the meeting. 22
(4) If an auditor becomes aware that the society or the directors has or 23
have not complied with section 123, or the provisions of section 14639 24
about the laying of accounts before the society's annual general meeting, the 25
auditor must immediately inform QOFS by written notice and, if accounts 26
have been prepared and audited, send QOFS a copy of the accounts and of 27
the auditor's report on the accounts. 28
(5) Except if subsection (4) applies, if an auditor, while performing 29
39 Section 123 (Annual general meeting)
Section 146 (Accounts and reports to be laid before annual general meeting)
s 161 102 s 161
Financial Intermediaries
duties as auditor of a society, is satisfied that-- 1
(a) there has been a contravention of this Act; and 2
(b) the circumstances are such that, in the auditor's opinion, the 3
matter has not been, or will not be, adequately dealt with by 4
comment in the auditor's report on the accounts or by bringing 5
the matter to the notice of the society's directors; 6
the auditor must immediately report the matter to QOFS by written notice. 7
(6) If an auditor of a society-- 8
(a) is not satisfied that the accounts comply with a particular 9
applicable accounting standard; or 10
(b) considers that the accounts do not comply with a particular 11
applicable accounting standard; 12
the auditor must report the matter to QOFS in writing within 7 days after 13
giving to the society's directors the auditor's report under section 159.40 14
(7) If an auditor sends QOFS a report on the accounts under 15
subsection (6), QOFS may, by written notice to the society, require it to 16
give QOFS a copy of the accounts within 7 days after service of the notice. 17
(8) In addition to any other report that an auditor, or former auditor, of a 18
society is required to give to QOFS, an auditor, or former auditor, of a 19
society must give QOFS any report about the society's affairs that QOFS 20
requires and the auditor, or former auditor, is able to give. 21
(9) An auditor, or former auditor, of a society must not contravene this 22
section. 23
Maximum penalty for subsection (9)--80 penalty units. 24
audit on merger or transfer of engagements 25
Final
161.(1) This section applies to a society that is dissolved as part of a 26
merger, or transfer of engagements, under part 9.41 27
(2) The society's auditor must prepare a report containing the statements 28
40 Section 159 (Auditor's report)
41 Part 9 (Mergers and transfers of engagements)
s 162 103 s 162
Financial Intermediaries
and information prescribed under a regulation about the society's accounts 1
and accounting records for the financial year up to the date of the society's 2
dissolution and for the previous financial year if an auditor's report has not 3
been prepared for the society's accounts for that year. 4
(3) The provisions of section 160 about the rights of access of an auditor 5
to a society's records apply for the preparation of the report as if it were a 6
report required under section 159. 7
(4) The society's auditor must give the report to the directors of the 8
merged society or transferee society within 2 months after the date of the 9
merger or transfer and the directors of the merged society or transferee 10
society must in turn, within 3 months after the date of the merger or 11
transfer, give QOFS the auditor's report together with the accounts of the 12
society dissolved as part of the merger or transfer. 13
(5) An auditor of a society must not contravene this section. 14
Maximum penalty--80 penalty units. 15
(6) A director of a society must take all reasonable steps to ensure that a 16
report required by this section to be given to the directors of a society or to 17
QOFS is so given. 18
Maximum penalty for subsection (6)--80 penalty units. 19
of auditor 20
Obstruction
162. An officer of a society must not-- 21
(a) fail without lawful excuse-- 22
(i) to allow an auditor of the society access, under this part, to 23
the accounting records and other records and registers of the 24
society that are in the possession or control of the officer; or 25
(ii) to give any information or explanation as and when required 26
under this part; or 27
(b) otherwise hinder, obstruct or delay an auditor in the performance 28
of the duties or the exercise of the powers of an auditor. 29
Maximum penalty--400 penalty units. 30
s 163 104 s 164
Financial Intermediaries
privilege 1
Qualified
163.(1) An auditor of a society has qualified privilege in relation to-- 2
(a) an oral or written statement made by the auditor while exercising 3
functions as auditor of the society; and 4
(b) the giving to QOFS of a notice or report, or a copy of any 5
accounts. 6
(2) A person has qualified privilege in relation to the publishing of-- 7
(a) a document that is prepared by an auditor of a society while 8
exercising functions as auditor of the society and is required 9
under this Act to be given to QOFS, whether or not the 10
requirement has been complied with; and 11
(b) an oral or written statement made by the auditor while exercising 12
functions as auditor of the society. 13
(3) This section does not limit or affect any other right, privilege or 14
immunity that an auditor or other person has as a defendant in an action for 15
defamation. 16
(4) In this section-- 17
"malice" includes ill-will to the person concerned or any other improper 18
motive; 19
"qualified privilege" means that a person-- 20
(a) has qualified privilege in proceedings for defamation; or 21
(b) is not, in the absence of malice on the person's part, liable to an 22
action for defamation at the suit of a person. 23
6--Returns and relief 24
Division
25
Returns
164.(1) A society must file returns with QOFS-- 26
(a) under a relevant standard; or 27
(b) under a regulation. 28
Maximum penalty--80 penalty units. 29
s 165 105 s 165
Financial Intermediaries
(2) QOFS may, by written notice, require a society to file the further 1
returns that QOFS requires. 2
(3) A further return must contain the information required by the notice 3
and must be filed as often as is required by the notice. 4
(4) QOFS may, by written notice, require a society to file with a return or 5
further return a report by a registered company auditor, or other person of a 6
stated class, on stated matters to which the return relates. 7
(5) A society must not fail to comply with a requirement of a notice 8
given to it under this section, unless the society has a reasonable excuse. 9
Maximum penalty for subsection (5)--400 penalty units. 10
from requirements as to accounts and audit 11
Relief
165.(1) The directors of a society may apply to QOFS in writing for an 12
order relieving the directors, the society or the auditor of the society from 13
compliance with any stated requirements of division 4 or 5 (other than 14
section 138).42 15
(2) An application under subsection (1) must be accompanied by a 16
written statement made under a resolution of the society's directors, signed 17
by not less than 2 directors and stating the reasons for seeking the order. 18
(3) QOFS may require the directors making the application to give 19
information about the society's operations that QOFS thinks necessary to 20
determine the application. 21
(4) QOFS may make an order unconditionally or on terms it considers 22
appropriate. 23
(5) Notice of an order under subsection (4) must be given to the society. 24
(6) QOFS may, if it considers it appropriate, make an order for a stated 25
class of societies relieving the directors of a society included in the class, a 26
society included in the class or the auditor of a society included in the class, 27
from compliance with any stated requirements of division 4 or 5 (other than 28
section 138). 29
42 Division 4 (Accounts)
Division 5 (Audit)
Section 138 (Accounting records to be kept)
s 165 106 s 165
Financial Intermediaries
(7) QOFS may make an order under subsection (6) unconditionally or 1
on terms it considers appropriate. 2
(8) Notice of an order under subsection (6) must be published in the 3
gazette. 4
(9) QOFS may make an order about a society or a class of societies only 5
if QOFS considers, for each requirement of this Act stated in the order, that 6
compliance with the requirement-- 7
(a) would make accounts, or a report required about the accounts, 8
misleading; or 9
(b) would be inappropriate to the circumstances of the society, or of 10
the societies included in the class; or 11
(c) would impose unreasonable burdens on-- 12
(i) the society, an officer of the society or the auditor of the 13
society; or 14
(ii) the societies, or officers or auditors of the societies, included 15
in the class. 16
(10) The order may be limited in its effect to a period stated in the order. 17
(11) QOFS may, on application by the directors of a society or on its 18
own initiative, revoke or suspend the order. 19
(12) A revocation or suspension does not take effect-- 20
(a) for an order under subsection (4)--until written notice of the 21
revocation or suspension is given to the society; or 22
(b) for an order under subsection (6)--until notice of the revocation 23
or suspension is published in the gazette. 24
s 166 107 s 168
Financial Intermediaries
PART 8--CHARGES 1
of charges 2
Registration
166.(1) Part 3.5 of the Corporations Law 43 applies to a society with all 3
necessary changes and any changes prescribed under a regulation. 4
(2) Without limiting subsection (1), the provisions of part 3.5 of the 5
Corporations Law are to be applied as if-- 6
(a) a reference to a company were a reference to a society; and 7
(b) a reference to the commission were a reference to QOFS. 8
PART 9--MERGERS AND TRANSFERS OF 9
ENGAGEMENTS 10
for part 11
Definitions
167. In this part-- 12
"certificate of confirmation" means a certificate given by QOFS to 13
confirm a transfer of engagements. 14
"transferee society" means a society to whom another society is to 15
transfer, or has transferred, its engagements. 16
"transferor society" means a society that is to transfer, or has transferred, 17
its engagements. 18
of part 19
Application
168. This part applies only if-- 20
(a) all funds raised by the societies proposing to consolidate their 21
assets, liabilities and undertakings by way of merger, or transfer 22
of engagements, and not repaid were provided by the same entity; 23
43 Part 3.5 of the Corporations Law (Charges)
s 169 108 s 169
Financial Intermediaries
and 1
(b) either-- 2
(i) a guarantee is in force for each of the societies; or 3
(ii) a guarantee is not in force for any of the societies. 4
for registration of merger or transfer of engagements 5
Application
169.(1) If 2 or more societies propose to consolidate all of their assets, 6
liabilities and undertakings by way of merger, or transfer of engagements, 7
the societies may, after complying with this section, apply for the 8
registration of the merger, or transfer of engagements. 9
(2) The proposed merger, or transfer of engagements, must have been 10
approved by a special resolution of each society involved unless QOFS has 11
decided that it may be approved by the society's board. 12
(3) Each society must send to each of its members a statement approved 13
by QOFS stating-- 14
(a) the financial position of each of the societies as shown in financial 15
statements that have been prepared as at a date that is not more 16
than 6 months before the date of the statement; and 17
(b) the interest that an officer of any of the societies has in the 18
proposed merger, or transfer of engagements; and 19
(c) the compensation or other consideration proposed to be paid, or 20
other incentive proposed to be given, to an officer or member of a 21
society in relation to the proposed merger, or transfer or 22
engagements; and 23
(d) whether the proposal is a merger, or transfer of engagements and 24
the reason for the merger, or transfer of engagements; and 25
(e) how the societies' reserves will be dealt with on the merger or 26
transfer of engagements; and 27
(f) if there is a management contract for any of the societies--what is 28
to happen to the contract; and 29
(g) any other matter specified by QOFS. 30
(4) The statement must be sent to the members so that it will, in the 31
s 170 109 s 170
Financial Intermediaries
ordinary course of post, reach each member who is entitled to vote on the 1
special resolution not later than-- 2
(a) if the resolution is to be decided at a meeting--21 days before the 3
date of the meeting; or 4
(b) if the resolution is to be decided by a postal ballot--21 days 5
before the day on or before which the ballot papers must be 6
returned by members voting in the ballot. 7
(5) QOFS may exempt a society from having to comply with all or part 8
of subsection (3). 9
(6) QOFS may grant an exemption, or approve a statement, on terms it 10
considers appropriate. 11
(7) An application for the registration of a merger or transfer of 12
engagements must be made in the way and form required by QOFS. 13
(8) An application for a proposed merger must be accompanied by 14
2 copies of the proposed rules of the merged society and any other 15
particulars required by QOFS. 16
(9) An application for a proposed transfer of engagements must be 17
accompanied by 2 copies of the proposed rules of the transferee society and 18
any other particulars required by QOFS. 19
may register merged society 20
QOFS
170.(1) This section applies if societies have applied to register a merger 21
and QOFS is satisfied that-- 22
(a) the societies involved have complied with section 169; and 23
(b) the proposed rules of the merged society are adequate; and 24
(c) there are reasonable grounds for believing that the merged society 25
will be able to comply with all relevant standards; and 26
(d) the certificates of incorporation of the societies involved in the 27
merger have been-- 28
(i) surrendered to QOFS; or 29
(ii) lost or destroyed; and 30
(e) there is no good reason why the merged society and its rules 31
s 171 110 s 172
Financial Intermediaries
should not be registered. 1
(2) QOFS must-- 2
(a) register the merged society; and 3
(b) register its rules; and 4
(c) cancel the registration of the societies involved in the merger. 5
(3) On registering the merged society, QOFS must issue to the society a 6
certificate of incorporation. 7
(4) A merger takes effect on the issue of the certificate of incorporation. 8
of confirmation (voluntary transfer) 9
Certificate
171.(1) This section applies to a transfer of engagements following an 10
application under section 169.44 11
(2) QOFS must issue a certificate of confirmation if it is satisfied that-- 12
(a) the societies have complied with section 169; and 13
(b) the rules, or proposed rules, of the transferee society are adequate; 14
and 15
(c) the certificate of incorporation of the transferor society has been-- 16
(i) surrendered to QOFS; or 17
(ii) lost or destroyed; and 18
(d) there is no good reason why the transfer should not take effect. 19
may direct a transfer of engagements 20
QOFS
172.(1) QOFS may, by written notice given to a society, direct it to 21
transfer its engagements to another society if the board of the transferee 22
society has, by resolution, consented to the proposed transfer. 23
(2) QOFS must give a copy of the direction to the transferee society. 24
(3) The direction must state that the transferor society must surrender its 25
certificate of incorporation to QOFS or satisfy QOFS that its certificate has 26
44 Section 169 (Application for registration of merger or transfer of engagements)
s 173 111 s 173
Financial Intermediaries
been lost or destroyed. 1
(4) QOFS may direct a society to transfer its engagements only if-- 2
(a) QOFS considers that-- 3
(i) the society has contravened this Act or the society's rules 4
and, after being given written notice of the contravention by 5
QOFS, has allowed the contravention to continue or has 6
again contravened this Act or the rules; or 7
(ii) the society is trading unprofitably or has an accumulated 8
deficit in its profit and loss appropriation account; or 9
(iii) the society's affairs are being conducted in an improper or 10
financially unsound way; or 11
(b) after making inquiries about 1 or both of the societies that QOFS 12
considers appropriate, QOFS is satisfied that it is in the interest of 13
members or creditors of the society that is to be directed to 14
transfer its engagements; or 15
(c) QOFS has certified, for the society, that any of the events 16
mentioned in section 184(1)(a), (b), (c) or (g)45 has happened. 17
to comply with direction 18
Society
173.(1) A society must take all reasonable steps to comply with a 19
direction to transfer its engagements. 20
Maximum penalty--1 600 penalty units. 21
(2) An officer of a society must not-- 22
(a) fail to take all reasonable steps to secure compliance by the 23
society with a direction to transfer its engagements; or 24
(b) by a wilful act or omission, be the cause of a failure by the society 25
to comply with a direction to transfer its engagements. 26
Maximum penalty--1 600 penalty units or 7 years imprisonment. 27
45 Section 184 (Winding-up on certificate of QOFS)
s 174 112 s 178
Financial Intermediaries
of confirmation (transfer by direction) 1
Certificate
174.(1) This section applies to a transfer of engagements by a direction 2
