Queensland FINANCIAL INTERMEDIARIES BILL 1995 FINANCIAL INTERMEDIARIES BILL TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY Division 1—Introductory provisions 1 Short title 0.0... eee eee 14 2 Commencement ......... 0.0.0. eee ee eee eee 14 Division 2—Interpretation 3 Dictionary .... 0.6... e cect eens 14 4 Interpretation—meaning of "director"... 0.6.6... cee eee eee eee 15 5 Interpretation—meaning of "officer"... 2.2... eee eee eee 15 Division 3—Operation of Act 6 Act binds the State 2.0.0.0... eee ee 16 Division 4—Effect of Primary Producers' Cooperative Associations Act 1923 7 Primary Producers' Cooperative Associations Act not to apply ......... 16 PART 2—FUNCTIONS OF QOFS'S BOARD 8 Functions of QOFS's board under this Act ...................000000. 16 9 Consultation... 0.0.0... ee eee eee 17 PART 3—STANDARDS 10 Making of standards .... 0.0.0... cece eee eee eens 17 11 Procedures before making of standards ...............0 00 cece ee eee 17 12 Urgent standards... 6.0.0.6... cent ees 18 13 Application of changed requirements ..............-. 0000 c cece eee eee 19 14 Transitional arrangements .......... 0... e eee eee 19 15 Matters for which standards may make provision..................+5- 19 Financial Intermediaries 17 19212325 272931333537394143 Publication of standards ......... 0.0.00 20 Societies must comply with standards ............00 2.0.00 cece eee eee 20 PART 4—FUNCTIONS AND POWERS OF QOFS Division 1—General Functions of QOFS under this Act... 2.0.0.0... cece ce een ee 21 General powers... 0.002 21 Application of variation under standards.................0...002000. 22 QOFS to keep Treasurer informed ............00.....0 0000 c ee eee eee 22 Inspection of documents at QOFS's public office. ..............00.00. 22 Power of QOFS to reject documents ............ 5.00 cece cece eee 23 QOFS may require further information. .............0 600 cece eee eee ee 23 Extension or abridgment of time... 1.6... eee 23 Division 2—Specific powers Subdivision 1—Enforcement powers Appointment of inspectors... 6... 0... eee eee 24 Powers of inspectors 2... 0.0... eee eee 24 Inspector's appointment terms ............ 000.000. eee eee eee 24 Inspector's identity card 2.2.0.6... eee eee es 25 Production or display of inspector's identity card................-.05. 25 Entry to places by inspector ........... 0. 0c cece eee eee ees 26 Consent to entry... 6. eee eee 26 Warrants to enter... 6. eee eee nee 27 Warrants—applications made other than in person ................... 28 General powers after entering places ............. 0.0 cece eee eee 30 Power to seize evidence... 6.6... eee teens 30 Powers supporting seizure... 66.6... eee ee 31 Receipt for seized things... 6.6.6... cece cece ee 31 Return of seized things ....... 0.0... ccc cee eens 32 Access to seized things... 1.6... cece cee eee eee ee 32 Impersonating inspectors .. 0.0.6.1 eee 32 Obstruction of inspector... 6.06... 6 cece eet eee 32 Power to require information ........... 0.000 c eee e eee 33 Financial Intermediaries 4551535557596264 67 Power to require production of certain documents ..................4. 33 Inspector to give notice of damage ............ 0... e cece 34 Compensation ... 0.0.0.6... eect eee ene ee 34 Subdivision 2—Special meetings and inquiries Special meeting and inquiry ........... 6.00. c cece eee eee eee 35 Subdivision 3—Special power of intervention Intervention by QOFS ........ 6. c eee eens 36 Subdivision 4—Power to suspend operations of society Power to suspend operations ......... 0.00 e eee ee 38 Subdivision 5—Administrators Appointment of administrator... 0.0.6... eens 39 Notice of change of administrator's particulars to be given to QOFS..... 40 Effect of administrator's appointment ..............00 00 cece eee eee 40 Administrator's powers and functions .............. 000 cece eee 40 Revocation of administrator's appointment ..............00020--0 eee 40 Administrator's duty on revocation of appointment ................... 41 Expenses of administration. ........ 0.000.000 002 c eee ee eee 41 Administrator's liability ....... 2.0... 0. eee eee ee 42 Additional powers of QOFS .......... 0... eee 42 Stay of proceedings .. 