CO-OPERATIVES ACT 2009 (NO. 24 OF 2009)
CO-OPERATIVES ACT 2009 (NO. 24 OF 2009)
TABLE OF PROVISIONS Long Title Preamble PART 1 -- Preliminary Division 1 -- Introductory 1. Short title 2. Commencement 3. Objects of this Act 4. Terms used in this Act Division 2 -- Qualified privilege 5. Qualified privilege Division 3 -- The co-operative principles 6. Co-operative principles 7. Interpretation to promote co-operative principles Division 4 -- Application of Corporations Act to co-operatives 8. Definitions 9. Excluded matter 10. Applying the Corporations legislation to co-operatives 11. Modifications to applied provisions PART 2 -- Formation Division 1 -- Types of co-operatives 12. Types of co-operatives 13. Distributing co-operatives 14. Non-distributing co-operatives Division 2 -- Formation meeting 15. Formation meeting Division 3 -- Approval of disclosure statement and rules 16. Approval of disclosure statement 17. Approval of rules Division 4 -- Registration of proposed co-operative 18. Application for registration of proposed co-operative 19. Registration of co-operative 20. Incorporation and certificate of registration Division 5 -- Registration of an existing corporation 21. Existing corporation can be registered 22. Formation meeting and transitional provision 23. Application for registration 24. Requirements for registration 25. Transitional provision 26. Certificate of registration 27. Effect of registration Division 6 -- Conversion of co-operative 28. Conversion of co-operative Division 7 -- Reviews 29. Appeal against refusal to approve disclosure statement 30. Appeal against refusal to approve draft rules 31. Appeal against refusal to register 32. Supreme Court’s powers on appeal Division 8 -- General 33. Acceptance of money by proposed co-operative 34. Issue of duplicate certificate PART 3 -- Legal capacity and powers Division 1 -- General powers 35. Effect of incorporation 36. Power to form companies and enter into joint ventures Division 2 -- Doctrine of ultra vires abolished 37. Interpretation 38. Doctrine of ultra vires abolished 39. Legal capacity 40. Restrictions on co-operatives in rules Division 3 -- Persons having dealings with co-operatives 41. Assumptions entitled to be made 42. Assumptions 43. Person who knows or ought to know is not entitled to make assumptions 44. Lodgment of documents not to constitute constructive knowledge 45. Effect of fraud Division 4 -- Authentication and execution of documents and confirmation of contracts 46. Common seal 47. Official seal 48. Authentication need not be under seal 49. Co-operative may authorise person to execute deed 50. Execution under seal 51. Contractual formalities 52. Other requirements as to consent or sanction not affected Division 5 -- Pre-registration contracts 53. Contracts before registration 54. Person may be released from liability but is not entitled to indemnity 55. This Division replaces other rights and liabilities PART 4 -- Membership Division 1 -- General 56. Becoming a member 57. Members of co-operative group 58. Qualification for membership and transitional provision 59. Membership may be joint 60. Members under 18 years of age 61. Representatives of corporations 62. Notification of shareholders and shareholdings 63. Circumstances in which membership ceases -- all co-operatives 64. Additional circumstances in which membership ceases -- co-operatives with share capital 65. Carrying on business with too few members Division 2 -- Rights and liabilities of members 66. Rights of membership not exercisable until registered etc. 67. Liability of members to co-operative 68. Co-operative to make information available to person intending to become a member 69. Entry fees and regular subscriptions 70. Members etc. may be required to deal with co-operative 71. Fines payable by members 72. Charge and set off of co-operative 73. Repayment of shares on resignation or expulsion Division 3 -- Death of member 74. Meaning of interest 75. Transfer of share or interest on death of member 76. Transfer of small shareholdings and interests on death 77. Value of shares and interests 78. Co-operative protected Division 4 -- Disputes involving members 79. Grievance procedure 80. Application to Supreme Court Division 5 -- Oppressive conduct of affairs 81. Interpretation 82. Application of Division 83. Who may apply for court order 84. Orders that the Supreme Court may make 85. Basis on which Supreme Court makes orders 86. Winding-up need not be