under section 172.46 3
(2) If the transfer takes effect immediately, the direction must be 4
accompanied by a certificate of confirmation. 5
(3) If the transfer does not take effect immediately-- 6
(a) the direction must state the day when QOFS proposes to issue the 7
certificate of confirmation; and 8
(b) when QOFS is satisfied that the societies have complied with the 9
direction, it must issue a certificate of confirmation. 10
receives the certificate of confirmation 11
Who
175. QOFS must give a certificate of confirmation to the transferee 12
society. 13
transfer of engagements takes effect 14
When
176. A transfer of engagements takes effect on the day of issue of the 15
certificate of confirmation of the transfer, or a later day specified in the 16
certificate. 17
of registration 18
Cancellation
177. QOFS must cancel the transferor society's registration. 19
of merger on societies 20
Effect
178.(1) This section applies on a merger of societies taking effect. 21
(2) The merged society is the successor of the merging societies. 22
(3) Without limiting subsection (2)-- 23
(a) the members of each merging society become members of the 24
merged society; and 25
46 Section 172 (QOFS may direct a transfer of engagements)
s 179 113 s 180
Financial Intermediaries
(b) all assets and liabilities of each merging society become assets 1
and liabilities of the merged society without any conveyance, 2
transfer or assignment; and 3
(c) in all documents (including, for example, a contract to which a 4
merging society was a party), a reference to a merging society is a 5
reference to the merged society; and 6
(d) a legal proceeding by or against a merging society that is not 7
finished when the merger takes effect may be continued and 8
finished by or against the merged society; and 9
(e) the duties, obligations, immunities, rights and privileges applying 10
to a merging society apply to the merged society. 11
of transfer of engagements on societies 12
Effect
179.(1) This section applies on a transfer of engagements taking effect. 13
(2) The transferee society is the successor of the transferor society. 14
(3) Without limiting subsection (2)-- 15
(a) the members of the transferor society become members of the 16
transferee society; and 17
(b) all assets and liabilities of the transferor society become assets 18
and liabilities of the transferee society without any conveyance, 19
transfer or assignment; and 20
(c) in all documents (including, for example, a contract to which the 21
transferor society was a party), a reference to the transferor 22
society is a reference to the transferee society; and 23
(d) a legal proceeding by or against the transferor society that is not 24
finished when the merger takes effect may be continued and 25
finished by or against the transferee society; and 26
(e) the duties, obligations, immunities, rights and privileges applying 27
to the transferor society apply to the transferee society. 28
of merger or transfer of engagements on guarantees 29
Effect
180.(1) This section applies on a merger or transfer of engagements 30
s 181 114 s 181
Financial Intermediaries
taking effect, if a guarantee is in force for each of the societies involved in 1
the merger or transfer of engagements. 2
(2) On a merger-- 3
(a) each existing guarantee must be surrendered to the Treasurer; and 4
(b) a new guarantee must be executed for the merged society for the 5
amount outstanding under all the guarantees. 6
(3) On a transfer of engagements-- 7
(a) each existing guarantee, other than the most recent guarantee if it 8
is for the transferee society, must be surrendered to the Treasurer 9
who must vary the most recent guarantee to cover the total 10
amount outstanding under all the guarantees; or 11
(b) each existing guarantee must be surrendered to the Treasurer who 12
must execute a new guarantee for the transferee society for the 13
total amount outstanding under all the guarantees. 14
PART 10--EXTERNAL ADMINISTRATION 15
Division 1--Receivers and managers 16
and managers 17
Receivers
181.(1) Part 5.2 47 of the Corporations Law applies to a society with all 18
necessary changes and any changes prescribed under a regulation. 19
(2) Without limiting subsection (1), a reference in part 5.2 of the 20
Corporations Law-- 21
(a) to the commission is taken to be a reference to QOFS; and 22
(b) to the gazette--is a reference to the Queensland Government 23
Gazette. 24
47 Part 5.2 of the Corporations Law (Receivers, and other controllers, of property of
corporations)
s 182 115 s 184
Financial Intermediaries
2--Administration of society's affairs 1
Division
of society's affairs with view to executing deed of 2
Administration
arrangement 3
182.(1) Part 5.3A48 of the Corporations Law applies to a society with all 4
necessary changes and any changes prescribed under a regulation. 5
(2) Without limiting subsection (1), a reference in part 5.3A of the 6
Corporations Law to the commission is taken to be a reference to QOFS. 7
3--Winding-up 8
Division
9
Winding-up
183.(1) A society may be wound-up voluntarily or by the Supreme 10
Court or on a certificate of QOFS. 11
(2) Subject to this division, a society may be wound-up in the way and 12
circumstances in which a company may be wound-up under the 13
Corporations Law. 14
on certificate of QOFS 15
Winding-up
184.(1) For a winding-up on a certificate of QOFS, the society may be 16
wound-up if QOFS certifies that-- 17
(a) the society has not started business within a year of registration or 18
has suspended or ceased to carry on business for more than 19
6 months; or 20
(b) an event (to be stated in the certificate) has happened on the 21
happening of which a regulation or the society's rules provide that 22
the society is to be wound-up; or 23
(c) the registration of the society has been obtained by mistake or 24
fraud; or 25
48 Part 5.3A of the Corporations Law (Administration of a company's affairs with a
view to executing a deed of company arrangement)
s 184 116 s 184
Financial Intermediaries
(d) the society exists for an illegal purpose; or 1
(e) the society has, after notice by QOFS of a contravention of this 2
Act or the society's rules, failed, within the time stated in the 3
notice, to remedy the contravention or has committed a further 4
contravention of a kind stated in the notice; or 5
(f) there are, and have been for a period of 1 month immediately 6
before the date of the certificate, insufficient directors of the 7
society to constitute a quorum under the society's rules; or 8
(g) because of an investigation under this Act into the society's 9
affairs, it is in the interests of the public, or members or creditors 10
of the society, that the society be wound-up. 11
(2) QOFS may certify under subsection (1) only if the event has been 12
proved to its satisfaction. 13
(3) If QOFS certifies under subsection (1), QOFS may appoint a person 14
to be the society's liquidator. 15
(4) The liquidator appointed by QOFS may be employed in the office of 16
QOFS and, if so, need not be a registered liquidator under the Corporations 17
Law. 18
(5) The liquidator, unless employed in the office of QOFS, is entitled to 19
receive an amount of remuneration QOFS considers appropriate, having 20
regard to the rate of payment that normally would apply for such an 21
appointment. 22
(6) A vacancy in the office of a liquidator appointed under subsection (3) 23
must be filled by a person appointed by QOFS for the purpose. 24
(7) A winding-up on a certificate of QOFS is taken to start at the date of 25
the certificate of QOFS. 26
(8) The liquidator must, within 14 days after the appointment, give notice 27
of the appointment by gazette notice. 28
s 185 117 s 186
Financial Intermediaries
of Corporations Law to winding-up 1
Application
185.(1) Subject to this division, parts 5.4, 5.4A, 5.4B, 5.5 and 5.649 of 2
the Corporations Law apply to the winding-up or dissolution of a society or 3
to a defunct or dissolved society with all necessary changes and any 4
changes prescribed under a regulation. 5
(2) In the application of parts 5.4, 5.4A, 5.4B, 5.5 and 5.6 of the 6
Corporations Law to the winding-up of a society, a reference in those 7
provisions-- 8
(a) to a special resolution--is a reference to a special resolution 9
within the meaning of this Act; and 10
(b) to the commission--is a reference to QOFS; and 11
(c) to the gazette--is a reference to the Queensland Government 12
Gazette; and 13
(d) to a voluntary winding-up--includes a reference to a winding-up 14
of a society on a certificate of QOFS. 15
winding-up 16
Voluntary
186.(1) If a society is to be wound-up voluntarily, a person employed in 17
the office of QOFS may be appointed liquidator. 18
(2) If a society is being wound-up voluntarily and a vacancy happens in 19
the office of liquidator, a person employed in the office of QOFS may be 20
appointed liquidator to fill the vacancy. 21
(3) An appointment under subsection (1) or (2) is effective only if it is 22
made with QOFS's written approval. 23
(4) A person appointed as liquidator under this section need not be a 24
registered liquidator under the Corporations Law. 25
(5) The remuneration payable to a liquidator appointed under this section 26
must be paid to QOFS. 27
49 Part 5.4 of the Corporations Law (Winding up in insolvency)
Part 5.4A of the Corporations Law (Winding up by the Court on other grounds)
Part 5.4B of the Corporations Law (Winding up in insolvency or by the court)
Part 5.5 of the Corporations Law (Voluntary winding up)
Part 5.6 of the Corporations Law (Winding up generally)
s 187 118 s 190
Financial Intermediaries
in office of liquidator on voluntary winding-up 1
Vacancy
187.(1) This section applies if-- 2
(a) a society is being wound-up voluntarily; and 3
(b) the liquidator was not appointed under section 186; and 4
(c) a vacancy happens in the office of liquidator that, in QOFS's 5
opinion, is unlikely to be filled in the way provided by part 5.5 of 6
the Corporations Law. 7
(2) QOFS may appoint as liquidator a person qualified for the 8
appointment under part 5.5 of the Corporations Law. 9
of liquidator on voluntary winding-up 10
Remuneration
188. Despite anything in this Act or the Corporations Law, the 11
remuneration paid to the liquidator of a society wound-up voluntarily must 12
not be more than the amount fixed by QOFS. 13
of registration 14
Cancellation
189. As soon as is practicable after a society is dissolved or taken to be 15
dissolved, QOFS must register the dissolution and cancel the registration of 16
the society. 17
PART 11--SPECIAL INVESTIGATIONS 18
of "officer" for part 19
Definition
190. In this part-- 20
"officer" of a society includes-- 21
(a) a person who acts, or who at any time acted, as banker, solicitor, 22
auditor or in another capacity for the society; and 23
(b) a person who-- 24
(i) has, or has at any time had, in his or her possession property 25
s 191 119 s 191
Financial Intermediaries
of the society; or 1
(ii) is indebted to the society outside the normal trading terms of 2
the person's membership; or 3
(iii) is capable of giving information about the society's affairs; 4
and 5
(c) if an investigator has reasonable grounds for suspecting or 6
believing that a person is a person mentioned in 7
paragraph (b)--that person. 8
of investigators 9
Appointment
191.(1) QOFS may appoint an investigator to investigate a society's 10
affairs if QOFS considers that it is desirable to do so-- 11
(a) for the protection of the public, or of the society's members or 12
creditors; or 13
(b) in the public interest. 14
(2) QOFS may appoint a person as investigator only if the person has, in 15
QOFS's opinion, the appropriate expertise for the position (whether 16
because of training or otherwise). 17
(3) QOFS must, in the instrument appointing an investigator, state full 18
particulars of the appointment including-- 19
(a) the matters into which the investigations are to be made, being all 20
the affairs or particular affairs of the society; and 21
(b) the terms (if any) of the investigator's appointment. 22
(4) QOFS may-- 23
(a) in the instrument appointing an investigator, state the period 24
during which the investigation is to be made; and 25
(b) at any time, by written notice given to an investigator, vary-- 26
(i) particulars stated in the instrument of appointment, being 27
particulars mentioned in subsection (3)(a) or (b); or 28
(ii) the period during which the investigation is to be made. 29
s 192 120 s 194
Financial Intermediaries
(5) QOFS may, by written notice given to an investigator, terminate the 1
appointment at any time. 2
or more investigators appointed 3
Two
192.(1) This section applies if 2 or more investigators are appointed to 4
investigate a society's affairs (whether by the same instrument or by 5
different instruments). 6
(2) Each of the investigators may exercise the powers or perform the 7
functions independently of the other investigator or investigators. 8
of investigators 9
Powers
193.(1) An investigator may, by written notice given to an officer of a 10
society the affairs of which are being investigated, require the officer-- 11
(a) to produce to the investigator all documents of the society and 12
other documents about the society's affairs in the possession or 13
under the control of the officer; and 14
(b) to give the investigator all reasonable help with the investigation; 15
and 16
(c) to appear before the investigator for examination on oath or 17
affirmation. 18
(2) An investigator may administer an oath or affirmation. 19
(3) If documents are produced to an investigator, the investigator may 20
take possession of the documents for the period the investigator considers 21
necessary for the investigation. 22
(4) During the period, the investigator must permit a person who would 23
be entitled to inspect any 1 or more of those documents, if they were not in 24
the investigator's possession, to inspect at all reasonable times the 25
documents that person would be entitled to inspect. 26
of officers 27
Examination
194.(1) If a society's affairs are being investigated, an officer of the 28
society must not-- 29
s 195 121 s 195
Financial Intermediaries
(a) fail to comply with a requirement of an investigator under 1
section 193 to the extent to which the officer is able to comply 2
with it, unless the officer has a reasonable excuse; or 3
(b) in purported compliance with a requirement, knowingly give 4
information that is false or misleading in a material particular; or 5
(c) when appearing before an investigator for examination under a 6
requirement-- 7
(i) state anything the officer knows is false or misleading in a 8
material particular; or 9
(ii) fail to be sworn or make an affirmation. 10
Maximum penalty--800 penalty units or 4 years imprisonment. 11
(2) A legal practitioner acting for the officer-- 12
(a) may attend the examination; and 13
(b) to the extent that the investigator permits-- 14
(i) may address the investigator; and 15
(ii) may examine the officer; 16
about matters in relation to which the investigator has questioned the officer. 17
(3) A person who complies with the requirement of an investigator under 18
this section does not incur liability to another person merely because of the 19
compliance. 20
(4) A person required to attend for examination under this part is entitled 21
to the allowances and expenses prescribed under a regulation. 22
(5) It is a reasonable excuse for an officer to fail to comply with a 23
requirement of an investigator under section 193 if complying with the 24
requirement might tend to incriminate the officer. 25
communications 26
Privileged
195.(1) An officer who is a legal practitioner may refuse to give 27
information or produce a document to an investigator if-- 28
(a) the information or document is a privileged communication 29
between the legal practitioner as such and another person; and 30
s 196 122 s 196
Financial Intermediaries
(b) the other person does not agree to its being given or its 1
production; and 2
(c) subsection (2) does not apply. 3
(2) If the society to which the information or document relates is being 4
wound-up, the legal practitioner must give the information or produce the 5
document if the liquidator agrees to its being given or to its production. 6
Maximum penalty--400 penalty units or 2 years imprisonment. 7
(3) A legal practitioner commits an offence if the practitioner-- 8
(a) refuses to give information or produce a document to an 9
investigator on the ground that it is a privileged communication 10
between the legal practitioner and another person who has not 11
agreed to its being given or to its production; and 12
(b) knows the name of the other person and the residential or other 13
address at which the person might be found; and 14
(c) fails to comply with a request by the investigator to give the 15
investigator the name and address in writing. 16
Maximum penalty for subsection (3)--400 penalty units or 2 years 17
imprisonment. 18
of officer to comply with requirement of investigator 19
Failure
196.(1) This section applies if an officer of a society fails to comply with 20
a requirement of an investigator appointed to investigate the society's 21
affairs. 22
(2) The investigator may, if the investigator considers that the officer did 23
