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This is a Bill, not an Act. For current law, see the Acts databases.
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Friendly Societies (Victoria) Act 1996
Act No.
TABLE OF PROVISIONS
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PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
3. Definitions 2
4. Crown to be bound 3
PART 2--FRIENDLY SOCIETIES (VICTORIA) CODE AND
FRIENDLY SOCIETIES (VICTORIA) REGULATIONS 4
5. Application in Victoria of the Friendly Societies Code 4
6. Application of Regulations 4
7. Interpretation of some expressions in the Friendly Societies
(Victoria) Code and the Friendly Societies (Victoria) Regulations 4
PART 3--CONFERRAL OF FUNCTIONS AND POWERS 6
8. Conferral of functions and powers on AFIC 6
9. Conferral of functions and powers on Tribunal 6
10. State supervisory authority 6
PART 4--POWER TO MAKE REGULATIONS FOR FRIENDLY
SOCIETIES CODE 7
11. Definition 7
12. General regulation-making power for Code 7
PART 5--LEVIES, FEES AND OTHER AMOUNTS 8
13. Supervision fund 8
14. Supervision levy 8
15. Consultation 9
16. Fees 10
17. Levies 10
18. Fees, fines and penalties 10
PART 6--FRIENDLY SOCIETIES ADVISORY COMMITTEE 11
19. Continuing Committee 11
20. Constitution and procedure 11
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21. Functions of Committee 13
PART 7--MISCELLANEOUS 14
22. Policies and contracts of insurance 14
23. Regulations 14
PART 8--TRANSITIONAL 15
24. General savings provision 15
25. Friendly Societies Act 1986: transitional provisions 15
26. Merger 16
27. Directed transfer of engagements 17
28. Administrator and new directors 17
PART 9--FINANCIAL INSTITUTIONS (VICTORIA) ACT 1992 18
29. Principal Act 18
30. Definitions 18
31. Functions and powers 19
32. Amendment of section 24 19
33. New section 39 substituted 19
39. Immunity 19
34. Supervision fund 19
35. Amendment of section 47 20
36. New section 48A inserted 20
48A. Ministerial agreements for friendly societies legislation 20
PART 10--CONSEQUENTIAL AMENDMENTS 21
37. Repeal of Friendly Societies Act 1986 21
38. Amendment of section 32 of Interpretation of Legislation Act
21
1984
39. New section 38D inserted in Interpretation of Legislation Act
21
1984
38D. References to Friendly Societies legislation 21
40. Amendment of Property Law Act 1958 21
__________________
SCHEDULES 22
SCHEDULE 1 22
FRIENDLY SOCIETIES CODE 22
PART 1--PRELIMINARY 22
Division 1--Introductory 22
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1. Citation 22
2. Commencement 22
Division 2--Interpretation 22
3. Definitions 22
4. Associate 30
5. Director 32
6. Holding body corporate 33
7. Holding society 33
8. Making a decision 33
9. Officer 34
10. Related body corporate 34
11. Subsidiary 35
12. Qualified privilege 37
13. Carrying on business: otherwise than for profit 37
14. Businesses of a particular kind 38
15. Carrying on a business: alone or together with others 38
16. Interpretation generally 38
Division 3--Operation of Friendly Societies Legislation 38
17. Extraterritorial operation of legislation 38
Division 4--Application and Adoption of Corporations Law 38
18. Definitions 38
19. Corporations Law applying under its own force 39
20. Corporations Law adopted under a regulation 41
21. Adopted provisions of Corporations Law 41
PART 2--FUNCTIONS AND POWERS OF SSA 43
Division 1--General 43
22. Functions of SSA 43
23. General powers 44
24. SSA to comply with standards 44
25. Application of variation under standards 44
26. SSA to keep Minister informed 44
27. Inspection of documents at public office 44
28. Power of SSA to reject documents 46
29. Extension or abridgment of time 47
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Division 2--Specific Powers 47
Subdivision 1--Services corporations 47
30. Services corporation 47
Subdivision 2--Enforcement powers 49
31. Obtaining information 49
32. Obtaining evidence 51
33. Inspectors 53
34. Inspector to produce identity card 53
35. Entry and search--monitoring compliance 54
36. Entry and search--evidence of offences 55
37. General powers of inspector in relation to places 57
38. Monitoring warrants 58
39. Offence related warrants 59
40. Offence related warrant may be granted by telephone 60
41. Obstruction of inspectors 62
42. False or misleading statements 62
Subdivision 3--Special meeting and inquiry 63
43. Special meeting and inquiry 63
Subdivision 4--Special power of intervention 67
44. Intervention by SSA 67
Subdivision 5--Power to suspend operations of society 69
45. Power to suspend operations 69
Subdivision 6--Administrators 70
46. Appointment of administrator 70
47. Additional powers of SSA 74
48. Stay of proceedings 75
49. Administrator to report to SSA 75
Subdivision 7--Levies 75
50. Supervision Fund 75
51. Supervision levy 76
52. Consultation 77
53. Failure to make payment an offence 78
Subdivision 8--Control of Advertising 78
54. Restriction on initial advertisements 78
55. Power to control advertising 78
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PART 3--SOCIETIES 80
Division 1--Objects 80
56. Primary objects 80
57. Objects of society must include primary objects 80
58. Dominant activities 81
Division 2--Formation and Registration 81
59. Formation of societies 81
60. Registration 82
61. Certificate of incorporation 85
62. Effect of incorporation 85
63. Powers of societies 85
64. Prohibition on issuing debenture 87
65. Restriction on reinsurance arrangements 87
66. Restriction on acting as trustee 87
67. Control of certain financial arrangements 88
68. Control of foreign currency transactions 88
Division 3--Rules 89
Subdivision 1--General 89
69. Rules 89
70. Copies of rules 89
71. Society and members to be bound by rules 89
Subdivision 2--Amendment of rules 90
72. Amendment of rules by special resolution 90
73. Amendment of rules by board of directors 90
74. Registration of amendment of rules 91
75. Power of SSA to require modification of rules 91
Subdivision 3--Societies conducting health benefit funds 92
76. Definitions 92
77. Health benefit fund rules 92
78. Registered society to give notice of rule changes 93
Division 4--Standards 93
79. Societies to comply with standards 93
Division 5--Membership 93
80. Members 93
81. Members who are minors 94
82. Joint members 95
83. Corporate membership 96
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84. Cessation of membership 98
85. Expulsion of member 98
86. Limitation of liability of members 98
Division 6--Name and Office 99
87. Name 99
88. Abbreviations of society's name 100
89. Change of name does not affect identity 100
90. Use of "friendly society" 101
91. Unregistered society not to carry on business 102
92. Publication of name 102
93. Common Seal 103
94. Society may have duplicate common seal 103
95. Registered office 104
PART 4A--BENEFIT FUNDS 105
Division 1--Provision of Benefits and Establishment of Benefit Funds 105
96. Provision of benefits 105
97. Establishment of benefit fund 105
98. Approval to establish benefit fund 105
Division 2--Management of Benefit Funds 106
99. Assets of benefit funds 106
100. Payments to benefit funds 107
101. Application of benefit fund assets 107
102. Mortgaging assets of benefit fund 107
103. Investment of benefit funds 108
104. Payment of money into account 108
105. Funds inward clearing account 108
106. Funds outward clearing account 109
107. Transfer of an asset between funds 110
108. Distribution of surplus in benefit fund 110
109. Fair value of assets 111
Division 3--Restructure of Benefit Funds 111
110. Definitions 111
111. Approval of restructure of benefit funds 112
112. Rules 115
113. Lodgement of information with SSA 115
114. When a restructure takes effect 116
115. Effect of restructure 116
116. Notification of members 116
Division 4--Termination of Benefit Funds 117
117. Application of Division 117
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118. Approval of termination proposal 117
119. Distribution of assets of benefit fund 120
120. Notification of members 121
121. Rules 122
122. Lodgement of information with SSA 122
123. When termination takes effect 123
Division 5--Assignment of Benefits 123
124. Assignment of benefits 123
125. Payment to nominee of deceased member 124
PART 4B--OFFERING AND MARKETING OF BENEFITS 126
Division 1--Application and Interpretation 126
126. Definitions 126
127. Benefits advisors business 127
128. Application of this Part 127
129. Actuarial advice 128
130. Representatives 128
131. Involvement in contraventions 129
132. Conduct 129
133. References to doing acts 131
134. Misleading representation 131
Division 2--Disclosure Documents and Application Forms 132
135. Disclosure document to be lodged 132
136. Application form 133
137. Form of disclosure document and date of issue 133
138. Disclosure of interests 134
139. Liability in respect of disclosure document and interests 135
140. Content of disclosure document 136
141. Conditions requiring waiver of requirements void 137
142. Obligation to notify society of false etc statements 137
143. Correction of false or misleading statements etc by a
supplementary or replacement disclosure document 138
144. Changes or new matters requiring the issue of a supplementary or
replacement disclosure document 138
145. General provisions about supplementary disclosure documents 139
146. General provisions about replacement disclosure documents 140
147. Consequences of lodging a supplementary disclosure document 142
148. Consequences of lodging a replacement disclosure document 142
149. Application made on out of date application form 143
150. Inclusion of documents in disclosure documents by reference 147
151. Disclosure document referring to information set out in current
application form 148
152. Certain notices etc not to be published 149
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153. Certain reports referring to disclosure documents not to be
published 150
154. Evidentiary provisions etc. 152
155. Documents to be kept 154
156. Expert's consent to issue of disclosure document containing
statement by the expert 154
157. Direction not to accept contributions 155
158. Exemptions and modifications 157
Division 3--Prohibited Conduct and Civil Liability 158
159. Statement in a disclosure document 158
160. Misleading or deceptive conduct 158
161. Mis-statements and omissions in disclosure documents 159
162. Civil liability for contravention of this Division or Division 2 160
163. Civil liability for false or misleading statement in, or omission
from, a disclosure document 160
164. No liability to person with knowledge of relevant matter 162
165. Non-consenting directors not liable 162
166. Directors not liable where they have reasonable grounds for
believing disclosure document to be correct 163
167. Liability of experts, auditors etc. 165
168. Liability of persons named in disclosure document 167
169. No liability for mistake etc if reasonable precautions taken 168
170. Indemnity 169
Division 4--Regulation of Industry Participants 170
Subdivision 1--Conduct in relation to benefits 170
171. Dealing 170
172. Advising 171
Subdivision 2--Agreements with unlicensed persons 173
173. Certain persons not clients 173
174. Agreements with unlicensed persons 173
175. Client may give notice of rescission 174
176. Effect of notice under section 175 175
177. Client may apply to Court for partial rescission 176
178. Court may make consequential orders 177
179. Agreement unenforceable against client 177
180. Non-licensee not entitled to recover commission 178
181. Onus of establishing non-application of section 179 or 180 178
182. Client may recover commission paid to non-licensee 178
183. Remedies under this Subdivision 179
Subdivision 3--Representatives 179
184. Proper authority from society 179
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185. Representatives of dealers 180
186. Representatives of investment advisers 180
187. Representatives of societies 180
188. Body corporate not to act as representative 180
189. Defence 181
190. Banned person not to act as representative 181
191. Society to keep register of holders of proper authorities 182
192. Society to notify SSA of location and contents of register 184
193. Inspection and copying of register 185
194. SSA may require production of authority 185
195. SSA may give society information about representative 186
196. Holder of authority may be required to return it 188
Subdivision 4--Liability of principals for representatives' conduct 189
197. Conduct engaged in as a representative 189
198. Liability where identity of principal unknown 189
199. Liability of principals where act done in reliance on
representative's conduct 190
200. Presumptions about certain matters 193
201. No contracting out of liability for representative's conduct 194
202. Effect of Subdivision 195
Subdivision 5--Excluding persons from dealing with benefits 196
203. Power to make banning order 196
204. Nature of banning order 197
205. Exceptions to banning order 197
206. Variation or revocation of banning order on application 198
207. Revocation of banning order in certain cases 199
208. Effect and publication of orders under this Subdivision 199
209. Contravention of banning order 200
210. Opportunity for hearing 200
211. Disqualification by the Court 201
Subdivision 6--Recommendations about benefits 201
212. Definition of adviser 201
213. Recommendation made by partner or officer 202
214. Client to be told if adviser's interests may influence
recommendation 202
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215. Defences to alleged breach of section 214(2) 204
216. Adviser must have reasonable basis for recommendation 206
217. Adviser who breaches this Subdivision liable to compensate
client 207
218. Qualified privilege for adviser when complying with this
Subdivision 208
PART 5--SHARES AND CHARGES 209
Division 1--Shares Generally 209
219. Share capital 209
220. Classes of shares, rights etc. 209
221. Determination of share capital 209
222. Liability of shareholders 209
223. Board to approve sale or transfer unless rules provide otherwise 210
224. Restriction on application of capital 210
225. Power to make certain payments 211
226. Validation of shares improperly issued 213
Division 2--Permanent Shares 213
227. Issue of permanent shares 213
228. Issue of preference shares 214
229. Rights of holders of preference shares to be set out in rules 214
230. Cancellation of permanent shares 214
231. Dividends in relation to permanent shares 215
232. Requirements for issue of permanent shares 216
233. Allotment of permanent shares otherwise than for cash 217
234. Power to exempt in relation to non-cash consideration 218
235. Differences in calls, reserve liability etc 219
236. Calls and effect of non-compliance with calls on permanent
shares 219
237. Sale of permanent shares forfeited for non-payment of call 220
238. Prohibition of allotment unless minimum subscription received 220
239. Return as to allotments 224
240. Issue of permanent shares at premium 226
241. Special resolution for reduction of permanent share capital 227
242. Society financing dealings in its permanent shares etc. 231
243. Exceptions 233
244. Consequences of society financing dealings in its permanent
shares etc. 239
245. Prohibition on subsidiary acquiring permanent shares of holding
society 244
246. Options over permanent shares 245
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Division 3--Redeemable Preference Shares 245
247. Application of certain provisions of this Code to redeemable
preference shares 245
248. Issue of redeemable preference shares 246
Division 4--Shareholding Restrictions 248
Subdivision 1--Interpretative provisions 248
249. Application of Division 248
250. Extraterritorial operation of Division 248
251. What constitutes an "entitlement" to shares 248
252. What constitutes a "relevant interest" in shares 249
253. Meaning of "associate" 252
254. Meaning of voting power or right to vote 255
255. Inadvertence or mistake 255
Subdivision 2--Maximum shareholdings 255
256. Maximum permissible shareholding 256
257. Consequences of exceeding maximum permissible shareholding 258
258. Exceptions 258
Subdivision 3--Substantial shareholdings 259
259. Substantial shareholding and substantial shareholders 259
Subdivision 4--Power to obtain information 260
260. Power to obtain information 260
Subdivision 5--Enforcement 260
261. Court orders--substantial shareholdings 260
262. Power of SSA to exempt etc from Division 261
Division 5--Issue of shares 262
263. Issuing of shares at a discount prohibited 262
264. Issuing of shares as partly paid up etc. 262
265. Power of SSA to exempt etc. from Division 262
Division 6--Title to and Transfer of Shares 263
266. Restricted application of this Division 263
267. Document of title to be evidence of title 264
268. Loss or destruction of documents 264
269. Instrument of transfer 266
270. Registration of transfer at request of transferor 268
271. Notice of refusal to register transfer 269
272. Remedy for refusal to register transfer or transmission 269
273. Certification of transfers 270
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274. Duties of society in relation to issue of certificates 271
275. Exemption 272
Division 7--Registration of Charges 274
276. Registration of charges 274
277. Directions by AFIC and SSA 274
278. SSA approval of charges necessary in certain circumstances 275
PART 6--MANAGEMENT 276
Division 1--Interpretation 276
279. Definition 276
280. When one entity controls another 276
Division 2--Directors and Officers 277
281. Board of directors 277
282. Meetings of directors 277
283. Minutes 278
284. Number of directors 278
285. Election of directors 278
286. Employee directors 279
287. Alternate directors 279
288. Chairperson 279
289. Qualifications of directors 280
290. Vacation of office 280
291. Removal of directors 281
292. Declaration of interest 283
293. General duty to make disclosure 286
294. Certain financial accommodation to officers prohibited 287
295. Financial accommodation to directors and associates 288
296. Director's remuneration 291
297. Management contracts 291
298. Duties of directors and officers 292
299. Prohibition on transfer of money 294
300. Unlawfully acting as director 298
301. Annual general meeting 298
302. Special general meeting 299
303. Quorum 299
304. Notice of meeting 299
305. Voting 300
306. Proxy votes 301
307. Special resolutions of societies 302
308. Minutes 304
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Division 4--Meetings of Members of a Benefit Fund 304
309. Application of Division 304
310. Quorum 304
311. Notice of meeting 304
312. Voting 305
313. Proxy votes 306
314. Special resolutions of benefit funds 307
315. Minutes 308
Division 5--Registers and Inspection 308
316. Registers 308
317. Register of directors etc. 309
318. Register of members to be kept 314
319. Registers of members 314
320. Register of holders of permanent shares 315
321. Power of Court to rectify register of holders of permanent
shares 317
322. Register of options 318
323. Inspection of rules and other documents 320
324. Location of registers on computers 321
325. Form and evidentiary value of registers 322
Division 6--Accounts 323
326. Financial year 323
327. Financial years of groups 324
328. Accounting records to be kept 325
329. Inspection of accounting records 326
330. Profit and loss accounts and balance sheets 326
331. Group accounts 327
332. Audit 328
333. Directors to ascertain certain matters 328
334. Requirements applying to accounts and group accounts 329
335. Directors' statement 330
336. Directors' reports 332
337. Directors of holding society must obtain information from entities
controlled by the society 342
338. Accounts and reports to be laid before annual general meeting 344
339. Contravention of Division 345
Division 7--Audit 346
340. Qualifications of auditors 346
341. Appointment of auditors 351
342. Nomination of auditors 354
343. Removal and resignation of auditors 355
344. Effect of winding up on office of auditor 358
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345. Fees and expenses of auditors 358
346. Auditor's report 358
347. Powers and duties of auditor 363
348. Final audit on merger, etc. 365
349. Auditors and entities controlled by societies 367
350. Obstruction of auditor 367
351. Qualified privilege 368
Division 8--Actuaries 369
352. Appointment of actuaries 369
353. Cessation of appointment 370
354. Notification of appointment etc. 371
355. Powers of actuary 371
356. Actuary's obligation to report to SSA 373
357. Qualified privilege of actuary 374
358. Actuarial investigations 375
359. Additional actuarial investigations 375
Division 9--Returns and Relief 376
360. Returns 376
361. Relief from requirements as to accounts, audit and actuaries 377
PART 7--MERGERS OF SOCIETIES AND TRANSFERS OF
ENGAGEMENTS 380
Division 1--Preliminary 380
362. Definitions 380
363. Application of Part 380
Division 2--Mergers and Transfers of Engagements between
Societies 380
364. Application for registration of merger or transfer 380
365. SSA may register merged society 382
366. Certificate of confirmation (voluntary transfer) 383
367. SSA may direct a transfer of engagements between societies 384
368. SSA may modify rules to facilitate transfer of engagements 385
369. Society to comply with direction 386
370. Certificate of confirmation (transfer by direction) 386
371. Who receives the certificate of confirmation 388
372. When transfer of engagements takes effect 388
373. Cancellation of registration after total transfer 388
374. Effect of merger 388
375. Effect of transfer of engagements 389
Division 3--Mergers and transfers of engagements involving foreign
societies 390
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376. Definition 390
377. Transfer of engagements 390
378. Application for registration of merger or transfer of engagements 390
379. SSA may register merged society 393
380. Certificate of confirmation 394
381. Who receives the certificate of confirmation 395
382. When transfer of engagements takes effect 395
383. Effect of merger 395
384. Effect of transfer of engagements 396
385. Society must pass special resolution 397
PART 8--CONVERSIONS TO COMPANIES AND
INCORPORATED ASSOCIATIONS 398
Division 1--Conversion to Company 398
386. Society may convert to company 398
387. Proposal to convert by society to be approved by members 398
388. SSA may direct as to percentage 400
389. Application by society to SSA for approval of proposal 401
390. Conversion of society to company 402
391. Surrender of certificate of incorporation and cancellation of
registration of society 403
392. Certificate of SSA 403
Division 2--Conversion to Incorporated Association 403
393. Society without benefit fund may convert to incorporated
association 403
394. Proposal to convert to be approved by members or society's board404
395. Application by society to SSA for approval of proposal 406
396. Conversion of society to incorporated association 407
397. Surrender of certificate of incorporation and cancellation of
registration of society 408
398. Certificate of SSA 408
PART 9--EXTERNAL ADMINISTRATION 409
399. Arrangements and reconstructions 409
400. Receivers and other controllers of property of societies 409
401. Winding-up 409
402. Winding-up on certificate of SSA 409
403. Application of Corporations Law to winding-up 411
404. Voluntary winding-up 412
405. Vacancy in office of liquidator on voluntary winding-up 412
406. Remuneration of liquidator on voluntary winding-up 413
407. Priority on winding-up 413
408. Determination of amounts to be treated as liabilities 414
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409. Cancellation of registration 415
PART 10--SPECIAL INVESTIGATIONS 416
410. Definition 416
411. Appointment of investigators 417
412. Investigation of affairs of related body corporate 418
413. Powers of investigators 418
414. Examination of officers 419
415. Self-incrimination 420
416. Privileged communications 421
417. Failure of officer to comply with requirement of investigator 422
418. Recording of examination 422
419. Delegation of powers by investigator 423
420. Report of investigator 424
421. Proceedings following investigation 425
422. Admission of investigator's report in evidence 426
423. Expenses of investigation 427
424. Offences 429
425. Defence 429
PART 11--FOREIGN SOCIETIES 430
426. Definitions 430
427. Registration 431
428. Agents 432
429. Removal of agent 433
430. Liability of agent 433
431. Service on agent 433
432. Application of Code to foreign societies 434
433. SSA to be notified of certain changes 434
434. Balance sheets 435
435. Cessation of business 435
436. Society proposing to register as foreign society 436
437. SSA to provide certain documents 436
PART 12--ASSOCIATIONS 437
438. Formation of associations 437
439. Objects of associations 437
440. Registration 437
441. Certificate of incorporation 439
442. Effect of incorporation 439
443. Membership 439
444. Share capital 439
445. Meetings 440
446. Application of Code to associations 440
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PART 13--REVIEW OF DECISIONS 441
447. Reviewable decisions 441
448. Application for review of decisions 442
449. Application of AFIC Code 442
450. SSA to review certain decisions 443
PART 14--MISCELLANEOUS 444
Division 1--Evidence 444
451. Certificates etc. 444
452. Rules 445
453. Registers 445
454. Minutes 445
455. Entries 446
Division 2--Offences 446
456. Defaults by societies 446
457. Restrictions on powers 446
458. Offences by officers 447
459. Incurring debts not likely to be paid 452
460. Powers of Court 453
461. Inducement to be appointed as liquidator 455
462. Falsification of records 455
463. Frauds by officers 455
464. False or misleading information 456
465. Power to examine defaulting officers 456
466. Power of Court to assess damages against certain persons 459
467. False copies of rules 461
468. Fraud or misappropriation 461
469. Commissions 462
470. Officers and other persons in default 462
Division 3--Proceedings 463
471. Proceedings for offences 463
472. Reciprocity in relation of offences 463
473. Continuing offences 463
474. Injunctions 465
475. Penalty notices 467
476. Power to grant relief 470
Division 4--Other matters 471
477. Secrecy 471
478. Powers about money of members who have died 474
479. Limitation of doctrine of ultra vires 474
480. Abolition of doctrine of constructive notice 475
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PART 15--TRANSITIONAL 476
481.
Continuing societies 476
482.
Application for certificate of incorporation 476
483.
Benefit funds 476
484.
Rules 477
485.
Subsidiaries 477
486.
Directors 477
487.
Annual general meeting 478
488.
Special resolutions 478
489.
Registers 478
490.
Winding-up 478
491.
Documents 479
492.
Disclosure documents 479
493.
Interstate society carrying on business in this State 479
__________________
SCHEDULE A 481
NOTES 510
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A BILL
to provide for the formation, registration, management and regulation
of friendly societies, to repeal the Friendly Societies Act 1986 and
make consequential amendments to other Acts, and for other
purposes.
Friendly Societies (Victoria) Act 1996
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The purpose of this Act is to provide for the
formation, registration, management and
regulation of friendly societies.
5
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531059B.I1-28/10/96 BILL LA INTRODUCTION 29/10/96
Friendly Societies (Victoria) Act 1996
s. 2
Act No.
2. Commencement
(1) This Part comes into operation on the day on
which this Act receives the Royal Assent.
(2) The remaining provisions of this Act come into
operation on a day or days to be proclaimed.
5
(3) The Governor in Council may fix different days
for the commencement of different provisions of
the Friendly Societies Code set out in Schedule 1
to this Act.
3. Definitions
10
(1) In this Act--
"friendly societies legislation of Victoria"
means--
(a) this Act and regulations under this Act;
(b) the Friendly Societies (Victoria)
15
Code;
(c) the Friendly Societies (Victoria)
Regulations;
(d) the AFIC (Victoria) Code, the AFIC
(Victoria) Regulations, the Financial
20
Institutions (Victoria) Code and the
Financial Institutions (Victoria)
Regulations as applying to the Code
and Regulations referred to in
paragraphs (b) and (c);
25
"Friendly Societies (Victoria) Code" means the
provisions applying because of section 5 of
this Act;
"Friendly Societies (Victoria) Regulations"
means the provisions applying because of
30
section 6 of this Act;
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Friendly Societies (Victoria) Act 1996
s. 4 Act No.
"Ministerial Council" means the Ministerial
Council established under the financial
institutions agreement within the meaning of
the Financial Institutions (Victoria) Code.
(2) Words and expressions used in the Friendly
5
Societies (Victoria) Code and in this Act have the
same respective meanings in this Act as they have
in that Code.
(3) Sub-section (2) does not apply to the extent that
the context or subject matter otherwise indicates
10
or requires.
4. Crown to be bound
(1) The friendly societies legislation of Victoria binds
the Crown, not only in right of Victoria but also,
so far as the legislative power of the Parliament
15
permits, the Crown in all its other capacities.
(2) Nothing in this section permits the Crown in any
of its capacities to be prosecuted for an offence.
_______________
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Friendly Societies (Victoria) Act 1996
s. 5
Act No.
PART 2--FRIENDLY SOCIETIES (VICTORIA) CODE
AND FRIENDLY SOCIETIES (VICTORIA) REGULATIONS
5. Application in Victoria of the Friendly Societies Code
(1) The Friendly Societies Code set out in
Schedule 1 to this Act, as in force for the time
5
being--
(a) applies as a law of Victoria; and
(b) as so applying may be referred to as the
Friendly Societies (Victoria) Code.
(2) The Friendly Societies Code referred to in sub-
10
section (1) applies as if--
(a) sections 27, 28, 50, 51 and 52 were omitted;
and
(b) in Schedule A to that Code, clauses 45 and
47 were omitted.
15
6. Application of Regulations
The Regulations in force for the time being under
Part 4 of this Act--
(a) apply as Regulations in force for the
purposes of the Friendly Societies
20
(Victoria) Code; and
(b) as so applying may be referred to as the
Friendly Societies (Victoria) Regulations.