2.6.66... cece cece eee eee eee 43 Administrator to report to QOFS ... 6.0.0... cece eects 43 Subdivision 6—Supervision fund and levy Cooperatives Supervision Fund ............ 0000. e eee eee eee 43 Supervision levy ...... 0... eee eee eee 44 Consultation... 0.6.6... eee 45 Failure to make payment an offence... .. 6.0.0.5... cee cece eee ees 45 PART 5—OBJECTS AND POWERS OF SOCIETIES Division 1—Objects Objects 2... nen teen ee ees 45 Division 2—Powers POWETS 0... eee eee ee tenet eens 46 Control of certain financial transactions ...................00000000, 46 Financial Intermediaries 69 71 2B7578808284 86889093 Control of foreign currency transactions .............. 00 cece eee eee 48 Raising funds ....... 6... i cece eee ees 48 Division 3—Guarantees Treasurer's guarantee... 6... eens 48 Society must enter into agreement before guarantee executed.......... 49 Provisions about guarantees ........... 06 e eee eee ees 49 PART 6—SOCIETIES Division 1—Formation and registration Formation of societies... 0.6... eee eens 50 Registration 2.6... eee tenets 51 Certificate of incorporation... 6.0... 6... cece eee 52 Effect of incorporation .. 2... 6.6... eee eee eet 52 Rules 2.0... ete nents 53 Copies of rules 2.0... eee ete tte 53 Society and members to be bound by rules.................-000 000s 53 Alteration of rules by special resolution .............. 000 ccc e eee eee 53 Alteration of rules by board of directors... 2.0.60... cece cece eee 54 Registration of alteration of rules... 0.6... 0. cece eee ee eee 54 Power of QOFS to require changes of rules...............--.-0.00 000 54 Power of QOFS to change rules to facilitate transfer of engagements.... 55 Division 3—Membership Members... 6.6... eee eee 56 Members who are minors .... 0... eee eee 56 Joint members ...... 0... eee eee 57 Cessation of membership ............. 00.0 e cece eee eens 57 Expulsion of member ..... 2... 0.00 58 Liability of members... 1.6... eens 58 Financial accommodation to, and deposits from, members and others ... 58 Division 4—Name and office Financial Intermediaries 9597101103105107109111113115117119121 Change of name does not affect identity...................00 eee eee 60 QOFS may direct change of name... .. 1... ee eee 60 Publication ofname.... 2... eee eee eee 60 Seal... eee eee eee 61 Registered office 2.0.0.0... 6c 61 PART 7—MANAGEMENT Division 1—Directors and officers Definition of "employee" for division .............. 000 c cece eee eee ee 62 Board of directors ...... 0... eee eee 62 Meetings .. 0.0... 6... een ete ees 62 Number of directors ........ 00.0 eee eee 63 Election or appointment of directors ............ 5.00 e eee eee eee eee 63 Alternate directors... 0.0... eee eee eee 63 Chairperson .... 0.0.6... e eee ees 64 Qualifications of directors. 6... 0... eee eee 64 Vacation of office 2.0.2... eee eee 64 Removal of directors... 0.0... ee eee eee 65 Declaration of interest... 2.0.0.0... eee eee eee 66 Declaration of possible conflict of duty or interest................-05. 67 Recording and effect of declaration ............. 0.0. c cece eee eee 67 Reporting declarations... 6.0.6... cece eect eee 68 Sections 109-110 not of limiting effect................ 0. cece eee eee 68 General duty to make disclosure ........... 000000 e cece eee ees 69 Financial accommodation to directors... .......0.. 0000000 c eee eee 69 Directors' remuneration... 0.0.0... 0.2 o eee eee eee 70 Management contracts ©... 0.6... eee 70 Duties of officers .. 0.0... eee ee 70 Effect of contravention of s 118 .......... 0.0.02. 72 Unlawfully acting as director .. 0.0.0.6... eee 72 Secretary... 66. nee eee ee 73 Liability of, and indemnity for, officers and employees................ 73 Financial Intermediaries 124126128130 132134136 138140142144146149 Division 2—Meetings Annual general meeting ........... 006. e cece eee eee eens 74 Special general meeting ............... 0.00... c cee eee eee eee 74 Quorum . cece e eee ene e eens 74 Notice of meeting ......... 0.6.6 75 00) 0 2 75 Special resolutions... 0.0.0.0... cece cece 75 Registration of special resolution... 2.0.6.0... 0c cee eects 76 Minutes 2.2... eee teen nents 77 Division 3—Registers and inspection Registers... 0... cece een nett ee 77 Register of directors etc... 0.6... 