not have a lawful excuse for the failure, certify the failure by signed writing 24
to the Supreme Court. 25
(3) If an investigator gives a certificate under subsection (2), the Supreme 26
Court may inquire into the case and-- 27
(a) order the officer to comply with the requirements of the 28
investigator within a period fixed by the court; or 29
(b) if the court is satisfied that the officer failed without lawful excuse 30
to comply with the requirement of the investigator--punish the 31
officer in the same way as if the officer had been guilty of 32
s 197 123 s 198
Financial Intermediaries
contempt of the court and may also make an order under 1
paragraph (a). 2
of examination 3
Recording
197.(1) An investigator may cause to be made a record of the questions 4
asked and the answers given at an examination under this part. 5
(2) A record of the examination of a person under this part may be used 6
in evidence in a legal proceeding against the person. 7
(3) A copy of the record of the examination of a person must be given 8
without fee to the person on the written request of the person. 9
(4) This section does not affect or limit the admissibility of other written 10
or oral evidence. 11
(5) QOFS may give a copy of the record of the examination to a legal 12
practitioner who satisfies QOFS that the practitioner is acting for a person 13
who is conducting, or is in good faith contemplating, legal proceedings in 14
relation to affairs being investigated by an investigator. 15
(6) A legal practitioner to whom a copy of the record is given must-- 16
(a) use the record only for the institution or preparation of, and in the 17
course of, legal proceedings; and 18
(b) not publish or communicate the record or a part of it for any other 19
purpose. 20
Maximum penalty--400 penalty units or 2 years imprisonment. 21
(7) If a report is made under section 199,50 a record made under this 22
section about the report must be given with the report. 23
of powers by investigator 24
Delegation
198.(1) An investigator may delegate the investigator's powers under 25
this part except-- 26
(a) the power to administer oaths or affirmations; and 27
(b) the power to examine on oath or affirmation. 28
50 Section 199 (Report of investigator)
s 199 124 s 199
Financial Intermediaries
(2) An investigator may delegate the powers only to a person who has, in 1
the investigator's opinion, the appropriate expertise for exercising the 2
powers (whether because of training or otherwise). 3
(3) A delegate must produce the instrument of delegation for inspection 4
on request by an officer of a society the affairs of which are being 5
investigated. 6
of investigator 7
Report
199.(1) An investigator may, and if so directed by QOFS must, make 8
interim reports to QOFS. 9
(2) On the completion or termination of the investigation, the investigator 10
must report to QOFS the investigator's opinion about the affairs of a 11
society the investigator has investigated, together with the facts on which the 12
opinion is based. 13
(3) An investigator may, when making a report, give to QOFS any 14
documents of which the investigator has taken possession under 15
section 193(3).51 16
(4) QOFS-- 17
(a) may keep the documents for the period it considers necessary to 18
enable a decision to be made as to whether or not a legal 19
proceeding ought to be instituted because of the investigation; and 20
(b) may keep the documents for a further period it considers 21
necessary to enable the proceeding to be instituted and prosecuted; 22
and 23
(c) may permit other persons to inspect the documents while they are 24
in its possession; and 25
(d) may permit the use of the documents for the purposes of a legal 26
proceeding instituted because of the investigation; and 27
(e) must permit a person who would be entitled to inspect any of the 28
documents if they were not in QOFS's possession to inspect at 29
all reasonable times the documents that the person would be 30
entitled to inspect. 31
51 Section 193 (Powers of investigators)
s 200 125 s 200
Financial Intermediaries
(5) A copy of a final report must, and a copy of the whole or any part of 1
an interim report may, if QOFS considers it appropriate, be sent by QOFS 2
to the registered office of the society to which it relates. 3
(6) However, QOFS is not bound to give a society or any other person a 4
copy of a report, or any part of a report, by an investigator if it considers 5
that there is good reason for not divulging the contents of the report or part. 6
(7) QOFS may, if it considers that it is in the public interest to do so, 7
cause the whole or any part of a report to be printed and published. 8
(8) If an investigator has caused a record of an examination under this 9
part to be sent to QOFS with the report to which the record relates, a copy 10
of the record may be given to the persons and on terms QOFS considers 11
appropriate. 12
(9) Subsection (8) applies subject to section 197.52 13
following investigation 14
Proceedings
200.(1) If, from a report under section 199 or from the record of an 15
examination under this part, QOFS considers that an offence may have 16
been committed by a person and that a prosecution ought to be instituted, 17
QOFS may cause a prosecution to be instituted and prosecuted. 18
(2) QOFS may, by written notice given before or after the institution of a 19
prosecution under subsection (1), require an officer of the society the affairs 20
of which were investigated (not being an officer who is or, in QOFS's 21
opinion, is likely to be, a defendant in the proceeding) to give all help for the 22
prosecution or proposed prosecution that the officer is reasonably able to 23
give. 24
(3) If the officer fails to comply with the requirement stated in the notice, 25
the Supreme Court may, on QOFS's application, direct the officer to 26
comply with the requirement. 27
(4) If, from a report under section 199 or from the record of an 28
examination under this part, QOFS considers that proceedings ought in the 29
public interest to be brought by a society the affairs of which were 30
investigated by the investigator, for the recovery of damages for fraud, 31
52 Section 197 (Recording of examination)
s 201 126 s 202
Financial Intermediaries
misfeasance or other misconduct in connection with the society's affairs, or 1
for the recovery of the society's property, QOFS may cause proceedings to 2
be instituted accordingly in the society's name. 3
of investigator's report in evidence 4
Admission
201.(1) A document certified by QOFS as a copy of an investigator's 5
report is admissible in legal proceedings as evidence of-- 6
(a) the investigator's report of the investigator's opinion for part 10, 7
division 3;53 and 8
(b) the facts or matters found by the investigator to exist. 9
(2) The court before which legal proceedings are brought against a 10
society or other person for matters dealt with in an investigator's report 11
under section 199 may order that a copy of the report be given to the society 12
or person. 13
(3) This section does not diminish the protection given to witnesses by 14
law. 15
of investigation 16
Expenses
202.(1) The expenses of and incidental to an investigation into a society's 17
affairs (including the costs incurred and payable by QOFS in a proceeding 18
brought by it in a society's name) must be paid by QOFS. 19
(2) However, if QOFS considers that the whole or a part of the expenses 20
of and incidental to an investigation (including the costs incurred and 21
payable by it in a proceeding brought by it in a society's name) should be 22
paid by the society, QOFS may by order-- 23
(a) direct that the whole, or part of, the expenses be paid by the 24
society; or 25
(b) if QOFS has already paid the expenses under 26
subsection (1)--direct the society to reimburse QOFS; or 27
(c) in either case--direct the society to reimburse QOFS for the 28
remuneration of an employee of QOFS connected with the 29
53 Part 10 (External administration), division 3 (Winding-up)
s 202 127 s 202
Financial Intermediaries
investigation. 1
(3) The order may state-- 2
(a) the amount of the expenses to be paid or reimbursed; and 3
(b) how and when the payment or reimbursement of the expenses is 4
to be made. 5
(4) The society named in the order, to the extent stated in the order, is 6
liable to pay the expenses or reimburse QOFS for the expenses. 7
(5) An amount for which the society is liable under the order may be 8
recovered as a debt due to QOFS in a court having jurisdiction for the 9
recovery of debts up to the amount involved. 10
(6) An investigator may include in the report a recommendation 11
whether-- 12
(a) an order under subsection (2) should be made; or 13
(b) an application under subsection (7) for a similar order should be 14
made; or 15
(c) both an order and an application should be made. 16
(7) An application may be made to a court by or on behalf of QOFS for 17
the court to make the same order as QOFS may make under subsection (2). 18
(8) The court may make an order with respect to the application or its 19
subject matter as it considers appropriate. 20
(9) Subsections (3), (4) and (5) apply to an order by the court as if it 21
were an order made by QOFS. 22
(10) An application under subsection (7) may be made-- 23
(a) during proceedings in the court instituted in the society's name 24
under section 200(4);54 or 25
(b) on, or within 14 days after, a conviction by the court in 26
proceedings certified by QOFS for the purposes of the application 27
to have been instituted as a result of an investigation under this 28
part of affairs of a stated society. 29
54 Section 200 (Proceedings following investigation)
s 203 128 s 205
Financial Intermediaries
etc. document 1
Concealing
203.(1) A person must not-- 2
(a) conceal, destroy, mutilate or alter a document of or about a 3
society the affairs of which are being investigated under this part; 4
or 5
(b) send, cause to be sent or conspire with another person to send, 6
out of the State such a document or property belonging to or 7
under the control of the society. 8
Maximum penalty--1 600 penalty units or 7 years imprisonment. 9
(2) In a proceeding for an offence against subsection (1), it is a defence if 10
the person charged proves that he or she did not act with intent to defeat the 11
purposes of this part or to delay or obstruct the carrying out of an 12
investigation under this part. 13
PART 12--REVIEW OF DECISIONS AND APPEALS 14
to review certain decisions 15
QOFS
204.(1) A person whose interests are affected by a decision of QOFS 16
made under this Act may, by written notice given to QOFS, ask QOFS to 17
review the decision. 18
(2) Only 1 request may be made by a person for each decision. 19
(3) QOFS must comply with the request. 20
(4) When reviewing a decision, QOFS must give the person who asked 21
for the review an opportunity to appear before QOFS and make a 22
submission about the decision. 23
(5) QOFS may confirm, vary or reverse the decision. 24
25
Appeals
205.(1) A person aggrieved by a decision of QOFS on a review may 26
appeal against the decision. 27
s 206 129 s 206
Financial Intermediaries
(2) A regulation may prescribe matters about appeals including for 1
example-- 2
(a) establishing or identifying the entity to which appeals are to be 3
made; and 4
(b) procedures about appeals. 5
PART 13--MISCELLANEOUS 6
1--Evidence 7
Division
8
Certificates
206.(1) In a proceeding, a document appearing to be a certificate of 9
registration, certificate of incorporation or other certificate issued by QOFS 10
under this Act, or a copy of that type of document appearing to be certified 11
as such by QOFS, is evidence of the matters stated in the certificate or copy. 12
(2) Judicial notice must be taken of the imprint of QOFS's seal 13
appearing on a document and the document must be presumed to have been 14
properly sealed until the contrary is proved. 15
(3) A copy of, or extract from, a document filed with, created or 16
otherwise held by QOFS, and certified to be a true copy or extract under 17
QOFS's seal-- 18
(a) is admissible in a proceeding as the original document; and 19
(b) has the same validity in evidence as the original document or the 20
extracted part of the original document. 21
(4) In a proceeding, a certificate of QOFS stating that a requirement of 22
this Act specified in the certificate-- 23
(a) had, or had not, been complied with at a date or within a period 24
stated in the certificate; or 25
(b) had been complied with at a date stated in the certificate but not 26
s 207 130 s 210
Financial Intermediaries
before that date; 1
is evidence of the matters stated in the certificate. 2
3
Rules
207. A printed copy of a society's rules appearing to be certified by the 4
society's secretary to be a true copy of its registered rules is evidence of the 5
rules. 6
7
Registers
208.(1) The registers kept under this Act are evidence of the particulars 8
directed or authorised by or under this Act to be inserted. 9
(2) A copy of an entry in a register appearing to be certified by the 10
secretary of the society concerned to be a true copy of the entry concerned is 11
evidence of the particulars to which the entry relates. 12
inutes 13
M
209.(1) An entry in the minutes purporting to be-- 14
(a) a minute of the business transacted at a meeting of a society or its 15
board; and 16
(b) signed by the chairperson of the meeting at which the business 17
was transacted or a subsequent meeting; 18
is evidence that the business as recorded was transacted at the meeting and 19
that the meeting was duly called and held. 20
(2) An entry in the minutes of a meeting of a society to the effect that a 21
resolution was carried or was lost is evidence of the fact without proof of 22
the number or proportion of votes recorded for or against the resolution. 23
24
Entries
210. A copy of an entry in a book of a society regularly kept in the 25
course of business is, if certified by statutory declaration of the secretary to 26
be a true copy of the entry, admissible in evidence in any case if, and to the 27
same extent as, the original entry itself is admissible. 28
s 211 131 s 213
Financial Intermediaries
2--Offences 1
Division
by societies 2
Defaults
211.(1) A society must comply with a lawful requirement under this Act 3
to give information to QOFS or another person. 4
(2) If a society contravenes subsection (1), the society and any officer of 5
the society who is in default each commit an offence. 6
Maximum penalty for subsection (2)--400 penalty units or 2 years 7
imprisonment. 8
on powers 9
Restrictions
212.(1) A society must not contravene a restriction imposed on its 10
powers, or about its exercise of its powers, under this Act. 11
(2) If a society contravenes subsection (1), the society and any officer of 12
the society who is in default each commit an offence. 13
Maximum penalty for subsection (2)--800 penalty units or 4 years 14
imprisonment. 15
provision for ss 214216 16
Interpretation
213.(1) In sections 214, 215 and 216-- 17
"appropriate officer" means-- 18
(a) for a society being wound-up--the liquidator; and 19
(b) for a society under the management of an administrator--the 20
administrator; and 21
(c) for a society the affairs of which are being investigated under 22
part 1155--the person nominated as the appropriate officer in the 23
particular case by QOFS; and 24
(d) for a society for which a receiver or manager of all or any of the 25
society's property has been appointed, whether by the Supreme 26
55 Part 11 (Special investigations)
s 213 132 s 213
Financial Intermediaries
Court or under the powers contained in an instrument--the 1
receiver or manager; and 2
(e) for a society that, within the meaning of subsection (2), has 3
ceased to carry on business or is unable to pay its debts--QOFS. 4
"relevant day" means-- 5
(a) for a society being wound-up--the day on which under this Act 6
the winding-up has started or is taken to have started; and 7
(b) for a society under the management of an administrator--the day 8
on which the administrator is appointed; and 9
(c) for a society the affairs of which are being investigated under 10
part 11--the day on which the investigator was appointed; and 11
(d) for a society for which a receiver or manager has been 12
appointed--the day on which the receiver or manager was 13
appointed; and 14
(e) for a society that has, within the meaning of subsection (2), 15
ceased to carry on business--the day on which a letter was first 16
sent to the society or a notice was first published in the gazette for 17
the society; and 18
(f) for a society that, within the meaning of subsection (2), is unable 19
to pay its debts--the day on which the execution or other process 20
was returned unsatisfied in whole or in part. 21
"society to which this section applies" means a society-- 22
(a) that is being wound-up; or 23
(b) that is under the management of an administrator; or 24
(c) the affairs of which are being investigated under part 11; or 25
(d) for which a receiver or manager has been appointed, whether by 26
the court or under the powers contained in an instrument; or 27
(e) that, within the meaning of subsection (2), has ceased to carry on 28
business or cannot pay its debts. 29
(2) For subsection (1)-- 30