7. Interpretation of some expressions in the Friendly
Societies (Victoria) Code and the Friendly Societies
25
(Victoria) Regulations
(1) In the Friendly Societies (Victoria) Code and the
Friendly Societies (Victoria) Regulations--
"continuing society" means a friendly society to
which the Friendly Societies Act 1986
30
4
531059B.I1-28/10/96 BILL LA INTRODUCTION 29/10/96
Friendly Societies (Victoria) Act 1996
s. 7 Act No.
applied immediately before the
commencement of this section;
"Corporations Law" and "Corporations
Regulations" have the meaning provided for
by Part 3 of the Corporations (Victoria)
5
Act 1990;
"Legislature of this State" means the Parliament
of Victoria;
"pharmacy law of this State" means the
Pharmacists Act 1974;
10
"Supreme Court" means the Supreme Court of
Victoria;
"the Code" or "this Code" means the Friendly
Societies (Victoria) Code;
"the previous law" means the Friendly Societies
15
Act 1986;
"the State" or "this State" means the State of
Victoria.
(2) The Corporations (Victoria) Act 1990, and the
applicable provisions of Victoria within the
20
meaning of that Act, are prescribed for the
purpose of section 19(4) of the Friendly Societies
(Victoria) Code.
_______________
5
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Friendly Societies (Victoria) Act 1996
s. 8
Act No.
PART 3--CONFERRAL OF FUNCTIONS AND POWERS
8. Conferral of functions and powers on AFIC
AFIC has the functions and powers conferred or
expressed to be conferred on it by or under the
friendly societies legislation of Victoria.
5
9. Conferral of functions and powers on Tribunal
The Australian Financial Institutions Appeals
Tribunal established under the AFIC Act has the
functions and powers conferred or expressed to be
conferred on it by or under the friendly societies
10
legislation of Victoria.
10. State supervisory authority
The Victorian Financial Institutions Commission
established under Part 6 of the Financial
Institutions (Victoria) Act 1992 is the State
15
supervisory authority for Victoria.
_______________
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Friendly Societies (Victoria) Act 1996
s. 11 Act No.
PART 4--POWER TO MAKE REGULATIONS FOR
FRIENDLY SOCIETIES CODE
11. Definition
In this Part--
"the Code" means the Friendly Societies Code
5
set out in Schedule 1, as in force for the time
being.
12. General regulation-making power for Code
(1) The Governor in Council may make Regulations
for or with respect to any matter or thing necessary
10
to be prescribed to give effect to the Code.
(2) A Regulation under this Part may be made only on
the recommendation of the Ministerial Council.
(3) A Regulation under this Part may create an
offence punishable by a penalty not exceeding
15
$5000.
_______________
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Friendly Societies (Victoria) Act 1996
s. 13
Act No.
PART 5--LEVIES, FEES AND OTHER AMOUNTS
13. Supervision fund
The SSA must pay into the Supervision Fund
established under section 41 of the Financial
Institutions (Victoria) Act 1992 all amounts
5
received as supervision levy under this Part.
14. Supervision levy
(1) The SSA may determine that an amount is to be
paid to it by societies as a supervision levy.
(2) The amount of the levy may be fixed by the SSA
10
as--
(a) a specified amount; or
(b) a specified percentage of an amount to be
determined, on a specified day, by reference
to specified factors relating to societies
15
(including, for example, factors such as paid-
up capital, reserves, obligations and debts
and total assets); or
(c) both a specified amount and such a specified
percentage.
20
(3) If the levy is fixed, wholly or partly, as mentioned
in sub-section (2)(b), the SSA may include in the
determination directions as to the way in which
the levy is to be determined.
(4) The SSA may--
25
(a) fix the amount of the levy differently for
different societies; and
(b) determine that the levy is not payable by
specified societies.
(5) The SSA may, in the determination, require the
30
levy to be paid in one amount by a specified time
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Friendly Societies (Victoria) Act 1996
s. 15 Act No.
or permit the levy to be paid by specified
instalments.
(6) If the SSA permits the levy to be paid by
instalments, it may, in the determination, allow a
discount for payment in one amount by a specified
5
time or require payment of an additional amount
or percentage, by way of interest, in the
instalments.
(7) The SSA may, in the determination, require the
payment of amounts, by way of late payment
10
charge, interest or both, in relation to amounts of
levy that are not paid as required by the
determination.
(8) The SSA may include in the determination
directions as to the way in which amounts of late
15
payment charge and interest are to be determined.
(9) Amounts of levy are, when they are due and
payable, debts due and payable by the society
concerned to the SSA, and may be sued for and
recovered in a court having jurisdiction for the
20
recovery of debts up to the amount concerned.
(10) The SSA may, on the application of a society,
vary--
(a) an amount of levy payable by the society; or
(b) the time within which an amount of levy is
25
payable by the society.
(11) An amount paid by a society as levy is treated as
an expense in the accounts of the society.
(12) In sub-sections (9) to (11)--
"levy" includes late payment charge and interest
30
in relation to levy.
15. Consultation
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Friendly Societies (Victoria) Act 1996
s. 16
Act No.
In determining the amount to be paid as
supervision levy under section 14, the SSA may,
where it is appropriate and practicable to do so,
consult with industry bodies and societies.
16. Fees
5
This section imposes the fees prescribed by the
Friendly Societies (Victoria) Regulations or by the
AFIC (Victoria) Regulations in respect of matters
referred to in the friendly societies legislation of
Victoria.
10
17. Levies
This section imposes the levy payable under
sections 119 and 120 of the AFIC (Victoria)
Code by a society.
18. Fees, fines and penalties
15
All fees, fines and penalties and other money
which, under or by virtue of the friendly societies
legislation of Victoria are authorised or directed to
be imposed on any person and are not, under that
legislation, fees, levies or other amounts payable
20
to a specified person must be paid to Victoria.
_______________
10
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Friendly Societies (Victoria) Act 1996
s. 19 Act No.
PART 6--FRIENDLY SOCIETIES ADVISORY COMMITTEE
19. Continuing Committee
(1) The Friendly Societies Advisory Committee
established by section 100 of the Friendly
Societies Act 1986 continues as the Friendly
5
Societies Advisory Committee for the purposes of
this Act.
(2) A person who was a member of the Friendly
Societies Advisory Committee immediately before
the commencement of this section continues as a
10
member of the Committee after that
commencement until removed from office or
otherwise ceasing to be a member.
20. Constitution and procedure
(1) The Friendly Societies Advisory Committee
15
consists of 8 members appointed by the Minister
of whom--
(a) 4 must be persons who are representatives of
the friendly societies industry; and
(b) 4 must be persons whom the Minister
20
considers have skills, experience or
knowledge of societies necessary to enable
the Committee to perform its functions.
(2) The Minister must appoint the members specified
under sub-section (1)(a) from a panel of names of
25
persons submitted at the invitation of the Minister
by a body or organisation which the Minister
considers represents the friendly society industry.
(3) A submission under sub-section (2) must--
(a) be made in writing so as to reach the
30
Minister on or before the date determined by
the
11
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Friendly Societies (Victoria) Act 1996
s. 20
Act No.
Minister as the last date for the submission;
and
(b) contain at least 6 names.
(4) The failure to make a submission does not
preclude the Minister from making an
5
appointment under sub-section (1).
(5) The Minister must appoint a member to be the
Chairperson of the Committee who must preside
at any meeting at which he or she is present.
(6) If the Chairperson is not present at the time fixed
10
for the commencement of a meeting of the
Committee, the members present at the meeting
must elect a member to preside.
(7) The Minister may appoint a deputy member to
attend a meeting of the Committee at which a
15
member is unable to be present.
(8) The members and the deputy members of the
Committee hold office at any time for the period
that the Minister decides, and may be removed
from office at any time by the Minister.
20
(9) Meetings of the Committee may be convened by
the Chairperson or by any 2 members.
(10) A quorum of the Committee is 4.
(11) If votes are equal, the person who is presiding at
the meeting has a casting vote.
25
(12) A member or deputy other than a member or
deputy who is an officer or employee who holds a
full-time government office or a full-time office
with a statutory corporation may be paid--
(a) remuneration as is specified in the
30
instrument of appointment or as may be
fixed from time to time by the Governor in
Council; and
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Friendly Societies (Victoria) Act 1996
s. 21 Act No.
(b) travelling and other allowances and expenses
as may be fixed from time to time by the
Governor in Council.
(13) A member of the SSA may attend (but not vote) at
a meeting of the Committee.
5
(14) The Committee must give notice of a meeting of
the Committee to the SSA.
21. Functions of Committee
The Committee--
(a) may submit recommendations to the Minister
10
and the SSA, for the more effective operation
of societies; and
(b) may report on any other matters that relate to
societies that are referred to it by the
Minister; and
15
(c) may tender advice to the SSA on any matters
that are referred to it by the SSA.
_______________
13
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Friendly Societies (Victoria) Act 1996
s. 22
Act No.
PART 7--MISCELLANEOUS
22. Policies and contracts of insurance
Divisions 2 and 3 of Part III of the Instruments
Act 1958 do not apply to a contract made in
accordance with the Friendly Societies (Victoria)
5
Code between a society and a member of a benefit
fund of the society in relation to the provision of a
benefit from that benefit fund.
23. Regulations
The Governor in Council may make regulations
10
for or with respect to any matter or thing required
or permitted by this Act to be prescribed or
necessary to be prescribed to give effect to this
Act.
14
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Friendly Societies (Victoria) Act 1996
s. 24 Act No.
PART 8--TRANSITIONAL
24. General savings provision
Unless the contrary intention appears in this Act
or in the Friendly Societies (Victoria) Code, all
persons things and circumstances appointed or
5
created by or under the Friendly Societies Act
1986, or existing or continuing under that Act,
immediately before the commencement of this
section continue, under and subject to the
applicable provisions of the friendly societies
10
legislation of Victoria, to have the same status,
operation and effect as they respectively would
have had if this Act had not been enacted.
25. Friendly Societies Act 1986: transitional provisions
(1) A direction given under section 75 of the Friendly
15
Societies Act 1986 by the Registrar to the
directors of a friendly society and in force
immediately before the commencement of this
section is deemed to be a direction given to the
continuing society by the SSA under section 44 of
20
the Friendly Societies (Victoria) Code.
(2) An assignment of a contract for the provision of a
benefit referred to in section 77 of the Friendly
Societies Act 1986 that, immediately before the
commencement of this section is registered in
25
accordance with that section with the society
liable to provide that benefit is deemed to be an
assignment registered with that society under
section 124 of the Friendly Societies (Victoria)
Code.
30
(3) A suspension or variation of the obligations of a
friendly society in force under section 85 of the
Friendly Societies Act 1986 immediately before
the commencement of this section has effect as if
15
531059B.I1-28/10/96 BILL LA INTRODUCTION 29/10/96
Friendly Societies (Victoria) Act 1996
s. 26
Act No.
it were a direction given to the continuing society
by the SSA under section 45 of the Friendly
Societies (Victoria) Code.
(4) A direction given under section 119(1) of the
Friendly Societies Act 1986 by the Registrar to a
5
friendly society and in force immediately before
the commencement of this section is deemed to be
a direction given to the continuing society by the
SSA under section 45 of the Friendly Societies
(Victoria) Code.
10
(5) A discontinuance notice issued under section
129(2) of the Friendly Societies Act 1986 in
respect of a friendly society and in force
immediately before the commencement of this
section is deemed to be a direction given to the
15
continuing society by the SSA under section 55 of
the Friendly Societies (Victoria) Code.
26. Merger
(1) A special resolution or resolution approving a
proposed merger under section 87 of the Friendly
20
Societies Act 1986 that had not been registered
under that Act before the commencement of this
section is deemed to be an approval of a proposed
merger for the purposes of section 364 of the
Friendly Societies (Victoria) Code.
25
(2) Compliance by a friendly society with, or an
application made by a friendly society under,
section 87 of the Friendly Societies Act 1986
before the commencement of this section is
deemed to be compliance or an application by the
30
continuing society with or under section 364 of
the Friendly Societies (Victoria) Code for the
purposes of a proposed merger.
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Friendly Societies (Victoria) Act 1996
s. 27 Act No.
27. Directed transfer of engagements
A direction given by the Registrar to a friendly
society under section 90 of the Friendly Societies
Act 1986 to merge with another friendly society
and in force immediately before the
5
commencement of this section is deemed to be a
direction to the continuing society by the SSA
under section 367 of the Friendly Societies
(Victoria) Code.
28. Administrator and new directors
10
(1) The appointment of an administrator of a friendly
society in force under Part 8 of the Friendly
Societies Act 1986 immediately before the
commencement of this section continues as if it
were an appointment under section 46 of the
15
Friendly Societies (Victoria) Code.
(2) A person elected or appointed as a director of a
friendly society under section 118 of the Friendly
Societies Act 1986 who has not taken office
before the commencement of this section is
20
deemed to be a person elected or appointed for the
purposes of section 46(9) of the Friendly
Societies (Victoria) Code.
_______________
17
531059B.I1-28/10/96 BILL LA INTRODUCTION 29/10/96
Friendly Societies (Victoria) Act 1996
s. 29
Act No.
PART 9--FINANCIAL INSTITUTIONS (VICTORIA) ACT 1992
29. Principal Act
In this Part, the Financial Institutions (Victoria)
Act 1992i is called the Principal Act.
30. Definitions
5
In section 3 of the Principal Act--
(a) in the definition of "financial institutions
legislation" omit "and the Friendly Societies
Act 1986";
(b) for the definition of "friendly society"
10
substitute--
"friendly society" means a society within
the meaning of the Friendly Societies
(Victoria) Code;
"friendly societies legislation of Victoria"
15
means--
(a) the Friendly Societies (Victoria)
Act 1996 and regulations under
that Act;
(b) the Friendly Societies (Victoria)
20
Code;
(c) the Friendly Societies (Victoria)
Regulations;
(d) the AFIC (Victoria) Code, the
AFIC (Victoria) Regulations, the
25
Financial Institutions (Victoria)
Code and the Financial
Institutions (Victoria) Regulations
as applying to the Code and
regulations referred to in
30
paragraph (a) and (b);".
18
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Friendly Societies (Victoria) Act 1996
s. 31 Act No.
31. Functions and powers
In sections 19 and 20(2) of the Principal Act, for
"or by the scheme legislation" substitute ", by the
scheme legislation of Victoria or by the friendly
societies legislation of Victoria".
5
32. Amendment of section 24
In section 24(1) of the Principal Act after "Code"
insert ", the Friendly Societies (Victoria) Code".
33. New section 39 substituted
For section 39 of the Principal Act substitute--
10
"39. Immunity
(1) A member of the Commission is not
personally liable for anything done or
omitted to be done in good faith--
(a) in the exercise of a power or the
15
discharge of a duty under the scheme
legislation of Victoria or the friendly
societies legislation of Victoria; or
(b) in the reasonable belief that the act or
omission was in the exercise of a power
20
or the discharge of a duty under the
scheme legislation of Victoria or the
friendly societies legislation of
Victoria.
(2) Any liability resulting from an act or
25
omission that would, but for sub-section (1),
attach to a member of the Commission
attaches instead to the Commission.".
34. Supervision fund
In section 41 of the Principal Act--
30
(a) in sub-section (2)(a), for "or the Friendly
Societies Act 1986" substitute ", the
19
531059B.I1-28/10/96 BILL LA INTRODUCTION 29/10/96
Friendly Societies (Victoria) Act 1996
s. 35
Act No.
Friendly Societies Act 1986 or the Friendly
Societies (Victoria) Act 1996";
(b) after sub-section (3)(a) insert--
"(aa) any payment for or towards the
expenses of performing its functions
5
and exercising its powers under the
friendly societies legislation (within the
meaning of the Friendly Societies
(Victoria) Code);".
35. Amendment of section 47
10
After section 47(2)(c)(iv) of the Principal Act
insert--
"(iva) the State supervisory authority within the
meaning of the friendly societies legislation
(within the meaning of the Friendly
15
Societies Code) of another State or of a
Territory; or".
36. New section 48A inserted
After section 48 of the Principal Act insert--
"48A. Ministerial agreements for friendly societies
20
legislation
The Minister may enter into an agreement
with the Minister administering the friendly
societies legislation (within the meaning of
the Friendly Societies Code) of another
25
State or of a Territory for the carrying out by
the Commission of functions and powers
under that legislation in relation to societies
within the meaning of that legislation.".
30 _______________
20
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Friendly Societies (Victoria) Act 1996
s. 37 Act No.
PART 10--CONSEQUENTIAL AMENDMENTS
37. Repeal of Friendly Societies Act 1986
The Friendly Societies Act 1986ii is repealed.
38. Amendment of section 32 of Interpretation of
Legislation Act 1984
5
After section 32(1)(k) of the Interpretation of
Legislation Act 1984 insert--
"(1) the Friendly Societies (Victoria) Code;".
39. New section 38D inserted in Interpretation of
Legislation Act 1984
10
After section 38C of the Interpretation of
Legislation Act 1984 insert--
'38D. References to Friendly Societies legislation
In an Act or subordinate instrument--
"Friendly Societies (Victoria) Code"
15
means the provisions applying because
of section 5 of the Friendly Societies
(Victoria) Act 1996;
"Friendly Societies (Victoria)
Regulations" means the provisions
20
applying because of section 6 of the
Friendly Societies (Victoria) Act
1996.'.
40. Amendment of Property Law Act 1958
In section 135 of the Property Law Act 1958, for
25
"section 77 of the Friendly Societies Act 1986"
substitute "section 124 of the Friendly Societies
(Victoria) Code".
__________________
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Friendly Societies (Victoria) Act 1996
Sch. 1
Act No.
SCHEDULES
SCHEDULE 1
FRIENDLY SOCIETIES CODE
PART 1--PRELIMINARY
Division 1--Introductory
5
1. Citation
This Code may be cited as the Friendly Societies
Code.
2. Commencement
This Code comes into operation as provided in
10
section 2 of the Friendly Societies (Victoria) Act
1996 of Victoria.
Division 2--Interpretation
3. Definitions
In this Code--
15
"accounting records" include--
(a) invoices, receipts, orders for the
payment of money, bills of exchange,
cheques, promissory notes, vouchers
and other documents of prime entry;
20
and
(b) documents and records that record such
entries; and
(c) such working papers and other
documents as are necessary to explain
25
22
531059B.I1-28/10/96 BILL LA INTRODUCTION 29/10/96
Friendly Societies (Victoria) Act 1996
Sch. 1 Act No.
the methods and calculations by which
accounts are made up;
"accounting standard" has the meaning given by
section 9 of the Corporations Law;
"accounts" means profit and loss accounts and
5
balance sheets, and includes statements,
reports and notes (other than a directors'
reports) attached to or intended to be read
with any of those accounts or balance sheets;
"advertisement" includes matter that is not in
10
writing but because of the form or context in
which it appears conveys a message;
"affairs", in relation to a body corporate, has the
meaning given by section 53 of the
Corporations Law;
15
"AFIC" means the Australian Financial
Institutions Commission;
"AFIC Code" means the Code set out in section
21 of the Australian Financial Institutions
Commission (Queensland) Act 1992 of
20
Queensland;
"applicable accounting standard" means an
accounting standard as applying under
section 334 (Requirements applying to
accounts and group accounts);
25
"Appeals Tribunal" means the Australian
Financial Institutions Appeals Tribunal
established under the Australian Financial
Institutions Commission (Queensland) Act
1992 of Queensland;
30
"association" means a body registered as an
association under Part 12 of this Code;
23
531059B.I1-28/10/96 BILL LA INTRODUCTION 29/10/96
Friendly Societies (Victoria) Act 1996
Sch. 1
Act No.
"bank" means--
(a) a bank as defined by section 5 of the
Banking Act 1959 of the
Commonwealth; or
(b) a bank constituted under a law of a
5
State;
"benefit", in relation to a society, means an
interest in a benefit fund of the society in
accordance with the rules of the society
relating to that fund;
10
"benefit fund" in relation to a society, means a
fund established by the society in accordance
with Part 4A;
"board", in relation to a society, means the board
of directors of the society;
15
"body" includes an entity;
"body corporate" means any body corporate
whether formed or incorporated within or
outside this State, but does not include--
(a) a body corporate that is incorporated
20
within Australia or an external Territory
and is a public authority or an
instrumentality or agency of the Crown;
or
(b) a corporation sole;
25
"borrow" means to obtain financial
accommodation;
"building society" means a building society
within the meaning of the Financial
Institutions (Victoria) Code or a law of
30
another State that corresponds to that
Code;
24
531059B.I1-28/10/96 BILL LA INTRODUCTION 29/10/96
Friendly Societies (Victoria) Act 1996
Sch. 1 Act No.
"certificate of confirmation" has the meaning
given by section 362;
"company" means a company incorporated, or
taken to be incorporated, under the
Corporations Law;
5
"consolidated accounts", in relation to a society,
means all of the following--
(a) a consolidated profit and loss account
that section 331 (Group accounts)
requires to be made out in relation to a
10
financial year of the society;
(b) a consolidated balance sheet that
section 331 (Group accounts) requires
to be made out in relation to the
financial year of the society;
15
(c) statements, reports and notes (other
than a directors' report) attached to, or
intended to be read with, that
consolidated profit and loss account or
consolidated balance sheet;
20
"Court" means the Supreme Court or a Supreme
Court Judge of this State;
"credit union" means a credit union within the
meaning of the Financial Institutions
(Victoria) Code or a law of another State
25
that corresponds to that Code;
"debenture" has the meaning given by section 9
of the Corporations Law;
"director" has the meaning given by section 5;
"disclosure document" means a document
30
lodged with the SSA under Part 4B and that
complies, or ought to comply, with the
requirement for disclosure documents under
that Part;
25
531059B.I1-28/10/96 BILL LA INTRODUCTION 29/10/96
Friendly Societies (Victoria) Act 1996
Sch. 1
Act No.
"economic entity" means an economic entity for the
purposes of Part 3.6 of the Corporations Law;
"employee", in relation to the SSA, includes--
(a) an officer of the SSA; and
(b) a person whose services are made
5
available to the SSA; and
(c) a person engaged by the SSA on a
contract for services;
"entity" means an entity for the purposes of Part
3.6 of the Corporations Law, and includes a
10
society;
"executive officer", in relation to a society or
entity, means a person (by whatever name
called) who is concerned, or takes part, in the
management of the society or entity;
15
"expert", in relation to a matter, means an
independent person whose profession or
reputation gives authority to a statement
made by the person in relation to the matter;
"Financial Institutions Code" means the Code
20
set out in section 30 of the Financial
Institutions (Queensland) Act 1992 of
Queensland;
"financial institutions scheme" means the
scheme established and implemented by the
25
financial institutions agreement and the
financial institutions legislation within the
meaning of the AFIC Code;
"foreign society" means a body registered as a
foreign society under Part 11;
30
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"friendly societies legislation" means--
(a) the friendly societies legislation of
Victoria, namely--
(i) the Friendly Societies (Victoria)
Act 1996 of Victoria and the
5
Friendly Societies Code set out
in Schedule 1 to the Act; and
(ii) regulations made under that Act;
and
(b) the friendly societies legislation of the
10
other participating States, namely--
(i) the Acts and regulations of the
other participating States that
apply, complement or otherwise
give effect to any part of the
15
friendly societies legislation of
Victoria; and
(ii) the friendly societies legislation of
Victoria as applying in those
States;
20
"fund", in relation to a society, means--
(a) a benefit fund of the society; or
(b) the management fund of the society;
"group" means an economic entity of which a
society is a part;
25
"group accounts", in relation to a holding
society, means a set of consolidated accounts
for the group in relation to which the society
is the holding society;
"holding body corporate" has the meaning given
30
by section 6;
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"holding society" has the meaning given by
section 7;
"inspector" means a person authorised under
section 77 (Inspectors);
"issue" includes circulate, distribute and
5
disseminate;
"management fund", in relation to a society,
means the fund of the society consisting of
the assets and liabilities of the society that do
not form part of a benefit fund of the society;
10
"member"--
(a) in relation to a society, means a person
who is a member of the society under
Division 5 of Part 3; and
(b) in relation to a benefit fund of a society,
15
means a person entitled to a benefit
from that fund in accordance with the
rules of the society;
"national business names register" has the
meaning given by the Corporations Law;
20
"officer" has the meaning given by section 9;
"participating State" means--
(a) Victoria;
(b) any other State in which there is in
force a law corresponding to Part 2 of
25
the Friendly Societies (Victoria) Act
1996;
"permanent share", in relation to a society,
means a share in the society other than a
redeemable preference share;
30
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"profit or loss" means--
(a) in relation to an entity, the profit or loss
resulting from operations of the entity;
and
(b) in relation to 2 or more entities or an
5
economic entity constituted by 2 or
more entities, the profit or loss resulting
from the operations of those entities;
"publish"--
(a) in relation to a notice under Part 4B,
10
means publish by any means, including
in a newspaper or periodical, by
broadcasting or televising or in a
cinematograph film; and
(b) in any case, includes issue;
15
"redeemable preference share" means a
preference share in a society that is, or at the
society's option is, liable to be redeemed;
"registered company auditor" means a person
registered as an auditor, or taken to be
20
registered as an auditor, under Part 9.2 of the
Corporations Law;
"relevant agreement" means an agreement,
arrangement or understanding--
(a) whether formal or informal or partly
25
formal and partly informal;
(b) whether written or oral or partly written
and partly oral; and
(c) whether or not having legal or equitable
force and whether or not based on legal
30
or equitable rights;
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"rules", in relation to a society, means rules of
the society under this Code as in
force from time to time;
"securities" has the meaning given by section 92
of the Corporations Law;
5
"services corporation" means a body corporate
declared to be a services corporation under
section 30 (Services corporation);
"share" means a share in the share capital of a
body corporate;
10
"society" means a body registered under this
Code as a society;
"SSA", in relation to a State, means the person or
body declared by the friendly societies
legislation of the State to be the State
15
supervisory authority for the State;
"standard" means a standard in force under
section 28 (Making etc. of standards) of the
AFIC Code;
"State" means a State or Territory;
20
"subsidiary" has the meaning given by section
11;
"transferee society" has the meaning given by
section 362;
"transferor society" has the meaning given by
25
section 362.
4. Associate
(1) For the purposes of this Code, except Division 4
of Part 5 (Shareholding restrictions) and section
295 (Financial accommodation to directors and
30
associates), a person is an "associate" of another,
or is associated with another, if--
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(a) they are partners; or
(b) one is a spouse, parent or child of the other;
or
(c) they are both trustees or beneficiaries of the
same trust, or one is a trustee and the other is
5
a beneficiary of the same trust; or
(d) one is a body corporate or other entity
(whether inside or outside Australia) and the
other is a director or member of the
governing body of the body or entity; or
10
(e) one is a body corporate or other entity
(whether inside or outside Australia) and the
other is a person who has a legal or equitable
interest in 5% or more of the share capital of
the body or entity; or
15
(f) they are related bodies corporate within the
meaning of section 11; or
(g) a relationship of a prescribed kind exists
between them; or
(h) a chain of relationships can be traced
20
between them under any one or more of the
above paragraphs.
(2) For the purposes of Part 4B, a person is an
"associate" of another, or is associated with
another, if--
25
(a) the person is such an associate, or is so
associated, under sub-section (1); or
(b) the other person is a director of a body
corporate of which the first-mentioned
person is also a director and which carries on
30
a business of dealing in benefits.
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5. Director
(1) Subject to sub-section (2), for the purposes of this
Code, "director", in relation to a body corporate,
includes a reference to--
(a) a person occupying or acting in the position
5
of director of the body, by whatever name
called and whether or not validly appointed
to occupy, or duly authorised to act in, the
position; and
(b) a person in accordance with whose directions
10
or instructions the directors of the body
corporate are accustomed to act; and
(c) in the case of a body corporate incorporated
outside Australia--
(i) a member of the body's board; and
15
(ii) a person occupying or acting in the
position of member of the body's board,
by whatever name called and whether
or not validly appointed to occupy, or
duly authorised to act in, the position;
20
and
(iii) a person in accordance with whose
directions or instructions the members
of the body's board are accustomed to
act.
