South Australian Consolidated Acts

CO-OPERATIVES ACT 1997 - SCHEDULE 5

Schedule 5—Savings and transitional

1—Definitions

In this Schedule—

active membership provisions , in relation to rules of a co-operative, means provisions imposing a duty on all persons who become members of the co-operative to be active members;

repealed Act means the Co-operatives Act 1983 ;

transferred co-operative means a body corporate that is deemed by clause 4, 5 or 6 of this Schedule to be a co-operative registered under this Act.

2—Acts Interpretation Act applies

The Acts Interpretation Act 1915 applies, except to the extent of any inconsistency with the provisions of this Schedule, to the repeal of the Co-operatives Act 1983 .

3—Regulations

The Governor may make regulations of a savings or transitional nature consequent on the enactment or commencement of this Act.

4—Saving of existing co-operatives

        (1)         On the commencement of this clause, any existing body corporate that was a co-operative registered under the repealed Act immediately before that commencement is deemed to be a co-operative registered under this Act.

        (2)         Each transferred co-operative under this clause is the same legal entity as it was before the commencement of this clause with the same name, rules and membership as it had immediately before that commencement.

        (3)         The committee of management of a transferred co-operative as constituted immediately before its deemed registration under this Act is deemed to be the board of directors of the co-operative referred to in section 206 of this Act and each member of that committee of management is deemed to be a director of the transferred co-operative even if he or she does not qualify to be a director of a co-operative under section 208 of this Act.

        (4)         A certificate of incorporation issued by the Commission under the provisions of the repealed Act as continuing in force for the purposes of this clause is, for the purposes of this Act, deemed to be a certificate of registration issued under this Act.

5—Co-operatives in process of formation before commencement

        (1)         If, before the commencement of this clause, the meeting referred to in clause 3 of Form 2 of the Co-operatives Regulations 1996 had been held and an application for the registration of a co-operative was duly made under the repealed Act but the co-operative had not been registered under that Act—

            (a)         the provisions of Division 1 of Part 3 of that Act continue to apply to the registration of the co-operative; and

            (b)         on the registration of the co-operative under those provisions, the co-operative is deemed to be a co-operative registered under this Act.

        (2)         Each transferred co-operative under this clause is the same legal entity as it was before its deemed registration under this Act with the same name, rules and membership as it had immediately before that deemed registration.

        (3)         The committee of management of a transferred co-operative as constituted immediately before its deemed registration under this Act is deemed to be the board of directors of the co-operative referred to in section 206 of this Act and each member of that committee of management is deemed to be a director of the transferred co-operative even if he or she does not qualify to be a director of a co-operative under section 208 of this Act.

        (4)         A certificate of incorporation issued by the Commission under the provisions of the repealed Act as continuing in force for the purposes of this clause is, for the purposes of this Act, deemed to be a certificate of registration issued under this Act.

6—Co-operatives in process of amalgamation before commencement

        (1)         If, before the commencement of this clause, 2 or more co-operatives registered under the repealed Act had passed special resolutions resolving to amalgamate the co-operatives and an application for their amalgamation was duly made under the repealed Act but the proposed co-operative had not been registered under that Act—

            (a)         the provisions of Division 2 of Part 3 of that Act continue to apply to the registration of the proposed co-operative; and

            (b)         on the registration of the co-operative formed by the amalgamation, the co-operative is deemed to be a co-operative registered under this Act.

        (2)         Each transferred co-operative under this clause is the same legal entity as it was before its deemed registration under this Act with the same name, rules and membership as it had immediately before that deemed registration.

        (3)         The committee of management of a transferred co-operative as constituted immediately before its deemed registration under this Act is deemed to be the board of directors of the co-operative referred to in section 206 of this Act and each member of that committee of management is deemed to be a director of the transferred co-operative even if he or she does not qualify to be a director of a co-operative under section 208 of this Act.

        (4)         A certificate of incorporation issued by the Commission under the provisions of the repealed Act as continuing in force for the purposes of this clause is, for the purposes of this Act, deemed to be a certificate of registration issued under this Act.

7—Rules of co-operative in process of alteration before commencement

        (1)         If, before the commencement of this clause, a co-operative registered under the repealed Act had passed a special resolution resolving to alter its rules and an application for the registration of the proposed alteration of the rules was duly made under the repealed Act but the alteration had not been registered under that Act—

            (a)         the provisions of Division 3 of Part 3 of that Act continue to apply to the registration of the alteration of the rules of the co-operative; and

            (b)         on the registration of the alteration of the rules of the co-operative under those provisions, the alteration is deemed to be an alteration registered under this Act.

        (2)         A certificate issued by the Commission under section 19(4) of the repealed Act as continuing in force for the purposes of this clause is, for the purposes of this Act, deemed to be a certificate issued under section 110 of this Act.