(a) a society is taken to have ceased to carry on business if QOFS-- 31
(i) has sent to the society by post a letter under section 572(1) 32
s 214 133 s 214
Financial Intermediaries
of the Corporations Law as applied by part 10, division 356 1
and has not, within 1 month of sending the letter, received an 2
answer to the effect that the society is carrying on business; 3
or 4
(ii) has published in the gazette a notice under section 572(3)57 5
of the Corporations Law as so applied; and 6
(b) a society is taken to be unable to pay its debts only if execution of 7
other process issued on a judgment, decree or order of a court in 8
favour of a creditor of the society is returned unsatisfied in whole 9
or part. 10
by officers 11
Offences
214.(1) An officer, or former officer, of a society to which this section 12
applies who-- 13
(a) does not to the best of the person's knowledge and belief fully 14
and truly disclose to the appropriate officer-- 15
(i) all the property of the society; and 16
(ii) how and to whom and for what consideration and when the 17
society disposed of any part of its property, other than any 18
part that has been disposed of in the ordinary course of the 19
society's business; or 20
(b) does not deliver up to the appropriate officer, or as the appropriate 21
officer directs-- 22
(i) all the property of the society in the person's custody or 23
under the person's control and that the person is required by 24
law to deliver up; or 25
(ii) all documents in the person's custody or under the person's 26
control belonging to the society and that the person is 27
required by law to deliver up; or 28
(c) within 5 years before the relevant day or at any time on or after 29
56 Part 10 (External administration), division 3 (Winding-up)
57 Section 572 of the Corporations Law (Notice by Commission of intention to
deregister defunct company)
s 214 134 s 214
Financial Intermediaries
that day-- 1
(i) has concealed any part of the society's property to the value 2
of $100 or more, or has concealed a debt due to or from the 3
society; or 4
(ii) has fraudulently removed part of the society's property to 5
the value of $100 or more; or 6
(iii) has concealed, destroyed, mutilated or falsified, or has been 7
privy to the concealment, destruction, mutilation or 8
falsification of a document affecting, or about, the society's 9
property or affairs; or 10
(iv) has made, or has been privy to the making of, a false entry 11
in a document affecting or about the society's property or 12
affairs; or 13
(v) has fraudulently parted with, altered or made an omission in, 14
or has been privy to fraudulent parting with, altering or 15
making an omission in a document affecting or about the 16
society's property or affairs; or 17
(vi) by a false representation or other fraud, has obtained on 18
credit for or on behalf of the society, property that the society 19
has not subsequently paid for; or 20
(vii) has obtained on credit for or on behalf of the society, under 21
the false pretence that the society is carrying on business, 22
property that the society has not subsequently paid for; or 23
(viii)has pawned, pledged or disposed of any of the society's 24
property that has been obtained on credit and has not been 25
paid for, unless the pawning, pledging or disposing was in 26
the ordinary course of the society's business; or 27
(d) knowingly makes a material omission in a statement about the 28
society's affairs; or 29
(e) knowing or believing that a false debt has been proved by a 30
person, fails for a period of 1 month to inform the appropriate 31
officer of the knowledge or belief; or 32
(f) prevents the production of a document affecting or about the 33
society's property or affairs; or 34
s 215 135 s 215
Financial Intermediaries
(g) within 5 years before the relevant day, or at any time on or after 1
that day, has attempted to account for any part of the society's 2
property by making entries in the society's documents showing 3
fictitious transactions, losses or expenses; or 4
(h) within 5 years before the relevant day, or at any time on or after 5
that day, has been guilty of a false representation or other fraud 6
for obtaining the consent of the society's creditors or any of them 7
to an agreement about the society's affairs or to the winding-up; 8
commits an offence. 9
Maximum penalty--800 penalty units or 4 years imprisonment. 10
(2) It is a defence to a charge-- 11
(a) under subsection (1)(a), (b) or (d) or subsection (1)(c)(i), (vii) or 12
(viii), if the accused person proves that the person had no intent to 13
defraud; and 14
(b) under subsection (1)(c)(iii) or (iv) or subsection (1)(f), if the 15
accused person proves that the person had no intent to conceal the 16
society's state of affairs or to defeat the law. 17
(3) If a person pawns, pledges or disposes of property in circumstances 18
that amount to an offence under subsection (1)(c)(viii), a person who takes 19
in pawn or pledge or otherwise receives the property knowing it to be 20
pawned, pledged or disposed of in those circumstances commits an 21
offence. 22
Maximum penalty--800 penalty units or 4 years imprisonment. 23
debts not likely to be paid 24
Incurring
215.(1) If an officer of a society to which this section applies was 25
knowingly a party to the contracting of a debt by the society and had at the 26
time the debt was contracted, no probable or reasonable grounds of 27
expectation, after taking into consideration the society's other liabilities (if 28
any) at the time, of the society being able to pay the debt, the officer 29
commits an offence. 30
Maximum penalty--400 penalty units. 31
(2) If any business of a society to which this section applies has been 32
carried on with intent to defraud the society's creditors or creditors of 33
s 216 136 s 216
Financial Intermediaries
another person or for a fraudulent purpose, a person who was knowingly a 1
party to the carrying on of the business in that way commits an offence. 2
Maximum penalty--800 penalty units or 14 years imprisonment. 3
of Supreme Court 4
Powers
216.(1) If a person has been convicted of an offence under section 215, 5
the Supreme Court, on the application of QOFS or a prescribed person, 6
may declare that the person is personally responsible without any limitation 7
of liability-- 8
(a) for a conviction under section 215(1)--for the payment to the 9
society of an amount equal to the whole of the debt to which the 10
conviction relates or the part of the debt the Supreme Court 11
considers appropriate; and 12
(b) for a conviction under section 215(2)--for the payment to the 13
society of the amount required to satisfy all or any of the society's 14
debts as the court considers appropriate. 15
(2) For a society to which a conviction mentioned in subsection (1) 16
relates, the prescribed persons under the subsection are-- 17
(a) the appropriate officer; and 18
(b) a creditor of the society authorised by QOFS to make an 19
application under subsection (1). 20
(3) If the Supreme Court makes a declaration under subsection (1) about 21
a person, it may-- 22
(a) give further directions it considers appropriate to give effect to the 23
declaration and, in particular, may order that the liability of the 24
person under the declaration is a charge on-- 25
(i) a debt or obligation due from the society to the person; or 26
(ii) any charge or any interest in any charge on any of the 27
society's assets held by or vested in the person or a 28
corporation or person on the person's behalf or a person 29
claiming as assignee from or through the person liable or a 30
corporation or person acting on the person's behalf; or 31
(b) from time to time make any further order necessary to enforce a 32
s 217 137 s 218
Financial Intermediaries
charge imposed under this subsection. 1
(4) This section has effect despite the fact that the person concerned is 2
criminally liable for the matters on the ground on which the declaration is 3
made. 4
(5) On the hearing of an application under subsection (1), the appropriate 5
officer or other applicant may give evidence or call witnesses. 6
(6) In subsection (3)-- 7
"assignee" includes a person to whom or in whose favour, by the direction 8
of the person liable, the debt, obligation, or charge was created, issued 9
or transferred or the interest created, but does not include an assignee 10
for valuable consideration (other than consideration by way of 11
marriage) given in good faith and without notice of any of the matters 12
on which the conviction or declaration was made. 13
to be appointed as liquidator 14
Inducement
217. A person must not give, or agree or offer to give, to a member or 15
creditor of a society valuable consideration for securing the person's 16
appointment or nomination, or to securing or preventing the appointment or 17
nomination of another person, as the liquidator of the society. 18
Maximum penalty--400 penalty units or 2 years imprisonment. 19
of records 20
Falsification
218.(1) An officer of a society must not destroy, mutilate, alter or falsify 21
a document or security, or make or be privy to the making of a false or 22
fraudulent entry in a document, belonging to the society with intent to 23
defraud or deceive a person. 24
(2) A person who has a duty to record information in the documents of a 25
society must not fail to record the information in the documents-- 26
(a) with intent to defraud another person; or 27
(b) knowing that the failure will render other matter contained in the 28
documents false or misleading in a material particular. 29
Maximum penalty--1 600 penalty units or 7 years imprisonment. 30
s 219 138 s 221
Financial Intermediaries
by officers 1
Frauds
219. An officer of a society must not-- 2
(a) by false pretence, or by means of another fraud, induce a person 3
to give credit to the society; or 4
(b) with intent to defraud creditors of the society, make or cause to be 5
made a gift or transfer of, or charge on, or cause or connive at the 6
levying of an execution against, the society's property; or 7
(c) with intent to defraud the society's creditors, conceal or remove 8
part of the society's property within 2 months before, or on or 9
after, the date of an unsatisfied judgment or order for payment of 10
money obtained against the society. 11
Maximum penalty--1 600 penalty units or 7 years imprisonment. 12
of "relevant person" for ss 221222 13
Definition
220. In sections 221 and 222-- 14
"relevant person" means a person exercising powers under this Act, and 15
includes an inspector. 16
or misleading statements 17
False
221.(1) A person must not-- 18
(a) state anything to QOFS or a relevant person that the person 19
knows is false or misleading in a material particular; or 20
(b) omit from a statement made to QOFS or a relevant person 21
anything without which the statement is, to the person's 22
knowledge, misleading in a material particular. 23
Maximum penalty--800 penalty units or imprisonment for 4 years. 24
(2) It is enough for a complaint for an offence against subsection (1)(a) 25
to state the statement made was false or misleading to the person's 26
knowledge. 27
s 222 139 s 223
Financial Intermediaries
misleading or incomplete documents 1
False,
222.(1) A person must not give to QOFS or a relevant person a 2
document containing information the person knows is false, misleading or 3
incomplete in a material particular. 4
Maximum penalty--800 penalty units or imprisonment for 4 years. 5
(2) However, a person does not commit an offence against 6
subsection (1) if the person, when giving the document-- 7
(a) tells QOFS or the relevant person, to the best of the person's 8
ability, how it is false, misleading or incomplete; and 9
(b) if the person has, or can reasonably obtain, the correct 10
information--gives QOFS or the relevant person the correct 11
information. 12
(3) It is enough for a complaint for an offence against subsection (1) to 13
state that the document was false, misleading or incomplete to the person's 14
knowledge. 15
of court to assess damages against certain persons 16
Power
223.(1) In this section-- 17
"prescribed person" means-- 18
(a) a liquidator or provisional liquidator of the society concerned; or 19
(b) if the society concerned is under the management of an 20
administrator--the administrator or a member of the society; or 21
(c) a person authorised by QOFS to apply under subsection (3). 22
"society to which this section applies" means a society-- 23
(a) that is being wound-up; or 24
(b) that is under the management of an administrator; or 25
(c) the affairs of which are being investigated under part 11;58 or 26
(d) for which a receiver or manager has been appointed, whether by 27
the Supreme Court or under the powers contained in an 28
58 Part 11 (Special investigations)
s 223 140 s 223
Financial Intermediaries
instrument; or 1
(e) that, within the meaning of subsection (2), has ceased to carry on 2
business or is unable to pay its debts; or 3
(f) that has entered into a compromise or scheme of arrangement 4
with its creditors. 5
(2) For subsection (1), a society has ceased to carry on business, or is 6
unable to pay its debts, in the circumstances mentioned in section 213(2).59 7
(3) Subsection (4) applies if, on application by QOFS or a prescribed 8
person, the Supreme Court is satisfied that a person who has taken part in 9
the formation, promotion, administration, management or winding-up of a 10
society to which this section applies-- 11
(a) has misapplied or kept or become liable or accountable for 12
property of the society; or 13
(b) has been guilty of negligence, default, breach of trust or breach of 14
duty in relation to the society and that the society has suffered, or 15
is likely to suffer, loss or damage as a result. 16
(4) The Supreme Court may make 1 or both of the following orders-- 17
(a) an order directing the person to pay money or transfer property to 18
the society; 19
(b) an order directing the person to pay to the society the amount of 20
the loss or damage. 21
(5) This section applies to the receipt of an amount or property by an 22
officer or former officer of the society, whether by way of salary or 23
otherwise, that appears to the Supreme Court to have been unfair or unjust 24
to the society or its members. 25
(6) This section applies despite the fact that the person concerned may be 26
criminally liable for the matters for which the order is sought. 27
(7) If the Supreme Court is satisfied that an application was made under 28
this section without reasonable cause, it may order the whole or a part of the 29
costs incurred by the person against whom the order was sought to be paid 30
by the applicant. 31
59 Section 213 (Interpretation provision for ss 214216)
s 224 141 s 226
Financial Intermediaries
copies of rules 1
False
224. A person must not-- 2
(a) give a member of a society or a person intending or applying to 3
become a member, a copy of the rules or an alteration of the rules 4
other than those that have been properly registered, representing 5
that they are binding on the society's members; or 6
(b) make an alteration in any of the rules of the society after they have 7
been properly registered and circulate them representing that they 8
have been properly registered. 9
Maximum penalty--160 penalty units. 10
or misappropriation 11
Fraud
225. A person must not-- 12
(a) by false representation or imposition obtain possession of 13
property of a society; or 14
(b) having property of a society in the person's possession, withhold 15
or misapply the property, or wilfully apply part of the property, to 16
purposes other than those stated or authorised in the society's 17
rules or under this Act. 18
Maximum penalty--1 600 penalty units or 7 years imprisonment. 19
20
Commissions
226.(1) An officer of a society must not accept a commission, fee or 21
reward, whether monetary or otherwise, from a person for or about that 22
person's transaction with the society. 23
Maximum penalty--80 penalty units. 24
(2) An officer of a society who commits an offence against 25
subsection (1) is indebted to the society for double the value or amount of 26
the commission, fee or reward. 27
s 227 142 s 229
Financial Intermediaries
and other persons in default 1
Officers
227. If this Act provides that an officer of a society who is in default 2
commits an offence, the reference to the officer who is in default is, for a 3
contravention of, or an offence against, this Act, a reference to an officer of 4
the society (including a person who later ceased to be an officer of the 5
society) who is in any way by act or omission, directly or indirectly, 6
knowingly concerned in or party to the contravention or offence. 7
3--Legal proceedings 8
Division
and summary offences 9
Indictable
228.(1) An offence against this Act for which the maximum penalty of 10
imprisonment is 2 years or more is an indictable offence. 11
(2) Any other offence against this Act is a summary offence. 12
for indictable offences 13
Proceedings
229.(1) A proceeding for an indictable offence against this Act may be 14
taken, at the election of the prosecution-- 15
(a) by way of summary proceedings under the Justices Act 1886; or 16
(b) on indictment. 17
(2) A magistrate must not hear an indictable offence summarily if-- 18