25
(2) A person is not to be regarded as a person in
accordance with whose directions or
instructions--
(a) a body corporate's directors; or
(b) the members of the board of a body
30
corporate incorporated outside Australia--
are accustomed to act merely because the
directors or members act on advice given by the
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person in the proper performance of the functions
attaching to--
(c) the person's professional capacity; or
(d) the person's business relationship with the
directors, the members of the board or the
5
body.
6. Holding body corporate
A reference in this Code to the holding body
corporate of another body corporate is a reference
to a body corporate of which the other body
10
corporate is a subsidiary.
7. Holding society
A society is a holding society in respect of a
financial year of the society if the society controls
another entity during all or part of the financial
15
year.
8. Making a decision
A reference in this Code to the making of a
decision includes a reference to--
(a) making, suspending, revoking or refusing to
20
make an order or determination; or
(b) giving, suspending, revoking or refusing to
give a certificate, direction, approval,
consent or permission; or
(c) issuing, suspending, revoking or refusing to
25
issue a licence, authority or other instrument;
or
(d) imposing a condition or restriction; or
(e) making a declaration, demand or
requirement; or
30
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(f) retaining, or refusing to deliver up, an article;
or
(g) doing or refusing to do anything else.
9. Officer
(1) Subject to sub-section (2), for the purposes of this
5
Code, "officer", in relation to a body corporate or
entity, includes--
(a) a director, secretary, executive officer or
employee of the body or entity; and
(b) a receiver and manager, appointed under a
10
power contained in an instrument, of
property of the body or entity; and
(c) a liquidator of the body or entity appointed in
a voluntary winding-up of the body or entity;
and
15
(d) a trustee or other person administering a
compromise or arrangement made between
the body or entity and other persons.
(2) None of the following is an officer of the body
corporate or entity--
20
(a) a receiver who is not also a manager;
(b) a receiver and manager appointed by a court;
(c) a liquidator appointed by a court.
10. Related body corporate
If a body corporate is--
25
(a) the holding body corporate of another body
corporate; or
(b) a subsidiary of another body corporate; or
(c) a subsidiary of the holding body corporate of
another body corporate--
30
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the first body corporate and the other body
corporate are related to each other.
11. Subsidiary
(1) Subject to sub-section (5), a body corporate is a
subsidiary of a society if--
5
(a) the society--
(i) controls the composition of the body
corporate's board of directors; or
(ii) is in a position to cast, or control the
casting of, more than 50% of the
10
maximum number of votes that might
be cast at a general meeting of the body
corporate; or
(iii) holds more than 50% of the issued
share capital of the body corporate
15
(other than any part of that issued share
capital that carries no right to
participate beyond a specified amount
in a distribution of either profits or
capital); or
20
(b) the body corporate is a subsidiary of a body
corporate that is a subsidiary of the society
(including a body corporate that is a
subsidiary of the society by another
application of this paragraph).
25
(2) The composition of a body corporate's board of
directors is controlled by a society if the society
can appoint or remove all or a majority of the
directors by the exercise of a power exercisable
with or without the consent or concurrence of
30
another person.
(3) For the purposes of sub-section (2), a society is
taken to have power to make an appointment of
directors if--
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(a) a person cannot be appointed as director
without the exercise of such a power by the
society in the person's favour; or
(b) a person's appointment as a director follows
necessarily from the person being a director
5
or other officer of the society.
(4) Sub-section (2) does not limit by implication the
circumstances in which the composition of a body
corporate's board of directors is taken to be
controlled by a society.
10
(5) In determining whether a body corporate is a
subsidiary of a society--
(a) any shares held or power exercisable by the
society in a fiduciary capacity must be
treated as not held or exercisable by it; and
15
(b) subject to paragraphs (c) and (d), any shares
held or power exercisable--
(i) by any person as a nominee for the
society; or
(ii) by, or by a nominee for, a subsidiary of
20
the society (other than a subsidiary that
is concerned only in a fiduciary
capacity)--
must be treated as held or exercisable by
the society; and
25
(c) any shares held or power exercisable by a
person under a debenture, or a trust deed for
securing the issue of debentures, must be
disregarded; and
(d) any shares held or power exercisable by, or
30
by a nominee for, the society or a subsidiary
of a society merely by way of security given
for the purposes of a transaction entered into
in the ordinary course of business in
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connection with providing financial
accommodation must be disregarded.
(6) If it is relevant to determine for the purposes of
this Code whether a body corporate is a subsidiary
of another body corporate that is not a society and
5
sub-section (1) does not apply, the first body
corporate is a subsidiary of the other body
corporate if it would be such a subsidiary under
the Corporations Law.
12. Qualified privilege
10
(1) Where this Code provides that a person has
qualified privilege in respect of an act, matter or
thing, the person, in respect of that act, matter or
thing--
(a) has qualified privilege in proceedings for
15
defamation; or
(b) is not, in the absence of malice on the
person's part, liable to an action for
defamation at the suit of a person.
(2) In sub-section (1)--
20
"malice" includes ill-will to the person concerned
or any other improper motive.
(3) Neither this section nor a provision of this Code
that provides as mentioned in sub-section (1)
limits or affects any right, privilege or immunity
25
that a person has, apart from this section or such a
provision, as defendant in proceedings, or an
action, for defamation.
13. Carrying on business: otherwise than for profit
A reference in this Code to a person carrying on
30
business, carrying on a business, or carrying on a
business of a particular kind, includes a reference
to the person carrying on business, carrying on a
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business, or carrying on a business of that kind, as
the case may be--
(a) in any case, otherwise than for profit; or
(b) in the case of a body corporate, otherwise
than for the profit of the members or
5
corporators of the body.
14. Businesses of a particular kind
A reference in this Code to a business of a
particular kind includes a reference to a business
of that kind that is part of, or is carried on in
10
conjunction with, any other business.
15. Carrying on a business: alone or together with others
A reference in this Code to a person carrying on a
business, or a business of a particular kind, is a
reference to the person carrying on a business, or a
15
business of that kind, whether alone or together
with any other person or persons.
16. Interpretation generally
Schedule A contains miscellaneous provisions
relating to the interpretation of this Code.
20
Division 3--Operation of Friendly Societies Legislation
17. Extraterritorial operation of legislation
The friendly societies legislation applies--
(a) throughout Australia; and
(b) both within and outside Australia.
25
Division 4--Application and Adoption of Corporations Law
18. Definitions
In this Division--
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"Corporations Law" includes the Corporations
Regulations.
19. Corporations Law applying under its own force
(1) The provisions of the Corporations Law (other
than the provisions of the Corporations Law
5
mentioned in sub-section (2)) are excluded from
applying under their own force to and with respect
to societies.
(2) However, the following provisions of the
Corporations Law are not excluded from applying
10
under their own force--
(a) provisions applying to, or about, the
following--
(i) bodies;
(ii) bodies corporate;
15
(iii) disclosing entities;
(iv) eligible bodies;
(v) persons;
(vi) securities, including securities of a
particular type;
20
(vii) securities, including securities of a
particular type of a body corporate;
(b) provisions applying to or about bodies or
bodies corporate included in the official list
of a securities exchange (including
25
provisions of Chapter 6 (Acquisition of
shares) applying to or about a company as
defined for that Chapter);
(c) Part 7.11 (Conduct in relation to securities);
(d) Part 7.12 (Offering securities for subscription
30
or purchase);
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(e) provisions--
(i) about the interpretation of a provision
mentioned in paragraphs (a) to (d)
("non-excluded Corporations Law
provision"), including a provision
5
defining a word used in the non-
excluded Corporations Law provision;
or
(ii) vesting power in the Australian
Securities Commission, but only to the
10
extent that they vest power for the
purposes of a non-excluded
Corporations Law provision; or
(iii) empowering a court to make an order
(including an order curing a procedural
15
irregularity), but only to the extent that
they empower the court to make an
order for the purposes of a non-
excluded Corporations Law provision;
or
20
(iv) otherwise about the administration of a
non-excluded Corporations Law
provision.
(3) Sub-section (2) does not apply provisions of the
Corporations Law that would not otherwise apply
25
to societies or the securities of societies.
(4) Sub-sections (1) to (3) have effect despite any law
of this State prescribed for the purposes of this
sub-section.
(5) The expressions used in sub-section (2)(a), (b) and
30
(e) have the meanings given by the Corporations
Law.
(6) Sub-sections (1) to (3) are not intended to affect
the operation, as intended under the Corporations
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Law, of a provision of the Corporations Law
expressly excluding a provision of the
Corporations Law from having application to
societies.
20. Corporations Law adopted under a regulation
5
(1) A regulation may adopt, with or without
modification, a provision of the Corporations Law
for application to societies or the securities of
societies.
(2) However, a regulation may not adopt a provision
10
of the Corporations Law to the extent that the
provision as adopted would be inconsistent with a
provision of the friendly societies legislation.
(3) A regulation made as permitted by this section
may create an offence with a maximum penalty of
15
not more than the maximum penalty for the
equivalent offence under the Corporations Law.
21. Adopted provisions of Corporations Law
(1) This section applies if a provision of the
Corporations Law (the "adopted provision") is
20
adopted for application to societies or the
securities of societies with or without
modification, under a provision (the "adopting
provision") of this Code (including a regulation
permitted by section 20 (Corporations Law
25
adopted under a regulation)).
(2) Unless the adopting provision otherwise provides,
definitions and other interpretation provisions of
the Corporations Law relevant to the adopted
provision are taken also to be adopted.
30
(3) "Gazette" and "Minister" in an adopted
provision has the meaning given in this Code.
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(4) Neither the adopting provision nor the adopted
provision gives power to the Australian Securities
Commission to administer the adopted provision
for this Code.
5 _______________
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PART 2--FUNCTIONS AND POWERS OF SSA
Division 1--General
22. Functions of SSA
The functions of the SSA under this Code are to--
(a) register, supervise and regulate societies; and
5
(b) supervise and enforce compliance by
societies with this Code and with standards;
and
(c) ensure that an effective and efficient system
of prudential supervision is applied to
10
societies; and
(d) protect the interests of members of societies;
and
(e) facilitate or direct the transfer of
engagements of, or the conversion or merger
15
of, societies; and
(f) otherwise undertake the administration and
enforcement of the financial institutions
scheme so far as it relates to societies; and
(g) provide information and statistics to AFIC
20
relating to--
(i) societies; and
(ii) the operation, administration and
enforcement of the financial institutions
scheme so far as it relates to societies;
25
and
(h) advise, and make recommendations to,
AFIC; and
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(i) carry out such other functions as are
conferred on it by or under the friendly
societies legislation.
23. General powers
(1) The SSA has power to do all things necessary or
5
convenient to be done for, or in connection with,
the performance of its functions under this Code.
(2) Without limiting sub-section (1), the SSA has
such powers as are conferred on it by or under the
friendly societies legislation.
10
24. SSA to comply with standards
In performing its functions, and exercising its
powers, the SSA must comply with all applicable
standards.
25. Application of variation under standards
15
(1) If a standard provides that the operation of the
standard in relation to a particular society may be
varied by a SSA by temporarily changing a
requirement of the standard, the SSA may
temporarily change the requirement as allowed
20
under the standard.
(2) Sub-section (1) does not limit section 23.
26. SSA to keep Minister informed
(1) The SSA must keep the Minister informed of--
(a) the operations of the SSA in relation to this
25
Code; and
(b) the operation, administration and
enforcement of this Code.
(2) The SSA must give the Minister such reports and
information in relation to those matters as the
30
Minister requires.
27. Inspection of documents at public office
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(1) The SSA must keep registers of documents and
rules of societies at its public office.
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(2) A person may, on payment of the prescribed fee--
(a) inspect at the public office of the SSA during
ordinary business hours of the SSA at the
office--
(i) the rules of a society; and
5
(ii) any other document of a prescribed
class lodged with, created by or
otherwise held by the SSA; and
(b) obtain from the SSA--
(i) a certified copy of the certificate of
10
incorporation of a society and a
certified copy of, or of part of, the rules
of a society; or
(ii) a certified copy of, or extract from,
another document that the person is
15
entitled to inspect under paragraph (a).
28. Power of SSA to reject documents
(1) If the SSA is of opinion that a document
submitted to the SSA--
(a) contains matter contrary to law; or
20
(b) contains matter that, in a material particular,
is false or misleading in the form or context
in which it is included; or
(c) because of an omission or misdescription,
has not been duly completed; or
25
(d) does not comply with the requirements of
this Code; or
(e) contains an error, alteration or erasure--
the SSA may refuse to register, or may reject, the
document and may request--
30
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(f) that the document be appropriately amended
or completed and resubmitted; or
(g) that a fresh document be submitted in its
place; or
(h) if the document has not been duly completed,
5
that a supplementary document be submitted.
(2) The SSA may require a person who submits a
document to the SSA to also produce another
document, or to give any information, that the
SSA considers necessary in order to form an
10
opinion whether it should refuse to register or
should reject the document.
29. Extension or abridgment of time
(1) The SSA may, on receipt of written application by
a society or of its own initiative, extend or abridge
15
the time within which anything is required to be
done under this Code or the society's rules.
(2) An application under sub-section (1) may be made
to the SSA even though the time sought to be
extended has ended.
20
Division 2--Specific Powers
Subdivision 1--Services corporations
30. Services corporation
(1) The SSA may, by Gazette notice, declare a body
corporate, that provides or proposes to provide
25
financial or other services to societies to enable
them to further their objects, to be a services
corporation.
(2) Subject to this section, a society may subscribe for
or otherwise acquire shares in a services
30
corporation.
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(3) A society must not, without the written approvel
of the SSA, apply funds in excess of the
prescribed amount or an amount calculated as
prescribed, whichever is greater, in subscribing for
or otherwise acquiring shares in any one services
5
corporation.
Maximum penalty: $25 000
(4) On an application for approval under sub-section
(3), the SSA may--
(a) give the approval; or
10
(b) refuse to give the approval.
(5) The SSA may--
(a) subject an approval to conditions; and
(b) at any time vary or revoke a condition
imposed on an approval.
15
(6) If a condition (including a prescribed condition) to
which an approval is subject has been
contravened, the SSA may revoke the approval.
(7) The SSA must not--
(a) refuse to give an approval; or
20
(b) subject an approval to conditions--
without first giving the society an opportunity to
make written submissions to it in relation to the
matter.
(8) The SSA must not--
25
(a) vary a condition imposed on an approval; or
(b) revoke an approval--
without first giving the society an opportunity to
be heard or, if the society prefers, an opportunity
to make written submissions to it in relation to the
30
matter.
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(9) The variation or revocation of a condition
imposed on an approval or the revocation of an
approval takes effect on--
(a) the day that written notice is given to the
society; or
5
(b) a day specified in that notice--
whichever is later.
(10) A society must not contravene any condition
imposed on an approval.
Maximum penalty: $25 000
10
(11) The application by a society of funds in
contravention of sub-section (3) is not invalid as
regards a person transacting business with the
society unless the person--
(a) has actual knowledge of the contravention at
15
the time when the funds were applied; or
(b) has a connection or relationship with the
society that is such that the person should
have known of the contravention.
Subdivision 2--Enforcement powers
20
31. Obtaining information
(1) The SSA may, if it is reasonably necessary for the
purposes of its functions under the friendly
societies legislation, by written notice given to a
society, or a body corporate related to a society,
25
require the society, or body corporate--
(a) to give to it, within a reasonable period and
in a reasonable way specified in the notice,
specified information and reports; and
(b) to give to it, at the reasonable times and in a
30
reasonable way specified in the notice,
periodic reports on specific matters; and
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(c) to notify it, within the reasonable time and in
a reasonable way specified in the notice, if--
(i) a specified event or change of
circumstances happens; or
(ii) the society or body corporate becomes
5
aware that a specified event or change
of circumstances is likely to happen.
(2) The SSA may, if it is reasonably necessary for the
purposes of its functions under the friendly
societies legislation, by written notice given to a
10
services corporation, or a body corporate related to
a services corporation, require the services
corporation or body corporate to give to it, within
a reasonable time and in a reasonable way
specified in the notice, specified information.
15
(3) A society, body corporate or services corporation
that, without reasonable excuse, fails to comply
with a requirement under sub-section (1) or (2) to
the extent that it is capable of doing so commits an
offence.
20
Maximum penalty: $25 000.
(4) It is not a reasonable excuse for a society, or body
corporate or services corporation to fail to comply
with a requirement under sub-section (1) or (2)
that complying with the requirement might tend to
25
incriminate the society, body corporate or services
corporation.
(5) The fact that information or a report or
notification was given by a society, body corporate
or services corporation under sub-section (1) or
30
(2) is not admissible in evidence against the
society, body corporate or services corporation in
a criminal proceeding (other than a proceeding in
relation to the falsity of the information, report or
notification) if--
35
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(a) the society, body corporate or services
corporation, before giving the information,
report or notification (the "relevant action")
claimed that the relevant action might tend to
incriminate the society, body corporate or
5
services corporation; and
(b) the relevant action might in fact tend to
incriminate the society, body corporate or
services corporation.
32. Obtaining evidence
10
(1) The SSA may, if it is reasonably necessary for the
purposes of the friendly societies legislation, by
written notice given to a person, require the
person--
(a) to attend before an employee of the SSA
15
authorised for the purpose, at a reasonable
time and place specified in the notice, and
then and there answer questions; and
(b) to produce to an employee of the SSA
authorised for the purpose, at a reasonable
20
time and place specified in the notice,
documents in the custody or under the
control of the person.
(2) An employee before whom a person attends under
sub-section (1)(a) may require answers to be
25
verified or given on oath or affirmation, and either
orally or in writing, and for that purpose the
employee may administer an oath or affirmation.
(3) An employee to whom documents are produced
under sub-section (1)--
30
(a) may keep the documents for 60 days or, if a
prosecution for an offence against the
friendly societies legislation of which the
document may afford evidence is instituted
within that period, until the completion of
35
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the proceeding for the offence and of any
appeal in relation to the proceeding; and
(b) while the employee has possession of the
document, may take extracts from and make
copies of the document, but must allow the
5
document to be inspected at any reasonable
time by a person who would be entitled to
inspect it if it were not in the employee's
possession.
(4) The regulations must prescribe scales of
10
allowances and expenses to be allowed to persons
required to attend under this section.
(5) The SSA may authorise an employee for the
purpose of sub-section (1)(a) only if the person
has, in the SSA's opinion, the appropriate
15
expertise for the purpose (whether because of
training or otherwise).
(6) A person who, without reasonable excuse, fails to
comply with a requirement under sub-section (1)
to the extent that the person is capable of doing so
20
commits an offence.
Maximum penalty: $25 000.
(7) It is not a reasonable excuse for a person to fail to
comply with a requirement under sub-section (1)
that complying with the requirement might tend to
25
incriminate the person.
(8) An answer given by a person under sub-section (1)
is not admissible against the person in a criminal
proceeding (other than a proceeding in relation to
the falsity of the answer) if--
30
(a) the person, before giving the answer, claimed
that giving the answer might tend to
incriminate the person; and
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(b) the answer might in fact tend to incriminate
the person.
(9) The fact that a document was produced by a
person under sub-section (1) is not admissible in
evidence against the person in a criminal
5
proceeding (other than a proceeding in relation to
the falsity of the document) if--
(a) the person, before producing the document,
claimed that producing the document might
tend to incriminate the person; and
10
(b) producing the document might in fact tend to
incriminate the person.
33. Inspectors
(1) The SSA may authorise a person, or a class of
persons, to exercise all or any of the powers
15
conferred by this Code on an inspector.
(2) The SSA may cause an identity card to be issued
to an inspector.
(3) The identity card must--
(a) contain a recent photograph of the inspector;
20
and
(b) be in a form approved by the SSA.
(4) A person who ceases to be an inspector must, as
soon as practicable, return his or her identity card
to the SSA.
25
Maximum penalty: $5000.
34. Inspector to produce identity card
An inspector is not entitled to exercise powers
under this Division in relation to another person
unless the inspector first produces the inspector's
30
identity card for inspection by the person.
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35. Entry and search--monitoring compliance
(1) An inspector may, for the purpose of finding out
whether the requirements of this Code are being
complied with--
(a) enter any place; and
5
(b) exercise the powers set out in section 37.
(2) An inspector must not enter a place, or exercise a
power under sub-section (1), unless--
(a) the place is premises occupied by a society or
services corporation, or a body corporate
10
related to a society or services corporation
and the entry is made when the premises are
open for conduct of business or otherwise
open for entry; or
(b) the place is premises occupied by a banker or
15
liquidator of a society, or a body corporate
related to a society, and the entry is made
when the premises are open for conduct of
business or otherwise open for entry; or
(c) the place is premises that are not occupied
20
for residential purposes, the inspector
believes on reasonable grounds that
accounting records or other prescribed
documents of, or any auditor's or actuary's
working papers relating to, a society, or a
25
body corporate related to a society, are kept
or are to be found on the premises and the
entry is made when the premises are open for
conduct of business or otherwise open for
entry; or
30
(d) the occupier of the place consents to the
entry or exercise of the power; or
(e) a warrant under section 38 authorises the
entry or exercise of the power.
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36. Entry and search--evidence of offences
(1) Subject to sub-section (3), if an inspector has
reasonable grounds for suspecting that there is in a
place a particular thing ("the evidence") that may
afford evidence of the commission of an offence
5
against this Code, the inspector may--
(a) enter the place; and
(b) exercise the powers set out in section 37.
(2) If an inspector enters the place and finds the
evidence, the following provisions have effect--
10
(a) the inspector may seize the evidence;
(b) the inspector may keep the evidence for 60
days or, if a prosecution for an offence
against this Code in the commission of
which the evidence may have been used or
15
otherwise involved is instituted within that
period, until the completion of the
proceeding for the offence and of any appeal
in relation to the proceeding;
(c) if the evidence is a document, while the
20
inspector has possession of the document,
the inspector may take extracts from and
make copies of the document, but must allow
the document to be inspected at any
reasonable time by a person who would be
25
entitled to inspect it if it were not in the
inspector's possession.
(3) An inspector must not enter the place or exercise a
power under sub-section (1) unless--
(a) the occupier of the place consents to the
30
entry or exercise of the power; or
(b) a warrant under section 39 that was issued in
relation to the evidence authorises the entry
or exercise of the power.
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(4) If, while searching the place under sub-section (1)
under a warrant under section 39--
(a) an inspector finds a thing that the inspector
believes, on reasonable grounds, to be--
(i) a thing (other than the evidence) that
5
will afford evidence of the commission
of the offence mentioned in sub-section
(1); or
(ii) a thing that will afford evidence of the
commission of another offence against
10
this Code; and
(b) the inspector believes, on reasonable
grounds, that it is necessary to seize the thing
to prevent--
(i) its concealment, loss or destruction; or
15
(ii) its use in committing, continuing or
repeating the offence mentioned in sub-
section (1) or another offence, as the
case may be--
sub-section (2) applies to the thing as if it
20
were the evidence.
(5) An inspector who seizes or damages anything
under this section must give written notice of
particulars of the thing or damage.
(6) The notice must be given to--
25
(a) if anything is seized, the person from whom
the thing was seized; or
(b) if damage is caused to anything, the person
who appears to the inspector to be the owner.
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37. General powers of inspector in relation to places
(1) The powers an inspector may exercise under
section 35(1)(b) or 36(1)(b) in relation to a place
are as follows--
(a) to search any part of the place;
5
(b) to inspect, examine or photograph anything
in the place;
(c) to take extracts from, and make copies of,
any documents in the place;
(d) to take into the place such equipment and
10
materials as the inspector requires for the
purpose of exercising any powers in relation
to the place;
(e) to require the occupier or any person in the
place to give to the inspector reasonable
15
assistance in relation to the exercise of an
inspector's powers mentioned in paragraphs
(a) to (d).
(2) A person must not, without reasonable excuse, fail
to comply with a requirement under sub-section
20
(1)(e).
Maximum penalty: $5000.
(3) It is not a reasonable excuse for a person to fail to
comply with a requirement under sub-section
(1)(e) on the ground of the privilege against self-
25
incrimination.
(4) If, under a requirement under sub-section (1)(e), a
person is required to answer a question or produce
a document, the contents of the answer, or the fact
of production of the document, is not admissible
30
in evidence against the person in a criminal
proceeding (other than a proceeding in relation to
the falsity of the answer or document).
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(5) For the purposes of the application of sub-section
(4) to the production of a document, the contents
of the document are to be disregarded.
38. Monitoring warrants
(1) An inspector may apply to a Magistrate for a
5
warrant under this section in relation to a
particular place.
(2) Subject to sub-section (3), the Magistrate may
issue the warrant if the Magistrate is satisfied, by
information on oath, that it is reasonably necessary
10
that the inspector should have access to the place
for the purpose of finding out whether the
requirements of this Code are being complied
with.
(3) If the Magistrate requires further information
15
concerning the grounds on which the issue of the
warrant is being sought, the Magistrate must not
issue the warrant unless the inspector or another
person has given the information to the Magistrate
in the form (either orally or by affidavit) that the
20
Magistrate requires.
(4) The warrant must--
(a) authorise the inspector, with such assistance
and by such force as is necessary and
reasonable--
25
(i) to enter the place; and
(ii) to exercise the powers set out in section
37; and
(b) state whether the entry is authorised to be
made at any time of the day or night or
30
during specified hours of the day or night;
and
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(c) specify the day (not more than 6 months after
the issue of the warrant) on which the
warrant ceases to have effect; and
(d) state the purpose for which the warrant is
issued.
5
39. Offence related warrants
(1) An inspector may apply to a Magistrate for a
warrant under this section in relation to a
particular place.
(2) Subject to sub-section (3), the Magistrate may
10
issue the warrant if the Magistrate is satisfied, by
information on oath, that there are reasonable
grounds for suspecting that there is, or there may
be within the next 72 hours, in the place a
particular thing ("the evidence") that may afford
15
evidence of the commission of an offence against
this Code.
(3) If the Magistrate requires further information
concerning the grounds on which the issue of the
warrant is being sought, the Magistrate must not
20
issue the warrant unless the inspector or another
person has given the information to the Magistrate
in the form (either orally or by affidavit) that the
Magistrate requires.
(4) The warrant must--
25
(a) authorise the inspector, with such assistance
and by such force as is necessary and
reasonable--
(i) to enter the place; and
(ii) to exercise the powers set out in section
30
37; and
(iii) to seize the evidence; and
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(b) state whether the entry is authorised to be
made at any time of the day or night or
during specified hours of the day or night;
and
(c) specify the day (not more than 7 days after
5
the issue of the warrant) on which the
warrant ceases to have effect; and
(d) state the purposes for which the warrant is
issued.
40. Offence related warrant may be granted by telephone
10
(1) If, because of urgent circumstances, an inspector
considers it necessary to do so, the inspector may,
under this section, apply by telephone for a
warrant under section 39.
(2) Before applying for the warrant, the inspector
15
must prepare information of the kind mentioned in
section 39(2) that sets out the grounds on which
the issue of the warrant is sought.
(3) If it is necessary to do so, the inspector may apply
for the warrant before the information has been
20
sworn.
(4) If the Magistrate is satisfied--
(a) after having considered the terms of the
information; and
(b) after having received such further
25
information (if any) as the Magistrate
requires concerning the grounds on which
the issue of the warrant is being sought--
that there are reasonable grounds for issuing the
warrant, the Magistrate may, under section 39,
30
complete and sign such a warrant as the
Magistrate would issue under that section if the
application had been made under that section.