8—Rules of transferred co-operative to conform with Act

        (1)         The rules of a transferred co-operative have effect subject to this Act and the regulations.

        (2)         A transferred co-operative must bring its rules into conformity with this Act and the regulations—

            (a)         within 2 years after the commencement of this Act; or

            (b)         within such further period as may be approved by the Commission in respect of that co-operative.

9—Modification of certain rules of transferred co-operative

        (1)         This clause applies if, in the opinion of the Commission, the rules of a transferred co-operative should be altered to achieve conformity with any requirement of this Act.

        (2)         The Commission may, by instrument in writing served on a transferred co-operative, require the co-operative within a period specified in the instrument to alter its rules—

            (a)         in a manner specified in the instrument; or

            (b)         in a manner approved by the Commission.

        (3)         If, within the period specified in the instrument, the co-operative fails to alter its rules as required by the instrument, the Commission may, by notation on the registered copy of the rules, alter the rules of the co-operative.

        (4)         The Commission must give written notice to a co-operative of any alteration of its rules made by the Commission under this clause.

        (5)         Any alteration made by the Commission to the rules of a transferred co-operative under this clause is as valid and effectual as if it were an alteration made and registered under Part 5 of this Act.

10—Rules of transferred co-operative to contain active membership provisions

The board of directors of a transferred co-operative must comply with Division 2 of Part 6 of this Act—

            (a)         within 2 years of the commencement of this Act; or

            (b)         within any further period approved by the Commission in respect of that co-operative.

11—Qualifications for membership of transferred co-operative

Section 62 of this Act does not apply in relation to a person who applies for membership of a transferred co-operative after the commencement of this Act if the rules of the co-operative do not contain active membership provisions.

12—Name of transferred co-operative to comply with this Act

If the name of a transferred co-operative does not comply with the requirements of this Act the co-operative must, within 12 months of the commencement of this Act, change the name of the co-operative to a name that complies with the requirements of this Act.

13—Transferred co-operative carrying on business with too few members

A transferred co-operative that has less than the minimum number of members required by this Act must, within 12 months of the commencement of this Act, increase its membership to the minimum number required by this Act.

14—Saving of voting rights of members of transferred co-operative

Despite any other provision of this Act, if on the commencement of this clause the rules of a transferred co-operative do not comply with section 175(2) of this Act, those rules are valid until the second anniversary of that commencement.

15—Inactive members of transferred co-operative entitled to vote if rules do not contain active membership provisions

Despite section 179 of this Act, a member of a transferred co-operative who is not an active member of the co-operative is entitled to vote if the rules of the co-operative do not contain active membership provisions.

16—Extension of time for holding of AGM by transferred co-operative

If under section 9 of the repealed Act the Commission extended the time prescribed by that Act for the holding of an annual general meeting by a co-operative that is a transferred co-operative, that extension of time is deemed to be an extension of time allowed by the Commission under section 199(2)(b) of this Act.

17—Inactive members of transferred co-operative entitled to be requisitioning members if rules do not contain active membership provisions

Despite section 204(2) of this Act, a member of a transferred co-operative who is not an active member of the co-operative is entitled to be a requisitioning member if the rules of the co-operative do not contain active membership provisions.

18—Transferred co-operative to remove disqualified persons from board of directors

If a director of a transferred co-operative is not qualified to be a director of a co-operative under this Act, the transferred co-operative must, within 12 months of the commencement of this Act, remove the director from office and appoint a qualified person to fill the vacancy until the next annual general meeting.

19—Prospectuses issued by transferred co-operative before commencement in relation to issue of debentures to non-members etc

        (1)         This clause applies in relation to an issue of debentures by a transferred co-operative to persons other than persons referred to in section 258(4) of this Act.

        (2)         A prospectus issued by a transferred co-operative under section 31(1)(a) of the repealed Act before the commencement of this Act is deemed to be a prospectus issued under section 258 of this Act.

20—Prospectuses issued by transferred co-operative before commencement in relation to issue of debentures to members

        (1)         This clause applies in relation to an issue of debentures by a transferred co-operative to persons referred to in section 259(1) of this Act.

        (2)         A prospectus issued by a transferred co-operative under section 31(1)(a) of the repealed Act before the commencement of this Act is deemed to be an approved disclosure statement under section 259 of this Act.

21—Prospectuses issued by transferred co-operative before commencement in relation to issue of shares to members

        (1)         This clause applies in relation to an issue of shares to members of a transferred co-operative.

        (2)         A prospectus issued by a transferred co-operative under section 31(1)(a) of the repealed Act before the commencement of this Act is deemed to be a disclosure statement under section 144 of this Act.

22—Charges registered under repealed Act

A charge on property of a transferred co-operative registered under section 31(1)(b) of the repealed Act is deemed to be a charge registered under Schedule 3 of this Act and, for the purposes of the provisions of this Act relating to the priority of charges, the charge is deemed to have been registered under this Act at the time of registration under the repealed Act.