6c 77 Register of members .......... 0.0 c cece cece teen eee 79 Inspection of documents at society's registered office................. 80 Members entitled to particulars of their financial position ............. 80 Members entitled to copies of registers... 2.0.66... 6... c eee eee eee 81 Division 4—Accounts Financial year ©... 6.0.0. cece ete eens 81 Accounting records to be kept «1.2... 0c cece cece eee eee 81 Inspection of accounting records .......... 00. cece 82 Profit and loss account and balance sheet ............000- 00sec eeeeee 82 Audit 0606. e nent eens 83 Directors to ascertain certain matters ........... 2.00 ee cece eee eee ee 83 Requirements applying to accounts ...... 6.0.6... cece eee eee eee 84 Directors' statement .. 2... 6... eee tte 84 Directors' reports 2... 0.6... eet eee eee ees 85 Accounts and reports to be laid before annual general meeting ......... 88 Contravention of division ........ 0.6... cece cece eee eee ees 88 Division 5—Audit Meaning of "officer" for ss 149-150 2.0.0.0... eect 89 Person as society's auditor 2.0.6... 6... cece cece eee ees 90 Firm as society's auditor... 0.6... cece eee ee 91 Financial Intermediaries 152154156158160162165 168170172174176178 Person must not disqualify self etc. from acting as society's auditor ..... 93 Appointment of auditors ........ 0.0.6 c cece eee ees 93 Nomination of auditors 2.0.0.6... 0... cece cece eee eee eee 95 Removal of auditors .. 2.0.6.6... eee ete 96 Resignation of auditors ........ 0.0... cece eee eens 97 Notice of retirement etc. to be given... 6... eee eee 98 Effect of winding-up on office of auditor. ............. 0.00 c cece eee 98 Fees and expenses of auditors .......... 0.00 c cece eee eee ee ees 99 Auditor's report 0.2... ees 99 Powers and duties of auditor ..... 6... eee ees 101 Final audit on merger or transfer of engagements.................... 102 Obstruction of auditor ©... 0.0... 103 Qualified privilege... 06.6... 104 Division 6—Returns and relief Returns 2... 6... eee eee eee eee 104 Relief from requirements as to accounts and audit................... 105 PART 8—CHARGES Registration of charges ....... 6... 6 cc cece eee eee eee eee 107 PART 9—MERGERS AND TRANSFERS OF ENGAGEMENTS Definitions for part... 0.6... eee eee eens 107 Application of part... 6.0.0... 107 Application for registration of merger or transfer of engagements ....... 108 QOFS may register merged society... 0.0.6... cece eee eee eee 109 Certificate of confirmation (voluntary transfer) ..................... 110 QOFS may direct a transfer of engagements .................000005- 110 Society to comply with direction. ............. 0.0 0..00 0.0000 0.0000. 111 Certificate of confirmation (transfer by direction) ................... 112 Who receives the certificate of confirmation ....................0 112 When transfer of engagements takes effect.................0..0000. 112 Cancellation of registration ........... 0.0.02 eee eee 112 Effect of merger on societies ...................00.0.00002020200000. 112 Effect of transfer of engagements on societies .................0000% 113 Financial Intermediaries 184186188191193195197199201203 205 Effect of merger or transfer of engagements on guarantees............ PART 10—EXTERNAL ADMINISTRATION Division 1—Receivers and managers Receivers and managers ...... 2.0.0... ee eee eee Division 2—Administration of society's affairs Administration of society's affairs with view to executing deed of arrangement ...... 6... 6c eee eee eens Winding-up .. 2... eee eee eee eee Winding-up on certificate of QOFS ............. 0.00 eee eee Application of Corporations Law to winding-up ..................... Voluntary winding-up ... 0.0.0... cee eee eee eee Vacancy in office of liquidator on voluntary winding-up.............. Remuneration of liquidator on voluntary winding-up ................. Cancellation of registration ........... 0.0.02 eee eee PART 11—SPECIAL INVESTIGATIONS Definition of "officer" for part .........................00.20.0000. Appointment of investigators ........................2.00.2200000. Two or more investigators appointed.............0....00 000000000, Powers of investigators ..................0...0000.200000202020200000. Examination of officers... 