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(5) If the Magistrate completes and signs the
warrant--
(a) the Magistrate must--
(i) tell the inspector what the terms of the
warrant are; and
5
(ii) tell the inspector the date on which and
the time at which the warrant was
signed; and
(iii) record on the warrant the reasons for
granting the warrant; and
10
(b) the inspector must--
(i) complete a form of warrant in the same
terms as the warrant completed and
signed by the Magistrate; and
(ii) write on the form of warrant the name
15
of the Magistrate and the date on which
and the time at which the Magistrate
signed the warrant.
(6) The inspector must also, not later than the day
after the day of expiry or execution of the warrant
20
(whichever is the earlier), send to the
Magistrate--
(a) the form of warrant completed by the
inspector; and
(b) the information mentioned in sub-section (2),
25
which must have been duly sworn.
(7) When the Magistrate receives the documents
mentioned in sub-section (6), the Magistrate
must--
(a) attach them to the warrant that the Magistrate
30
completed and signed; and
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(b) deal with them in the way in which the
Magistrate would have dealt with the
information if the application for the warrant
had been made under section 83 (Offence
related warrants).
5
(8) A form of warrant duly completed by the inspector
under sub-section (5) is authority for any entry,
search, seizure or other exercise of a power that
the warrant signed by the Magistrate authorises.
(9) If--
10
(a) it is material for a court to be satisfied that an
entry, search, seizure or other exercise of
power was authorised by this section; and
(b) the warrant completed and signed by the
Magistrate authorising the exercise of power
15
is not produced in evidence--
the court must assume, unless the contrary is
proved, that the exercise of power was not
authorised by such a warrant.
41. Obstruction of inspectors
20
A person must not, without reasonable excuse,
assault, obstruct, hinder or resist an inspector in
the exercise of a power under this Code.
Maximum penalty: $50 000 or imprisonment for 7
years, or both.
25
42. False or misleading statements
(1) In this section--
"relevant person" means a person exercising
powers under this Code, and includes an
inspector.
30
(2) A person must not--
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(a) make a statement to the SSA or a relevant
person that the person knows is false or
misleading in a material particular; or
(b) omit from a statement made to the SSA or a
relevant person anything without which the
5
statement is, to the person's knowledge,
misleading in a material particular; or
(c) give to the SSA or a relevant person a
document containing information that the
person knows is false, misleading or
10
incomplete in a material particular without,
at the same time--
(i) indicating that the document is false,
misleading or incomplete and the
respect in which it is false, misleading
15
or incomplete; and
(ii) giving correct information if the person
has, or can reasonably obtain, the
correct information.
Maximum penalty: $100 000 or imprisonment for
20
15 years, or both.
Subdivision 3--Special meeting and inquiry
43. Special meeting and inquiry
(1) The SSA, on the written application of a majority
of the directors, or not less than 10% of the
25
members of a society or not less than 10% of the
members of a benefit fund of a society (as the case
requires) or on its own initiative--
(a) may call a special meeting of the society or
of the members of the benefit fund; or
30
(b) may hold an inquiry into affairs (including
the working and financial conditions) of the
society or the benefit fund.
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(2) The SSA, on its own initiative, may hold an
inquiry into affairs (including the working and
financial conditions) of--
(a) a body corporate related to a society; or
(b) a services corporation.
5
(3) An application under sub-section (1) must be
supported by such evidence as the SSA directs for
the purpose of showing that the applicants have
good reason for requiring the meeting or inquiry
and that the application is made without malicious
10
motive.
(4) Notice of the application must be given to the
society if the SSA directs.
(5) Security for the expenses of a meeting or inquiry
must be given--
15
(a) if the meeting is called or inquiry is held on
an application under sub-section (1), by the
applicants; or
(b) in any other case, by such persons and in
such way as the SSA directs.
20
(6) The SSA may--
(a) direct the time and place the meeting or
inquiry is to be held; and
(b) direct what matters are to be discussed or
determined; and
25
(c) despite the rules of the society, give notice to
members of the holding of the meeting or
inquiry as it considers appropriate.
(7) The SSA may, by written notice, direct the
directors and such other persons as it requires to
30
attend the meeting or inquiry.
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(8) A person to whom a direction is given under sub-
section (7) must not, without reasonable excuse,
fail to comply with the direction.
Maximum penalty: $100 000 or imprisonment for
15 years, or both.
5
(9) A meeting held under this section has all the
powers of a meeting called under the rules of a
society and has power to appoint a person to
preside at the meeting, despite any rule of the
society to the contrary.
10
(10) The SSA, or any person nominated by it, may
attend and address a meeting held under this
section.
(11) All expenses of and incidental to the meeting or
inquiry may be defrayed--
15
(a) if the meeting is called or inquiry is held
under sub-section (1)--
(i) by the applicants, or any officer or
member, or former officer or member
of the society; or
20
(ii) by the society out of the management
fund of the society or, with the prior
written approval of the SSA, out of a
benefit fund of the society--
in such proportions as may be
25
agreed between the SSA and those persons;
or
(b) if the inquiry is held under sub-section (2)--
(i) in the case of a related body corporate,
out of the funds of the society to which
30
the body corporate is related; or
(ii) in the case of a services corporation, out
of the funds of the services corporation
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or, if the society has shares in the
services corporation, out of the
management fund of the society--
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in such proportions as the SSA directs--
and may be recovered as a debt in a court
having jurisdiction for the recovery of debts
up to the amount concerned.
(12) In default of agreement under sub-section (11)(a),
5
the expenses must be defrayed by such persons,
and in such proportions, as the Court, on the
application of the SSA, directs.
Subdivision 4--Special power of intervention
44. Intervention by SSA
10
(1) If the SSA is of the opinion that--
(a) a society has contravened the friendly
societies legislation and, after being given
written notice of the contravention by the
SSA, has allowed the contravention to
15
continue or has again contravened the
legislation; or
(b) the management fund of a society has an
accumulated deficit; or
(c) the affairs of a society or a fund of a society
20
are being managed or conducted in an
improper or financially unsound way--
the SSA may, by written notice given to the
society, place it under direction.
(2) The SSA may, by written notice given to the
25
society, revoke the notice.
(3) While the society is under direction, the SSA may
do all things that it considers necessary to ensure
that the principal objects of the friendly societies
scheme for friendly societies established by the
30
friendly societies legislation are achieved in
relation to the society.
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(4) Without limiting sub-section (3), the SSA may--
(a) order an audit of the affairs of the society or
a fund of the society by an auditor chosen by
the SSA at the expense of the society; or
(b) order an actuarial investigation of the affairs
5
of the society or a fund of the society by an
actuary chosen by the SSA at the expense of
the society; or
(c) direct the society to change any practices that
in the SSA's opinion are undesirable or
10
unsound; or
(d) direct the society to cease or limit the raising
of funds or the exercise of other powers; or
(e) remove a director, or all the directors, of the
society from office and appoint another
15
director or other directors; or
(f) remove any auditor of the society from office
and appoint another auditor; or
(g) remove the actuary of the society from office
and appoint another actuary; or
20
(h) give any other directions as to the way in
which the affairs of the society are to be
conducted or not conducted.
(5) If the society--
(a) fails, without reasonable excuse, to comply
25
with a direction given or requirement made
under this section to the extent that the
society is capable of doing so; or
(b) without reasonable excuse, obstructs, hinders
or resists the exercise of the SSA's powers
30
under this section--
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the society and any officer of the society who is in
default each commit an offence.
Maximum penalty: $100 000 or imprisonment for
15 years, or both.
(6) A director, auditor or actuary appointed under this
5
section holds office for such term as the SSA
directs.
Subdivision 5--Power to suspend operations of society
45. Power to suspend operations
(1) If the SSA considers that it is necessary to do so--
10
(a) in the interests of members, or persons who
may become members, of a society; or
(b) because a society has failed to comply with a
standard--
the SSA may, by written notice given to the
15
society, direct the society not to do any of the
following--
(c) borrow any amount;
(d) accept any new member;
(e) without the approval of the SSA, accept any
20
contribution or pay to a member any benefit
or otherwise dispose of or deal with the
assets of the society or a fund of the society;
(f) accept any payment on account of share
capital except calls that fell due before the
25
notice was given;
(g) repay any amount paid on shares;
(h) repay any money on loan;
(i) pay or transfer an amount to any person, or
create an obligation to do so.
30
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(2) A notice under sub-section (1) continues in force
until it expires, or is withdrawn by the SSA.
(3) The SSA may, by a further written notice given to
the society--
(a) extend the period for which a notice under
5
sub-section (1) is to have force; or
(b) amend the terms of the notice; or
(c) withdraw the notice.
(4) If a society fails to comply with a notice under this
section, the society and any officer of the society
10
who is in default each commit an offence.
Maximum penalty: $100 000 or imprisonment for
15 years, or both.
(5) Sub-section (4) does not apply if the failure to
comply happens with the written permission of the
15
SSA.
Subdivision 6--Administrators
46. Appointment of administrator
(1) The SSA may, by written notice, appoint an
administrator to conduct the affairs of a society
20
and may, by written notice, revoke the
appointment.
(2) A notice of appointment must specify--
(a) the date of appointment; and
(b) the appointee's name; and
25
(c) the appointee's business address.
(3) If the appointee's name or business address
changes, the appointee must immediately give
written notice of the change to the SSA.
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(4) The SSA must not appoint an administrator
unless--
(a) the SSA is of the opinion that--
(i) the society has contravened the friendly
societies legislation or the society's
5
rules and, after being given written
notice of the contravention by the SSA,
has allowed the contravention to
continue or has again contravened the
legislation or rules; or
10
(ii) the management fund of the society has
an accumulated deficit; or
(iii) the affairs of the society or a fund of the
society are being managed or conducted
in an improper or financially unsound
15
way; or
(b) after making such inquiries in relation to the
society as the SSA considers appropriate, the
SSA is satisfied that it is in the interest of
members or creditors that the society's affairs
20
be conducted by an administrator; or
(c) the SSA has certified that any of the events
mentioned in section 402(1)(a), (b), (c) or (g)
(Winding up on certificate of SSA) has
happened.
25
(5) On the appointment of an administrator of a
society--
(a) the directors of the society cease to hold
office; and
(b) all contracts of employment with, or for
30
provision of administrative or secretarial
services to, the society are terminated; and
(c) the administrator may terminate any contract
for provision of other services to the society.
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(6) An administrator of a society has the powers and
functions of the board of the society, including the
board's powers of delegation.
(7) A director of a society must not be appointed or
elected while the administrator is in office except
5
in the circumstances mentioned in sub-section
(11).
(8) An administrator holds office until the
administrator's appointment is revoked.
(9) Immediately on the revocation of an
10
administrator's appointment, the administrator
must prepare and submit a report to the SSA
showing how the administration was carried out,
and for that purpose an administrator has access to
the society's records and documents.
15
(10) On providing the report and accounting fully in
relation to the administration of the society to the
satisfaction of the SSA, the administrator is
released from any further duty to account in
relation to the administration of the society other
20
than on account of fraud, dishonesty, negligence
or wilful failure to comply with the friendly
societies legislation.
(11) Before revoking an administrator's appointment,
the SSA must--
25
(a) appoint another administrator; or
(b) appoint a liquidator; or
(c) ensure that directors have been elected under
the society's rules at a meeting called by the
administrator under the rules; or
30
(d) appoint directors of the society.
(12) Directors elected or appointed under sub-section
(11)--
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(a) take office on the revocation of the
administrator's appointment; and
(b) in the case of directors appointed under sub-
section (11)(d), hold office, subject to section
47, until the society's next annual general
5
meeting.
(13) The expenses of an administrator in conducting a
society's affairs are payable--
(a) from the management fund of the society; or
(b) from a benefit fund of the society in
10
accordance with the prior written approval of
the SSA; or
(c) partly from the management fund and partly
from a benefit fund in accordance with the
prior written approval of the SSA.
15
(14) The expenses of conducting a society's affairs
include--
(a) if the administrator is not an employee of the
SSA, remuneration of the administrator at a
rate approved by the SSA; or
20
(b) if the administrator is an employee of the
SSA, the amount that the SSA certifies
should be paid to it as repayment of the
administrator's remuneration.
(15) An amount certified under sub-section (14)(b) is a
25
debt due to the SSA and may be sued for and
recovered in a court having jurisdiction for the
recovery of debts up to the amount concerned.
(16) An administrator has, in relation to the expenses
specified in sub-section (13), the same priority on
30
the winding-up of a society as the liquidator of the
society has.
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(17) If a society incurs any loss because of any fraud,
dishonesty, negligence or wilful failure to comply
with the friendly societies legislation or the
society's rules by an administrator, the
administrator is personally liable for the loss.
5
(18) An administrator is not liable for any loss that is
not a loss to which sub-section (17) applies but
must account for the loss in a report given under
this section.
47. Additional powers of SSA
10
(1) If the SSA appoints directors of a society under
section 46(11)(d), the SSA may, by written notice
given to the society, specify--
(a) a time during which this section is to apply
in relation to the society; and
15
(b) the terms and conditions on which all or any
of the directors hold office; and
(c) the rules that are to be the society's rules.
(2) While this section applies to a society, the SSA
may--
20
(a) from time to time remove and appoint
directors; and
(b) from time to time vary, revoke or specify
new terms and conditions in place of all or
any of the terms and conditions specified
25
under sub-section (1); and
(c) amend all or any of the rules specified under
sub-section (1).
(3) The SSA may, by written notice given to the
society, extend the time for which this section is to
30
apply in relation to a society.
(4) A rule specified by the SSA under this section as a
rule of the society--
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(a) is not to be amended or revoked except in the
way set out in this section; and
(b) if it is inconsistent with any other rule of the
society, prevails over the other rule, and the
other rule is to the extent of the inconsistency
5
invalid; and
(c) has the same evidentiary value as is by this
Code accorded to the society's rules and to
copies of them.
48. Stay of proceedings
10
(1) If the SSA appoints an administrator to conduct a
society's affairs, a person must not begin or
continue any proceeding in a court against the
society until the administrator's appointment is
revoked except with the leave of the Court and, if
15
the Court grants leave, in accordance with any
terms and conditions that the Court imposes.
(2) A person intending to apply for leave of the Court
under sub-section (1) must give to the SSA not
less than 10 days notice of intention to apply.
20
(3) On the hearing of an application under sub-section
(1), the SSA may be represented and may oppose
the granting of the application.
49. Administrator to report to SSA
On the receipt of a request from the SSA, the
25
administrator of a society must, without delay,
prepare and give to the SSA a report showing how
the administration is being carried out.
Subdivision 7--Levies
50. Supervision Fund
30
The SSA must pay into the Supervision Fund
established under section 94 of the Financial
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Institutions Code all amounts received as
supervision levy under this Division.
51. Supervision levy
(1) The SSA may determine that an amount is to be
paid to it by societies as a supervision levy.
5
(2) The amount of the levy may be fixed by the SSA
as--
(a) a specified amount; or
(b) a specified percentage of an amount to be
determined, on a specified day, by reference
10
to specified factors relating to societies
(including, for example, factors such as paid-
up capital, reserves, obligations and debts
and total assets including assets of each fund
of the society); or
15
(c) both a specified amount and such a specified
percentage.
(3) If the levy is fixed, wholly or partly, as mentioned
in sub-section (2)(b), the SSA may include in the
determination directions as to the way in which
20
the levy is to be determined.
(4) The SSA may--
(a) fix the amount of the levy differently for
different societies; and
(b) determine that the levy is not payable by
25
specified societies.
(5) The SSA may, in the determination, require the
levy to be paid in one amount by a specified time
or permit the levy to be paid by specified
instalments.
30
(6) If the SSA permits the levy to be paid by
instalments, it may, in the determination, allow a
discount for payment in one amount by a specified
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time or require payment of an additional amount
or percentage, by way of interest, in the
instalments.
(7) The SSA may, in the determination, require the
payment of amounts, by way of late payment
5
charge, interest or both, in relation to amounts of
levy that are not paid as required by the
determination.
(8) The SSA may include in the determination
directions as to the way in which amounts of late
10
payment charge and interest are to be determined.
(9) Amounts of levy are, when they are due and
payable, debts due and payable by the society
concerned to the SSA, and may be sued for and
recovered in a court having jurisdiction for the
15
recovery of debts up to the amount concerned.
(10) The SSA may, on the application of a society,
vary--
(a) an amount of levy payable by the society; or
(b) the time within which an amount of levy is
20
payable by the society.
(11) An amount paid by a society as levy is treated as
an expense in the accounts of the society.
(12) In sub-sections (9), (10) and (11)--
"levy" includes late payment charge and interest
25
in relation to levy.
52. Consultation
In determining the amount to be paid as
supervision levy under section 51, the SSA may,
where it is appropriate and practicable to do so,
30
consult with industry bodies and societies.
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53. Failure to make payment an offence
If a society defaults in making any
payment required to be made under section 51, the
society and any officer of the society who is in
default each commit an offence.
5
Maximum penalty: $25 000.
Subdivision 8--Control of Advertising
54. Restriction on initial advertisements
(1) A person who does not have the written
permission of the SSA to do so, must not issue, or
10
cause to be issued, an advertisement relating to--
(a) a proposed society or proposed benefit fund
of a society or proposed society; or
(b) a body corporate that proposes to become a
foreign society.
15
Maximum penalty: $100 000 or imprisonment for
15 years, or both.
(2) The permission granted by the SSA under
sub-section (1) applies for the purposes of this
section only and must not be construed as
20
permission in respect of any other matter or thing
for which permission under this Code is required.
55. Power to control advertising
(1) The SSA may, by written notice given to a society
or foreign society, direct it--
25
(a) not to issue an advertisement; or
(b) not to issue an advertisement of a specified
kind; or
(c) not to issue an advertisement that is
substantially in the same form as an
30
advertisement that has been issued before; or
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(d) to include in an advertisement of a specified
kind, or in an invitation to invest in the
society, information relating to the society or
foreign society that is required by the SSA to
be included.
5
(2) Directions under sub-section (1) may be varied or
revoked by further written notice given to the
society, or foreign society, by the SSA.
(3) A society or foreign society that fails to comply
with a direction under this section commits an
10
offence.
Maximum penalty: $75 000.
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PART 3--SOCIETIES
Division 1--Objects
56. Primary objects
For the purposes of this Code, primary objects, in
relation to a society, are such of the following as
5
are specified in the rules of the society as objects
of the society--
(a) to provide health and welfare benefits,
services and facilities for members or their
dependants, including but not limited to
10
hospital, medical, dental, pharmaceutical,
optical, physiotherapy and speech therapy
benefits, services and facilities;
(b) to provide benefits, services and facilities for
the relief and maintenance of members or
15
their dependants in the case of birth, death,
sickness, disability, accident, retirement, old
age and unemployment;
(c) to provide benefits, services and facilities for
the education of members or their
20
dependants;
(d) to provide financial and investment benefits,
services and facilities for members or their
dependants including, but not limited to,
benefits, services and facilities relating to
25
annuities, life insurance and superannuation;
(e) to sell or supply medical requisites and
therapeutic goods and dispense or sell
medicines to members of the public.
57. Objects of society must include primary objects
30
The objects of a society must include one or more
of the objects referred to in section 56.
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58. Dominant activities
The dominant activities of a society must be
within the scope of the primary objects of the
society.
Division 2--Formation and Registration
5
59. Formation of societies
(1) A body proposed to be a society may be formed by
any 25 or more adults.
(2) A proposed society may be formed only if there
has been a meeting for the purpose of forming the
10
society at which there were present 25 or more
adults.
(3) At the formation meeting, there must be
presented--
(a) a written statement showing--
15
(i) the primary objects and other objects of
the society; and
(ii) the reasons for believing that an
application for registration of the
society should be granted; and
20
(iii) the reasons for believing that, if
registered, the society will be able to
carry out its objects successfully; and
(b) a copy of the proposed rules of the society.
(4) If, at the formation meeting or any subsequent or
25
adjourned meeting, 25 or more adults, after
considering the statement and the rules, approve
the rules (with or without amendment), and sign
an application for membership and shares (if any),
they may proceed to elect the first directors of the
30
society under the rules as so approved.
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(5) An application for shares in a proposed society,
made before the registration of the society, may
not be withdrawn, and a person who makes such
an application is, on the registration of the society,
liable to pay the society--
5
(a) the value of the shares for which the person
applied; or
(b) the value of the minimum number of shares
for which a member is entitled to
subscribe--
10
whichever is greater.
(6) The expenses of, and incidental to, the formation
of the society may be paid out of the capital or
income of the society.
(7) A person must not, before a society is registered--
15
(a) issue an invitation to acquire an interest in
the proposed society or to contribute to a
benefit fund of the proposed society; or
(b) take an amount in consideration of the
allotment of a share, or the acquisition of an
20
interest in, the proposed society or take a
contribution to a benefit fund of the proposed
society.
(8) A person who contravenes sub-section (7)
commits an offence and is liable on conviction to
25
a maximum penalty of $100 000 or imprisonment
for 15 years, or both.
60. Registration
(1) A proposed society formed under this Part may
apply to the SSA, in accordance with the
30
regulations, to be registered under this Code as a
society.
(2) An application for registration must--
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(a) be made within 2 months after the meeting at
which the first directors of the society were
elected; and
(b) be accompanied by--
(i) a statutory declaration by the person
5
presiding at that meeting and a person
elected as a director at that meeting
stating that the requirements of section
59 have been complied with; and
(ii) a copy of the statement presented to the
10
meeting, signed by the person presiding
and a director; and
(iii) 2 copies of the proposed rules of the
society, certified by the person
presiding and a director to be the rules
15
approved at the meeting; and
(iv) a list containing the full name, date and
place of birth, residential address and
business occupation of each director;
and
20
(v) a list containing the full name, address
and occupation of each of 25 or more
adults who attended the meeting and
applied for membership; and
(vi) written estimates of all income and
25
expenditure and capital flows over each
of the first 3 years of operation of the
society; and
(c) be accompanied by such evidence as the SSA
requires--
30
(i) that the society is eligible for
registration; and
(ii) that the society, if registered, will be
able to comply with the friendly
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societies legislation and all applicable
standards; and
(iii) that the dominant activities of the
society, if registered, will be within the
scope of at least one of the primary
5
objects specified in section 56;
(iv) that the society, if registered, will be
able to carry out its objects
successfully; and
(v) that the society, if registered, will
10
operate at least one benefit fund.
(3) The SSA may, for the purposes of this section,
accept a statutory declaration as sufficient
evidence of matters mentioned in the declaration.
(4) If the SSA is satisfied that the society is eligible
15
for registration, the SSA must register the society
and its proposed rules.
(5) A society is eligible for registration only if--
(a) the society's application for registration
complies with this Code; and
20
(b) the proposed rules of the society comply with
this Code and the standards; and
(c) there are reasonable grounds for believing
that the society will, within a reasonable time
after registration, if registered--
25
(i) be able to comply with the friendly
societies legislation and all applicable
standards; and
(ii) have, as its dominant activities
activities that are within the scope of
30
the primary objects of the society; and
(iii) be able to carry out its objects
successfully; and
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(iv) unless exempted by the SSA, operate at
least one benefit fund; and
(d) there is no good reason why the society and
its rules should not be registered.
(6) The SSA may, by written notice given to the
5
society, exempt a society from complying with the
requirement to operate at least one benefit fund.
61. Certificate of incorporation
(1) On registering a society, the SSA must issue to the
society a certificate of incorporation.
10
(2) A certificate of incorporation issued to a society is
conclusive evidence that all requirements of this
Code in relation to registration and matters
precedent or incidental to registration have been
complied with.
15
62. Effect of incorporation
On the issue of a certificate of incorporation to a
society, the society is a body corporate with
perpetual succession and--
(a) has the legal capacity of a natural person; and
20
(b) may acquire, hold and dispose of real and
personal property; and
(c) has a common seal; and
(d) may sue and be sued in its corporate name.
63. Powers of societies
25
(1) Without limiting section 62, but subject to the
friendly societies legislation and the society's
rules, a society may--
(a) acquire shares in an association by purchase
or otherwise;
30
(b) hold a subsidiary but only if approved by the
SSA;
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(c) obtain registration as a foreign society under
the friendly societies legislation of another
participating State;
(d) carry on a pharmacy practice and employ a
pharmacist who is registered under the
5
pharmacy law of this State;
(e) do anything else that it is authorised to do by
the friendly societies legislation or the
society's rules.
(2) The powers of a subsidiary formed or acquired by
10
a society are not limited by the society's objects or
limitations on the society's powers.
(3) Except as permitted by the standards, a society
must not carry on business outside Australia.
(4) In this section--
15
"carry on business" means--
(a) establish or use an office for receiving
amounts in consideration of the
acquisition of an interest in a society or
contributions to a benefit fund of a
20
society; or
(b) advertise in relation to raising share
capital or invite contributions to a
benefit fund of a society--
but does not include--
25
(c) maintain an account at a bank, building
society or credit union; or
(d) create evidence of a debt or create a
charge on property; or
(e) secure or collect any debts or enforce
30
rights in respect of such debts; or
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(f) conduct an isolated transaction that is
completed within a period of 31 days,
not being one of a number of similar
transactions repeated from time to time;
or
5
(g) invest funds or hold property; or
(h) continue to provide benefits to, and
accept contributions from, a member
who, at the time of applying to
contribute to a benefit fund, was
10
resident in Australia and has
subsequently moved to a place outside
Australia; or
(i) continue to receive amounts in
consideration of an interest in a society
15
from a member who, at the time of
acquiring the interest, was resident in
Australia and has subsequently moved
to a place outside Australia.
64. Prohibition on issuing debenture
20
A society must not issue debentures.
65. Restriction on reinsurance arrangements
A society must not enter into a reinsurance
arrangement unless the society's actuary has given
the society written advice as to the likely
25
consequences of the proposed arrangement.
66. Restriction on acting as trustee
A society must not act as a trustee or
representative for the purpose of an approved deed
in relation to the issue of prescribed interests
30
under Part 7.12 of the Corporations Law.
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67. Control of certain financial arrangements
Except as permitted by the standards, a society
must not enter into an arrangement--
(a) establishing rights and obligations to receive
or deliver property the value of which, or to
5
receive or make a payment in an amount
which, or the value of which--
(i) depends on, or is derived from, the
value or price at a particular future time
or during a particular future period of
10
particular property, rights or liabilities;
or
(ii) depends on, or is derived by
reference to, a particular rate, index or
other factor at a particular future
15
time or during a particular future
period; or
(b) specified in the standards to be a prohibited
financial arrangement for the purposes of this
section.
20
Maximum penalty: $75 000.
68. Control of foreign currency transactions
Except as permitted by the standards, a society
must not--
(a) invest any of its assets in foreign
25
currency; or
(b) carry out any of its activities in foreign
currency.
Maximum penalty: $75 000.
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Division 3--Rules
Subdivision 1--General
69. Rules
(1) The rules of a society must set out--
(a) the primary objects of the society; and
5
(b) any other objects of the society.
(2) The rules of a society must provide for the matters
specified in the standards.
(3) Subject to sub-section (3), the rules of a society
may also provide for any matter that is necessary,
10
expedient or desirable for the society's objects.
(4) If there is any inconsistency between a rule of a
society and the friendly societies legislation or a
standard, the friendly societies legislation or
standard prevails and the rule is invalid to the
15
extent of the inconsistency.
70. Copies of rules
A society must give a copy of its rules, or
part of its rules, to a member or proposed member
who requests it and has paid the fee (if any)
20
payable under the society's rules.
Maximum penalty: $5000.
71. Society and members to be bound by rules
The rules of a society have effect as a contract
between its members, and between each member
25
and the society.