ordered if oppressed members prejudiced 87. Application of winding-up provisions 88. Changes to rules 89. Copy of order to be lodged with Registrar Division 6 -- Proceedings on behalf of a co-operative by members and others 90. Bringing, or intervening in, proceedings on behalf of a co-operative 91. Applying for and granting leave 92. Substitution of another person for the person granted leave 93. Effect of ratification by members 94. Leave to discontinue, compromise or settle proceedings brought, or intervened in, with leave 95. General powers of the Supreme Court 96. Power of Supreme Court to make costs order PART 5 -- Rules 97. Effect of rules 98. Content of rules 99. Purchase and inspection of copy of rules 100. False copies of rules 101. Model rules 102. Rules can only be altered in accordance with this Act 103. Approval of alteration of rules 104. Alteration by special resolution 105. Alteration by resolution of board 106. Alteration does not take effect until registered 107. Appeal against refusal to approve alteration 108. Appeal against refusal to register 109. Supreme Court’s powers on appeal PART 6 -- Active membership Division 1 -- Definitions 110. Meaning of active membership resolution 111. What is active membership 112. What are active membership provisions and resolutions Division 2 -- Rules to contain active membership provisions 113. Number of primary activities required 114. Rules to contain active membership provisions 115. Factors and considerations for determining primary activities etc. 116. Active membership provisions -- distributing co-operatives 117. Regular subscription -- active membership of non-distributing co-operative Division 3 -- Active membership resolutions 118. Notice of meeting 119. Eligibility of directors to vote on proposal at board meeting Division 4 -- Cancellation of membership of inactive or missing members 120. Cancellation of membership of inactive or missing member 121. Share to be forfeited if membership cancelled 122. Failure to cancel membership -- offence by director 123. Deferral of forfeiture by board 124. Cancellation of membership prohibited in certain circumstances 125. Notice of intention to cancel membership 126. Order of Supreme Court against cancellation 127. Repayment of amounts due because of cancelled membership 128. Interest on deposits, debentures and co-operative capital units 129. Repayment of deposits, and redemption of debentures and co-operative capital units 130. Register of cancelled memberships Division 5 -- Entitlements of former members of distributing co-operatives 131. Application of Division 132. Former shareholders to be taken to be shareholders for certain purposes 133. Entitlements of former shareholders on mergers etc. 134. Set off of amounts repaid etc. on forfeited shares 135. Regulations may exempt co-operatives from provisions PART 7 -- Shares Division 1 -- Nature of share 136. Nature of share in co-operative Division 2 -- Disclosure 137. Disclosure to intending shareholders in distributing co-operative 138. Content of disclosure statement to intending shareholders 139. Exemptions for disclosure statements Division 3 -- Issues of shares 140. Shares -- general 141. Application of Corporations Act for particular share subscriptions 142. Minimum paid up amount 143. Shares not to be issued at a discount 144. Issue of shares at a premium 145. Joint ownership of shares 146. Members may be required to take up additional shares 147. Bonus share issues 148. Restrictions on bonus shares 149. Notice about bonus shares Division 4 -- Beneficial and non-beneficial interest in shares 150. Direction to disclose 151. Disclosure by member of relevant interests and instructions 152. Registration as trustee etc. on death of owner of shares 153. Registration as administrator of estate on incapacity of shareholder 154. Registration as Official Trustee in Bankruptcy 155. Liabilities of person registered as trustee or administrator 156. Notice of trusts in register of members 157. No notice of trust except as provided by this Division Division 5 -- Sale or transfer of shares 158. Sale or transfer of shares 159. Transfer on death of member 160. Restriction on total shareholding 161. Transfer not effective until registered 162. Non-members become members on registration Division 6 -- Repurchase of shares 163. Purchase and repayment of shares 164. Deposit, debentures or co-operative capital units instead of payment when share repurchased 