(a) the defendant asks at the start of the hearing that the charge be 19
prosecuted on indictment; or 20
(b) the magistrate considers that the charge should be prosecuted on 21
indictment. 22
(3) If subsection (2) applies-- 23
(a) the magistrate must proceed by way of an examination of 24
witnesses for an indictable offence; and 25
(b) a plea of the person charged at the start of the proceeding must be 26
disregarded; and 27
(c) evidence brought in the proceeding before the magistrate decided 28
s 230 143 s 232
Financial Intermediaries
to act under subsection (2) is taken to be evidence in the 1
proceeding for the committal of the person for trial or sentence; 2
and 3
(d) before committing the person for trial or sentence, the magistrate 4
must make a statement to the person as required by the Justices 5
Act 1886, section 104(2)(b). 6
(4) The maximum penalty that may be summarily imposed for an 7
indictable offence is 165 penalty units or 1 years imprisonment. 8
on who may summarily hear indictable offence 9
Limitation
proceedings 10
230.(1) A proceeding must be before a magistrate if it is a proceeding-- 11
(a) for the summary conviction of a person on a charge for an 12
indictable offence; or 13
(b) for an examination of witnesses for a charge for an indictable 14
offence. 15
(2) However, if a proceeding for an indictable offence is brought before a 16
justice who is not a magistrate, jurisdiction is limited to taking or making a 17
procedural action or order within the meaning of the Justices of the Peace 18
and Commissioners for Declarations Act 1991. 19
on time for starting summary proceedings 20
Limitation
231. A proceeding for an offence against this Act by way of summary 21
proceeding under the Justices Act 1886 must start within 2 years after the 22
alleged offence is committed. 23
offences 24
Continuing
232.(1) If-- 25
(a) under this Act anything is required or directed to be done within a 26
particular period or before a particular time; and 27
(b) failure to do the thing within the period or before the time 28
constitutes an offence; and 29
s 233 144 s 233
Financial Intermediaries
(c) the thing is not done within the period or before the time; 1
then-- 2
(d) the obligation to do the thing continues, despite the fact that the 3
period has expired or the time has passed, until the thing is done; 4
and 5
(e) if a person is convicted of an offence that is constituted by failure 6
to do the thing within that period or before the time--the person 7
commits a separate and further offence for each day after the day 8
of the conviction during which the failure to do the thing 9
continues; and 10
(f) the penalty that applies to each separate and further offence is 11
8 penalty units. 12
(2) If-- 13
(a) under this Act anything is required or directed to be done but no 14
period within which or time by which the thing is to be done is 15
specified; and 16
(b) failure to do the thing constitutes an offence; and 17
(c) a person is convicted of an offence for a failure to do the thing; 18
the person commits a separate and further offence for each day after the day 19
of the conviction during which the failure to do the thing continues and the 20
penalty that applies to each separate and further offence is 8 penalty units. 21
njunctions 22
I
233.(1) This section applies if a person has engaged, is engaging or is 23
proposing to engage in conduct that constituted, constitutes or would 24
constitute-- 25
(a) a contravention of this Act; or 26
(b) attempting to contravene this Act; or 27
(c) aiding, counselling or procuring a person to contravene this Act; 28
or 29
(d) inducing or attempting to induce (whether by threats, promises or 30
otherwise) a person to contravene this Act; or 31
s 233 145 s 233
Financial Intermediaries
(e) being in any way, directly or indirectly, knowingly concerned in, 1
or party to, the contravention by a person of this Act; or 2
(f) conspiring with others to contravene this Act. 3
(2) The Supreme Court may, on the application of QOFS or a person 4
whose interests have been, are or would be affected by the conduct 5
mentioned in subsection (1), grant an injunction restraining the person from 6
engaging in the conduct and, if in the court's opinion it is desirable to do so, 7
requiring that person to do anything. 8
(3) If a person has failed, is failing, or is proposing to fail, to do anything 9
that the person is required to do under this Act, the Supreme Court may, on 10
the application of QOFS or a person whose interests have been, are or 11
would be affected by the failure to do the thing, grant an injunction requiring 12
the person to do the thing. 13
(4) If an application is made for an injunction under subsection (2) or (3), 14
the Supreme Court may grant an injunction by consent of all the parties to 15
the proceeding, whether or not the court is satisfied that the subsection 16
applies. 17
(5) The Supreme Court may grant an interim injunction pending 18
determination of an application under subsection (1). 19
(6) The Supreme Court may discharge or vary an injunction granted 20
under this section, and may grant an injunction on terms. 21
(7) The power of the Supreme Court to grant an injunction restraining a 22
person from engaging in conduct may be exercised-- 23
(a) whether or not it appears to the court that the person intends to 24
engage again, or to continue to engage, in the conduct; and 25
(b) whether or not the person has previously engaged in conduct of 26
that kind; and 27
(c) whether or not there is an imminent danger of substantial damage 28
to another person if the person engages, or continues to engage, in 29
the conduct. 30
(8) The power of the Supreme Court to grant an injunction requiring a 31
person to do a thing may be exercised-- 32
(a) whether or not it appears to the court that the person intends to fail 33
again, or to continue to fail, to do the thing; and 34
s 234 146 s 234
Financial Intermediaries
(b) whether or not the person has previously failed to do the thing; 1
and 2
(c) whether or not there is an imminent danger of substantial damage 3
to another person if the person fails, or continues to fail, to do the 4
thing. 5
(9) If QOFS applies to the Supreme Court for the grant of an injunction 6
under this section, the court must not require the applicant or another 7
person, as a condition of granting an interim injunction, to give an 8
undertaking as to damages. 9
(10) If the Supreme Court has power under this section to grant an 10
injunction restraining a person from engaging in particular conduct or 11
requiring a person to do a particular thing, the court may, either in addition 12
to or in substitution for the grant of the injunction, order the person to pay 13
damages to another person. 14
(11) The Supreme Court's powers under this section are in addition to its 15
other powers. 16
to grant relief 17
Power
234.(1) This section applies to a person who is-- 18
(a) an officer of a society; or 19
(b) an auditor of a society, whether or not the auditor is an officer of 20
the society; or 21
(c) an expert for a matter in relation to which the civil proceeding has 22
been taken or the claim will or might arise; or 23
(d) a receiver, receiver and manager, liquidator or other person 24
appointed or directed by the Supreme Court to carry out a duty in 25
relation to a society. 26
(2) If, in a civil proceeding against a person to whom this section applies 27
for negligence, default, breach of trust or breach of duty in a capacity 28
because of which the person is such a person, it appears to the Supreme 29
Court before which the proceeding is taken that the person is or may be 30
liable in relation to the negligence, default or breach but has acted honestly 31
and, having regard to all the circumstances of the case, including those 32
connected with the person's appointment, ought fairly to be excused for the 33
s 235 147 s 235
Financial Intermediaries
negligence, default or breach, the court may relieve the person either wholly 1
or partly from the liability on such terms as the court considers appropriate. 2
(3) If a person to whom this section applies has reason to believe that a 3
claim will or might be made against the person for negligence, default, 4
breach of trust or breach of duty in a capacity because of which the person 5
is such a person, the person may apply to the Supreme Court for relief. 6
(4) The Supreme Court has the same power to grant relief under 7
subsection (3) as it would have had under subsection (2) if it had been a 8
court before which a proceeding against the person for negligence, default, 9
breach of trust or breach of duty had been brought. 10
Division 4--Other matters 11
12
Secrecy
235.(1) In this section-- 13
"court" includes a tribunal, authority or person having power to require the 14
production of documents or the answering of questions. 15
"person to whom this section applies" means a person who is or has 16
been-- 17
(a) a director or member of QOFS; or 18
(b) an officer or employee of QOFS. 19
"produce" includes permit access to. 20
"protected document" means a document that-- 21
(a) contains information that concerns a person; and 22
(b) is obtained or made by a person to whom this section applies in 23
the course of, or because of, the person's duty under this Act. 24
"protected information" means information that-- 25
(a) concerns a person; and 26
(b) is disclosed to, or obtained by, a person to whom this section 27
applies in the course of, or because of, the person's duties under 28
this Act. 29
s 236 148 s 236
Financial Intermediaries
(2) A person to whom this section applies must not-- 1
(a) make a record of protected information; or 2
(b) whether directly or indirectly, divulge or communicate to a person 3
protected information about another person. 4
Maximum penalty--160 penalty units. 5
(3) However, subsection (2) does not apply if the record is made, or the 6
information divulged or communicated-- 7
(a) under this Act; or 8
(b) in the performance of duties, as a person to whom this section 9
applies, under this Act. 10
(4) Unless it is necessary to do so for carrying this Act into effect, a 11
person to whom this section applies is not required-- 12
(a) to divulge or communicate protected information to a court; or 13
(b) to produce a protected document in court. 14
(5) This section applies subject to section 134.60 15
of doctrine of ultra vires 16
Abolition
236.(1) The object of this section is-- 17
(a) to abolish any application of the doctrine of ultra vires to societies; 18
and 19
(b) to ensure that societies give effect to any restrictions on their 20
powers, but without affecting the validity of their dealings with 21
outsiders. 22
(2) In this section, a reference to the doing of an act by a society includes 23
a reference to-- 24
(a) the making of an agreement by the society; and 25
(b) a transfer of property to or by the society. 26
60 Section 134 (Inspection of documents at society's registered office)
s 236 149 s 236
Financial Intermediaries
(3) Sections 66 and 7661 apply to a society subject to any restrictions on 1
its powers expressly imposed under this Act or the society's rules. 2
(4) A society contravenes this subsection if-- 3
(a) a society exercises a power contrary to a restriction mentioned in 4
subsection (3); or 5
(b) the society does an act otherwise than in pursuance of its objects 6
under this Act. 7
(5) The exercise of the power, or the act, is not invalid merely because of 8
the contravention. 9
(6) An officer of a society who is involved in the contravention 10
contravenes this subsection. 11
(7) An act of the officer is not invalid merely because, by doing the act, 12
the officer contravenes subsection (6). 13
(8) The society or officer does not commit an offence merely because of 14
a contravention of this section. 15
(9) The fact that-- 16
(a) by exercising a power mentioned in subsection (4)(a), or doing an 17
act mentioned in subsection (4)(b), a society contravened, or 18
would contravene, subsection (4); or 19
(b) by doing a particular act, an officer of a society contravened, or 20
would contravene, subsection (6); 21
may be asserted or relied on only in the following circumstances-- 22
(c) a prosecution of a person for an offence against this Act; 23
(d) an application for an injunction under section 23362 to restrain the 24
society from entering into an agreement; 25
(e) a proceeding (other than an application for an injunction) by the 26
society, or by a member of the society, against an officer or 27
former officer of the society; 28
61 Section 66 (Powers)
Section 76 (Effect of incorporation)
62 Section 233 (Injunctions)
s 237 150 s 237
Financial Intermediaries
(f) an application by QOFS of by a member of the society for the 1
winding-up of the society. 2
(10) Subsection (11) applies if, had subsection (9) not been enacted, the 3
Supreme Court would have power under section 233 63 to grant, on the 4
application of a person, an injunction restraining a society, or an officer of a 5
society, from engaging in particular conduct constituting a contravention of 6
subsection (4) or (6). 7
(11) The Supreme Court may, on the application of the person, order the 8
society or the officer to pay damages to the person or to someone else. 9
(12) This section applies subject to section 67.64 10
(13) In this section-- 11
"restriction" includes prohibition. 12
having dealings with a society 13
Persons
237.(1) A person having dealings with a society is entitled to make the 14
assumptions mentioned in subsection (3) and, in a proceeding about the 15
dealings, any assertion by the society that the matters that the person is 16
entitled to assume were not correct must be disregarded. 17
(2) A person having dealings with a person who has acquired, or 18
purports to have acquired, title to property from a society (whether directly 19
or indirectly) is entitled to make the assumptions mentioned in 20
subsection (3) and, in a proceeding about the dealings, any assertion by the 21
society or the second person that the matters the first person is entitled to 22
assume were not correct must be disregarded. 23
(3) The assumptions that a person is, because of subsection (1) or (2), 24
entitled to make are-- 25
(a) that, at all relevant times, this Act and the society's rules have 26
been complied with; and 27
(b) that a person who appears, from returns filed with or given to 28
QOFS under this Act, to be a director, the principal executive 29
63 Section 233 (Injunctions)
64 Section 67 (Control of certain financial transactions)
s 237 151 s 237
Financial Intermediaries
officer or the secretary of the society has been properly appointed 1
and has authority to exercise the powers and perform the 2
functions customarily exercised or performed by a person of that 3
type for a society; and 4
(c) that a person who is held out by the society to be an officer or 5
agent of the society has been properly appointed and has authority 6
to exercise the powers and perform the functions customarily 7
exercised or performed by an officer or agent of the kind 8
concerned; and 9
(d) that an officer or agent of the society who has authority to issue a 10
document for the society has authority to warrant that the 11
document is genuine and that an officer or agent of the society 12
who has authority to issue a certified copy of a document for the 13
society has authority to warrant that the copy is a true copy; and 14
(e) that a document has been properly sealed by the society if-- 15
(i) it bears what appears to be an imprint of the society's seal; 16
and 17
(ii) the sealing of the document appears to be authenticated 18
under the society's rules by a person or persons mentioned 19
in the rules as authorised to attest the sealing of the 20
document who, because of paragraph (b) or (c), may be 21
assumed to be that person or those persons ; and 22
(f) that the directors, secretary, officers, employees and agents have 23
properly performed their duties to the society. 24
(4) However, a person is not entitled to assume a matter mentioned in 25
subsection (3) if-- 26
(a) the person has actual knowledge that the assumption would be 27
incorrect; or 28
(b) because of the person's connection or relationship with the 29
society, the person ought to know that the assumption would be 30
incorrect. 31
(5) If, because of subsection (4), a person is not entitled to make a 32
particular assumption-- 33
(a) if the assumption is about dealings with the 34
s 238 152 s 239
Financial Intermediaries
society--subsection (1) does not apply to an assertion by the 1
society about the assumption; and 2
(b) if the assumption is about dealings about an acquisition or 3
purported acquisition from the society of title to 4
property--subsection (2) does not apply to an assertion by the 5
society or someone else about the assumption. 6
of fraud 7
Effect
238.(1) Section 237 operates-- 8
(a) to entitle a person to make the assumptions mentioned in 9
section 237(3) in relation to dealings with a society; or 10
(b) to entitle a person to make the assumptions mentioned in 11
section 237(3) in relation to an acquisition or purported 12
acquisition (whether direct or indirect) of title to property from a 13
society; 14