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Subdivision 2--Amendment of rules
72. Amendment of rules by special resolution
Subject to sections 73 and 75, the rules of a
society may be amended only if the amendment
has been approved by special resolution of the
5
members under section 307.
73. Amendment of rules by board of directors
(1) A society's rules may be amended by a resolution
of its board--
(a) if the amendment is authorised or required by
10
or under any Act or law or the standards; or
(b) if the SSA is satisfied that approval of the
amendment by the members of the society is
not necessary and amendment by a resolution
of the board is appropriate; or
15
(c) to correct a patent error.
(2) The society must give to its members, not later
than the day on which notice is given of the next
general meeting of the society, a written notice
setting out the text or a summary of an amendment
20
of the society's rules under this section.
Maximum penalty: $5000.
(3) The notice may, with the prior written approval of
the SSA, be given by advertisement published in a
newspaper circulating generally--
25
(a) in the area of the State in which the society
operates; and
(b) if the society operates in another State, or
other States, in the other State or States.
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(4) The SSA may require a society that has amended
its rules under this section to obtain approval of
the amendment by the members of the society.
74. Registration of amendment of rules
(1) If the SSA is satisfied--
5
(a) that an amendment of the rules of a society
would not cause the society's dominant
activities to cease to be within its primary
objects; and
(b) that the rules, as proposed to be amended,
10
would comply with the friendly societies
legislation; and
(c) that there is no good reason why the
amendment should not be registered--
the SSA must register the amendment.
15
(2) The amendment takes effect when it is registered.
(3) The rules of the society must be read subject to
any registered amendment.
75. Power of SSA to require modification of rules
(1) If, in the SSA's opinion, the rules of a society
20
should be amended--
(a) to comply with the friendly societies
legislation; or
(b) to give effect to a standard--
the SSA may, by written notice given to the
25
society, require it, within a reasonable period
specified in the notice, to amend its rules in a way
specified in the notice or otherwise in a way
approved by the SSA.
(2) If the society fails to amend its rules as required
30
by the notice, the SSA may amend the society's
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rules by notation on the registered copy of the
rules.
(3) The SSA must immediately give written notice to
a society of--
(a) an amendment of the society's rules made
5
under this section; and
(b) the day on which the amendment takes
effect.
(4) The society must give to its members, not later
than the day on which notice is given of the next
10
general meeting of the society, a written notice
setting out the text of each amendment of the rules
of the society taking effect under this section.
Maximum penalty: $5000.
(5) The notice may, with the prior written approval of
15
the SSA, be given by advertisement published in a
newspaper circulating generally--
(a) in the area of the State in which the society
operates; and
(b) if the society operates in another State, or
20
other States, in the other State or States.
Subdivision 3--Societies conducting health benefit funds
76. Definitions
In this Subdivision--
"Commonwealth Act" means the National
25
Health Act 1953 of the Commonwealth;
"registered society" means a society that is
registered under Part VI of the
Commonwealth Act.
77. Health benefit fund rules
30
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For the purposes of this Code, except provisions
applying to the making or amendment of rules, the
rules of a registered society include the terms,
conditions, directions and Council's rules (within
the meaning of the Commonwealth Act) that apply
5
to the society as a registered organisation under
Part VI of the Commonwealth Act.
78. Registered society to give notice of rule changes
If an amendment of the rules of a registered
society is made under this Code--
10
(a) where, under section 78 of the
Commonwealth Act, the society receives
acknowledgement of its notification of the
amendment, the society must, within 7 days
after that receipt give written notice to the
15
SSA of the date on which the amendment
takes effect;
(b) where, under section 78 of the
Commonwealth Act, the Commonwealth
Minister declares that the amendment is not
20
to be taken to have come into operation, the
society must, within 7 days after the
declaration is made, give written notice of
the declaration to the SSA.
Division 4--Standards
25
79. Societies to comply with standards
A society must comply
with all applicable standards.
Maximum penalty: $25
000.
30
Division 5--Membership
80. Members
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(1) A person is a member of a society if the person--
(a) signs the application for membership on the
formation of the society and has not ceased
to be a member;
(b) is entitled to a benefit from a benefit fund of
5
the society;
(c) holds a share in the society;
(d) is admitted to membership under the
society's rules and has not ceased to be a
member.
10
(2) The members of a merged society are the persons
who, on the day of the merger, are members of a
society that is a party to the merger, and any other
persons who are admitted to membership under
the merged society's rules.
15
(3) The members of a society to which another society
has transferred the whole of its engagements
include the persons who, immediately before the
transfer took effect, were members of the
transferor society.
20
(4) The members of a society to which another society
has transferred part of its engagements include the
persons who, immediately before the transfer took
effect, were members of the transferor society and
are specified, for the purposes of this sub-section,
25
in an agreement between the societies.
(5) A person may exercise the rights of membership
of a society only if the person has complied with
any requirements for membership under the
society's rules, including, for example--
30
(a) the payment of an amount;
(b) the acquisition of shares or interests.
81. Members who are minors
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(1) Subject to a society's rules, a minor may be a
member of the society or a benefit fund of the
society.
(2) A member of a society who is a minor cannot hold
office in a society and cannot vote at a meeting of
5
the society or of members of a benefit fund of the
society.
(3) A person who is at least 10 but has not reached 16
may, with the written consent of a parent or a
person who stands in the place of a parent--
10
(a) apply for membership of a benefit fund of a
society; or
(b) take an assignment of such benefits.
(4) A person who has reached 16 but has not reached
18 has the same capacity to exercise rights or
15
powers in relation to benefits to which he or she is
entitled as a person who has reached 18.
82. Joint members
(1) Two or more persons may be joint members of a
society or a benefit fund of a society if the
20
society's rules so provide.
(2) If a society or a benefit fund of a society has joint
members, the following provisions apply--
(a) in the case of a society, the register of
members of the society must indicate that a
25
person is a joint member of the society;
(b) in the case of a benefit fund of a society, the
register of members of the benefit fund must
indicate that a person is a joint member of
the benefit fund;
30
(c) the joint members are entitled to choose the
order in which they are named in a register of
members, but failing any such choice the
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society may enter the names in the order it
considers appropriate;
(d) the joint member who is named first in a
register of members is the primary joint
member;
5
(e) subject to the society's rules, but without
affecting the right of a member to obtain a
copy of the balance sheet from the society on
demand, a notice or other document may be
given or sent only to the primary joint
10
member;
(f) for the purpose of determining--
(i) who is qualified to vote on a resolution
at a meeting of the society or of a
benefit fund of the society; and
15
(ii) the number or proportion of members
required to give effect to any provision
of the friendly societies legislation or
the society's rules--
membership is taken to be solely that of the
20
primary joint member.
83. Corporate membership
(1) Subject to a society's rules, a body corporate may
be a member of the society or a benefit fund of the
society.
25
(2) A body corporate that is a member of a society or
a benefit fund of a society may, by written notice
given to the society, appoint an individual to
represent it--
(a) in the case of a body corporate that is a
30
member of a society, at meetings of members
of the society; or
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(b) in the case of a body corporate that is a
member of a benefit fund of a society, at
meetings of the benefit fund.
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(3) A person appointed under sub-section (2)--
(a) is entitled--
(i) to receive notice of all meetings that the
body corporate is entitled to receive;
and
5
(ii) to exercise on behalf of the body
corporate the same voting rights as the
body corporate could, if it were a
natural person, exercise as a member of
the society; and
10
(b) is eligible to be elected as a director of the
society if--
(i) the body corporate holds the
qualifications required for holding
office as a director (other than
15
qualifications about age and being an
individual); and
(ii) a person has not been appointed as
liquidator of the body corporate.
84. Cessation of membership
20
A person ceases to be a member of a society or a
benefit fund of a society as provided by the
society's rules.
85. Expulsion of member
A member of a society may be expelled, or have
25
the member's membership rescinded, under the
society's rules.
86. Limitation of liability of members
Subject to the friendly societies legislation, a
member of a society is not liable,
30
because of the membership, to contribute towards
the payment of the debts and liabilities of the
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society or the costs, charges and expenses of a
winding-up of the society.
Division 6--Name and Office
87. Name
(1) The registered name of a society is its name as
5
specified in the society's rules for the time being
registered under this Code.
(2) The SSA may register a proposed society's rules,
or an amendment of rules affecting a society's
name, only if AFIC has reserved the name for the
10
proposed society or society under Part 6A of the
AFIC Code.
(3) If the SSA registers an amendment of the rules of
a society changing the name of the society, the
SSA may, on application by the society, amend its
15
certificate of incorporation or issue a new
certificate.
(4) A society must publish a change of its name as
directed by the SSA.
Maximum penalty: $5000.
20
(5) The SSA may, on application by a society,
approve the use by the society of a name other
than its registered name subject to such conditions
as the SSA determines.
(6) The SSA may give an approval under sub-section
25
(5) only if the name the society wishes to use is
reserved for the society by AFIC under Part 6A of
the AFIC Code.
(7) The SSA may, by written notice given to the
society, revoke an approval given under sub-
30
section (5) or vary or revoke conditions to which it
is subject.
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(8) A society must not use a name other than--
(a) its registered name; or
(b) a name approved under sub-section (5).
(9) A society does not contravene sub-section (8) by
using a name in a way mentioned in section 88.
5
(10) A society must not fail to comply with the
conditions of an approval under sub-section (5).
(11) A society that contravenes sub-section (8) or (10)
commits an offence and is liable on conviction to
a maximum penalty of $75 000.
10
88. Abbreviations of society's name
(1) A description of a society is not inadequate or
incorrect merely because the society's name is
given using--
(a) the abbreviation "Ltd." for the word
15
"Limited"; or
(b) the abbreviation "Aust." for the word
"Australian"; or
(c) the abbreviation "No." for the word
"Number"; or
20
(d) the symbol "&" for the word "and"; or
(e) any of those words instead of the
corresponding abbreviation or symbol.
(2) In this section--
"name" of a society means--
25
(a) its registered name; or
(b) a name approved for its use under
section 87(5).
89. Change of name does not affect identity
(1) A change of name of a society does not--
30
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(a) affect the identity of the society; or
(b) affect a right or obligation of the society or
of a member or other person; or
(c) render defective legal proceedings by or
against the society.
5
(2) A legal proceeding that might have been
continued or started by or against the society by its
former name may be continued or started by or
against it by its new name.
90. Use of "friendly society"
10
(1) Subject to this section--
(a) a person or body, other than a society,
foreign society or services corporation, must
not carry on business, under a name or title
of which the words "friendly society", or any
15
other words, abbreviations or symbols with a
similar meaning, form part; and
(b) a person or body, other than a society or
foreign society, must not hold out that its
business is that of a society.
20
(2) A person or body may apply to the SSA for
exemption from sub-section (1).
(3) The SSA may, by written notice given to the
person or body, grant an exemption for such time
and on such conditions as the SSA determines.
25
(4) The SSA may, at any time--
(a) revoke an exemption; or
(b) vary or revoke a condition of an exemption.
(5) A person who contravenes sub-section (1) or a
condition of an exemption under sub-section (3),
30
and every director or other person having the
control and management of an incorporated or
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unincorporated body contravening the sub-section
or condition, commits an offence.
Maximum penalty: $100 000 or imprisonment for
15 years, or both.
(6) This section does not apply to an unregistered
5
society within the meaning of section 91.
91. Unregistered society not to carry on business
(1) An unregistered society must not carry on business
in this State.
(2) An unregistered society may apply to the SSA for
10
an exemption from sub-section (1).
(3) The SSA may, by written notice given to the
unregistered society, grant an exemption for such
time and on such conditions as the SSA
determines.
15
(4) The SSA may, at any time--
(a) revoke an exemption; or
(b) vary or revoke a condition of an exemption.
(5) An unregistered society that contravenes sub-
section (1) or a condition of an exemption under
20
sub-section (3), and every other person having the
control and management of the society
contravening the sub-section, commits an offence.
Maximum penalty: $100 000 or
imprisonment for 15 years, or both.
25
(6) In this section, "unregistered society" means a
body registered as a friendly society in a
participating State but not registered as a foreign
society in this State.
92. Publication of name
30
(1) Except as otherwise provided in this section, a
society must set out its registered name in legible
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letters on every public document (within the
meaning of section 88A of the Corporations Law)
of the society.
(2) A society may use its registered name or a name
approved in relation to the society under section
5
87(5) on an advertisement published in
accordance with section 54.
(3) A society must ensure that its registered name and
the words "Registered Office" are displayed in a
conspicuous place and in legible letters on the
10
outside of its registered office.
(4) A society must ensure that its registered name is
displayed in a conspicuous place and in legible
letters on the outside of every other office or place
in which its business is carried on.
15
(5) A society that contravenes this section commits an
offence and is liable on conviction to a penalty of
$25 000.
(6) Nothing in this section prohibits a society from
using, in addition to its registered name, a name
20
approved in relation to the society under section
87(5).
93. Common Seal
(1) A society must ensure its registered name appears
in legible letters on its common seal.
25
(2) An officer of a society, or any person acting on its
behalf, must not use any seal, purporting to be the
common seal of the society, on which its
registered name does not appear in legible letters.
Maximum penalty: $25 000.
30
94. Society may have duplicate common seal
A society may, if authorised by its rules, have a
duplicate common seal, which must be a facsimile
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of the common seal of the society with the
addition on its face of the words "Share Seal" or
"Document Seal" and a document of title referring
to or relating to shares of the society sealed with
that duplicate seal is taken to be sealed with the
5
common seal of the society.
95. Registered office
(1) A society must have a registered office in this
State.
(2) The first registered office of a society is the
10
address that appears in the society's rules at the
time of registration.
(3) A society must give written notice of any
proposed change of address to the SSA.
Maximum penalty: $5000.
15
(4) At the end of the day of registration by the SSA of
the new address or at the end of such later day as
the society specifies in the notice, the new address
becomes the registered office of the society.
20 _______________
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PART 4A--BENEFIT FUNDS
Division 1--Provision of Benefits and Establishment of
Benefit Funds
96. Provision of benefits
(1) A society must not pay, or provide for the
5
payment of, amounts to which a member of the
society or any other person may be, or become,
entitled because of contributions, or payments
made to the society (whether by that member or
person or by another person) unless the society--
10
(a) maintains a benefit fund for the receipt of
such contributions and payments; and
(b) pays those amounts as benefits from a benefit
fund.
(2) Sub-section (1) does not apply to amounts payable
15
in respect of shares in a society.
97. Establishment of benefit fund
(1) A society may, under its rules, establish a benefit
fund in accordance with this Code and the
standards.
20
(2) A benefit fund of the society is established when
the rules of the society providing for the benefit
fund are registered by the SSA.
98. Approval to establish benefit fund
(1) The SSA must not register rules providing for a
25
benefit fund of a society unless the SSA has
approved the establishment of the benefit fund.
(2) A society that proposes to establish a benefit fund
must apply in writing to the SSA for approval to
establish the benefit fund.
30
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(3) An application under sub-section (2) must be
accompanied by a copy of the rules the society
proposes to make in relation to the proposed
benefit fund.
(4) If the SSA receives an application under this
5
section and is satisfied that--
(a) the proposed rules of the society are in
accordance with the standards applicable to
the proposed benefit fund; and
(b) the establishment of the proposed benefit
10
fund is in accordance with the standards; and
(c) the society has complied with the
requirements of the standards applicable to
the establishment of the benefit fund--
the SSA must, in writing given to the society,
15
approve the application.
Division 2--Management of Benefit Funds
99. Assets of benefit funds
(1) A society must keep the assets of each benefit
fund distinct and separate from the assets of any
20
other benefit fund and from any other assets of the
society, except as otherwise provided or permitted
under this Code.
(2) Except as provided in sub-section (3), a society
must maintain a separate account at a bank,
25
building society or credit union for each benefit
fund.
(3) A society may maintain a single account at a bank,
building society or credit union for 2 or more
benefit funds if permitted to do so by this Code or
30
the standards.
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(4) Nothing in this Code constitutes a society or a
director of a society a trustee of the assets of a
benefit fund of the society.
100. Payments to benefit funds
A society must credit to each benefit fund, in
5
accordance with this Division--
(a) all contributions received by or on behalf of
the society in respect of the benefit fund; and
(b) all income from investment of assets of the
benefit fund and the proceeds of disposal of
10
any such investment; and
(c) any other amounts received by or on behalf
of the society in respect of the benefit fund.
101. Application of benefit fund assets
(1) A society must not, directly or indirectly, apply or
15
deal with assets of a benefit fund otherwise than in
accordance with this Code.
(2) The assets of a benefit fund may only be applied--
(a) for the purposes of paying any benefit
payable to a person entitled to a benefit from
20
the benefit fund; or
(b) as otherwise permitted by this Code or the
society's rules.
102. Mortgaging assets of benefit fund
(1) A society must not mortgage or otherwise charge
25
or encumber an asset of a benefit fund.
(2) If a society's rules and the standards so permit, the
society may, despite sub-section (1), mortgage or
otherwise charge or encumber an asset of a benefit
fund for the advantage of the benefit fund in
30
accordance with those rules and standards.
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103. Investment of benefit funds
(1) A society must not invest assets of a benefit fund
otherwise than in accordance with this Code, the
society's rules and the standards.
(2) If the rules of the society and the standards so
5
provide, a society may, in accordance with this
Code, the rules and the standards, invest assets of
2 or more of its benefit funds in a combined
investment.
(3) A society, in investing assets of a benefit fund,
10
must exercise the care, diligence and skill that a
prudent person, whose profession, business or
employment is or includes investing assets on
behalf of other persons, would exercise in
managing the affairs of other persons.
15
104. Payment of money into account
A society must, as soon as practicable after it
receives any money for a benefit fund, pay the
money--
(a) into an account maintained for the benefit
20
fund under section 99; or
(b) into a funds inward clearing account
established under section 105.
105. Funds inward clearing account
(1) A society may open at a bank, building society or
25
credit union an account to be known as a funds
inward clearing account.
(2) If, under section 104, money received for a benefit
fund is paid into the funds inward clearing account
kept by a society, the society must ensure that the
30
money is paid out of that account and into an
account maintained under section 99 for the
benefit fund as soon as practicable.
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(3) If money of a benefit fund is paid into a funds
inward clearing account--
(a) the money is money of that benefit fund
while it is held in that account; and
(b) interest earned on the money while held in
5
that account, less account fees and taxes,
belongs to the benefit fund in like proportion
to the entitlement of the benefit fund to the
money in that account.
106. Funds outward clearing account
10
(1) A society may open at a bank, building society or
credit union an account to be known as a funds
outward clearing account.
(2) If a society withdraws an amount from an account
maintained under section 99 for a benefit fund and
15
does not pay the amount forthwith to the person
entitled to that amount or apply the amount in
accordance with section 101(2), the society
must--
(a) pay the amount into the funds outward
20
clearing account forthwith; and
(b) pay the amount from the funds outward
clearing account to the person as soon as
practicable.
(3) If an amount in a funds outward clearing account
25
has not been paid to the person entitled to it within
3 months after the amount was paid into the
account, the amount must, at the expiration of that
period, be paid back to the account from which it
was withdrawn.
30
(4) If money of a benefit fund is paid into a funds
outward clearing account--
(a) the money is money of the benefit fund while
it is held in that account; and
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(b) interest earned on the money while held in
that account, less account fees and taxes,
belongs to the benefit fund in like proportion
to the entitlement of the benefit fund to the
money in that account.
5
107. Transfer of an asset between funds
(1) A society must not transfer an asset from one
benefit fund to another benefit fund except in
accordance with sub-section (2).
(2) A society may transfer an asset from one benefit
10
fund ("the transferor fund") to another benefit
fund ("the transferee fund") if--
(a) the society transfers from the transferee fund
to the transferor fund an amount equal to the
fair value of the asset determined in
15
accordance with section 109; and
(b) in relation to the members of the transferor
fund and the transferee fund, the transfer is
fair and reasonable in all the circumstances.
(3) This section does not apply to--
20
(a) a transfer of assets in accordance with a
restructure of one or more benefit funds
under Division 3; or
(b) the distribution of assets in accordance with
section 119 on termination of a benefit fund;
25
or
(c) anything that a liquidator is required to do by
or under this Code or any other law of this or
any other State or of the Commonwealth.
108. Distribution of surplus in benefit fund
30
(1) If the actuary of a society advises the society that
there is a surplus in a benefit fund, the society,
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subject to this Code, the rules of the society and
the standards--
(a) if the rules of the society so provide, may
pay, apply or allocate all or part of the
surplus to the members of the benefit fund;
5
or
(b) if the rules of the society so provide, may
transfer all or part of the surplus to another
benefit fund of the society; or
(c) may transfer all or part of the surplus to the
10
management fund of the society.
(2) For the purposes of sub-section (1), if any part of a
surplus in a benefit fund comprises an asset other
than money, the value of the asset is the fair value
of the asset determined in accordance with section
15
109.
109. Fair value of assets
For the purpose of sections 107 and 108, the fair
value of an asset is the price a person could
reasonably be expected to pay for the asset on a
20
sale in which the seller and buyer were dealing
with each other at arm's length.
Division 3--Restructure of Benefit Funds
110. Definitions
In this Division--
25
"existing fund" means a benefit fund existing
before a restructure under this Division
takes effect, other than a benefit fund of a
society that has commenced to be wound
up under Part 9;
30
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"new fund" means a benefit fund that is or is to
be established under Division 1 for the
purposes of a restructure under this Division.
111. Approval of restructure of benefit funds
(1) A society may restructure one or more of its
5
benefit funds in accordance with this Division by
doing any of the following--
(a) transferring the whole or part of one or more
existing funds to another existing fund; or
(b) transferring the whole or part of one or more
10
existing fund to a new fund.
(2) A society that proposes to restructure one or more
of its existing funds must lodge with the SSA for
approval a restructure statement in accordance
with sub-section (3).
15
(3) Except so far as the SSA otherwise determines in
relation to a society, a restructure statement must
specify--
(a) the name of each existing fund that is to be
involved in the restructure, any proposed
20
change in the name of any such existing fund
and the proposed name of any new fund;
(b) the date on which it is proposed that the
restructure will take effect;
(c) the reasons for the proposed restructure;
25
(d) the effect of the proposed restructure on the
interests of the members of each existing
fund that is to be involved in the restructure;
(e) the assets and undertakings of, and liabilities
referable to, each existing fund that is to be
30
involved in the restructure that will become
assets and undertakings of and liabilities
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referable to another such existing fund or a
new fund;
(f) the category or categories of members of
each existing fund that, under the restructure,
will become members of another existing
5
fund or of a new fund;
(g) any interest that any officer of the society has
in the proposed restructure;
(h) any compensation or other consideration
proposed to be paid, or any other incentive
10
proposed to be given, to any officer or
member of the society in relation to the
proposed restructure;
(i) if applicable, an estimate of the rate of any
bonuses payable from each existing fund up
15
to the date on which it is proposed that the
restructure will take effect;
(j) in the case of a transfer of part of an existing
fund, details of any reserves that the society
proposes to retain in the existing fund in
20
accordance with the recommendations of the
society's actuary;
(k) the financial position of each existing fund
that is to be involved in the restructure as at a
date that is not more than 6 months before
25
the date of the restructure statement;
(l) such other information as the SSA requires.
(4) Except in so far as the SSA otherwise determines
in relation to a society, the restructure statement
must be accompanied by--
30
(a) a certificate signed by the society's actuary
certifying that, having regard to all matters
relevant to the proposed restructure, the
actuary considers that the restructure would
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be in the interests of the members of each
existing fund that is to be involved in the
restructure;
(b) a copy of the proposed amendment of the
society's rules to recognise the restructure;
5
(c) a copy of the notice proposed to be issued by
the society to notify members of each such
existing fund of the restructure.
(5) A restructure statement must be signed by the
directors of the society and must include a
10
certificate that, having regard to all matters
relevant to the proposed restructure, the directors
consider that the restructure would be in the
interests of the members of each existing fund that
is to be involved in the restructure.
15
(6) The SSA may approve a restructure statement if
the SSA is satisfied that--
(a) the society has complied with the
requirements of this section;
(b) there is no good reason why the restructure
20
should not be approved.
(7) If the SSA approves the restructure statement, the
proposed restructure in accordance with the
statement must be approved, in relation to each
existing fund that is involved in the restructure,
25
by--
(a) a special resolution of the members of the
existing fund; or
(b) if the SSA so determines, a resolution of the
society's board.
30
(8) A society, at least 21 days before a meeting of
members of an existing fund to approve a special
resolution under sub-section (7)(a), must give
personally or by post to each member of the fund a
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copy of the restructure statement approved by the
SSA, or a summary of that statement approved by
the SSA, together with a notice of the meeting and
the proposed special resolution.
112. Rules
5
If a proposed restructure is approved in
accordance with section 111(7), the society's
board must, by a resolution, amend the society's
rules to the extent necessary to recognise the
restructure of an existing fund in accordance with
10
this Division.
113. Lodgement of information with SSA
(1) A society must lodge with the SSA within one
month after a proposed restructure is approved in
accordance with section 111(7)--
15
(a) a copy of the resolutions made under sections
111(7) and 112; and
(b) an application to register the amendment of
the society's rules to establish a new fund (if
any) and to recognise the restructure of each
20
existing fund involved in the restructure;
(2) A society must lodge with the SSA within 3
months, or such other period as the SSA
determines, after a restructure takes effect--
(a) audited accounts, or accounts in a form
25
approved by the SSA, for each existing fund
involved in the restructure up to the date that
the restructure takes effect; and
(b) such other information as the SSA may
require.
30
(3) The accounts in sub-section (2) must include, if
applicable--
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(a) details of any bonuses paid by the society
from the fund and of any reserves retained by
the society in the fund during the period to
which the accounts relate; and
(b) a statement of the manner in which the units
5
of the fund were converted to units of
another existing fund or of a new fund.
114. When a restructure takes effect
A restructure takes effect on the day on which the
SSA registers the amendment of the rules on an
10
application under section 113(1).
115. Effect of restructure
(1) This section applies on a restructure under this
Division taking effect.
(2) If the whole or part of an existing fund is
15
transferred to another existing fund or to a new
fund under this Division--
(a) a member of the existing fund who is in a
category specified in the restructure
statement approved by the SSA under this
20
Division becomes a member of the other
existing fund or of the new fund; and
(b) the assets and undertakings of and liabilities
referable to the existing fund become, to the
extent specified in the restructure statement
25
approved by the SSA under this Division,
assets and undertakings of and liabilities
referable to the other existing fund or the
new fund.
116. Notification of members
30
(1) A society must, within one month after a
restructure taking effect, give written notice of the
restructure to each member of a benefit fund
affected by the restructure.
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(2) Except so far as the SSA otherwise determines in
relation to a society, a notice under sub-section (1)
must include--
(a) the name of each existing fund affected by
the restructure, any change in the name of
5
any such existing fund and the name of any
new fund;
(b) a statement, in relation to each such existing
fund, whether the restructure affects the
whole or part of the fund;
10
(c) the reasons for the restructure;
(d) details of the restructure;
(e) a summary of how the restructure affects the
interests of members of each such existing
fund;
15
(f) details of the amendment of the rules to
establish a new fund (if any) and recognise
the restructure of an existing fund.
(3) The SSA may grant an exemption from any of the
requirements of this section, subject to any
20
conditions it considers appropriate.
Division 4--Termination of Benefit Funds
117. Application of Division
A society, other than a society that has
commenced to be wound up under Part 9, may
25
terminate a benefit fund in accordance with this
Division.
118. Approval of termination proposal
(1) A society that proposes to terminate a benefit fund
in accordance with this Division must lodge with
30
the SSA for approval a termination statement in
accordance with this section.