165. Cancellation of shares PART 8 -- Voting and meetings Division 1 -- Voting entitlements 166. Application of Part to voting 167. Voting 168. Voting by proxy 169. Control of the right to vote 170. Effect of disposal of shares on voting rights 171. Effect of relevant share and voting interests on voting rights 172. Rights of representatives 173. Other rights and duties of members not affected by ineligibility to vote 174. Vote of disentitled member to be disregarded Division 2 -- Resolutions 175. Decisions to be by ordinary resolution 176. Ordinary resolutions 177. Special resolutions 178. How majority obtained is ascertained 179. Declaration of passing of special resolution 180. Effect of special resolution 181. Lodgment of special resolution 182. Decision of Registrar on application to register special resolution Division 3 -- Resolution by circulated document 183. Application of Division 3 184. Resolution by circulation of document -- fewer than 50 members Division 4 -- Postal ballots 185. Postal ballots 186. Special postal ballots 187. When a special postal ballot required 188. Holding of postal ballot on requisition 189. Expenses involved in postal ballots on requisition Division 5 -- Meetings 190. Annual general meetings 191. Special general meetings 192. Notice of meetings 193. Quorum at meetings 194. Decision at meetings 195. Calling of general meeting on requisition 196. Minutes PART 9 -- Management and administration of co-operatives Division 1 -- The Board 197. Board of directors 198. Election of directors 199. Qualification of directors 200. Disqualified persons 201. Meeting of the board of directors 202. Transaction of business outside meetings 203. Alternate directors 204. Delegation by board 205. Removal from and vacation of office Division 2 -- Secretary 206. Secretary 207. Meaning of officer 208. Officers must act honestly 209. Standard of care and diligence required 210. Improper use of information or position 211. Recovery of damages by co-operative 212. Other duties and liabilities not affected 213. Application of Corporations Act concerning indemnities and insurance for officers and auditors 214. Application of Corporations Act provisions concerning officers of co-operatives 215. Directors’ remuneration 216. Certain financial accommodation to officers prohibited 217. Financial accommodation to directors and associates 218. Restriction on directors of certain co-operatives selling land to co-operative 219. Management contracts 220. Declaration of interest 221. Declarations to be recorded in minutes 222. Division does not affect other laws or rules 223. Certain interests need not be declared 224. Meaning of control and entity 225. Requirements for financial records and financial reports 226. Power of Registrar to grant exemptions 227. Disclosure by directors 228. Protection of auditors etc. 229. Financial year 230. Registers to be kept by co-operatives 231. Location of registers 232. Inspection of registers etc. 233. Use of information on registers 234. Notice of appointment etc. of directors and officers 235. Annual report to be lodged with Registrar 236. List of members to be provided at request of Registrar 237. Special return to be given at request of Registrar 238. Name to include certain matter 239. Use of abbreviations 240. Name to appear on business documents etc. 241. Change of name of co-operative 242. Restriction on use of word “co-operative” or similar words 243. Registered office of co-operative PART 10 -- Funds and property Division 1 -- Power to raise money 244. Meaning of obtaining financial accommodation 245. Fund raising to be in accordance with Act and regulations 246. Limits on deposit taking 247. Members etc. not required to see to application of money 248. Registrar’s directions about fundraising 249. Subordinated debt 250. Application of Corporations Act to issues of debentures 251. Application of Corporations Act to particular issues of debentures 252. Disclosure statement 253. Approval of board for transfer of debentures 254. Application of Corporations Act -- reissue of redeemed debentures 255. Compulsory loan by member to co-operative 256. Interest payable on compulsory loan Division 2 -- Co-operative capital units 257. General nature of co-operative capital units 258. Priority of CCU’s on winding-up 259. Financial accommodation provisions apply to issue of CCUs 260. CCUs to be issued to non-members 261. Minimum requirements for rules concerning CCUs 