0.0.0.6... Privileged communications ............ 0.000... 000 e eee eee eee Failure of officer to comply with requirement of investigator.......... Recording of examination.............. 0.00.0... cee eee eee eee ee Delegation of powers by investigator. .................00 000000000, Report of investigator ..........0.....0..00.0......0...0000.2.0000. Proceedings following investigation.................0.....0000000, Admission of investigator's report in evidence..............0...000. Expenses of investigation ......................0.......020.2020000. Concealing etc. document .........0.... 0.00 eee eee eee PART 12—REVIEW OF DECISIONS AND APPEALS Financial Intermediaries 207209212214216218220222224226229231233 PART 13—MISCELLANEOUS Division 1—Evidence Certificates 6.0... eect ees 129 Rules 2... een nent ete e ena 130 Registers 0.6... een ete e eens 130 Minutes 2... 6.6 eee eee 130 Entries 2.0... ete eet eee eens 130 Division 2—Offences Defaults by societies... 6.6.66. cece cece eect tet t tte 131 Restrictions on powers ..... 0.6... 131 Interpretation provision for ss 214-216 ....... 0.0... 131 Offences by officers ..... 6.6... ieee cee ete eee eee 133 Incurring debts not likely to be paid... ................-.20200000050- 135 Powers of Supreme Court ......... 0000 c cece eee eee eee eee 136 Inducement to be appointed as liquidator ................. 000s eee 137 Falsification of records ......... 060s cece eee teen eee 137 Frauds by officers ...... 0.0.66. 138 Definition of "relevant person" for ss 221-222 ......... 0... cee eee eee 138 False or misleading statements ............. 000. e cece eee ee 138 False, misleading or incomplete documents ...............2.-0.0000: 139 Power of court to assess damages against certain persons............. 139 False copies of rules ..........0...000..0000.000000000000220200000. 141 Fraud or misappropriation ........... 00.000... cee ee eee eee eee 141 Commissions ........ 6.00 e cece eee eeee 141 Officers and other persons in default ..........................00.. 142 Division 3—Legal proceedings Indictable and summary offences .........0... 0.000.000 0c cece eee 142 Proceedings for indictable offences................00..00 02000000, 142 Limitation on who may summarily hear indictable offence proceedings. 143 Limitation on time for starting summary proceedings ................ 143 Continuing offences ...... 0.6... 143 Injunctions .............000.000000 022. 144 Financial Intermediaries 236238240 242244 246248250252255257261 Power to grantrelief ..............0.0.00000.0.000000.00.00...0000. Secrecy... te eee e ete eens Abolition of doctrine of ultra vires... 0.0... Persons having dealings with a society. ..............00..00 0.0000. Effect of fraud... 2... iinet eee eens Abolition of doctrine of constructive notice ............... 00 eee eee Approval of forms .......... 00.00. c eee eee eee eee Division 5—Regulations Regulation making power...........0... 0.000 e eee e eee eee eee Specific regulation making powers ............. 0.0.00. cece eee eee Further specific regulation making powers ....................200.. Transitional regulations .......... 0.0.0.2 2 eee eee PART 14—TRANSITIONAL Continuing societies ..................00000.000000000000200000. Application for certificate of incorporation.................0..0000. Guarantees 2.0... . cee ee nett eee eens Society started to have been formed under previous law ............. Existing loans... 0.2.0.2. cee eee ee Directors 6.0... eee tent eens Management contracts .......... 0.0. e cece eee eee Special resolutions ......... 0... Appointment of auditor ...........0....0.0.000..00.0......0.0.0.20000. Special meeting or inquiry ........ 0... cee eee eee eee Winding-up .. 2... eee eee eee eee Act not to apply to certain continuing societies being wound-up ....... PART 15—APPLICATION OF ACT WITH CHANGES TO CERTAIN ENTITIES Application of Act... 0.0... 0... eee eee PART 16—REPEALS AND AMENDMENTS Repeals.. 