23—Application for exemption before commencement—qualifications of auditors

An application for an exemption under section 50(3) of the repealed Act duly made by a transferred co-operative under the repealed Act but not determined before the commencement of this clause is deemed to be an application for an exemption under section 234 of this Act.

24—Existing accounts provisions to apply to transferred co-operatives

Despite anything to the contrary in this Act or the regulations, Part 5 of the repealed Act continues to apply to a transferred co-operative in respect of the financial year of that co-operative next following the commencement of this clause if that financial year ends on or before the prescribed date.

25—Notice to be given of relevant interest in voting rights of member of transferred co-operative

If—

            (a)         on the commencement of this clause a person has a relevant interest in the right to vote of a member of a transferred co-operative; and

            (b)         the person became aware of that interest before that commencement,

the person must give notice of that interest to the co-operative within 6 months of that commencement.

Maximum penalty: $2 000.

26—Notice to be given of substantial share interest in transferred co-operative

        (1)         If—

            (a)         a person has a substantial share interest in a transferred co-operative on the commencement of this clause; and

            (b)         the person became aware of that interest before that commencement,

the person must give notice of that interest to the co-operative within 6 months of that commencement.

Maximum penalty: $2 000.

        (2)         For the purposes of this clause, a person has a substantial share interest in a co-operative if the nominal value of the shares in the co-operative in which the person has a relevant interest represents 5 per cent or more of the nominal value of the issued share capital of the co-operative.

27—Maximum permissible level of share interest in transferred co-operative

        (1)         If, on the commencement of this clause, a person has a relevant interest in shares of a transferred co-operative beyond the maximum permissible level prescribed by section 275(1) of this Act the person must, within 12 months of that commencement, reduce his or her interest to the maximum permissible level.

        (2)         Section 275(4) of this Act does not apply in relation to a transferred co-operative while the co-operative has less than the minimum number of members allowed by section 69 of this Act.

28—Unlisted companies to provide list of shareholders etc to transferred co-operatives

A company to which section 281 of this Act applies must, within 6 months of the commencement of this clause, give to a transferred co-operative of which the company is a member the list referred to in that section.

29—Registered office of transferred co-operative

The registered office of a transferred co-operative last notified to the Commission under the repealed Act is deemed to be the registered office of the transferred co-operative for the purposes of this Act.

30—Investigation into affairs of transferred co-operative

If, before the commencement of this clause, a special investigation under Part 7 of the Companies (South Australia) Code had commenced in respect of a transferred co-operative, that Part continues to apply in relation to that investigation.

31—Winding up of transferred co-operative

        (1)         If, before the commencement of this clause, a transferred co-operative had commenced to be wound up under the provisions of Division 3 of Part 6 of the repealed Act, the proceedings for the winding up of the co-operative may be continued and completed under those provisions as if this Act had not been enacted.

        (2)         A co-operative mentioned in subclause (1) whose registration has been cancelled is taken to be a deregistered co-operative.

        (3)         A provision of the Corporations Law dealing with a matter arising out of the repeal of Division 8 of Part 5.6 of the Corporations Law is adopted by this clause and applies for the purposes of the application of the Corporations Act under Division 3 of Part 12 of this Act.

        (4)         A co-operative that is being or has been dissolved under the repealed Division 8 of Part 5.6 of the Corporations Law is taken to be a co-operative that is being or has been deregistered under this Act.

32—Arrangement for transferred co-operative

An application for approval of a proposed arrangement duly made by a transferred co-operative under Part VIII of the Companies (South Australia) Code before the commencement of this clause is deemed to be an application for approval of an arrangement under section 334 of this Act.

33—Receivers and managers of transferred co-operative

If, immediately before the commencement of this clause, there was a receiver or manager of a transferred co-operative, Division 1 of Part 6 of the repealed Act continues to apply in relation to the transferred co-operative and the appointment of the receiver or manager, despite the enactment of this Act.

34—Documents

A certificate or other document, relating to a transferred co-operative, issued or registered by, filed or lodged with, or given to, the Commission under the repealed Act has effect as if it were a certificate or other document issued or registered by, filed or lodged with, or given to, the Commission under this Act.

35—Proceedings under the repealed Act in relation to transferred co-operatives

The Commission may institute proceedings under the repealed Act for—

            (a)         an offence against the repealed Act committed before the commencement of this Act; or

            (b)         an offence against a provision of the repealed Act continued in operation by or under this Act.

36—Superseded references

        (1)         A reference in any other Act, statutory instrument or document of any kind to the Co-operatives Act 1983 is deemed to be a reference to this Act.

        (2)         A reference in any other Act, statutory instrument or document of any kind to a co-operative within the meaning of the Co-operatives Act 1983 is deemed to be a reference to a co-operative registered under this Act.