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(2) Except so far as the SSA otherwise determines in
relation to a society, a termination statement must
specify--
(a) the name of the benefit fund proposed to be
terminated;
5
(b) the date on which it is proposed that the
termination will take effect;
(c) the reasons for the proposed termination;
(d) the manner in which the society proposes to
distribute the assets of the benefit fund;
10
(e) the effect of the proposed termination on the
interests of the members of the benefit fund;
(f) any interest that any officer of the society has
in the proposed termination;
(g) any compensation or other consideration
15
proposed to be paid, or any other incentive
proposed to be given, to any officer or
member of the society in relation to the
proposed termination;
(h) the financial position of the benefit fund as at
20
a date that is not more than 6 months before
the date of the termination statement;
(i) such other information as the SSA may
require.
(3) Except in so far as the SSA otherwise determines
25
in relation to a society, a termination statement
must be accompanied by--
(a) a certificate signed by the society's actuary
certifying that, having regard to all matters
relevant to the proposed termination of the
30
benefit fund, the actuary considers that the
termination would be in the interests of the
members of the fund;
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(b) a copy of the proposed amendment of the
society's rules to recognise the termination of
the benefit fund;
(c) a copy of the notice proposed to be issued by
the society to notify members of the benefit
5
fund of the termination of the benefit fund.
(4) A termination statement must be signed by the
directors of the society and must include a
certificate that, having regard to all matters
relevant to the proposed termination, the directors
10
consider that the termination would be in the
interests of the members of the benefit fund.
(5) The SSA may approve a termination statement if
the SSA is satisfied that--
(a) the society has complied with the
15
requirements of this section;
(b) there is no good reason why the termination
should not be approved.
(6) If the SSA approves the termination statement, the
proposed termination in accordance with the
20
statement must be approved by--
(a) a special resolution of the members of the
benefit fund; or
(b) if the SSA so determines, a resolution of the
society's board.
25
(7) A society, at least 21 days before a meeting of
members of a benefit fund to approve a special
resolution under sub-section (6)(a), must give
personally or by post to each member of the fund a
copy of the termination statement approved by the
30
SSA, or a summary of that statement approved by
the SSA, together with a notice of the meeting and
the proposed special resolution.
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(8) If the proposed termination is approved in
accordance with sub-section (6)--
(a) the society must cease to accept new
members and any contributions from existing
members in respect of the benefit fund; and
5
(b) the society must distribute the assets of the
benefit fund in accordance with section 119.
119. Distribution of assets of benefit fund
(1) If the termination of a benefit fund is approved
under section 118(6), the assets of the benefit fund
10
must be distributed in accordance with this section
within 12 months after that approval.
(2) The assets of a benefit fund must first be applied
in accordance with section 101(2).
(3) If any assets remain after the application of sub-
15
section (2), the assets must be applied as
follows--
(a) first--
(i) where the rules of the society provide
for the application of assets on the
20
termination of the benefit fund, in
accordance with the rules;
(ii) where the rules of the society do not
provide for the application of assets on
the termination of the benefit fund, in
25
satisfaction of any entitlements of
members of the fund as determined by
the society's actuary;
(b) secondly, if any assets remain after the
application of paragraph (a), by way of
30
transfer to the management fund of the
society.
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(4) For the purpose of making a fair and reasonable
determination of the entitlements to be paid under
sub-section (3)(a)(ii), a society's actuary must take
into account all the circumstances of the benefit
fund, including--
5
(a) the rules and standards applicable to the
benefit fund; and
(b) the history, performance and financial
position of the benefit fund during its
existence, whether before or after the coming
10
into operation of this Code.
120. Notification of members
(1) A society must, not later than the date of
distribution of the assets of a benefit fund under
section 119, give written notice of the termination
15
of the benefit fund to each member of the fund.
(2) Except so far as the SSA otherwise determines in
relation to a society, a notice under sub-section (1)
must include--
(a) the name of the benefit fund that is being
20
terminated;
(b) the reasons for the termination of the benefit
fund;
(c) details of the termination of the benefit fund;
(d) a summary of how the termination affects the
25
interests of members of the fund;
(e) details of the proposed amendment of the
rules to recognise the termination of the
benefit fund.
(3) The SSA may grant an exemption from any of the
30
requirements under this section, subject to any
conditions it considers appropriate.
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121. Rules
After a society has distributed the assets of a
benefit fund in accordance with section 119, the
society's board must, by a resolution, amend the
society's rules to the extent necessary to recognise
5
the termination of the benefit fund in accordance
with this Division.
122. Lodgement of information with SSA
(1) A society must lodge with the SSA within one
month after the assets of the benefit fund have
10
been distributed in accordance with section 119--
(a) a copy of the resolutions made under sections
118(6) and 121; and
(b) an application to register the amendment of
the society's rules to recognise the
15
termination.
(2) A society must lodge with the SSA within 3
months, or such other period as the SSA
determines, after the termination takes effect--
(a) audited accounts or accounts in a form
20
approved by the SSA for the terminated
benefit fund up to the date on which the
termination takes effect;
(b) such other information as the SSA may
require.
25
(3) The accounts in sub-section (2) must include, if
applicable--
(a) a statement of the distribution of the assets of
the benefit fund;
(b) details of any bonuses paid by the society
30
from the benefit fund during the period to
which the accounts relate.
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123. When termination takes effect
A termination of a benefit fund takes effect on the
day on which the SSA registers the amendment of
the rules on an application under section 122.
Division 5--Assignment of Benefits
5
124. Assignment of benefits
(1) An assignment of an entitlement to benefits in a
benefit fund of a society may only be made in
accordance with this section.
(2) An assignment must be made by memorandum of
10
assignment in the form prescribed by the society's
rules and signed by the assignor and the assignee.
(3) An assignment is not valid until it is registered in
accordance with this section by the society.
(4) The assignor must serve on the society 2 signed
15
copies of the memorandum of assignment and
must pay any fee prescribed by the society's rules.
(5) The society must register the memorandum, and
an officer of the society who is authorised to do so
must insert the date of registration in both copies
20
of the memorandum, sign them, and send one
copy to the assignee.
(6) A copy of the memorandum that is signed and
dated in accordance with this section is--
(a) conclusive evidence of the registration of the
25
assignment and of the date of registration;
and
(b) as between the society and any person
claiming an entitlement to benefits,
conclusive evidence that the assignee was at
30
the time of registration absolutely entitled to
the benefits, free from all interests (except
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any lien or charge that the society has in
respect of the benefits), and was legally
entitled to receive those benefits and give a
discharge in respect of them.
(7) Except as provided in sub-section (8), the assignee
5
under a registered memorandum--
(a) has all the powers of the assignor in respect
of the benefits; and
(b) is subject to all the liabilities of the assignor
in respect of the benefits; and
10
(c) may sue in relation to the benefits in the
assignee's own name.
(8) The assignee is not, by the operation of this
section, admitted as a member of the society, and
the assignor is not deprived of membership, unless
15
the rules of the society so provide.
(9) The receipt of the assignee is a discharge to the
society for all money paid by the society in respect
of the benefits.
(10) A discharge, surrender of or security over the
20
benefits that is given to the society by the assignee
is valid in spite of the existence of any interest of
any other person.
(11) The society taking a discharge, surrender or
security--
25
(a) need not inquire into the circumstances of
the assignment or the consideration of it; and
(b) is not affected by express, implied or
constructive notice of the existence of any
interest of any other person in the benefits.
30
125. Payment to nominee of deceased member
(1) A member of a society who is at least 16 years old
may nominate a person to whom any benefits from
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a benefit fund of the society payable on the death
of the member are to be paid.
(2) A member of a society may not nominate an
officer of that society unless the officer is a
dependant of the member.
5
(3) A nomination has no effect unless it is--
(a) in writing and signed by the member; and
(b) served on the society.
(4) A nomination may be revoked or varied in the
same way that it is made and is revoked on the
10
death of the nominee.
(5) The society, on receiving evidence of the death of
the member, must pay to the nominee any benefits
that are payable on that death.
15 _______________
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PART 4B--OFFERING AND MARKETING OF BENEFITS
Division 1--Application and Interpretation
126. Definitions
In this Part--
"application period", in relation to a disclosure
5
document issued by a society relating to the
provison of benefits, means--
(a) if, under the terms of the disclosure
document, applications for
contributions to a benefit fund must be
10
made before a particular time (which
may, for example, be a specified time
or a time to be determined by the
society, but which must not be more
than 12 months after the issue of the
15
disclosure document or such longer
period as the SSA allows), the period
starting when the disclosure document
is issued and ending at that time; or
(b) in any other case, the period of 12
20
months starting when the disclosure
document is issued;
"exempt person" means a person who is an
exempt dealer or an exempt investment
adviser under section 68 of the Corporations
25
Law, and any person who is acting as a
representative of the exempt dealer or
exempt investment adviser in connection
with the business of dealing in benefits or the
benefits advisory business;
30
"licensed adviser" means a person who holds an
investment advisers licence granted under
Part 7.3 of the Corporations Law;
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"licensed dealer" means a person who holds a
dealers licence granted under Part 7.3 of the
Corporations Law;
"proper authority"--
(a) of a licensed dealer is a proper authority
5
granted under Division 3 of Part 7.3 of
the Corporations Law;
(b) of a licensed adviser is a proper
authority granted under Division 3 of
Part 7.3 of the Corporations Law;
10
(c) of a society is a proper authority
granted by the society under
Subdivision 3 of Division 4 of this
Code.
127. Benefits advisors business
15
A reference in this Part to a benefits advisory
business, in relation to a person, is a reference
to--
(a) a business of advising other persons about
benefits; or
20
(b) a business in the course of which the person
publishes reports relating to benefits.
128. Application of this Part
This Part applies to benefits from a benefit fund,
other than--
25
(a) a benefit fund that is a health benefits fund
under the National Health Act 1953 of the
Commonwealth; or
(b) a benefit fund that is a superannuation entity
within the meaning of the Superannuation
30
Industry (Supervision) Act 1993 of the
Commonwealth.
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129. Actuarial advice
A society must not provide benefits of a kind
specified in the standards as requiring actuarial
advice unless the society's actuary has given the
society written advice about--
5
(a) the proposed terms and conditions on which
benefits of that kind are to be provided; and
(b) in the case of benefits with a surrender value,
the proposed basis on which the surrender
value is to be determined; and
10
(c) if the benefits are to be calculated by
reference to units, the proposed means by
which the unit values are to be determined;
and
(d) any other matters about which the standards
15
require a society to obtain actuarial advice
before providing benefits of that kind.
130. Representatives
(1) Subject to sub-section (2), a person is a
representative of another person if the first-
20
mentioned person--
(a) is employed by; or
(b) acts for or by arrangement with--
the other person in connection with a
business of dealing in benefits or a benefits
25
advisory business carried on by the other person.
(2) Except for the purposes of section 184(b), a
person who holds a proper authority from another
person is a representative of the other person.
(3) Subject to sub-section (4), a person does an act, or
30
engages in conduct, as a representative of another
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person if the first-mentioned person does the act
or engages in the conduct--
(a) in connection with a business of dealing in
benefits or a benefits advisory business
carried on by the other person; and
5
(b) while the first-mentioned person is a
representative of the other person; and
(c) employee or agent of, or otherwise on behalf
of, on account of, or for the benefit of, the
other person; and
10
(d) otherwise than in the course of work of a
kind ordinarily done by accountants, clerks
or cashiers.
(4) Except for the purposes of Subdivision 4 of
Division 4, a person who holds himself or herself
15
out to be a representative of another person does
an act as a representative of the other person.
131. Involvement in contraventions
Subject to section 163, a person is involved in a
contravention if the person--
20
(a) has aided, abetted, counselled or procured
the contravention; or
(b) has induced, whether by threats or promises
or otherwise, the contravention; or
(c) has been in any way, by act or omission,
25
directly or indirectly, knowingly concerned
in, or party to, the contravention; or
(d) has conspired with others to effect the
contravention.
132. Conduct
30
(1) A reference in this Part to engaging in conduct is a
reference to doing or refusing to do any act,
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including the making of, or the giving effect to a
provision of, an agreement.
(2) A reference in this Part to conduct, when that
expression is used as a noun otherwise than as
mentioned in sub-section (1), is a reference to the
5
doing of, or the refusing to do, any act, including
the making of, or the giving effect to a provision
of, an agreement.
(3) Where, in a proceeding under this Part in respect
of conduct engaged in by a body corporate, it is
10
necessary to establish the state of mind of the
body, it is sufficient to show that a director,
servant or agent of the body, being a director,
servant or agent by whom the conduct was
engaged in within the scope of the person's actual
15
or apparent authority, had that state of mind.
(4) Conduct engaged in on behalf of a body
corporate--
(a) by a director, servant or agent of the body
within the scope of the person's actual or
20
apparent authority; or
(b) by any other person at the direction or with
the consent or agreement (whether express or
implied) of a director, servant or agent of the
body, where the giving of the direction,
25
consent or agreement is within the scope of
the actual or apparent authority of the
director, servant or agent--
is deemed to have been engaged in also by the
body corporate.
30
(5) Where, in a proceeding under this Part in respect
of conduct engaged in by a person other than a
body corporate, it is necessary to establish the
state of mind of the person, it is sufficient to show
that a servant or agent of the person, being a
35
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servant or agent by whom the conduct was
engaged in within the scope of the servant's or
agent's actual or apparent authority, had that state
of mind.
(6) Conduct engaged in on behalf of a person other
5
than a body corporate--
(a) by a servant or agent of the person within the
scope of the actual or apparent authority of
the servant or agent; or
(b) by any other person at the direction or with
10
the consent or agreement (whether express or
implied) of a servant or agent of the first-
mentioned person, where the giving of the
direction, consent or agreement is within the
scope of the actual or apparent authority of
15
the servant or agent--
is deemed to have been engaged in also by the
first-mentioned person.
(7) A reference in this section to the state of mind of a
person includes a reference to the knowledge,
20
intention, opinion, belief or purpose of the person
and the person's reasons for the person's intention,
opinion, belief or purpose.
133. References to doing acts
In this Part, unless the contrary intention appears,
25
a reference to doing any act or thing includes a
reference to causing, permitting or authorising the
act or thing to be done.
134. Misleading representation
(1) When a person makes a representation with
30
respect to any future matter (including the doing
of, or the refusing to do, any act) and the person
does not have reasonable grounds for making the
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representation, the representation is to be taken to
be misleading.
(2) For the purposes of the application of sub-section
(1) in relation to a proceeding concerning a
representation made by a person with respect to
5
any future matter, the person is, unless the person
adduces evidence to the contrary, deemed not to
have had reasonable grounds for making the
representation.
(3) Sub-section (1) is deemed not to limit by
10
implication the meaning of a reference to a
misleading representation, a representation that is
misleading in a material particular or conduct that
is misleading or is likely or liable to mislead.
Division 2--Disclosure Documents and Application Forms
15
135. Disclosure document to be lodged
(1) A person must not--
(a) issue an invitation to contribute to, or accept
a contribution to, a benefit fund of a society;
(b) issue an application form for further benefits,
20
or accept further contributions to, a benefit
fund of a society;
(c) issue an application form for making
contributions to, or accept contributions to, a
benefit fund of a society--
25
unless a disclosure document relating to that
benefit fund and that complies with this Division
has been lodged with the SSA within the
preceding 12 months.
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(2) A person must not--
(a) issue an invitation to contribute to, or accept
a contribution to, a benefit fund of a foreign
society;
(b) issue an application form for further benefits,
5
or accept further contributions to, a benefit
fund of a foreign society;
(c) issue an application form for making
contributions to, or accept contributions to, a
benefit fund of a foreign society--
10
unless a disclosure document relating to that
benefit fund and that complies with this Division
has been lodged, within the preceding 12 months,
with the SSA of the State (other than this State) in
which the foreign society is registered as a society.
15
Penalty applying to this section: $20 000 or
imprisonment for 5 years or both.
136. Application form
A person must not issue a form of application for
benefits or for making contributions to a benefit
20
fund of a society unless--
(a) the form is attached to a disclosure
document; and
(b) a copy of the form and disclosure document
have been lodged with the SSA.
25
Maximum Penalty: $20 000 or imprisonment for 5
years or both.
137. Form of disclosure document and date of issue
(1) A disclosure document--
(a) must be printed in type of a size not less than
30
the type known as 8 point unless the
standards otherwise provide;
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(b) must be dated;
(c) must be signed by each director of the
society and by each person named in the
document as a proposed director of the
society or by a person authorised in writing
5
by the director or proposed director to sign
on his or her behalf;
(d) must contain a statement that an arrangement
for the provision of a benefit to which the
document relates will not be entered into
10
later than 12 months after the date of issue of
the document;
(e) must contain any other information required
by the standards to be included in the
document.
15
(2) The date of issue of a disclosure document is the
date inserted in it under sub-section (1)(b), unless
the contrary is proved.
(3) Each copy of a disclosure document--
(a) must state that the document has been lodged
20
with the SSA of the State in which the
society, or foreign society, is registered as a
society;
(b) must specify the date of lodgment;
(c) must state that the SSA with which it is
25
lodged takes no responsibility as to the
contents of the document.
138. Disclosure of interests
A disclosure document must specify the nature
and extent of any interest that a director or
30
proposed director of a society or an expert has in
respect of--
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(a) the assets of the benefit fund to which the
document relates;
(b) benefits of the kind to which the document
relates and in respect of which an
entitlement, other than an entitlement
5
available on the same terms and conditions
to other members of the benefit fund, is
available.
139. Liability in respect of disclosure document and
interests
10
(1) If a requirement of section 137 or 138 is
contravened, a director or other person responsible
for, or involved in the preparation of, the
disclosure document does not incur any liability
by reason of the contravention if it is proved
15
that--
(a) as regards any matter omitted, the person had
no knowledge of the matter; or
(b) the contravention arose from an honest
mistake on the part of the person concerning
20
the facts; or
(c) the contravention was--
(i) in respect of matter that, in the opinion
of the court dealing with the case, was
immaterial; or
25
(ii) otherwise such as, in the opinion of the
court, having regard to all the
circumstances of the case, ought
reasonably to be excused.
(2) If there is a failure to include in a disclosure
30
document a statement with respect to matters
referred to in section 138, a director or other
person does not have any liability in respect of the
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failure unless it is proved that the director or other
person had knowledge of the matters not included.
(3) Nothing in this section limits or diminishes any
liability that a person might incur under any rule
of law or any enactment or under this Code apart
5
from this section.
140. Content of disclosure document
(1) A disclosure document must contain such
information as persons and their professional
advisers would reasonably require, and reasonably
10
expect to find in the document, for the purpose of
making an informed assessment of benefits of the
kind to which the document relates including--
(a) the assets and liabilities, financial position,
profits and losses, and prospects of, or
15
referable to, the benefit fund from which the
benefits would derive;
(b) the rights attaching to the benefits to which
the disclosure document relates.
(2) In determining what information is required to be
20
included in a disclosure document, regard must be
had to--
(a) the nature of the benefits and the society;
(b) the kinds of persons likely to consider
applying to contribute to the benefit fund
25
from which the benefits would derive;
(c) the fact that certain matters may reasonably
be expected to be known to professional
advisers of any kind whom those persons
may reasonably be expected to consult;
30
(d) whether the persons to whom the invitation
or application form is to be issued are
members of the society and, if they are, the
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extent to which relevant information has
previously been given to them by the society;
(e) any information known to the persons to
whom the invitation or application form is to
be issued or their professional advisers under
5
any Act of the Commonwealth or a State.
141. Conditions requiring waiver of requirements void
A condition is void if it--
(a) requires or binds a person applying to
contribute to a benefit fund has been issued
10
to waive compliance with any requirement of
section 137, 138, 139 or 140; or
(b) purports to affect that person with notice of
any contract, document or matter not
specifically referred to in the disclosure
15
document.
142. Obligation to notify society of false etc statements
(1) If a disclosure document has been lodged and a
person (other than the society) who--
(a) is referred to in section 163(2); or
20
(b) authorised or caused the issue of the
disclosure document--
becomes aware of a relevant matter during the
application period in relation to the disclosure
document, the person must, as soon as practicable
25
after becoming so aware, give the society written
notice of the matter.
Maximum penalty: $5000 or imprisonment for 12
months, or both.
(2) In sub-section (1), "relevant matter" in relation
30
to a disclosure document means--
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(a) a material statement in the disclosure
document that is false or misleading; or
(b) a material omission from the disclosure
document; or
(c) a significant change affecting a matter
5
included in the disclosure document; or
(d) a significant new matter about which
information would have been required by
this Division to be included in the disclosure
document if the matter had arisen when the
10
disclosure document was prepared.
143. Correction of false or misleading statements etc by a
supplementary or replacement disclosure document
(1) This section applies if a disclosure document has
been lodged and the society becomes aware,
15
during the application period in relation to the
disclosure document, that the disclosure document
is deficient because--
(a) it contains a material statement that is false
or misleading; or
20
(b) there is a material omission from the
disclosure document.
(2) As soon as practicable after becoming so aware,
the society must lodge a supplementary disclosure
document or a replacement disclosure document
25
that corrects the deficiency and that complies with
whichever of sections 145 and 146 applies.
Maximum penalty: $20 000 or imprisonment for
5 years, or both.
144. Changes or new matters requiring the issue of a
30
supplementary or replacement disclosure document
(1) This section applies if a disclosure document has
been lodged and the society becomes aware,
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during the application period in relation to the
disclosure document, that--
(a) there has been a significant change affecting
a matter included in the disclosure
document; or
5
(b) a significant new matter has arisen the
inclusion in the disclosure document of
information about which would have been
required by this Division if the matter had
arisen when the disclosure document was
10
prepared.
(2) As soon as practicable after becoming so aware,
the society must lodge a supplementary or a
replacement disclosure document that contains
particulars of the change or new matter and that
15
complies with whichever of sections 145 and 146
applies.
Maximum penalty: $20 000 or imprisonment for
5 years, or both.
145. General provisions about supplementary disclosure
20
documents
(1) A supplementary disclosure document is a
document the purpose of which is to do either or
both of the following in relation to a disclosure
document (the "original disclosure document")--
25
(a) correct a deficiency in the disclosure
document;
(b) provide particulars about something that has
occurred since the disclosure document was
prepared.
30
(2) On each page of a supplementary disclosure
document there must be a clear statement in bold
type that states that the document is a
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supplementary disclosure document that is to be
read in conjunction with--
(a) the original disclosure document; and
(b) if other supplementary disclosure documents
have already been issued in relation to the
5
original disclosure document, those
supplementary disclosure documents.
(3) The statement must clearly identify--
(a) the original disclosure document; and
(b) if sub-section (2)(b) applies, the
10
supplementary disclosure documents to
which that sub-section refers.
(4) Unless the context otherwise requires, a reference
to a disclosure document in any of the provisions
referred to in the following provisions includes a
15
reference to a supplementary disclosure
document--
(a) sections 159, 160 and 161;
(b) sections 163 to 176;
(c) sections 137(1)(a), (b) and (c), (2) and (3)
20
and 139;
(d) sections 142, 150, 155, 156 and 157.
(5) In this section--
"deficiency", in relation to a disclosure
document, includes, but is not limited to--
25
(a) a material statement in the disclosure
document that is false or misleading; or
(b) a material omission from the disclosure
document.
146. General provisions about replacement disclosure
30
documents
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(1) A replacement disclosure document is a document
the purpose of which is to replace a disclosure
document (the "original disclosure document")
and which may also do either or both of the
following--
5
(a) correct a deficiency in the original disclosure
document;
(b) provide particulars about something that has
occurred since the original disclosure
document was prepared.
10
(2) On each page of a replacement disclosure
document there must be a clear statement in bold
type that identifies the original disclosure
document and states that the document is a
replacement disclosure document that replaces the
15
original disclosure document.
(3) Subject to sub-section (2), a replacement
disclosure document must have the same wording
as the original disclosure document, except to the
extent that it--
20
(a) corrects a deficiency in the original
disclosure document; or
(b) provides particulars about something that has
occurred since the original disclosure
document was issued.
25
(4) In this section--
"deficiency" in relation to a disclosure document,
includes, but is not limited to--
(a) a material statement in the disclosure
document that is false or misleading; or
30
(b) a material omission from the disclosure
document.
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147. Consequences of lodging a supplementary disclosure
document
(1) This section applies if a supplementary disclosure
document has been lodged.
(2) Subject to sub-section (4), for the purposes of this
5
Code, the information in the supplementary
disclosure document is taken, except in relation to
things that happened before it was lodged, to be
included in the original disclosure document.
(3) Every copy of the original disclosure document
10
issued after lodgment of the supplementary
disclosure document must be attached to, or
accompanied by, a copy of the supplementary
disclosure document.
Maximum penalty: $20 000 or imprisonment for 5
15
years, or both.
(4) If sub-section (3) is contravened in relation to a
copy of the original disclosure document, sub-
section (2) does not apply for the purposes of an
action under section 162 in relation to that copy.
20
(5) In this section--
"original disclosure document" means the
disclosure document identified in the
supplementary disclosure document as
required by section 145(3)(a).
25
148. Consequences of lodging a replacement disclosure
document
(1) This section applies if a replacement disclosure
document has been lodged.
(2) A copy of the original disclosure document must
30
not be issued after lodgment of the replacement
disclosure document.
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Maximum penalty: $20 000 or imprisonment for 5
years, or both.
(3) The replacement disclosure document is a
disclosure document in its own right for the
purposes of this Code, but it is taken to have been
5
issued when the original disclosure document was
issued.
(4) The parts of the replacement disclosure document
that are the same as the original disclosure
document are taken to comply with the
10
requirements of this Division, but only to the
extent to which those parts of the original
disclosure document in fact complied with those
requirements.
(5) In this section--
15
"original disclosure document" means the
disclosure document identified in the
replacement disclosure document as required
by section 146(2).
149. Application made on out of date application form
20
(1) For the purposes of this section, an application
form is current unless--
(a) since the form was issued, a supplementary
disclosure document or a replacement
disclosure document that relates to the
25
disclosure document to which the form
relates has been issued; or
(b) because of section 151(2), the form is no
longer current for the purposes of section
151.
30
(2) This section applies if--
(a) a person applies to contribute to a benefit
fund of a society pursuant to a disclosure
document (the "original disclosure
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document") during the application period in
relation to the disclosure document; and
(b) the application form used to make the
application is not current when it is received
by the society.
5
(3) As soon as practicable after receiving the
application, the society must give the person a
written notice--
(a) that advises the person that the application
form used was not current; and
10
(b) that states which of options 1 and 2 specified
in sub-sections (4) and (5) the society is
going to follow, and explains that option;
and
(c) that is accompanied by--
15
(i) if a replacement disclosure document
has been issued, a copy of the most
recently issued replacement disclosure
document, a copy of each issued
supplementary disclosure document (if
20
any) that relates to it, and a current
application form that relates to it; or
(ii) if sub-paragraph (i) does not apply, a
copy of each supplementary disclosure
document (if any) that relates to the
25
original disclosure document and that
was issued after the application form
was issued, and a current application
form that relates to the original
disclosure document.
30
(4) Option 1 requires the society--
(a) to treat the application as having been
withdrawn; and
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(b) at the same time as it gives the person the
notice, or as soon as practicable afterwards,
to pay to the person, in accordance with the
requirements (if any) of the standards--
(i) any money the person has paid to the
5
society on account of the provision of
the benefits; and
(ii) any interest that has accrued in respect
of that money.