even if a person mentioned in section 237(3)(b), (c), or (e) or an 15
officer, agent or employee of the society mentioned in 16
section 237(3)(d) or (f)-- 17
(c) has acted or is acting fraudulently in relation to the dealings, or in 18
relation to the acquisition or purported acquisition of title to 19
property from the society; or 20
(d) has forged a document that appears to have been sealed or behalf 21
of the society. 22
(2) However, subsection (1) does not operate to entitle a person to make 23
the assumptions if the person mentioned in subsection (1)(a) or (b) of this 24
section has actual knowledge that the person mentioned in 25
section 237(3)(b), (c) or (e), or the officer, agent or employee of the society 26
mentioned in section 237(3)(d) or (f), has acted or is acting fraudulently, or 27
has forged a document, as mentioned in subsection (1)(c) or (d) of this 28
section. 29
of doctrine of constructive notice 30
Abolition
239. A person dealing with a society, or an agent of a society, is not to be 31
presumed to have notice of the society's rules and any document registered 32
s 240 153 s 242
Financial Intermediaries
by or filed with QOFS in relation to the society. 1
of forms 2
Approval
240. QOFS may approve forms for use under this Act. 3
Division 5--Regulations 4
making power 5
Regulation
241. The Governor in Council may make regulations under this Act. 6
regulation making powers 7
Specific
242.(1) A regulation may make provision about-- 8
(a) the keeping of registers and records by QOFS; and 9
(b) the filing or registration of documents, the time and way of 10
submitting documents for filing or registration and the 11
requirements with which documents filed with QOFS must 12
comply; and 13
(d) prescribing fees for the registration or exemption of societies and 14
fees to be paid for a document filed, registered with or issued by 15
QOFS or for an act or service required or authorised to be 16
performed by QOFS; and 17
(e) prescribing the way in which, the persons by whom, and the 18
directions or requirements under which, forms are required or 19
authorised to be signed, prepared or completed and generally 20
regulating the signing, preparation and completion of forms; and 21
(g) the calling of, conduct of, and procedure and voting at meetings 22
required or authorised to be held, the number of persons forming 23
a quorum at a meeting, the sending of notices of meetings to 24
persons entitled to attend meetings, the filing with QOFS of 25
notices of meetings and of resolutions passed at meetings; and 26
(h) the proof of debts of a society, the time within which debts can or 27
may be proved and generally regulating the proving of debts. 28
s 243 154 s 243
Financial Intermediaries
(2) A regulation may provide that, if a document required to be filed 1
with, or given to, QOFS is signed or filed or given on behalf of a person by 2
the person's agent duly authorised in writing, the original or a verified copy 3
of the authority must be filed or given with, endorsed on or attached to the 4
document. 5
(3) A regulation may be made-- 6
(a) creating offences against the regulation; and 7
(b) fixing a maximum penalty of a fine of not more than 20 penalty 8
units for a contravention of the regulation. 9
(4) A power conferred by this section to make a regulation providing for 10
the imposition of fees may be exercised by providing for all or any of the 11
following matters-- 12
(a) specific fees; 13
(b) maximum or minimum fees; 14
(c) scales of fees; 15
(d) the reduction, waiver or refund of fees. 16
specific regulation making powers 17
Further
243.(1) A regulation may make provision about-- 18
(a) the powers of societies and, in particular, may-- 19
(i) withdraw powers of a stated kind conferred by this Act or a 20
society's rules; and 21
(ii) restrict the scope of powers of a stated kind conferred by this 22
Act or a society's rules; and 23
(iii) make provision of a savings or transitional nature about a 24
withdrawal or restriction; and 25
(b) the information to be contained in returns to QOFS; and 26
(c) the circumstances in which, and the period within which, returns 27
must be filed with QOFS; and 28
(d) documents that must be incorporated in, or be given with, the 29
returns; and 30
s 244 155 s 246
Financial Intermediaries
(e) permitting a society subject to any stated terms, exceptions or 1
qualifications, to insert in an account or report under this Act, in 2
substitution for an amount that the society would be required or 3
permitted to be set out in the accounts or report, an amount 4
ascertained under a regulation (not being an amount that is more 5
than $500 more or less than the first amount). 6
(2) For subsection (1)(e), the insertion of zero is taken to be the insertion 7
of an amount. 8
regulations 9
Transitional
244.(1) A regulation may make provision about anything for which-- 10
(a) it is necessary or convenient to make provision because of a 11
continuing society becoming registered under this Act as a 12
society; and 13
(b) this Act does not make provision or enough provision. 14
(2) A regulation under subsection (1) may be given retrospective 15
operation to a date not earlier than the day of commencement. 16
(3) This section expires 1 year after it commences. 17
PART 14--TRANSITIONAL 18
societies 19
Continuing
245.(1) Each continuing society continues in existence and is taken to be 20
a society registered and incorporated under this Act. 21
(2) Subsection (1) applies even though the previous law is repealed. 22
for certificate of incorporation 23
Application
246.(1) On application by a continuing society, QOFS must issue to the 24
society a certificate of incorporation stating that the society is incorporated 25
under this Act. 26
s 247 156 s 249
Financial Intermediaries
(2) QOFS must not issue a certificate of incorporation to a continuing 1
society under subsection (1) unless the society-- 2
(a) surrenders to QOFS its certificate of incorporation under the 3
previous law; or 4
(b) satisfies QOFS that the certificate has been lost or destroyed. 5
6
Guarantees
247.(1) A guarantee executed under part 7 of the previous law and in 7
force immediately before the commencement continues in existence and is 8
taken to have been executed under this Act. 9
(2) Subsection (1) applies subject to section 180.65 10
11
Rules
248.(1) The rules of a continuing society, in force immediately before the 12
commencement, become its rules under this Act. 13
(2) The rules have effect subject to this Act. 14
Society started to have been formed under previous law 15
249.(1) This section applies if, before the commencement, the formation 16
of a body as a cooperative housing society under the previous law has 17
started, but the body has not been registered under the previous law as a 18
cooperative housing society. 19
(2) The formation of the body as a cooperative housing society under the 20
previous law is taken to have started if a meeting has been called to form the 21
cooperative housing society. 22
(3) The previous law continues to apply to the formation of the body as a 23
cooperative housing society but application may be made under section 7466 24
of this Act for the body to be registered under this Act as a cooperative 25
housing society. 26
65 Section 180 (Effect of merger or transfer of engagements on guarantees)
66 Section 74 (Registration)
s 250 157 s 251
Financial Intermediaries
(4) For the application, the reference in section 74(2)(b)(i) of this Act to 1
section 7367 is taken to be a reference to section 8 of the previous law. 2
(5) The society may be registered under this Act if its rules are not 3
contrary to the previous law, even though they are contrary to this Act. 4
(6) On registration, the rules have effect subject to this Act. 5
loans 6
Existing
250.(1) This section applies to a loan made by a continuing society under 7
the previous law if the loan is in existence at the commencement. 8
(2) A standard may provide for the transition of the loan to a loan 9
complying with section 91(4).68 10
(3) The standard must require the transition to happen within 12 months 11
after the commencement. 12
(4) The standard must not operate to the disadvantage of a person other 13
than a society by-- 14
(a) decreasing the person's rights; or 15
(b) imposing additional liabilities on the person. 16
(5) The conditions of the loan are taken to be changed to the extent 17
necessary to comply with the standard. 18
19
Directors
251.(1) An existing term of office of a director of a continuing society 20
that is not due to end until 3 years or more after the commencement ends at 21
the end of the third annual general meeting of the society after the 22
commencement. 23
(2) Subsection (1) does not, by implication, prevent the office of the 24
director becoming vacant at an earlier time. 25
67 Section 73 (Formation of societies)
68 Section 91 (Financial accommodation to, and deposits from, members and
others)
s 252 158 s 255
Financial Intermediaries
contracts 1
Management
252.(1) This section applies to a management contract entered into before 2
the commencement. 3
(2) A society must give QOFS a copy of the management contract 4
within 1 month after the commencement. 5
Maximum penalty--80 penalty units. 6
(3) A management contract entered into before the commencement 7
becomes void 6 months after the commencement unless QOFS directs that 8
it continue in operation. 9
general meeting 10
Annual
253.(1) This section applies if-- 11
(a) the time within which a continuing society must hold its annual 12
general meeting under the previous law has been extended under 13
the law; and 14
(b) the extension of time is in force immediately before the 15
commencement. 16
(2) The extension of time is taken to have been allowed by QOFS under 17
section 123(2).69 18
resolutions 19
Special
254. A special resolution passed by a continuing society under the 20
previous law, but not registered under the law before the commencement, 21
may be registered by QOFS under this Act. 22
of auditor 23
Appointment
255.(1) This section applies if, on the commencement, a continuing 24
society-- 25
(a) does not have an auditor; or 26
69 Section 123 (Annual general meeting)
s 256 159 s 257
Financial Intermediaries
(b) does not have an auditor qualified for appointment as an auditor 1
under section 149 or 150.70 2
(2) Within 6 months beginning on the commencement, a society's 3
directors must appoint, unless the society at a general meeting has 4
appointed, a person or firm as auditor of the society. 5
(3) Subject to part 7, division 5,71 the person or firm holds office until the 6
next annual general meeting of the society. 7
(4) A director of a society must take all reasonable steps to comply with, 8
or to secure compliance with, subsection (2). 9
Maximum penalty for subsection (4)--160 penalty units. 10
meeting or inquiry 11
Special
256.(1) This section applies if, before the commencement, a special 12
meeting or inquiry has been called or started in relation to a continuing 13
society under section 52 or 53 of the previous law. 14
(2) The meeting or inquiry may continue under this Act and is taken to 15
have been called or started under section 47 of this Act.72 16
17
Winding-up
257.(1) This section applies if-- 18
(a) under the previous law, a certificate has been issued for the 19
winding-up of a continuing society; and 20
(b) immediately before the commencement, a person has not been 21
appointed liquidator of the society because of the certificate. 22
(2) The certificate is taken to have been issued by QOFS under 23
section 184 of this Act73 and the society may be wound-up accordingly. 24
70 Section 149 (Person as society's auditor)
Section 150 (Firm as society's auditor)
71 Part 7 (Management), division 5 (Audit)
72 Section 47 (Special meeting and inquiry)
73 Section 184 (Winding-up on certificate of QOFS)
s 258 160 s 259
Financial Intermediaries
not to apply to certain continuing societies being wound-up 1
Act
258.(1) This section applies to a continuing society the winding-up of 2
which was started, but not finished, before the commencement. 3
(2) The provisions of this Act for the winding-up of societies do not 4
apply to the continuing society. 5
(3) The society is to be wound-up in the same way as if this Act had not 6
been enacted. 7
(4) Subsection (1) does not limit the operation of the Acts Interpretation 8
Act 1954. 9
(5) This section has effect despite any other provision of this Act. 10
PART 15--APPLICATION OF ACT WITH CHANGES 11
TO CERTAIN ENTITIES 12
of Act 13
Application
259.(1) This Act applies to The Cairns Cooperative Weekly Penny 14
Savings Bank Limited-- 15
(a) as if the amendments set out in schedule 1, part 174 were made, 16
including the provisions `not applied'; and 17
(b) with all other necessary changes and any other changes prescribed 18
under a regulation. 19
(2) This Act applies to the entities mentioned in schedule 275-- 20
(a) as if the amendments set out in schedule 1, part 276 were made, 21
including the provisions `not applied'; and 22
74 Schedule 1 (Act applies to certain entities as if amended) part 1 (Application of
Act to The Cairns Cooperative Weekly Penny Savings Bank Limited)
75 Schedule 2 (Terminating building societies)
76 Schedule 1 (Act applies to certain entities as if amended) part 2 (Application of
Act to terminating building societies)
s 260 161 s 261
Financial Intermediaries
(b) with all other necessary changes and any other changes prescribed 1
under a regulation. 2
PART 16--REPEALS AND AMENDMENTS 3
4
Repeals
260. The following Acts are repealed-- 5
ˇ the Building Societies Act 1985 6
ˇ the Co-operative Housing Societies Act 1958 7
of Queensland Office of Financial Supervision Act 1992 8
Amendment
261. Schedule 3 amends the Queensland Office of Financial Supervision 9
Act 1992. 10
11
162
Financial Intermediaries
CHEDULE 1 1
ĄS
CT APPLIES TO CERTAIN ENTITIES AS IF 2
A
AMENDED 3
section 259 4
PART 1--APPLICATION OF ACT TO THE CAIRNS 5
COOPERATIVE WEEKLY PENNY SAVINGS BANK 6
LIMITED 7
1. Section 18 (Functions of QOFS under this Act)-- 8
Section 18(f)-- 9
omit, insert-- 10
`(f) facilitate the conversion of a society to a company; and'. 11
2. Section 65 (Objects)-- 12
Section 65(1) and (2)-- 13
omit, insert-- 14
`65.(1) A society has the objects set out in its rules.'. 15
3. Section 66 (Powers)-- 16
omit, insert-- 17
`Powers 18
`66.(1) Without limiting subsection (2), a society has the powers stated 19
in its rules and, subject to this Act and its rules, the powers mentioned in 20
this division. 21
`(2) A society is a corporation with perpetual succession and-- 22
(a) has, subject to this Act and the society's rules, the legal capacity 23
163
Financial Intermediaries
SCHEDULE 1 (continued)
of a natural person; and 1
(b) has a common seal; and 2
(c) may sue and be sued in its corporate name. 3
`(3) The fact that the doing of an act by a society would not be, or is not, 4
in its best interests does not affect its power or legal capacity to do the act.'. 5
4. Section 69 (Raising funds)-- 6
Section 69(2), (3) and (4)-- 7
omit. 8
5. Part 5, division 3 (Guarantees)-- 9
not applied. 10
6. Part 6, division 1 (Formation and registration)-- 11
not applied. 12
7. Section 77 (Rules)-- 13
Section 77(1)-- 14
omit. 15
8. Section 80 (Alteration of rules by special resolution)-- 16
Section 80(2), `, 83 and 84'-- 17
omit, insert-- 18
`and 83'. 19
164
Financial Intermediaries
SCHEDULE 1 (continued)
9. Section 84 (Power of QOFS to change rules to facilitate transfer of 1
engagements)-- 2
not applied. 3
10. Section 91 (Financial accommodation to, and deposits from, 4
members and others)-- 5
(1) Section 91, heading-- 6
omit, insert-- 7
`Financial accommodation to members'. 8
(2) Section 91(4) and (5)-- 9
omit. 10
11. Section 93 (Society must have certain words as part of name)-- 11
(1) Section 93(2), `Housing Society'-- 12
omit. 13
(2) Section 93(3)(c) and (d)-- 14
omit. 15
12. Section 123 (Annual general meeting)-- 16
(1) Section 123(1)-- 17
omit. 18
(2) Section 123(2), `every subsequent"-- 19
omit, insert-- 20
`an'. 21
13. Section 128 (Special resolutions)-- 22
(1) Section 128(1)(b)-- 23
165
Financial Intermediaries
SCHEDULE 1 (continued)
omit. 1
(2) Section 128 (3), `or close of the postal ballot'-- 2
omit. 3
14. Section 137 (Financial year)-- 4
omit, insert-- 5
`Financial year 6
`137. The financial year of a society is from 1 July to the following 7
30 June.'. 8
15. Section 161 (Final audit on merger or transfer of engagements)-- 9
omit, insert-- 10
`Final audit on conversion 11
`161.(1) This section applies to a society that converts to a company 12
under part 9.77 13
`(2) The society's auditor must prepare a report containing the statements 14
and information prescribed under a regulation about the society's accounts 15
and accounting records for the financial year up to the day the society is 16
registered as a company under the Corporations Law and for the previous 17
financial year if an auditor's report has not been prepared for the society's 18
accounts for that year. 19
`(3) The provisions of section 160 about the rights of access of an auditor 20
to a society's records apply for the preparation of a report as if it were a 21
report required under section 159.78 22
`(4) The society's auditor must give the report to the directors of the 23