262. CCUs not to be issued unless terms of issue approved by Registrar 263. Directors’ duties concerning CCUs 264. Redemption of CCUs 265. Capital redemption reserve 266. Issue of shares in substitution for redemption Division 3 -- Charges 267. Registration of charges Division 4 -- Receivers and other controllers of property of co-operatives 268. Receivers and other controllers of property of co-operatives Division 5 -- Disposal of surplus from activities 269. Retention of surplus for benefit of co-operative 270. Application for charitable purposes or members’ purposes 271. Distribution of surplus or reserves to members 272. Application of surplus to other persons Division 6 -- Acquisition and disposal of assets 273. Acquisition and disposal of assets PART 11 -- Restrictions on the acquisition of interests in co-operatives Division 1 -- Restrictions on share and voting interests 274. Application of Part 275. Notice required to be given of voting interest 276. Notice required to be given of substantial share interest 277. Requirements for notices 278. Maximum permissible level of share interest 279. Transitional provision 280. Shares to be forfeited to remedy contravention 281. Powers of board in response to suspected contravention 282. Powers of Supreme Court in relation to contravention 283. Co-operative to notify Registrar of interest over 20% 284. Co-operative to keep register 285. Unlisted companies to provide list of shareholders etc. 286. Excess share interest not to affect loan liability 287. Extent of operation of Division 288. Registrar may grant exemption from Division Division 2 -- Restrictions on certain share offers 289. Share offers to which Division applies 290. Offer to be approved by special resolution using special postal ballot 291. Some offers totally prohibited if they discriminate 292. Offers to be submitted to board first 293. Announcements of proposed takeovers concerning proposed company 294. Additional disclosure requirements for offers involving conversion to company 295. Consequences of prohibited offer 296. Registrar may grant exemptions PART 12 -- Merger, transfer of engagements, winding-up Division 1 -- Mergers and transfers of engagements 297. Application of Division 298. Mergers and transfers of engagements of local co-operatives 299. Requirements before application can be made 300. Disclosure statement required 301. Making an application 302. Approval of merger 303. Approval of transfer of engagements 304. Transfer of engagements by direction of Registrar Division 2 -- Transfer of incorporation 305. Application for transfer 306. Requirements before application can be made 307. Meaning of new body and transfer 308. New body ceases to be registered as co-operative 309. Transfer not to impose greater liability etc. 310. Effect of new certificate of registration 311. New body must give copy of new certificate of registration or incorporation to Registrar 312. New body is a continuation of the co-operative Division 3 -- Winding-up and deregistration 313. Methods of winding-up 314. Winding-up on Registrar’s certificate 315. Method of deregistration 316. Application of Corporations Act to winding-up and deregistration 317. Restrictions on voluntary winding-up 318. Start of members’ voluntary winding-up 319. Distribution of surplus -- non-distributing co-operatives 320. Liquidator -- vacancy may be filled by Registrar 321. Review of liquidator’s remuneration 322. Liability of member to contribute in a winding-up where shares forfeited etc. Division 4 -- Administration of co-operative -- application of Corporations Act 323. Application of Corporations Act to administration of co-operative Division 5 -- Appointment of administrator 324. Appointment of administrator 325. Effect of appointment of administrator 326. Revocation of appointment 327. Expenses of administration 328. Liabilities arising from administration 329. Additional powers of Registrar 330. Stay of proceedings 331. Administrator to report to Registrar Division 6 -- Effect of merger etc. on property, liabilities etc. 332. How this Division applies to a merger 333. How this Division applies to a transfer of engagements 334. How this Division applies to a transfer of incorporation 335. Effect of merger etc. on property, liabilities etc. Division 7 -- Miscellaneous 336. Grounds for winding-up, transfer of engagements, appointment of administrator 337. Application of Corporations Act for insolvent co-operatives PART 13 -- Arrangements and reconstructions Division 1 -- General requirements 338. Requirements for binding compromise or arrangement 339. Supreme Court ordered meeting of creditors 340. Registrar to be given notice and opportunity to make submissions 341. Results of 2 or more meetings 342. Persons disqualified from administering compromise etc. 343. Application of Schedule 4 to person appointed 344. Application of Corporations Act to person appointed 345. Copy of order to be attached to rules 346. Directors to arrange for reports 347. Power of Supreme Court to restrain further proceedings 348. Supreme Court need not approve compromise or arrangement takeovers Division 2 -- Explanatory statements 349. Explanatory statement required to accompany notice of meeting etc. 350. Requirements for explanatory statement 351. Contravention of Division -- offence by co-operative Division 3 -- Facilitating reconstructions and mergers 352. Provisions for facilitating reconstructions and mergers Division 4 -- Acquisition of shares of dissenting shareholders 353. Definitions 354. Schemes and contracts to which Division applies 355. Acquisition of shares pursuant to notice to dissenting shareholder 356. Restrictions when excluded shares exceed 10% 357. Remaining shareholders may require acquisition 358. Transfer of shares pursuant to compulsory acquisition 359. Disposal of consideration for shares compulsorily acquired Division 5 -- Miscellaneous 360. Notification of appointment of scheme manager 361. Power of Supreme Court to require reports 362. Effect of out-of-jurisdiction compromise or arrangement 363. Jurisdiction to be exercised in harmony with Corporations Act jurisdiction 364. Registrar may appear etc. PART 14 -- Mutual recognition Division 1 -- Introductory 365. Definitions 366. What constitutes carrying on business 367. Co-operatives law 368. Excluded matter 369. Operation of foreign co-operatives in this State 370. Authorisation to carry on business 371. Registration under Companies (Co-operative) Act 1943 372. Notification to Registrar 373. Authorisation notices for participating co-operatives 374. Authorisation notices for non-participating co-operatives 375. Name of foreign co-operative 376. When foreign co-operative not authorised to carry on business 377. Withdrawal of authority to carry on business 378. Appeals 379. Application of Act and regulations to foreign co-operatives 380. Name and place of origin to appear on business and other documents 381. Supply of information to participating Registrars 382. Registrar to be notified of changes 383. Cessation of business 384. Functions conferred on Registrar under co-operatives law 385. Winding-up to relate to State activities 386. Supreme Court may order winding-up 387. Application of Corporations Act to winding-up of foreign co-operatives 388. Outstanding property of foreign co-operative 389. Definitions 390. Authority for merger or transfer of engagements 391. Requirements before application can be made 392. Disclosure statement required 393. Making an application 394. Approval of merger 395. Approval of transfer of engagements 396. Effect of merger or transfer of engagements 397. Division applies instead of certain other provisions of this Act PART 15 -- Supervision and protection of co-operatives Division 1 -- Supervision and protection 398. Definitions 399. Co-operative includes subsidiaries, foreign co-operatives and co-operative ventures 400. Appointment of inspectors 401. Registrar and investigators have functions of inspectors 402. Inspector’s identity card 403. Production or display of inspector’s identity card 404. Powers of inspector 405. Inspector’s appointment conditions 406. Entry of place 407. Consent to entry 408. Inspectors may require certain persons to appear, answer questions and produce documents 409. Powers of inspectors on place entered 410. Functions of inspectors in relation to relevant documents 411. Protection from incrimination 412. Warrants 413. Warrants -- applications made other than in person 414. Entry with warrant 415. General powers after entering places 416. Power to seize evidence 417. Receipt for seized things 418. Return of seized things 419. Power to require name and address 420. False or misleading statements 421. Power to require production of documents 422. False or misleading documents 423. Obstruction of inspectors 424. Copies or extracts of records to be admitted in evidence 425. Privilege Division 2 -- Inquiries 