0... eee eee eee Amendment of Queensland Office of Financial Supervision Act 1992... Financial Intermediaries SCHEDULE 1 ....................... ACT APPLIES TO CERTAIN ENTITIES AS IF AMENDED SCHEDULE 2 ....................... TERMINATING BUILDING SOCIETIES SCHEDULE 3 ....................... AMENDMENT OF QUEENSLAND OFFICE OF FINANCIAL SUPERVISION ACT 1992 SCHEDULE 4 ....................... DICTIONARY A BILL FOR An Act to provide for the regulation of cooperative housing societies, terminating building societies and The Cairns Cooperative Weekly Penny Savings Bank Limited, and for other purposes sl 14 s3 Financial Intermediaries The Parliament of Queensland enacts— 1 PART 1—PRELIMINARY 2 Division 1—Introductory provisions 3 Short title 4 1. This Act may be cited as the Financial Intermediaries Act 1995. 5 Commencement 6 2. This Act commences on a day to be fixed by proclamation. 7 Division 2—Interpretation 8 Dictionary 9 3. The dictionary in schedule 4 defines particular words used in this Act.! 10 1 In some Acts, definitions are contained in a dictionary that appears as the last schedule and forms part of the Act—Acts Interpretation Act 1954, section 14(4). Words defined elsewhere in the Act are generally signposted by entries in the dictionary. However, if a section has a definition that only applies to the section, or a part of a section, it is generally not signposted by an entry in the dictionary. If this type of definition is set out in a separate subsection, the subsection is generally the last subsection of the section. Signpost definitions in the dictionary alert the reader to the terms defined elsewhere in the Act and tell the reader where these definitions can be found. For example, the definition ' "approved entity" see section 70(1)', tells the reader there is a definition of the term "approved entity" in section 70(1). s4 15 s5 Financial Intermediaries Interpretation—meaning of "director" 4.(1) Subject to subsection (2), for this Act, "director" of a society includes a reference to— (a) aperson (however described) occupying or acting in the position of director of the society, and whether or not validly appointed to occupy, or duly authorised to act in, the position; and (b) a person under whose directions or instructions the society's directors are accustomed to act. (2) A person is not taken to be a person under whose directions or instructions a society's directors are accustomed to act merely because the directors act on advice given by the person in the proper performance of the functions attaching to— (a) the person's professional capacity; or (b) the person's business relationship with the directors or the society. Interpretation—meaning of "officer" 5.(1) Subject to subsection (2), for the purposes of this Act, "officer" of a society includes— (a) adirector, secretary, executive officer or employee of the society; and (b) areceiver and manager, appointed under a power contained in an instrument, of property of the society; and (c) a liquidator of the society appointed in a voluntary winding—up of the society; and (d) a trustee or other person administering a compromise or arrangement made between the society and other persons. (2) None of the following is an officer of the society— (a) areceiver who is not also a manager; (b) areceiver and manager appointed by a court; (c) a liquidator appointed by a court. aon Hnnst Wn 12 15 18 20 22 24 26 2830 $6 16 s8 Financial Intermediaries Division 3—Operation of Act Act binds the State 6.(1) This Act binds the State. (2) However, this section does not permit the State to be prosecuted for an offence. Division 4—Effect of Primary Producers' Cooperative Associations Act Primary Producers' Cooperative Associations Act not to apply 7. The Primary Producers' Cooperative Associations Act 1923 does not apply to a society. PART 2—FUNCTIONS OF QOFS'S BOARD Functions of QOFS's board under this Act 8. The functions of QOFS's board under this Act are to— (a) institute, develop, and ensure the effective and efficient implementation of, a system of prudential and other standards for, and for the supervision of, societies; and (b) advise, and make recommendations to, the Treasurer about— (i) changes to this Act; or (11) new laws, and changes to other existing laws, about or affecting societies; and (c) carry out the other functions conferred on it by this Act. ABR WwW wp 13 1518 20 s9 17 sll Financial