company within 2 months after the day the society is registered as a 24
company and the directors of the company must in turn, within 3 months 25
77 Part 9 (Conversion to a company)
78 Section 160 (Powers and duties of auditor)
Section 159 (Auditor's report)
166
Financial Intermediaries
SCHEDULE 1 (continued)
after the day the company is registered, give QOFS the auditor's report 1
together with the society's accounts. 2
`(5) An auditor of a society must not contravene this section. 3
Maximum penalty--80 penalty units. 4
`(6) A director of a society, or of a company, must take all reasonable 5
steps to ensure that a report required by this section to be given to the 6
directors of a company or to QOFS is so given. 7
Maximum penalty for subsection (6)--80 penalty units.'. 8
16. Part 9 (Mergers and transfers of engagements)-- 9
omit, insert-- 10
`PART 9--CONVERSION TO A COMPANY 11
`Society may convert 12
`167.(1) A society may apply to QOFS for approval of a proposal that it 13
convert to a company. 14
`(2) Subsection (1) applies subject to the society's rules. 15
`Proposal to convert by society to be approved by members 16
`168.(1) Before a society applies to QOFS for approval to convert, the 17
proposal and the memorandum of association and articles of association (if 18
any) proposed for the company must be approved-- 19
(a) in a postal ballot in which not less than 20% of the members of 20
the society have voted; and 21
(b) by not less than 75% of the members who have voted. 22
`(2) The postal ballot must be conducted-- 23
(a) under the society's rules; or 24
167
Financial Intermediaries
SCHEDULE 1 (continued)
(b) under a regulation; or 1
(c) in a way approved by QOFS. 2
`(3) Before a society applies to QOFS for approval to convert, the society 3
must send to each of its members-- 4
(a) a summary, approved by QOFS and containing the information 5
prescribed under a regulation, of the memorandum of association 6
and articles of association (if any) of the proposed company; and 7
(b) a copy of reports, valuations and other material prepared by 8
experts that may be required and approved by QOFS; and 9
(c) a statement, the contents of which have been approved by QOFS, 10
about-- 11
(i) the society's financial position; and 12
(ii) the reasons for the proposal to convert; and 13
(iii) the interest that its officers may have in the conversion; and 14
(iv) the compensation or other consideration proposed to be paid, 15
or other incentive proposed to be given, to its officers arising 16
out of the conversion; and 17
(v) payments to be made to its members arising out of the 18
conversion; and 19
(d) any other matters that QOFS directs. 20
`(4) The part of a statement under subsection (3)(c)(i) must include-- 21
(a) the society's profit and loss account for the period up until a day 22
not more than 6 months before the day proposed for the 23
conversion, giving a true and fair view of the society's profit or 24
loss for the period; and 25
(b) a balance sheet as at the end of the last day of the period to which 26
the profit and loss account relates, giving a true and fair view of 27
the society's state of affairs on the day; and 28
(c) a report prepared by the society's auditor containing statements 29
and information prescribed under a regulation about the society's 30
accounts for the period to which the profit and loss account 31
168
Financial Intermediaries
SCHEDULE 1 (continued)
relates. 1
`(5) The documents mentioned in subsection (3), and the ballot papers to 2
be used in the postal ballot, must be sent to the society's members so that 3
they will in the ordinary course of post reach each member who is entitled 4
to vote not later than 21 days before the day on or before which the ballot 5
papers must be returned by members voting in the ballot. 6
`(6) QOFS may exempt a society from having to comply with all or any 7
of subsection (3) or (4). 8
`(7) QOFS may grant an exemption, or approve a summary or 9
statement, on terms it considers appropriate. 10
`QOFS may direct as to percentage 11
`169.(1) This section applies if-- 12
(a) a postal ballot is conducted under section 168(1); and 13
(b) less than 20% of the society's members vote in the postal ballot. 14
`(2) QOFS may, by written notice given to the society, direct that for the 15
postal ballot, section 168(1) is taken to have had effect as if the percentage 16
stated by QOFS in the notice had been substituted for the 20% at all relevant 17
times. 18
`(3) QOFS may give the notice only if QOFS considers it is in the 19
interests of the public, and of the society's members, to do so. 20
`(4) The notice has effect according to its tenor. 21
`Application by society to QOFS for approval of proposal 22
`170.(1) An application for conversion by a society must be made in the 23
approved form and must be accompanied by-- 24
(a) 2 copies of the proposed memorandum of association and articles 25
of association (if any) of the proposed company; and 26
(b) a copy of the register of members of the society verified by 27
statutory declaration of a director and made up so as to be 28
complete and correct as at a day not more than 6 days before the 29
169
Financial Intermediaries
SCHEDULE 1 (continued)
day of the application; and 1
(c) a statement stating the day and terms on which the conversion of 2
the society to a company is proposed to take effect; and 3
(d) any other documents or information that QOFS requires. 4
`(2) In deciding whether or not to approve the proposal to convert, 5
QOFS must have regard to-- 6
(a) the public interest; and 7
(b) the interests of the members of the society to which the proposal 8
relates; and 9
(c) the information given to those members about the proposal and 10
about the interests of directors and others promoting the proposal; 11
and 12
(d) proposals for the payment of expenses associated with the 13
proposal; and 14
(e) any other relevant matter. 15
`(3) QOFS may-- 16
(a) approve the proposal to convert on terms it considers appropriate; 17
or 18
(b) refuse to approve the proposal. 19
`Effect of conversion of society to company 20
`171.(1) This section applies if-- 21
(a) a proposal by a society that it convert to a company is approved 22
by QOFS; and 23
(b) the company is formed and incorporated under the terms of 24
QOFS's approval; and 25
(c) other terms of the approval about the transfer of membership or 26
any other matter are complied with. 27
`(2) On the day the society is registered as a company under the 28
Corporations Law-- 29
170
Financial Intermediaries
SCHEDULE 1 (continued)
(a) the property of the society vests in the company without any 1
conveyance, transfer or assignment subject to any debt, liability or 2
obligation affecting the property; and 3
(b) the debts and liabilities of the society become debts and liabilities 4
of the company; and 5
(c) the society's personality merges in that of the company. 6
`Surrender of certificate of incorporation etc. 7
`172.(1) A society that proposes to convert to a company must surrender 8
its certificate of incorporation to QOFS. 9
Maximum penalty--80 penalty units. 10
`(2) On the conversion of a society to a company, the society stops being 11
a society under this Act. 12
`Certificate of QOFS 13
`173.(1) QOFS may, on application by the company resulting from a 14
conversion and production of evidence that QOFS may require, issue to the 15
company a certificate stating that a conversion has taken effect. 16
(2) A certificate issued by QOFS under subsection (1) is evidence as to 17
the matters so certified and that the terms of the approval have been 18
complied with.'. 19
17. Section 236 (Abolition of doctrine of ultra vires)-- 20
Section 236(3), `Sections 66 and 76 apply'-- 21
omit, insert-- 22
`Section 66 applies'. 23
18. Section 244 (Transitional regulations)-- 24
Section 244(1)(a)-- 25
171
Financial Intermediaries
SCHEDULE 1 (continued)
omit, insert-- 1
`(a) it is necessary or convenient to make provision because of The 2
Cairns Cooperative Weekly Penny Savings Bank Limited 3
becoming a society under this Act; and'. 4
19. Section 245 (Continuing societies)-- 5
omit, insert-- 6
`Society continues 7
`245.(1) The Cairns Cooperative Weekly Penny Savings Bank Limited 8
registered under the previous law immediately before the commencement 9
("Cairns Cooperative") continues in existence and is taken to be a society 10
under this Act and to have been registered and incorporated under this Act. 11
`(2) Cairns Cooperative ceases to be a society under the previous law.'. 12
20. Section 246 (Application for certificate of incorporation)-- 13
Section 246-- 14
omit, insert-- 15
`Application for certificate of incorporation 16
`246.(1) On application by Cairns Cooperative, QOFS must issue to the 17
cooperative a certificate of incorporation stating that the cooperative is 18
incorporated under this Act. 19
`(2) QOFS must not issue a certificate of incorporation to Cairns 20
Cooperative under subsection (1) unless the cooperative-- 21
(a) surrenders to QOFS its certificate of incorporation under the 22
previous law; or 23
(b) satisfies QOFS that the certificate has been lost or destroyed.'. 24
21. Section 247 (Guarantees)-- 25
not applied. 26
172
Financial Intermediaries
SCHEDULE 1 (continued)
22. Section 248 (Rules)-- 1
Section 248(1), `a continuing society'-- 2
omit, insert-- 3
`Cairns Cooperative'. 4
23. Section 249 (Society started to have been formed under previous 5
law)-- 6
not applied. 7
24. Section 250 (Existing loans)-- 8
not applied. 9
25. Section 251 (Directors)-- 10
(1) Section 251(1), `a continuing society'-- 11
omit, insert-- 12
`Cairns Cooperative'. 13
(2) Section 251(1), `the society'-- 14
omit, insert-- 15
`the cooperative'. 16
26. Section 252 (Management contracts)-- 17
not applied. 18
27. Section 253 (Annual general meeting)-- 19
Section 253(1), `a continuing society'-- 20
omit, insert-- 21
`Cairns Cooperative'. 22
173
Financial Intermediaries
SCHEDULE 1 (continued)
28. Section 254 (Special resolutions)-- 1
Section 254, `a continuing society'-- 2
omit, insert-- 3
`Cairns Cooperative'. 4
29. Section 255 (Appointment of auditor)-- 5
omit, insert-- 6
`Appointment of auditor 7
`255.(1) This section applies if, on the commencement, Cairns 8
Cooperative-- 9
(a) does not have an auditor; or 10
(b) does not have an auditor qualified for appointment as an auditor 11
under section 149 or 150.79 12
`(2) Within 6 months beginning on the commencement, the 13
cooperative's directors must appoint, unless the cooperative at a general 14
meeting has appointed, a person or firm as auditor of the cooperative. 15
`(3) Subject to part 7, division 5,80 the person or firm holds office until 16
the next annual general meeting of the cooperative. 17
`(4) A director of the cooperative must take all reasonable steps to 18
comply with, or to secure compliance with, subsection (2). 19
Maximum penalty for subsection (4)--160 penalty units.'. 20
30. After section 255-- 21
insert-- 22
79 Section 149 (Person as society's auditor)
Section 150 (Firm as society's auditor)
80 Part 7 (Management), division 5 (Audit)
174
Financial Intermediaries
SCHEDULE 1 (continued)
`Proceedings under previous law 1
`255A. The registrar under the previous law may institute proceedings 2
under that law in relation to Cairns Cooperative for things done or not done 3
before the commencement.'. 4
31. Section 256 (Special meeting or inquiry)-- 5
Section 256(1), `a continuing society under section 52 or 53'-- 6
omit, insert-- 7
`Cairns Cooperative under section 102 or 103'. 8
32. After section 256-- 9
insert-- 10
Register 11
`
`256A. A register kept by the registrar under the previous law may be 12
incorporated in a register kept by QOFS under this Act.'. 13
33. Section 257 (Winding-up)-- 14
omit, insert-- 15
`Winding-up 16
`257.(1) This section applies if-- 17
(a) under the previous law, a certificate has been issued for the 18
winding-up of Cairns Cooperative; and 19
(b) immediately before the commencement, a person has not been 20
appointed liquidator of the cooperative because of the certificate. 21
`(2) The certificate is taken to have been issued by QOFS under 22
section 184 of this Act81 and the cooperative may be wound-up 23
accordingly.'. 24
81 Section 184 (Winding-up on certificate of QOFS)
175
Financial Intermediaries
SCHEDULE 1 (continued)
34. Section 258 (Act not to apply to certain continuing societies being 1
wound-up)-- 2
not applied. 3
35. After section 258-- 4
insert-- 5
6
`Documents
`258A. A certificate or other document, about Cairns Cooperative, issued 7
or registered by, filed with or given to the registrar under the previous law 8
has effect as if it were a certificate or other document issued or registered 9
by, filed with or given to QOFS under this Act.'. 10
36. Schedule 4 (Dictionary)-- 11
(1) Schedule 4, definitions "certificate of confirmation", "continuing 12
society", "guarantee", "previous law", "society", "transferee society" 13
and "transferor society"-- 14
omit. 15
(2) Schedule 4-- 16
insert-- 17
` "previous law" means the Co-operative and Other Societies Act 1967. 18
"society" means The Cairns Cooperative Weekly Penny Savings Bank 19
Limited.'. 20
176
Financial Intermediaries
SCHEDULE 1 (continued)
PART 2--APPLICATION OF ACT TO 1
TERMINATING BUILDING SOCIETIES 2
37. Part 1, division 4 (Effect of Primary Producers' Cooperative 3
Associations Act 1923)-- 4
not applied. 5
38. Section 18 (Functions of QOFS under this Act)-- 6
Section 18(f)-- 7
omit, insert-- 8
`(f) facilitate the transfer of engagements from a society to a 9
cooperative housing society; and'. 10
39. Part 5 (Objects and powers of societies)-- 11
omit, insert-- 12
`PART 5--OBJECTS AND POWERS OF SOCIETIES 13
`Objects 14
`65. The objects of a society are its objects under the previous law.'. 15
`Powers 16
`66.(1) The powers of a society are its powers under the previous law, 17
including its powers as a corporation under that law. 18
`(2) A society is a corporation with perpetual succession and-- 19
(a) has a common seal; and 20
(b) may sue and be sued in its corporate name. 21
177
Financial Intermediaries
SCHEDULE 1 (continued)
`(3) The fact that the doing of an act by a society would not be, or is not, 1
in its best interests does not affect its power or legal capacity to do the act.'. 2
40. Part 6, division 1 (Formation and registration)-- 3
not applied. 4
41. Section 77 (Rules)-- 5
Section 77(1) and (2)-- 6
not applied. 7
42. Section 80 (Alteration of rules by special resolution)-- 8
Section 80(2), `, 83 and 84'-- 9
omit, insert-- 10
`and 83'. 11
43. Section 84 (Power of QOFS to change rules to facilitate transfer of 12
engagements)-- 13
not applied. 14
44. Section 91 (Financial accommodation to, and deposits from, 15
members and others)-- 16
omit, insert-- 17
`Financial accommodation 18
`91. A society must not provide financial accommodation to anyone. 19
Maximum penalty--400 penalty units.'. 20
178
Financial Intermediaries
SCHEDULE 1 (continued)
45. Section 93 (Society must have certain words as part of name)-- 1
not applied. 2
46. Section 123 (Annual general meeting)-- 3
(1) Section 123(1)-- 4
omit. 5
(2) Section 123(2), `every subsequent"-- 6
omit, insert-- 7
`an'. 8
47. Section 128 (Special resolutions)-- 9
Section 128(1)(b), `merger or'-- 10
omit. 11
48. Section 137 (Financial year)-- 12
omit, insert-- 13
`Financial year 14
`137. The financial year of a society is from 1 July to the following 15
30 June.'. 16
49. Section 161 (Final audit on merger or transfer of engagements)-- 17
omit, insert-- 18
`Final audit on transfer of engagements 19
`161.(1) This section applies to a society that is dissolved as part of a 20
transfer of engagements under part 9.82 21
82 Part 9 (Transfers of engagements)
179
Financial Intermediaries
SCHEDULE 1 (continued)
`(2) The society's auditor must prepare a report containing the statements 1
and information prescribed under a regulation about the society's accounts 2
and accounting records for the financial year up to the date of the society's 3
dissolution and for the previous financial year if an auditor's report has not 4
been prepared for the society's accounts for that year. 5
`(3) The provisions of section 16083 about the rights of access of an 6
auditor to a society's records apply for the preparation of the report as if it 7
were a report required under section 159.84 8
`(4) The society's auditor must give the report to the directors of the 9
transferee society within 2 months after the date of the transfer and the 10
directors of the transferee society must in turn, within 3 months after the 11
date of the transfer, give QOFS the auditor's report together with the 12
accounts of the society dissolved as part of the transfer. 13
`(5) An auditor of a society must not contravene this section. 14
Maximum penalty--80 penalty units. 15
`(6) A director of a society must take all reasonable steps to ensure that a 16
report required by this section to be given to the directors of a society or to 17
QOFS is so given. 18
Maximum penalty for subsection (6)--80 penalty units.'. 19
50. Part 9 (Mergers and transfers of engagements)-- 20
omit, insert-- 21
`PART 9--TRANSFERS OF ENGAGEMENTS 22
`Interpretation for part 23
`167.(1) In this part-- 24