426. Definitions 427. Appointment of investigators 428. Powers of investigators 429. Examination of involved person 430. Privilege 431. Offences by involved person 432. Offences relating to documents 433. Record of examination 434. Report of investigator 435. Proceedings following inquiry 436. Admission of investigator’s report as evidence 437. Costs of inquiry 438. Falsification of records 439. Fraud or misappropriation 440. Offering or paying commission 441. Accepting commission 442. False statements in loan application etc. 443. Application for special meeting or inquiry 444. Holding of special meeting 445. Expenses of special meeting or inquiry 446. Power to hold special inquiry into co-operative 447. Special meeting following inquiry 448. Information and evidence 449. Extension or abridgment of time 450. Power of Registrar to intervene in proceedings PART 16 -- Administration of this Act Division 1 -- The Registrar 451. Registrar of Co-operatives 452. Deputy Registrar and other staff 453. Delegation by Registrar 454. Registers to be kept by Registrar 455. Keeping of registers 456. Disposal of records by Registrar 457. Inspection of registers 458. Approvals by Registrar 459. Lodgment of documents 460. Way of lodging 461. Power of Registrar to refuse to register or reject documents Division 2 -- Protection from liability 462. Particular persons protected from liability Division 3 -- Evidence 463. Certificate of registration 464. Certificate evidence 465. Records kept by co-operatives 466. Minutes 467. Official certificates 468. The Registrar and proceedings 469. Rules 470. Registers Division 4 -- Enforceable undertakings 471. Undertakings following contravention of, or failure to comply with, this Act 472. Register of undertakings 473. Enforcement orders PART 17 -- Offences and proceedings 474. Offences by officers of co-operatives 475. Notice to be given of conviction for offence 476. Secrecy 477. False or misleading statements 478. Further offence for continuing failure to do required act 479. Civil remedies 480. Injunctions 481. Proceedings for offences etc. PART 18 -- General 482. Co-operative ceasing to exist 483. Service of documents on co-operative 484. Service on member of co-operative 485. Reciprocal arrangements 486. Translations of documents 487. Exemptions may be on conditions 488. Approval of forms 489. Regulation making power 490. Companies (Co-operative) Act 1943 repealed 491. Co-operative and Provident Societies Act 1903 repealed PART 19 -- Transitional and savings provisions Division 1 -- Preliminary 492. Terms used in this Part 493. Interpretation Act 1984 not affected 494. Transitional regulations Division 2 -- Prohibition on registration under former Act 495. Prohibition on registration under Companies (Co-operative) Act 1943 or Co-operative and Provident Societies Act 1903 Division 3 -- Transfer to incorporation under this Act 496. Co-operative companies and registered societies to register under this Act 497. Decision of Registrar to register co-operative company or registered society Division 4 -- General transitional provisions 498. Special resolutions, applications to the Court and court orders 499. Inspections or inquiry 500. Acquisition of shares of shareholders dissenting from scheme or contract approved by majority 501. Transitional provisions about active members Division 5 -- Pending incorporation, reconstruction or winding-up 502. Pending incorporation 503. Pending reconstruction 504. Pending wind-up PART 20 -- Consequential amendments Division 1 -- Consequential amendments commencing on registration of Co-operative Bulk Handling Limited 505. Grain Marketing Act 2002 amended 506. Local Government Act 1995 amended Division 2 -- Consequential amendments commencing on commencement of this Act 507. Civil Judgments Enforcement Act 2004 amended 508. Criminal Property Confiscation Act 2000 amended 509. Equal Opportunity Act 1984 amended 510. Taxi Act 1994 amended 511. Western Australian Treasury Corporation Act 1986 amended Division 3 -- Consequential amendments commencing on repeal of former Acts 512. Civil Judgments Enforcement Act 2004 amended 513. Criminal Property Confiscation Act 2000 amended 514. Equal Opportunity Act 1984 amended 515. Housing Loan Guarantee Act 1957 amended 516. Local Government Act 1995 amended 517. Taxi Act 1994 amended 518. Western Australian Treasury Corporation Act 1986 amended SCHEDULE SCHEDULE SCHEDULE SCHEDULE[Assented to 22 October 2009]