(5) Option 2 requires the society--
10
(a) at the same time as it gives the person the
notice, or as soon as practicable afterwards,
to provide the benefits to the person pursuant
to the application and pay any money
received into the relevant benefit fund; and
15
(b) if, since the application form used to make
the application was issued, a material
adverse change (as defined in sub-section
(6)) has occurred in relation to the provision
of benefits, to give the person a reasonable
20
opportunity to surrender the benefits and
obtain a payment as mentioned in paragraph
(c); and
(c) if paragraph (b) applies and the person takes
advantage of that opportunity and surrenders
25
the benefits, to pay to the person, in
accordance with the requirements (if any) of
the standards--
(i) any money the person has paid to the
society on account of the provision of
30
the benefits; and
(ii) any interest that has accrued in respect
of that money.
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(6) For the purposes of sub-section (5), a material
adverse change occurs in relation to the provision
of benefits if a change occurs, or a new matter
arises, that is likely to have a material adverse
effect on the ability of the society to meet the
5
obligations to provide the benefits.
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(7) The society must act in accordance with the option
specified in the notice.
Maximum penalty: $2500 or imprisonment for 6
months, or both.
(8) In this section--
5
"application form" means a form of application
to contribute to a benefit fund;
"disclosure document to which the form
relates", in relation to an application form
that has been issued, means the disclosure
10
document to which the form is or was
attached.
150. Inclusion of documents in disclosure documents by
reference
(1) For the purposes of this Code, other than sections
15
137, 138 and 139, a disclosure document is taken
to include a document, or part of a document, as
the case requires, if the disclosure document--
(a) refers to a document lodged under this Code
or a corresponding previous law, being a
20
document in existence at or before the
lodgment of the disclosure document; and
(b) includes a summary of the document or of a
part of it; and
(c) includes a statement to the effect that the
25
society will provide a copy of the document,
or of the part, as the case requires, free of
charge, to a person who asks for it during the
application period in relation to the
disclosure document.
30
(2) The society must comply with a statement
included in the disclosure document in accordance
with sub-section (1)(c).
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151. Disclosure document referring to information set out
in current application form
(1) This section applies if--
(a) a disclosure document has been lodged; and
(b) the disclosure document states that specified
5
information (the "incorporated information")
is to be set out in an application form; and
(c) a copy of such a form (the "relevant form")
has also been lodged.
(2) For the purposes of this section, the relevant form
10
is current from the time when the copy was lodged
until the next time (if any) when a copy of a form
of the kind referred to in sub-section (1)(b) is
lodged.
(3) Subject to sub-section (5), for the purposes of this
15
Code, the incorporated information, as set out in
the relevant form, is taken to be included in the
disclosure document while the relevant form is
current.
(4) Each copy of the disclosure document that is
20
issued while the relevant form is current must
have attached to it the relevant form or a copy of
it.
Maximum penalty: $20 000 or imprisonment for 5
years, or both.
25
(5) If sub-section (4) is contravened in relation to a
copy of the disclosure document, sub-section (3)
does not apply for the purposes of an action under
section 162 in relation to that copy.
(6) Unless the context otherwise requires, a reference
30
to a disclosure document in any of the provisions
referred to in the following provisions includes a
reference to the relevant form while it is or was
current--
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(a) sections 159, 160 and 161;
(b) sections 163 to 170;
(c) sections 137(1)(a) and (b) and (2) and
139(1);
(d) sections 142, 150, 155, 156 and 157.
5
(7) The relevant form, or a copy of it, must not be
issued when the relevant form is no longer current.
Maximum penalty applying to sub-section (7):
$20 000 or imprisonment for 5 years, or both.
152. Certain notices etc not to be published
10
(1) In this section--
"notice" does not include a disclosure document
that has been lodged or a report, statement or
notice the publication of which is permitted
under section 153.
15
(2) Nothing in this Part prohibits the publishing of a
notice that--
(a) is published by the person who issued the
disclosure document concerned, or by a
licensed adviser or licensed dealer or an
20
exempt person within the meaning of section
126; and
(b) states that a disclosure document has been
lodged; and
(c) specifies the date of the disclosure document;
25
and
(d) states where a copy of the disclosure
document can be obtained; and
(e) states that benefits to which the disclosure
document relates will be provided only on
30
receipt of a form of application referred to in
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and attached to a copy of the disclosure
document.
(3) Except as provided by sub-section (2), a person
must not publish a notice that--
(a) invites any person to apply to contribute to a
5
benefit fund;
(b) refers or calls attention, whether directly or
indirectly--
(i) to a disclosure document relating to a
benefit fund; or
10
(ii) to an invitation or proposed invitation
to apply to contribute to a benefit fund;
or
(iii) to another notice that refers or calls
attention to a disclosure document
15
relating to a benefit fund or an
invitation or proposed invitation to
apply to contribute to a benefit fund,
not being a notice referred to in sub-
section (2).
20
Maximum penalty applying to sub-section (3):
$2500 or imprisonment for 6 months, or both.
153. Certain reports referring to disclosure documents not
to be published
(1) In this section, unless the contrary intention
25
appears--
"report" includes a statement or notice, whether
or not in writing, but does not include a
notice the publication of which is permitted
under section 152.
30
(2) Nothing in this Part prohibits the publishing of--
(a) a report by a society or any of its officers or
agents that--
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(i) is required by law; or
(ii) is permitted by the SSA; or
(b) a report that is a news report (whether or not
with other comment), or is genuine
comment, published by a person in a
5
newspaper or periodical or by broadcasting
or televising relating to--
(i) a disclosure document that has been
lodged or information contained in such
a disclosure document; or
10
(ii) a report referred to in paragraph (a)--
if none of the following--
(iii) that person;
(iv) an agent or employee of that person;
(v) where the report or comment is
15
published in a newspaper or periodical,
the publisher of the newspaper or
periodical; or
(vi) where the report or comment is
published by broadcasting or televising,
20
the licensee of the broadcasting or
television station by which it is
published--
receives or is entitled to receive any
consideration or other advantage from a
25
person who has an interest in the success of
the invitation to which the report or comment
relates as an inducement to publish, or as the
result of the publication of, the report or
comment; or
30
(c) a report where the report is not published--
(i) by or on behalf of a society to which the
report relates or, whether directly or
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indirectly, at the instigation of, or by
arrangement with, the society or its
directors; or
(ii) by or on behalf of a person who has an
interest in the success of the invitation
5
to which the report relates--
and the person publishing the report does
not receive and is not entitled to receive any
consideration or other advantage from the
society or any of its directors, or from a
10
person mentioned in sub-paragraph (ii), as an
inducement to publish, or as the result of the
publication of, the report.
(3) Except as provided by sub-section (2), a person
who is aware that a disclosure document--
15
(a) is in the course of preparation by or on behalf
of a society; or
(b) has been issued by or on behalf of a
society--
must not publish a report that is reasonably likely
20
to induce persons to apply to contribute to a
benefit fund of the kind to which the disclosure
document relates.
Maximum penalty applying to sub-section (3):
$2500 or imprisonment for 6 months, or both.
25
154. Evidentiary provisions etc.
(1) In this section--
"notice" means a notice within the meaning of
section 152;
"report" means a report within the meaning of
30
section 153.
(2) A person who publishes a notice or report relating
to a society after receiving a certificate that--
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(a) specifies the names of 2 directors of the
society and is signed by those directors; and
(b) is to the effect that, because of sections
152(2) or 153(2), sections 152(3) or 153(3),
as the case requires, do not apply to the
5
notice or report--
does not contravene sub-section 152(3) or 153(3),
as the case requires.
(3) Where a notice or report to which a certificate
under sub-section (2) relates is published, each
10
director who signed that certificate, for the
purposes of sections 152 and 153, is deemed to
have published the notice or report.
(4) A person who publishes a notice or report to
which a certificate under sub-section (2) relates
15
must, if the SSA requires the person to do so,
deliver the certificate to the SSA as soon as
practicable.
Maximum penalty: $1000 or imprisonment for 3
months, or both.
20
(5) In proceedings for a contravention of section 152
or 153 a certificate relating to a notice or report
that purports to be a certificate under this section
is evidence, unless evidence to the contrary is
adduced, that--
25
(a) when the certificate was issued, the persons
named in the certificate as directors of the
society were the directors; and
(b) the signatures in the certificate purporting to
be the signatures of the directors are those
30
signatures; and
(c) the publication of the notice was authorised
by those directors.
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(6) Nothing in section 152 or 153 or this section
limits or diminishes the liability that a person may
incur, otherwise than under section 152 or 153 or
this section, under any rule of law or under any
other enactment.
5
155. Documents to be kept
A society that has lodged, or caused to be lodged,
a disclosure document with the SSA must cause--
(a) a true copy, verified by a statement in
writing, of any consent required by section
10
156 to the issue of the disclosure document;
and
(b) a true copy, verified by a statement in
writing, of every material contract referred to
in the disclosure document or, in the case of
15
such a contract that is not reduced to writing,
a memorandum, verified by a statement in
writing, giving full particulars of the
contract--
to be deposited, within 7 days after lodgment of
20
the disclosure document, at the registered office of
the society and must keep each such copy for a
period of at least 12 months after the lodgment of
the disclosure document for inspection by any
person without charge.
25
156. Expert's consent to issue of disclosure document
containing statement by the expert
A person must not issue a disclosure document
that includes a statement purporting to be made by
an expert or to be based on a statement made by
30
an expert unless--
(a) the expert has given, and has not, before
lodgment of the disclosure document,
withdrawn, the expert's written consent to the
issue of the disclosure document with the
35
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statement included in the form and context in
which it is included; and
(b) there appears in the disclosure document a
statement that the expert has given, and has
not withdrawn, the expert's consent.
5
Maximum penalty: $2500 or imprisonment for 6
months, or both.
157. Direction not to accept contributions
(1) Where it appears to the SSA with which a
disclosure document is lodged that any of the
10
circumstances referred to in sub-section (2) exist
in respect of the disclosure document, the SSA
may, by order in writing served on the person by
whom the disclosure document was lodged, direct
the society not to--
15
(a) issue an invitation to contribute to the benefit
fund to which the disclosure document
relates;
(b) accept a contribution to that benefit fund.
(2) The circumstances are--
20
(a) the disclosure document contravenes in a
substantial respect any of the requirements of
this Division;
(b) the disclosure document contains a
statement, promise, estimate or forecast that
25
is false, misleading or deceptive;
(c) the disclosure document contains a material
misrepresentation.
(3) Subject to this section, the SSA must not make an
order under sub-section (1) unless the SSA has
30
held a hearing and given a reasonable opportunity
to any interested persons to make oral or written
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submissions to the SSA on the question whether
such an order should be made.
(4) If the SSA considers that any delay in making an
order under sub-section (1) pending the holding of
a hearing would be prejudicial to the public
5
interest, the SSA may make an interim order or
interim orders under that sub-section without
holding a hearing.
(5) Subject to sub-section (6), an interim order, unless
sooner revoked, has effect until the end of 21 days
10
after the day on which it is made.
(6) At any time during the hearing, the SSA may
make an interim order under sub-section (1) that is
expressed to have effect until the SSA makes a
final order after the conclusion of the hearing or
15
until the interim order is revoked, whichever first
happens.
(7) While an order is in force under this section--
(a) this Division applies as if the disclosure
document had not been lodged; and
20
(b) a person is not entitled to lodge a further
disclosure document in relation to the
relevant benefit fund, other than a
supplementary disclosure document or a
replacement disclosure document.
25
(8) If, while an order is in force under this section, the
SSA becomes satisfied that, whether because of
the lodgment of a supplementary disclosure
document or replacement disclosure document or
otherwise, the circumstances that resulted in the
30
making of the order no longer exist, the SSA may,
by further order in writing, revoke the first-
mentioned order.
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158. Exemptions and modifications
(1) The SSA with which a disclosure document is
lodged or, but for this section, would have been
lodged, may, by writing, exempt a particular
person or persons or a particular class of persons,
5
either generally or as otherwise provided in the
exemption, and either unconditionally or subject
to such conditions (if any) as are specified in the
exemption, from compliance with all or any of the
provisions of--
10
(a) this Division; and
(b) any standards made for the purposes of this
Division.
(2) Without limiting the generality of sub-section (1),
an exemption under that sub-section may relate to
15
particular benefits or to a particular class of
benefits.
(3) A person must not contravene a condition to
which an exemption under sub-section (1) is
subject.
20
(4) Where a person has contravened a condition to
which an exemption under sub-section (1) is
subject, the Court may, on the application of the
SSA, order the person to comply with the
condition.
25
(5) The SSA may, by writing, declare that this
Division and the standards have effect in their
application in relation to a particular person or
persons, or a particular class of persons, either
generally or otherwise as provided in the
30
declaration as if a specified provision or
provisions of this Division or of those standards
were omitted, modified or varied in a manner
specified in the declaration, and, where such a
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declaration is made, this Division and those
standards have effect accordingly.
(6) Without limiting the generality of sub-section (5),
a declaration under that sub-section may relate to
particular benefits or a particular class of benefits.
5
(7) The SSA must cause a copy of an exemption or
declaration under this section to be published in
the Gazette.
Division 3--Prohibited Conduct and Civil Liability
159. Statement in a disclosure document
10
For the purposes of this Division, a statement is
taken to be in a disclosure document if it is--
(a) contained in a report or memorandum that
appears on the face of the disclosure
document; or
15
(b) contained in a report or memorandum that is
issued with the disclosure document with the
consent or knowledge of a person who
authorised or caused the issue of the
disclosure document; or
20
(c) incorporated by reference in the disclosure
document, whether the reference occurs in
the disclosure document or in any other
document.
160. Misleading or deceptive conduct
25
(1) A person must not engage in conduct that is
misleading or deceptive or is likely to mislead or
deceive, being conduct in or in connection with--
(a) any dealing in benefits; or
(b) without limiting the generality of paragraph
30
(a), any disclosure document issued, or
notice published, in relation to benefits.
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(2) A person who contravenes this section is not
guilty of an offence.
(3) Nothing in this Division or Division 2 is to be
taken as limiting by implication the generality of
sub-section (2).
5
161. Mis-statements and omissions in disclosure
documents
(1) A person must not authorise or cause the issue of a
disclosure document in relation to benefits if--
(a) the disclosure document has been, or is
10
required to be, lodged under Division 2; and
(b) either--
(i) a material statement in the disclosure
document is false or misleading; or
(ii) there is a material omission from the
15
disclosure document.
Maximum penalty: $20 000 or imprisonment for
5 years, or both.
(2) It is a defence to a prosecution for a contravention
of sub-section (1) if it is proved--
20
(a) that the defendant, after making such
inquiries (if any) as were reasonable, had
reasonable grounds to believe, and did until
the time of the issue of the disclosure
document believe, that the statement was
25
true and not misleading or the omission was
not material; or
(b) where there was an omission from the
disclosure document, that the omission was
inadvertent.
30
(3) A person does not contravene this section merely
because the person gave a consent required by this
Part to the inclusion in the disclosure document of
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a statement purporting to be made by the person as
an expert.
162. Civil liability for contravention of this Division or
Division 2
(1) Subject to the following sections of this Division,
5
a person who suffers loss or damage by conduct of
another person that was engaged in in
contravention of a provision of this Division or
Division 2 may recover the amount of the loss or
damage by action against that other person or
10
against any person involved in the contravention,
whether or not that other person or any person
involved in the contravention has been convicted
of an offence in respect of the contravention.
(2) An action under sub-section (1) may be begun at
15
any time within 6 years after the day on which the
cause of action arose.
(3) This Division does not affect any liability that a
person has under any other law.
(4) In a proceeding under this Division in relation to a
20
contravention of this Division or Division 2
committed by the publication of an advertisement,
it is a defence if it is proved that the defendant is a
person whose business it is to publish or arrange
for the publication of advertisements and that the
25
person received the advertisement for publication
in the ordinary course of business and did not
know and had no reason to suspect that its
publication would amount to a contravention of a
provision of this Division or Division 2.
30
163. Civil liability for false or misleading statement in, or
omission from, a disclosure document
(1) This section applies for the purposes of an action
under section 162 in respect of conduct being the
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issue of a disclosure document in relation to
benefits--
(a) in which there is a material statement that is
false or misleading; or
(b) from which there is a material omission.
5
(2) The reference in section 162(1) to any person
involved in the contravention includes a reference
to all or any of the following persons--
(a) the society;
(b) a person who was a director of the society at
10
the time of the issue of the disclosure
document;
(c) a person who authorised or caused himself or
herself to be named, and is named, in the
disclosure document as a director of the
15
society or as having agreed to become a
director of the society either immediately or
after an interval of time;
(d) if the disclosure document includes a
statement that purports to be, or to be based
20
on, a statement made by an expert and the
expert gave consent under section 156 to the
issue of the disclosure document, that expert;
(e) a person named, with the consent of the
person, in the disclosure document as an
25
auditor, actuary, banker or solicitor of the
society or for or in relation to benefits or
proposed benefits;
(f) a person named, with the consent of the
person, in the disclosure document as having
30
performed or performing any function in a
professional, advisory or other capacity not
mentioned in paragraph (d) or (e) for the
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society or for or in relation to benefits or
proposed benefits.
164. No liability to person with knowledge of relevant
matter
A person referred to in section 163(2), or a person
5
who authorised or caused the issue of the
disclosure document, is not liable in an action
under section 162 to a person who suffered loss or
damage as a result of a false or misleading
statement in, or an omission from, the disclosure
10
document if it is proved that, when the last-
mentioned person applied for benefits to which
the disclosure document relates, that person knew
that the statement was false or misleading or was
aware of the omitted matter.
15
165. Non-consenting directors not liable
(1) A person referred to in section 163(2)(b) or (c) is
not, in the circumstances set out in this section,
liable in an action under section 162 to a person
who suffered loss or damage as a result of a false
20
or misleading statement in, or an omission from,
the disclosure document.
(2) If the person is a person referred to in section
163(2)(c), the person is not liable if it is proved
that, having consented to become a director of the
25
society, the person withdrew the consent before
the issue of the disclosure document, and that it
was issued without the person's authority or
consent.
(3) The person is not liable if it is proved that the
30
disclosure document was issued without the
person's knowledge or consent and--
(a) as soon as practicable after the person
became aware of the issue of the disclosure
document, the person gave reasonable public
35
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notice that it was issued without the person's
knowledge; or
(b) as soon as practicable after the disclosure
document was issued, the person gave
reasonable public notice that the disclosure
5
document was issued without the person's
consent--
as the case requires.
(4) The person is not liable if it is proved that, after
the issue of the disclosure document and before
10
receiving any contributions in relation to benefits
under the disclosure document, the person, on
becoming aware of any false or misleading
statement in, or omission from, the disclosure
document, withdrew the person's consent to the
15
issue of the disclosure document and gave
reasonable public notice of the withdrawal and of
the reason for the withdrawal.
166. Directors not liable where they have reasonable
grounds for believing disclosure document to be
20
correct
(1) A person referred to in section 163(2)(b) or (c) is
not, in the circumstances set out in this section,
liable in an action under section 162 to a person
who suffered loss or damage as a result of--
25
(a) a false or misleading statement (in this
section called the "defective statement") in
the disclosure document; or
(b) an omission from a statement (in this section
also called the "defective statement") in the
30
disclosure document.
(2) If the defective statement--
(a) purports to be, or to be based on, a statement
made by an expert; or
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(b) is contained in what purports to be a copy of,
or extract from, a report or valuation of an
expert--
the person is not liable if it is proved that--
(c) the defective statement fairly represented the
5
statement referred to in paragraph (a), or the
purported copy or extract was a correct and
fair copy of, or extract from, the report or
valuation, as the case requires; and
(d) the person, after making such inquiries (if
10
any) as were reasonable, had reasonable
grounds to believe, and did believe until the
time of the provision of the benefits, that the
person who made the statement referred to in
paragraph (a), or who made the report or
15
valuation, as the case requires--
(i) was competent to make it; and
(ii) had given the consent required by
section 156 to the issue of the
disclosure document; and
20
(iii) had not withdrawn that consent.
(3) If the defective statement--
(a) purports to be a statement made by an
official person; or
(b) is contained in what purports to be a copy of,
25
or extract from, a public official document--
the person is not liable if it is proved that the
defective statement fairly represented the
statement referred to in paragraph (a), or that the
purported copy or extract was a correct and fair
30
copy of, or extract from, the document, as the case
requires.
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(4) If none of sub-sections (2)(a) and (b) and (3)(a)
and (b) applies in relation to the defective
statement, the person is not liable if it is proved
that he or she, after making such inquiries (if any)
as were reasonable, had reasonable grounds to
5
believe, and did believe until the time of the issue
of the benefits--
(a) if sub-section (1)(a) applies, that the
defective statement was true and not
misleading; or
10
(b) if sub-section (1)(b) applies, that there were
no material omissions from the defective
statement.
167. Liability of experts, auditors etc.
(1) A person referred to in section 163(2)(d), (e) or (f)
15
is liable in an action under section 162 only in
respect of--
(a) a false or misleading statement in the
disclosure document purporting to be made
by the person as a person referred to in
20
section 163(2)(d), (e) or (f), or to be based on
a statement made by the person as a person
referred to in section 163(2)(d), (e) or (f); or
(b) in the case of a person referred to in section
163(2)(d), an omission of any material matter
25
from a statement in the disclosure document
purporting to be made by the person as a
person referred to in section 163(2)(d) or to
be based on a statement made by the person
as such a person; or
30
(c) in the case of a person referred to in section
163(2)(e) or (f), an omission from the
disclosure document of any material matter
for which the person is responsible in the
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person's capacity or purported capacity as a
person referred to in section 163(2)(e) or (f).
(2) A person referred to in section 163(2)(d) is not
liable in an action under section 162 in respect of
a false or misleading statement in, or an omission
5
from, the disclosure document if it is proved--
(a) that, having given consent under section 156
to the issue of the disclosure document, the
person withdrew it in writing before the
disclosure document was lodged;
10
(b) that, after the disclosure document was
lodged and before the provision of any
benefits under the disclosure document, the
person, on becoming aware of the false or
misleading statement, or of the omission, as
15
the case requires, withdrew the person's
consent in writing and gave reasonable
public notice of the withdrawal and of the
reasons for the withdrawal; or
(c) that the person was competent to make the
20
statement and, after making such inquiries (if
any) as were reasonable, had reasonable
ground to believe, and did until the time of
the provision of any benefits believe, that--
(i) if the action is in respect of false or
25
misleading statement, the statement was
true and not misleading; or
(ii) if the action is in respect of an omission
from a statement, there were no
material omissions from the statement.
30
(3) A person referred to in section 163(2)(e) or (f) is
not liable in an action under section 162 in respect
of a false or misleading statement in, or an
omission from, the disclosure document if it is
proved--
35
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(a) that, after the disclosure document was
lodged and before the provision of any
benefits under the disclosure document the
person, on becoming aware of the false or
misleading statement or of the omission, as
5
the case requires, withdrew the person's
consent in writing and gave reasonable
public notice of the withdrawal and of the
reasons for the withdrawal; or
(b) in the case of a statement, that the person
10
was competent to make the statement and,
after making such inquiries (if any) as were
reasonable, had reasonable grounds to
believe, and did until the time of the
provision of any benefits believe, that the
15
statement was true and not misleading; or
(c) in the case of an omission, that the person,
after making such inquiries (if any) as were
reasonable, had reasonable grounds to
believe, and did until the time of the
20
provision of any benefits believe, that there
were no omissions from the disclosure
document of material matters for which the
person was responsible in the person's
capacity as a person referred to in section
25
163(2)(e) or (f) as the case requires, and that
the person was competent to act in that
capacity.
168. Liability of persons named in disclosure document
(1) A person referred to in section 163(2)(e) or (f)
30
who is named in part only of the disclosure
document is not liable in an action under section
162 in respect of a false or misleading statement
in, or an omission from, the disclosure document
if it is proved that--
35
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(a) the statement was not included in, or the
matter was not omitted from, that part of the
disclosure document; or
(b) in the case of a statement, the statement was
not included in, or substantially in, the form
5
and context that the person had agreed to.
(2) For the purposes of sub-section (1), a person
referred to in section 163(2)(e) or (f) shall not be
taken to be named in part only of the disclosure
document unless the disclosure document includes
10
an express statement that the person was involved
only in the preparation of that part.
(3) A person who has authorised or caused the issue
of part only of a disclosure document is not liable
in an action under section 162 in respect of a false
15
or misleading statement in, or an omission from,
the disclosure document if it is proved that--
(a) the statement was not included in, or the
matter was not omitted from, that part of the
disclosure document; or
20
(b) in the case of a statement, the statement was
not included in, or substantially in, the form
and context that the person had agreed to.
(4) For the purposes of sub-section (3), a person is not
taken to have authorised or caused the issue of
25
part only of a disclosure document unless the
disclosure document includes an express
statement that the person authorised or caused the
issue of that part only.
169. No liability for mistake etc if reasonable precautions
30
taken
(1) The society or a person who authorised or caused
the issue of the disclosure document is not liable
in an action under section 162 if it is proved that
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the false or misleading statement or the
omission--
(a) was due to a reasonable mistake; or
(b) was due to reasonable reliance on
information supplied by another person; or
5
(c) was due to the act or default of another
person, to an accident or to some other cause
beyond the defendant's control--
and, in a case to which paragraph (c) applies, that
the defendant took reasonable precautions and
10
exercised due diligence to ensure that all
statements to be included in the disclosure
document were true and not misleading and that
there were no material omissions from the
disclosure document.
15
(2) In sub-section (1)(b) and (c)--
"another person" does not include a person who,
when the disclosure document was issued,
was--
(a) a servant or agent of the defendant; or
20
(b) if the defendant was the society or
another body corporate, a director,
servant or agent of the defendant.
170. Indemnity
Where--
25
(a) a disclosure document in relation to benefits
contains the name of a person as a director of
the society, or as having agreed to become a
director, and that person has not consented to
become a director, or has withdrawn the
30
consent before the issue of the disclosure
document, and has not authorised or
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consented to the issue of the disclosure
document; or
(b) the consent of a person is required under
section 156 to the issue of the disclosure
document and the person either has not given
5
that consent or has withdrawn it before the
issue of the disclosure document--
the directors of the society, except any without
whose knowledge or consent the disclosure
document was issued, and any other person who
10
authorised or caused the issue of the disclosure
document are jointly and severally liable to
indemnify the person so named or whose consent
was so required against all damages, costs and
expenses to which the person may be made
15
liable--
(c) because of the person's name being so
contained in the disclosure document;
(d) because of the inclusion in the disclosure
document of a statement purporting to be
20
made by the person as an expert; or
(e) in defending any action or other legal
proceeding brought against the person
because of the person's name being so
contained in the disclosure document or the
25
inclusion in the disclosure document of such
a statement.
Division 4--Regulation of Industry Participants
Subdivision 1--Conduct in relation to benefits
171. Dealing
30
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(1) A person must not carry on a business of dealing
in benefits, or hold out that the person carries on
such a business, unless the person is--
(a) a society; or
(b) a licensed dealer; or
5
(c) an exempt person.
(2) For the purpose of determining--
(a) whether a person carries on, or holds
himself, herself or itself out as carrying on, a
business of dealing in benefits; and
10
(b) whether or not a person deals in benefits--
an act done on behalf of, or as a representative of,
a person by a society, a licensed dealer or an
exempt person is to be disregarded.
172. Advising
15
(1) A person must not carry on a benefits advisory
business, or hold out that the person carries on
such a business, unless the person is--
(a) a society; or
(b) a licensed dealer; or
20
(c) a licensed adviser; or
(d) an exempt person.
(2) The following sub-sections apply for the purposes
of determining--
(a) whether a person carries on a benefits
25
advisory business; and
(b) whether a person holds himself, herself, or
itself out to be carrying on such a business.