"certificate of confirmation" means a certificate given by QOFS to 25
confirm a transfer of engagements. 26
83 Section 160 (Powers and duties of auditor)
84 Section 159 (Auditor's report)
180
Financial Intermediaries
SCHEDULE 1 (continued)
"transferee society" means a cooperative housing society to whom a 1
society under this Act is to transfer, or has transferred, its 2
engagements. 3
"transferor society" means a society under this Act that is to transfer, or 4
has transferred, its engagements to a cooperative housing society. 5
`(2) A term used in this part and relating to a cooperative housing society 6
has the same meaning as it has in the law about cooperative housing 7
societies. 8
`Application of part 9
`168. This part applies only if all funds raised by the transferor society 10
and the transferee society and not repaid were provided by the same entity. 11
`Application for registration of transfer of engagements 12
`169.(1) If a society under this Act and a cooperative housing society 13
propose to consolidate all of their assets, liabilities and undertakings by way 14
of the society under this Act transferring its engagements to the cooperative 15
housing society, the societies may, after complying with this section, apply 16
for the registration of the transfer of engagements. 17
`(2) The proposed transfer of engagements must have been approved by 18
a special resolution of each society unless QOFS has decided that it may be 19
approved by the society's board. 20
`(3) Each society must send to each of its members a statement approved 21
by QOFS stating-- 22
(a) the financial position of each of the societies as shown in financial 23
statements that have been prepared as at a date that is not more 24
than 6 months before the date of the statement; and 25
(b) the interest that an officer of any of the societies has in the 26
proposed transfer of engagements; and 27
(c) the compensation or other consideration proposed to be paid, or 28
other incentive proposed to be given, to an officer or member of a 29
society in relation to the proposed transfer or engagements; and 30
181
Financial Intermediaries
SCHEDULE 1 (continued)
(d) the reason for the transfer of engagements; and 1
(e) how the societies' reserves will be dealt with on the transfer of 2
engagements; and 3
(f) if there is a management contract for any of the societies--what is 4
to happen to the contract; and 5
(g) any other matter specified by QOFS. 6
`(4) The statement must be sent to the members so that it will, in the 7
ordinary course of post, reach each member who is entitled to vote on the 8
special resolution not later than-- 9
(a) if the resolution is to be decided at a meeting--21 days before the 10
date of the meeting; or 11
(b) if the resolution is to be decided by a postal ballot--21 days 12
before the day on or before which the ballot papers must be 13
returned by members voting in the ballot. 14
`(5) QOFS may exempt a society from having to comply with all or part 15
of subsection (3). 16
`(6) QOFS may grant an exemption, or approve a statement, on terms it 17
considers appropriate. 18
`(7) An application for the registration of a transfer of engagements must 19
be made in the way and form required by QOFS. 20
`(8) An application for a proposed transfer of engagements must be 21
accompanied by 2 copies of the proposed rules of the transferee society and 22
any other particulars required by QOFS. 23
24
`Certificate of confirmation (voluntary transfer) 25
`170.(1) This section applies to a transfer of engagements following an 26
application under section 169.85 27
`(2) QOFS must issue a certificate of confirmation if it is satisfied that-- 28
85 Section 169 (Application for registration of transfer of engagements)
182
Financial Intermediaries
SCHEDULE 1 (continued)
(a) the societies have complied with section 169; and 1
(b) the rules, or proposed rules, of the transferee society are adequate; 2
and 3
(c) the certificate of incorporation of the transferor society has been-- 4
(i) surrendered to QOFS; or 5
(ii) lost or destroyed; and 6
(d) there is no good reason why the transfer should not take effect. 7
`Who receives the certificate of confirmation 8
`171. QOFS must give a certificate of confirmation to the transferee 9
society. 10
`When transfer of engagements takes effect 11
`172. A transfer of engagements takes effect on the day of issue of the 12
certificate of confirmation of the transfer, or a later day specified in the 13
certificate. 14
`Cancellation of registration 15
`173. QOFS must cancel the transferor society's registration. 16
`Effect of transfer of engagements on societies 17
`174.(1) This section applies on a transfer of engagements taking effect. 18
`(2) The transferee society is the successor of the transferor society. 19
`(3) Without limiting subsection (2)-- 20
(a) the members of the transferor society become members of the 21
transferee society; and 22
(b) all assets and liabilities of the transferor society become assets 23
and liabilities of the transferee society without any conveyance, 24
transfer or assignment; and 25
183
Financial Intermediaries
SCHEDULE 1 (continued)
(c) in all documents (including, for example, a contract to which the 1
transferor society was a party), a reference to the transferor 2
society is a reference to the transferee society; and 3
(d) a legal proceeding by or against the transferor society that is not 4
finished when the merger takes effect may be continued and 5
finished by or against the transferee society; and 6
(e) the duties, obligations, immunities, rights and privileges applying 7
to the transferor society apply to the transferee society.'. 8
51. Section 236 (Abolition of doctrine of ultra vires)-- 9
Section 236(3), `Sections 66 and 76 apply'-- 10
omit, insert-- 11
`Section 66 applies'. 12
52. Section 247 (Guarantees)-- 13
not applied. 14
53. Section 249 (Society started to have been formed under previous 15
law)-- 16
not applied. 17
54. Section 250 (Existing loans)-- 18
not applied. 19
55. After section 255-- 20
insert-- 21
`Administrator etc. 22
`255A.(1) An administrator of a continuing society appointed under 23
184
Financial Intermediaries
SCHEDULE 1 (continued)
section 12486 of the previous law is taken to be appointed by QOFS under 1
section 5087 of this Act. 2
`(2) Directors of a continuing society appointed under section 124(10) of 3
the previous law are taken to have been appointed under section 54(3)(d) 88 4
of this Act. 5
`(3) Action taken in relation to a continuing society under section 125 of 6
the previous law is taken to have been taken by QOFS under section 5889 of 7
this Act. 8
`Investigations 9
`255B.(1) If, immediately before the commencement, an investigation is 10
being conducted into the affairs of a continuing society under part 10, 11
division 3 of the previous law, the investigation may continue under 12
part 1190 of this Act. 13
`(2) For continuing the investigation, QOFS may appoint an investigator 14
under section 19191 of this Act. 15
`(3) A document or other information properly obtained by the person 16
conducting the investigation before the commencement may be had regard 17
to by the person continuing the investigation.'. 18
56. Section 256 (Special meeting or inquiry)-- 19
Section 256(1)(a), `section 52 or 53'-- 20
omit, insert-- 21
`section 179'. 22
86 Section 124 (Special general meeting)
87 Section 50 (Appointment of administrator)
88 Section 54 (Revocation of administrator's appointment)
89 Section 58 (Additional powers of QOFS)
90 Part 11 (Special investigations)
91 Section 191 (Appointment of investigators)
185
Financial Intermediaries
SCHEDULE 1 (continued)
57. Schedule 4 (Dictionary)-- 1
(1) Schedule 4, definitions "continuing society", "guarantee", 2
"previous law" and "society"-- 3
omit. 4
(2) Schedule 4-- 5
insert-- 6
` "continuing society"-- 7
1. Continuing society means a terminating building society 8
registered under the previous law immediately before the 9
commencement. 10
2. The terminating building societies registered under the previous 11
law are mentioned in schedule 2. 12
"cooperative housing society" means an entity registered as a cooperative 13
housing society under the law of the State about cooperative housing 14
societies. 15
"previous law" means the Building Societies Act 1985. 16
"society" means an entity mentioned in schedule 2.'. 17
186
Financial Intermediaries
CHEDULE 2 1
ĄS
ERMINATING BUILDING SOCIETIES 2
T
section 259(2) 3
Australia and New Zealand Terminating Mutual Benefit Building Society 4
Bremer Mutual Benefit Building Society No. 1 5
Manchester Unity Mutual Benefit Building Society No. 4 6
Manchester Unity Mutual Benefit Building Society No. 5 7
Mt Gravatt Terminating Mutual Benefit Building Society 8
Mutual Benefit Building Society No. 1 9
Queensland Mutual Building Society 10
11
187
Financial Intermediaries
CHEDULE 3 1
ĄS
AMENDMENT OF QUEENSLAND OFFICE OF 2
FINANCIAL SUPERVISION ACT 1992 3
section 261 4
1. Section 3, definitions "cooperative housing society" and 5
"terminating building society"-- 6
omit. 7
2. Section 3-- 8
insert-- 9
` "cooperative housing society" means a society registered under the 10
Financial Intermediaries Act 1995, and includes a society within the 11
meaning of that Act as applied under section 259 of that Act.'. 12
3. Section 26, `terminating building society,'-- 13
omit. 14
4. Section 33(f), `terminating building society,'-- 15
omit. 16
5. Section 38(2), `terminating building society,'-- 17
omit. 18
6. Section 52(2)(a)(ii), `terminating building society or'-- 19
omit, insert-- 20
`The Cairns Cooperative Weekly Penny Savings Bank Limited or a'. 21
188
Financial Intermediaries
SCHEDULE 3 (continued)
7. Section 52(2)(a)(iii) and (iv), `terminating building society,'-- 1
omit. 2
8. Section 53(4), after `1958'-- 3
insert-- 4
`, the Financial Intermediaries Act 1995'. 5
9. Section 53(4)(b), `terminating building society,'-- 6
omit. 7
10. Section 53(5), after `1958'-- 8
insert-- 9
`, the Financial Intermediaries Act 1995'. 10
11. Section 53(5)(b), `terminating building society,'-- 11
omit. 12
12. After section 55-- 13
insert-- 14
`QOFS's public office 15
`55A. QOFS must maintain a public office.'. 16
13. Section 58(2)-- 17
insert-- 18
`(f) a supervision levy decided under the Financial Intermediaries Act 19
189
Financial Intermediaries
SCHEDULE 3 (continued)
1995, part 4, division 2, subdivision 6.92'. 1
14. Section 61(2)(a)(iii) and (iv)-- 2
omit, insert-- 3
`(iii) the Financial Intermediaries Act 1995, section 6293; and'. 4
15. Section 62(c) and (d)-- 5
omit, insert-- 6
`(c) for its functions under the Financial Intermediaries Act 1995-- 7
industry bodies and cooperative housing societies.'. 8
16. Section 64A, `Building Societies Act 1985, the Co-operative Housing 9
Societies Act 1958 and the'-- 10
omit. 11
17. Section 64B, `Building Societies Act 1985, the Co-operative Housing 12
Societies Act 1958'-- 13
omit, insert-- 14
`Financial Intermediaries Act 1995'. 15
18. Section 64C, `Building Societies Act 1985, the Co-operative Housing 16
Societies Act 1958'-- 17
omit, insert-- 18
`Financial Intermediaries Act 1995'. 19
92 Part 4 (Functions and powers QOFS), division 2 (Specific powers), subdivision 6
(Supervision fund and levy)
93 Section 62 (Supervision levy)
190
Financial Intermediaries
SCHEDULE 3 (continued)
19. After section 67-- 1
insert-- 2
`Persons with financial interests in The Cairns Cooperative Weekly 3
Penny Savings Bank Limited 4
`68.(1) This section applies to a person who-- 5
(a) is a prescribed person at the commencement; and 6
(b) because of the amendment of section 5294 by the Financial 7
Intermediaries Act 1995--has a financial interest because the 8
person-- 9
(i) has money deposited with The Cairns Cooperative Weekly 10
Penny Savings Bank Limited ("the cooperative"); or 11
(ii) is in receipt of a loan from the cooperative; or 12
(iii) is a member of the cooperative. 13
`(2) For section 52(5) in its application to the financial interest, the person 14
is taken to have become a prescribed person on the commencement. 15
`(3) Words and expressions used in section 52 have the same meanings 16
in this section. 17
`(4) Subsections (1) to (3) are laws to which the Acts Interpretation Act 18
1954, section 20A applies. 19
`(5) This section expires 6 months after it commences.'. 20
21
94 Section 52 (Effect of administrator's appointment)
191
Financial Intermediaries
CHEDULE 4 1
ĄS
ICTIONARY 2
D
section 3 3
"accounting records" include-- 4
(a) invoices, receipts, orders for the payment of money, bills of 5
exchange, cheques, promissory notes, vouchers and other 6
documents of prime entry; and 7
(b) documents and records that record such entries; and 8
(c) working papers and other documents necessary to explain the 9
methods and calculations by which accounts are made up. 10
"accounting standard" has the meaning given by section 9 of the 11
Corporations Law. 12
"accounts" means profit and loss accounts and balance sheets, and 13
includes statements, reports and notes (other than auditors' reports or 14
directors' reports) attached to, or intended to be read with, any of those 15
accounts or balance sheets. 16
"affairs of a society" for a society has the same meaning as "affairs of a 17
body corporate" has for a body corporate in section 53 of the 18
Corporations Law. 19
"applicable accounting standard" means an accounting standard as 20
applying under section 143. 21
"appropriate officer", for sections 214, 215 and 216, see section 213. 22
"approved entity" see section 70(1). 23
"approved financial contracts" see section 67. 24
"approved form" see section 240. 25
"board" means the board of directors of the society. 26
"certificate of confirmation" see section 167. 27
192
Financial Intermediaries
SCHEDULE 4 (continued)
"continuing society" means a cooperative housing society registered under 1
the previous law immediately before the commencement. 2
"director" see section 4. 3
"employee"-- 4
(a) for part 7, division 1, see section 99; 5
(b) of QOFS includes-- 6
(i) an officer of QOFS; and 7
(ii) a person whose services are made available to QOFS; and 8
(iii) a person engaged by QOFS on a contract for services. 9
"executive officer" of a society, means a person (however described) who 10
is concerned, or takes part, in the management of the society. 11
"guarantee" means a guarantee executed by the Treasurer under 12
section 70. 13
"inspector" see section 26. 14
"lot" has the meaning given by the Building Units and Group Titles Act 15
1980. 16
"management contract" means a contract or other arrangement under 17
which-- 18
(a) a person who is not an officer of a society agrees to perform the 19
whole, or a substantial part, of the society's functions; or 20
(b) a society agrees to perform the whole or a substantial part of its 21
functions-- 22
(i) in a particular way; or 23
(ii) under the directions of a person; or 24
(iii) subject to specified restrictions or terms. 25
"officer"-- 26
(a) for sections 149 and 150, see section 148; or 27
(b) for part 11, see section 190; or 28
193
Financial Intermediaries
SCHEDULE 4 (continued)
(c) in any case, see section 5. 1
"previous law" means the Co-operative Housing Societies Act 1958. 2
"QOFS" means the Queensland Office of Financial Supervision. 3
"QOFS's board" means the board of directors of QOFS. 4
"registered company auditor" means a person registered as an auditor, or 5
taken to be registered as an auditor, under part 9.2 of the Corporations 6
Law. 7
"registered office" of a society, see section 98. 8
"relevant day", for sections 214, 215 and 216, see section 213. 9
"relevant person", for sections 221 and 222, see section 220. 10
"residential development" means-- 11
(a) construction or improvement of residential premises; or 12
(b) conversion of a building to residential premises; or 13
(c) improvement of land if-- 14
(i) residential premises are situated or being constructed on the 15
land; and 16
(ii) the improvement is of a type normally associated with land 17
containing residential premises; or 18
(d) acquisition of land for a purpose mentioned in paragraph (a), (b) 19
or (c). 20
"residential premises" means a building or lot occupied, or to be occupied, 21
by a person as the person's principal place of residence, whether as 22
owner, under a lease or tenancy agreement or otherwise, and-- 23
(a) includes a building or lot declared under a regulation to be 24
residential premises under this Act; but 25
does not include-- 26
(b) a building not situated within Australia; or 27
(c) a building or lot declared under a regulation not to be residential 28
premises under this Act. 29
194
Financial Intermediaries
SCHEDULE 4 (continued)
"residential loan" means financial accommodation provided to a person 1
for the purchase of residential premises or for residential development. 2
"society" means a society registered under this Act as a cooperative 3
housing society. 4
"society to which this section applies", for sections 214, 215 and 216, see 5
section 213. 6
"special resolution" see section 128. 7
"standard" means a standard in force under part 3. 8
"Supreme Court" includes a Supreme Court judge. 9
"transferee society" see section 167. 10
"transferor society" see section 167. 11
12
Š State of Queensland 1995
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