(3) If the person is a body corporate authorised by a
law of a State to take in its own name a grant of
30
probate of the will, or a grant of letters of
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administration of the estate, of a dead person, an
act done by the first-mentioned person is to be
disregarded.
(4) If the person is a solicitor, an accountant or
actuary in public practice as such, an act that the
5
person does is to be disregarded if it is merely
incidental to the practice of his or her profession.
(5) The fact that the person advises other persons
about benefits or publishes reports relating to
benefits, in some or all of the following
10
circumstances is to be disregarded--
(a) in a newspaper or periodical--
(i) of which the person is the proprietor or
publisher; and
(ii) that is generally available to the public
15
otherwise than only on subscription;
(b) in the course of, or by means of,
transmissions that--
(i) the person makes by means of an
information service; or
20
(ii) are made by means of an information
service that the person owns, operates
or makes available--
and are generally available to the public;
(c) in sound recordings, video recordings, or
25
data recordings, that the person makes
generally available to the public in either or
both of the following ways--
(i) by supplying copies of them to the
public; or
30
(ii) by causing the sound recordings to be
heard by, the video recordings to be
seen and heard by, or the contents of the
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data recordings to be displayed or
reproduced for, the public, as the case
requires.
(6) Sub-section (5) does not apply in relation to a
newspaper or periodical, or transmissions, sound
5
recordings, video recordings or data recordings, as
the case requires, whose sole or principal purpose
is to advise other persons about benefits or to
publish reports relating to benefits.
(7) The fact that the person holds himself, herself or
10
itself out as advising other persons, or publishing
reports relating to benefits, as mentioned in sub-
section (5), is to be disregarded.
(8) An act that the person does as a representative of a
society, a licensed dealer, a licensed adviser or an
15
exempt person is to be disregarded.
Subdivision 2--Agreements with unlicensed persons
173. Certain persons not clients
A reference in this Subdivision to a client does
not include a reference to a person who is--
20
(a) a licensed dealer; or
(b) a licensed adviser; or
(c) one of 2 or more persons who together
constitute a licensed dealer or a licensed
adviser.
25
174. Agreements with unlicensed persons
(1) Sections 175 to 183 apply where, during a period
when a person (in this Subdivision called the
"non-licensee") is unlicensed, the non-licensee and
a client of the non-licensee enter into an
30
agreement that--
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(a) constitutes, or relates to, a dealing or
proposed dealing in benefits; or
(b) relates to advising the client about benefits,
or giving the client reports relating to
benefits.
5
(2) Sections 175 to 183 apply to an agreement
mentioned in sub-section (1) whether or not
anyone else is a party to the agreement.
(3) A person is unlicensed during a period when the
person--
10
(a) in contravention of section 171, carries on, or
holds out that the person carries on, a
business of dealing in benefits; or
(b) in contravention of section 172, carries on a
benefits advisory business or holds out that
15
the person carries on such a business.
175. Client may give notice of rescission
(1) Subject to this section, the client may, whether
before or after completion of the agreement, give
to the non-licensee a written notice stating that the
20
client wishes to rescind the agreement.
(2) The client may only give a notice under this
section within a reasonable period after becoming
aware of the facts entitling the client to give the
notice.
25
(3) The client is not entitled to give a notice under this
section if the client engages in conduct by
engaging in which the client would, if the
entitlement so to give a notice were a right to
rescind the agreement for misrepresentation by the
30
non-licensee, be taken to have affirmed the
agreement
(4) The client is not entitled to give a notice under this
section if, within a reasonable period before the
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agreement was entered into, the non-licensee
informed the client (whether or not in writing) that
the non-licensee was unlicensed.
(5) If, at a time when a securities licence (as defined
in sub-section (8)) held by the non-licensee was
5
suspended, the non-licensee informed the client
that the licence was suspended, the non-licensee is
to be taken for the purposes of sub-section (4) to
have informed the client at that time that the non-
licensee was unlicensed.
10
(6) Nothing in sub-sections (2), (3) and (4) limits the
generality of any of the others.
(7) Subject to this section, the client may give a notice
under this section whether or not--
(a) the notice will result under section 176 in
15
rescission of the agreement; or
(b) the Court will, if the notice so results, be
empowered to make a particular order, or any
order at all, under section 178.
(8) In this section--
20
"securities licence" means an investment
advisers licence granted under Part 7.3 of the
Corporations Law or a dealers licence
granted under that Part.
176. Effect of notice under section 175
25
A notice given under section 175 rescinds the
agreement unless rescission of the agreement
would prejudice a right, or an estate in property,
acquired by a person (other than the non-licensee)
in good faith, for valuable consideration and
30
without notice of the facts entitling the client to
give the notice.
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177. Client may apply to Court for partial rescission
(1) If the client gives a notice under section 175 but
the notice does not rescind the agreement because
rescission of it would prejudice a right or estate of
the kind referred to in section 176, the client may,
5
within a reasonable period after giving the notice,
apply to the Court for an order under sub-section
(4) of this section.
(2) The Court may extend the period for making an
application under sub-section (1).
10
(3) If an application is made under sub-section (1), the
Court may make such orders expressed to have
effect until the determination of the application as
it would have power to make if the notice had
rescinded the agreement under section 176 and the
15
application were for orders under section 178.
(4) On an application under sub-section (1), the Court
may make an order--
(a) varying the agreement in such a way as to put
the client in the same position, as nearly as
20
can be done without prejudicing such a right
or estate acquired before the order is made,
as if the agreement had not been entered into;
and
(b) declaring the agreement to have had effect as
25
so varied at and after the time when it was
originally made.
(5) If the Court makes an order under sub-section (4),
the agreement is to be taken for the purposes of
section 178 to have been rescinded under section
30
176.
(6) An order under sub-section (4) does not affect the
application of section 180 or 182 in relation to the
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agreement as originally made or as varied by the
order.
178. Court may make consequential orders
(1) Subject to sub-section (2), on rescission of the
agreement under section 176, the Court, on the
5
application of the client or the non-licensee, may
make such orders as it would have power to make
if the client had duly rescinded the agreement for
misrepresentation by the non-licensee.
(2) The Court is not empowered to make a particular
10
order under sub-section (1) if the order would
prejudice a right, or an estate in property, acquired
by a person (other than the non-licensee) in good
faith, for valuable consideration and without
notice of the facts entitling the client to give the
15
notice.
179. Agreement unenforceable against client
(1) This section--
(a) applies while both of the following are the
case--
20
(i) the client is entitled to give a notice
under section 175;
(ii) a notice so given will result under
section 176 in rescission of the
agreement; and
25
(b) applies after the agreement is rescinded
under section 176--
but does not otherwise apply.
(2) The non-licensee is not entitled, as against the
client--
30
(a) to enforce the agreement, whether directly or
indirectly; or
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(b) to rely on the agreement, whether directly or
indirectly and whether by way of defence or
otherwise.
180. Non-licensee not entitled to recover commission
(1) Without limiting the generality of section 179, this
5
section--
(a) applies while the client is entitled to give a
notice under section 175; and
(b) applies after the client so gives a notice, even
if the notice does not result under section
10
176 in rescission of the agreement--
but does not otherwise apply.
(2) The non-licensee is not entitled to recover by any
means (including, for example, set-off or a claim
on a quantum meruit) any brokerage, commission
15
or other fee for which the client would, but for this
section, have been liable to the non-licensee under
or in connection with the agreement.
181. Onus of establishing non-application of section 179
or 180
20
For the purposes of determining, in a proceeding
in a court, whether or not the non-licensee is, or
was at a particular time, entitled as mentioned in
section 179(2) or 180(2), it must be presumed,
unless the contrary is proved, that section 179 or
25
180, as the case requires, applies, or applied at that
time, as the case requires.
182. Client may recover commission paid to non-licensee
(1) Without limiting the generality of section 178, if
the client gives a notice under section 175, the
30
client may, even if the notice does not result under
section 176 in rescission of the agreement, recover
from the non-licensee as a debt the amount of any
brokerage, commission or other fee that the client
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has paid to the non-licensee under or in
connection with the agreement.
(2) The SSA may, if it considers that it is in the public
interest to do so, bring an action under sub-section
(1) in the name of, and for the benefit of, the
5
client.
183. Remedies under this Subdivision
The client's rights under this Subdivision are
additional to, and do not prejudice, any right or
remedy of the client.
10
Subdivision 3--Representatives
184. Proper authority from society
A reference, in relation to a person (in this section
called the "representative") to a proper authority
from a society registered under this Code or the
15
Code of a participating State (in this section called
the "principal") is a reference to a document in the
prescribed form or a copy of the society's
certificate of incorporation on which are
endorsed--
20
(a) a statement--
(i) stating that the representative is
employed by, or acts for or by
arrangement with, the principal; and
(ii) signed by the principal; and
25
(b) in relation to each person (if any), other than
the principal, of whom the representative is a
representative, a statement that--
(i) sets out the name of the person; and
(ii) states that the representative is
30
employed by, or acts for or by
arrangement with, that person; and
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(iii) states that the person consents to the
representative being employed by, or
acting for or by arrangement with, the
principal; and
(iv) is signed by the person.
5
185. Representatives of dealers
A person must not, in relation to benefits, do an
act as a representative of a licensed dealer unless
the person holds a proper authority from the
dealer.
10
Maximum penalty: $2500 or imprisonment for 6
months, or both.
186. Representatives of investment advisers
A person must not, in relation to benefits, do an
act as a representative of a licensed adviser unless
15
the person holds a proper authority from the
licensed adviser.
Maximum penalty: $2500 or imprisonment for 6
months, or both.
187. Representatives of societies
20
A person must not, in relation to benefits, do an
act as a representative of a society unless the
person holds a proper authority from the society.
Maximum penalty: $2500 or imprisonment for 6
months, or both.
25
188. Body corporate not to act as representative
A body corporate must not do an act as a
representative of a dealer, an investment adviser
or a society.
Maximum penalty: $5000 or imprisonment for 12
30
months, or both.
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189. Defence
(1) A person does not contravene section 171, 172,
185, 186 or 187 by an act done by that person as a
representative of another person if--
(a) but for the other person ceasing to be a
5
society or for the revocation or suspension of
a securities licence held by the other person,
the act would not have been such a
contravention;
(b) when he or she did the act, the first-
10
mentioned person--
(i) believed in good faith that the other
person was a society or held the
securities licence, as the case requires;
and
15
(ii) was unaware of the cessation,
revocation or suspension.
(2) A person does not contravene section 171, 172,
185, 186 or 187 by an act done by that person as a
representative of another person if the person
20
holds what he or she believes in good faith to be a
proper authority from that other person, and in all
the circumstances it was reasonable for the first-
mentioned person to so believe.
(3) In this section--
25
"securities licence" means an investment
advisers licence granted under Part 7.3 of the
Corporations Law or a dealers licence
granted under that Part.
190. Banned person not to act as representative
30
A person must not do an act as a
representative of a society, a licensed dealer or a
licensed adviser if the person is the subject of a
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banning order made by the Australian Securities
Commission under section 829 of the
Corporations Law.
Maximum penalty: $2500 or
imprisonment for 6 months, or both.
5
191. Society to keep register of holders of proper
authorities
(1) A society must establish a register of the persons
who hold proper authorities from the society and
must keep it in accordance with this section.
10
(2) The register must be in writing or in such other
form as the SSA approves.
(3) The register must contain, in relation to each
person (if any) who holds a proper authority from
the society--
15
(a) a copy of the proper authority;
(b) the person's name;
(c) the person's current residential address;
(d) unless the person's current business address
is the same as the society's, the person's
20
current business address; and
(e) any other prescribed information.
(4) A copy of a proper authority of a person from the
society that sub-section (3) provides for the
register to contain must be included in the register
25
within 2 business days after the person begins to
hold that proper authority.
(5) Information that sub-section (3) provides for the
register to contain in relation to a person must be
entered in the register within 2 business days
30
after--
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(a) the person begins to hold a proper authority
from the society; or
(b) the society receives the information--
whichever happens later.
(6) Within 2 business days after a person ceases to
5
hold a proper authority from the society, the
society must--
(a) in any case--
(i) include, in a part of the register separate
from the part in which copies of proper
10
authorities are included under sub-
section (4); and
(ii) remove from the last-mentioned part--
the copy of the proper authority that was
included in the last-mentioned part; and
15
(b) unless, at the end of those 2 business days,
the person again holds a proper authority
from the society--
(i) enter, in a part of the register separate
from the part in which information is
20
entered under sub-section (5); and
(ii) remove from the last-mentioned part--
the information that has been entered in
the last-mentioned part in relation to the
person.
25
(7) Information that has been entered under sub-
section (6)(b) in a separate part of the register is
deemed for the purposes of sub-sections (3) and
(5) not to be contained or entered in the register.
(8) Where a society that sub-section (1) requires to
30
establish a register already keeps one under this
section or a corresponding previous law, the
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society need not establish a new register but must
keep the existing one in accordance with this
section.
192. Society to notify SSA of location and contents of
register
5
(1) In this section--
"register", in relation to a society, means a
register that the society keeps for the
purposes of section 191.
(2) Within 14 days after establishing a register, the
10
society must lodge with the SSA written notice of
where the register is kept.
(3) As soon as practicable after changing the place
where a register is kept, the society must lodge
with the SSA written notice of the new place
15
where the register is kept.
(4) Within 2 business days after the day on which a
person begins to hold a particular proper authority
from a society, the society must, whether or not
the person has previously held a proper authority
20
from the society, lodge with the SSA--
(a) a copy of the first-mentioned proper
authority; and
(b) a written notice stating that the person began
to hold that proper authority on that day.
25
(5) The society must lodge with the SSA a written
notice, within the period provided by sub-section
(6)--
(a) setting out the information that the register is
required to contain by section 191(3)(b), (c),
30
(d) or (e); and
(b) stating that the information has been, or is to
be, entered in the register.
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(6) A notice under sub-section (5) must be lodged
with the SSA within the period within which sub-
section 191(5) requires the information to be
entered in the register.
(7) Within 2 business days after a person ceases to
5
hold a proper authority from a society, the society
must, unless at the end of those 2 business days
the person again holds a proper authority from the
society, lodge with the SSA a written notice
stating that the person has ceased to hold such a
10
proper authority.
193. Inspection and copying of register
(1) In this section--
"register" in relation to a society, means a
register that the society keeps for the
15
purposes of section 191.
(2) A society must ensure that a register is open for
inspection without charge.
(3) Where a person requests a society in writing to
give to the person a copy of the whole, or of a
20
specified part, of a register, the society must
comply with the request within 2 business days
after--
(a) if the society's rules require the person to pay
for the copy, an amount (if any) prescribed
25
by the society's rules, receiving the amount
from the person; or
(b) in any other case, receiving the request.
194. SSA may require production of authority
(1) Where the SSA has reason to believe that a
30
person--
(a) holds a proper authority from a society; or
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(b) has done an act as a representative of another
person--
then, whether or not the SSA knows who the
society or other person is, it may require the first-
mentioned person to produce any proper authority
5
or purported proper authority from the society that
the first-mentioned person holds.
(2) A person must not, without reasonable excuse,
refuse or fail to comply with a requirement under
this section.
10
Maximum penalty: $2500 or imprisonment for 6
months, or both.
195. SSA may give society information about
representative
(1) Where the SSA believes on reasonable grounds
15
that--
(a) a person (in this section called the "holder")
holds, or will hold, a proper authority from a
society;
(b) having regard to that fact, the SSA should
20
give to the society particular information that
the SSA has about the person; and
(c) the information is true--
the SSA may give the information to the society.
(2) Where the SSA gives information under sub-
25
section (1), the SSA or an officer of the SSA may,
for a purpose connected with--
(a) the SSA making a decision about what action
(if any) to take in relation to the holder,
having regard to, or to matters including, the
30
information; or
(b) the SSA taking action pursuant to such a
decision--
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or for 2 or more such purposes, and for no other
purpose, give to another person, make use of, or
make a record of, some or all of the information.
(3) A person to whom information has been given, in
accordance with sub-section (2) or this sub-
5
section, for a purpose or purposes may, for that
purpose or one or more of those purposes, and for
no other purpose, give to another person, make
use of, or make a record of, that information.
(4) Subject to sub-sections (2) and (3), a person must
10
not give to another person, make use of, or make a
record of, information given by the SSA under
sub-section (1).
Maximum penalty: $5000 or imprisonment for 12
months, or both.
15
(5) A person has qualified privilege in respect of an
act done by the person as permitted by sub-section
(2) or (3).
(6) A person to whom information is given in
accordance with this section must not--
20
(a) give any of the information to a court; or
(b) produce in a court a document that sets out
some or all of the information--
except--
(c) for a purpose connected with--
25
(i) the society making a decision about
what action (if any) to take in relation
to the holder, having regard to, or to
matters including, some or all of the
information; or
30
(ii) the society taking action pursuant to
such a decision; or
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(iii) proving in a proceeding in that court
that particular action taken by the
society in relation to the holder was so
taken pursuant to such a decision--
or for 2 or more such purposes, and for no
5
other purpose; or
(d) in a proceeding in that court, in so far as the
proceeding relates to an alleged
contravention of this section; or
(e) in a proceeding in respect of an ancillary
10
offence relating to an offence against this
section; or
(f) in a proceeding in respect of the giving to a
court of false information being or including
some or all of the first-mentioned
15
information.
(7) A reference in this section to a person taking
action in relation to another person is a reference
to the first-mentioned person--
(a) taking action by way of making, terminating
20
or varying the terms and conditions of a
relevant agreement; or
(b) otherwise taking action in relation to a
relevant agreement--
in so far as the relevant agreement relates to the
25
other person being employed by, or acting for or
by arrangement with, the first-mentioned person in
connection with a business of dealing in benefits
or a benefits advisory business carried on by the
first-mentioned person.
30
196. Holder of authority may be required to return it
(1) Where a person holds a proper authority from a
society but is neither employed by, nor authorised
to act for or by arrangement with, the society, the
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society may, by writing given to the person,
require the person to give the proper authority to
the society within a specified period of not less
than 2 business days.
(2) A person must not, without reasonable excuse,
5
refuse or fail to comply with a requirement made
of the person in accordance with sub-section (1).
Subdivision 4--Liability of principals for representatives'
conduct
197. Conduct engaged in as a representative
10
Where a person engages in conduct in relation to
benefits as a representative of another person (in
this section called the "principal"), then, as
between the principal and a third person (other
than the SSA), the principal is liable in respect of
15
that conduct in the same manner, and to the same
extent, as if the principal had engaged in it.
198. Liability where identity of principal unknown
(1) This section applies for the purposes of a
proceeding in a court where--
20
(a) whether within or outside this State, a person
(in this section called the "representative")
engages in particular conduct in relation to
benefits while the person is a representative
of 2 or more persons (in this section called
25
the "indemnifying principals"); and
(b) it is proved for the purposes of the
proceeding that the representative engaged in
the conduct as a representative of some
person (in this section called the "unknown
30
principal") but it is not proved for those
purposes who the unknown principal is.
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(2) If only one of the indemnifying principals is a
party to the proceeding, he, she or it is liable in
respect of that conduct as if he, she or it were the
unknown principal.
(3) If 2 or more of the indemnifying principals are
5
parties to the proceeding, each of those 2 or more
is liable in respect of that conduct as if he, she or
it were the unknown principal.
199. Liability of principals where act done in reliance on
representative's conduct
10
(1) This section applies where--
(a) at a time when a person (in this section
called the "representative") is a
representative of only one person (in this
section called the "indemnifying principal")
15
or of 2 or more persons (in this section called
the "indemnifying principals"), the
representative, whether within or outside this
State--
(i) engages in particular conduct in relation
20
to benefits;
(ii) proposes, or represents that the
representative proposes, to engage in
particular conduct in relation to
benefits;
25
(b) another person (in this section called the
"client") does, or omits to do, a particular act,
whether within or outside this State, because
the client believes at a particular time in
good faith that the representative engaged in,
30
or proposes to engage in, as the case
requires, that conduct--
(i) on behalf of some person (in this
section called the "assumed principal")
whether or not identified, or
35
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identifiable, at that time by the client;
and
(ii) in connection with a business dealing in
benefits or a benefits advisory business
carried on by the assumed principal;
5
and
(c) it is reasonable to expect that a person in the
client's circumstances would so believe and
would do, or omit to do, as the case requires,
that act because of that belief--
10
whether or not that conduct is or would be within
the scope of the representative's employment by,
or authority from, any person.
(2) If--
(a) sub-section (1)(a)(i) applies; or
15
(b) sub-section (1)(a)(ii) applies and the
representative engages in that conduct--
then, for the purposes of a proceeding in a court--
(c) as between the indemnifying principal and
the client or a person claiming through the
20
client, the indemnifying principal is liable; or
(d) as between any of the indemnifying
principals and the client or a person claiming
through the client, each of the indemnifying
principals is liable--
25
as the case requires, in respect of that conduct in
the same manner, and to the same extent, as if he,
she or it had engaged in it.
(3) Without limiting the generality of sub-section (2),
the indemnifying principal, or each of the
30
indemnifying principals, as the case requires, is
liable to pay damages to the client in respect of
any loss or damage that the client suffers as a
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result of doing, or omitting to do, as the case
requires, the act referred to in sub-section (1)(b).
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(4) Sub-section (3) does not apply unless--
(a) the conduct was engaged in, the proposed
conduct would have been engaged in, or the
representation was made, in this State; or
(b) the act referred to sub-section (1)(b) was
5
done, or would have been done, as the case
requires, in this State; or
(c) some or all of the loss or damage was
suffered in this State.
(5) If--
10
(a) there are 2 or more indemnifying principals;
(b) 2 or more of them are parties (in this sub-
section called the "indemnifying parties") to
a proceeding in a court;
(c) it is proved for the purposes of the
15
proceeding--
(i) that the representative engaged in that
conduct as a representative of some
person; and
(ii) who that person is; and
20
(d) that person is among the indemnifying
parties--
sub-sections (2) and (3) do not apply, for the
purposes of the proceeding, in relation to the
indemnifying parties other than that person.
25
200. Presumptions about certain matters
(1) Where it is proved, for the purposes of a
proceeding in a court, that a person (in this sub-
section called the "representative") engaged in
particular conduct in relation to benefits, whether
30
within or outside this State, while the person was a
representative of--
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(a) only one person (in this sub-section called
the "indemnifying principal"); or
(b) 2 or more persons (in this sub-section called
the "indemnifying principals")--
then, unless the contrary is proved for the
5
purposes of the proceeding, it must be presumed
for those purposes that the representative engaged
in the conduct as a representative of--
(c) the indemnifying principal; or
(d) as a representative of some person among the
10
indemnifying principals--
as the case requires.
(2) Where, for the purposes of establishing in a
proceeding in a court that section 199 applies, it is
proved that a person did, or omitted to do, a
15
particular act because the person believed at a
particular time in good faith that certain matters
were the case, then, unless the contrary is proved
for those purposes, it must be presumed for those
purposes that it is reasonable to expect that a
20
person in the first-mentioned person's
circumstances would so believe and would do, or
omit to do, as the case requires, that act because of
that belief.
201. No contracting out of liability for representative's
25
conduct
(1) For the purposes of this section, a liability of a
person--
(a) in respect of conduct in relation to benefits
engaged in by another person as a
30
representative of the first-mentioned person;
or
(b) arising under section 199 because another
person has engaged in, proposed to engage
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in, or represented that the other person
proposed to engage in, particular conduct in
relation to benefits--
is a liability of the first-mentioned person in
respect of the other person.
5
(2) Subject to this section, an agreement is void in so
far as it purports to exclude, restrict or otherwise
affect a liability of a person in respect of another
person, or to provide for a person to be
indemnified in respect of a liability of the person
10
in respect of another person.
(3) Sub-section (2) does not apply in relation to an
agreement in so far as it--
(a) is a contract of insurance;
(b) provides for a representative of a person to
15
indemnify the person in respect of a liability
of the person in respect of the representative;
or
(c) provides for a licensed adviser, licensed
dealer or society from whom a person holds
20
a proper authority to indemnify another such
adviser, dealer or society in respect of a
liability of the other authorised person in
respect of the person.
(4) A person must not make, offer to make, or invite
25
another person to offer to make, in relation to a
liability of the first-mentioned person in respect of
a person, an agreement that is or would be void, in
whole or in part, by virtue of sub-section (2).
202. Effect of Subdivision
30
(1) Where 2 or more persons are liable under this
Subdivision in respect of the same conduct or the
same loss or damage, they are so liable jointly and
severally.
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(2) Nothing in section 197, 198 or 199--
(a) affects a liability arising otherwise than by
virtue of this Subdivision; or
(b) notwithstanding paragraph (a) of this sub-
section, entitles a person to be compensated
5
twice in respect of the same loss or damage;
or
(c) makes a person guilty of an offence.
Subdivision 5--Excluding persons from dealing with benefits
203. Power to make banning order
10
Subject to section 210, the SSA may make a
banning order against a person--
(a) if the person is a natural person and the
person--
(i) becomes an insolvent under
15
administration; or
(ii) is convicted of serious fraud within the
meaning of section 9 of the
Corporations Law; or
(iii) becomes incapable, through mental or
20
physical incapacity, of managing his or
her affairs;
(b) if the person is a body corporate and the
person--
(i) ceases to carry on business; or
25
(ii) becomes an externally administered
body corporate;
(c) if the person contravenes a provision of
Chapter 6 or Chapter 7 of the Corporations
Law or of this Part;
30
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(d) if the SSA has reason to believe that the
person (in the case of a natural person) or an
officer of the person (in the case of a body
corporate) is not of good fame and character;
or
5
(e) if the SSA has reason to believe that the
person has not, or will not, perform
efficiently, honestly and fairly the duties of a
licensed dealer, a licensed adviser or the
holder of a proper authority from a licensed
10
dealer, a licensed adviser or a society, as the
case requires, in relation to the conduct of a
business of dealing in benefits or a benefits
advisory business.
204. Nature of banning order
15
(1) Where this Subdivision empowers the SSA to
make a banning order against a person, the SSA
may, by written order, prohibit the person,
permanently or for a specified period, from doing
an act in connection with the conduct of a
20
business of dealing in benefits or a benefits
advisory business.
(2) The SSA must not vary or revoke a banning order
except under section 205, 206 or 207.
205. Exceptions to banning order
25
(1) An order made against a person under section
204(1) may include a provision that permits the
person, subject to such conditions (if any) as are
specified, to do, or to do in specified
circumstances, specified acts that the order would
30
otherwise prohibit the person from doing.
(2) Subject to section 210 the SSA may, at any time,
by written order, vary a banning order against a
person--
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(a) by adding a provision that permits the person
as mentioned in sub-section (1);
(b) by varying such a provision in relation to
conditions, circumstances or acts specified in
the provision;
5
(c) by omitting such a provision and substituting
another such provision; or
(d) by omitting such a provision.
206. Variation or revocation of banning order on
application
10
(1) Subject to section 207 and 210, this section has
effect where a person applies to the SSA to vary or
revoke a banning order relating to the person.
(2) If--
(a) the person is not an insolvent under
15
administration or an externally administered
body corporate; and
(b) the SSA has no reason to believe that the
person, or an officer of the person, is not of
good fame and character; and
20
(c) the SSA has no reason to believe that the
person will not perform efficiently, honestly
and fairly the duties of a licensed dealer, a
licensed adviser or the holder of a proper
authority from a licensed dealer, a licensed
25
adviser or a society, as the case requires--
the SSA must by written order--
(d) if paragraph (c) applies, vary the banning
order so that it no longer prohibits the person
from doing an act in connection with the
30
conduct of a business of dealin