Intermediaries Consultation 9. In performing its functions and exercising its powers under this Act, QOFS's board must consult with the Treasurer, the Reserve Bank of Australia, industry bodies and societies if it is appropriate and practicable to consult with them. PART 3—STANDARDS Making of standards 10.41) QOFS's board may, by resolution, make standards (whether prudential or otherwise) about— (a) the business and affairs of societies; and (b) the supervision of societies by QOFS; and (c) any other matters about which this Act authorises or requires (whether expressly or by implication) standards to be made. (2) A resolution to make a standard takes effect from— (a) the day a copy of the resolution is gazetted; or (b) a later day stated in the resolution. Procedures before making of standards 11.(1) A standard may be made only if this section or section 12 is complied with for the resolution by which the standard is to be made. (2) QOFS's board must, not later than 60 days before the passing of the resolution, publish a notice in the gazette, and in a newspaper circulating generally in the State, explaining succinctly the purpose, and intended operation, of the resolution. (3) The notice must invite— (a) written suggestions on the proposed resolution to be given to the board within 30 days after publication of the gazette notice; and An pPwWN 11 13 1519 2123 26 s12 18 s12 Financial Intermediaries (b) written comments on the suggestions to be given to the board within 21 days after the end of the period of 30 days. (4) The board must— (a) make copies of each suggestion and comment given to it available for inspection and purchase at QOFS's public office; and (b) take reasonable steps to ensure that copies of each suggestion and comment given to it are available for inspection and purchase at QOFS's public office. (5) The board must comply with subsection (4) for a suggestion or comment as soon as practicable after the suggestion or comment is given to it. (6) The board must consider all suggestions and comments given before passing the resolution, and may change the proposed resolution to take account of suggestions and comments. (7) Contravention of this section for a resolution does not affect the validity of the resolution. Urgent standards 12.(1) If QOFS's board decides it is necessary, because of urgent circumstances, for a resolution making a standard to be passed without complying with section 11,2 it may pass the resolution. (2) If the board makes a decision under subsection (1), it must immediately publish a copy of the decision in the gazette, together with a succinct statement of the reasons for making the decision. (3) A resolution made because of a decision under subsection (1) has effect for only— (a) 120 days; or (b) a lesser period stated in the resolution. 2 Section 11 (Procedures before making of standards) FOO DYDD NH W NE Re Ree ee RwWN eR num 192225 27 s 13 19 $15 Financial Intermediaries Application of changed requirements 13.(1) A standard may provide that its operation for a particular society may be varied by QOFS by temporarily changing a requirement of the standard as allowed under the standard. (2) This section does not limit by implication the power of QOFS's board to make standards. Transitional arrangements 14.(1) A standard imposing requirements, or increasing requirements already imposed by a standard, may make transitional provision allowing additional time to comply with the requirements. (2) This section does not limit by implication the power of QOFS's board to make standards. Matters for which standards may make provision 15.(1) A standard may make provision about a matter by applying, adopting or incorporating (with or without changes) provisions of— (a) a law of the Commonwealth, a State or a foreign country; or (b) a document. (2) If a standard makes provision about a matter by applying, adopting or incorporating provisions of a law or document, the provisions as in force at the time are to be attached to the standard, and are taken to be incorporated in the standard. (3) A standard may— (a) apply generally to all persons and matters or be limited in its application to— (i) particular persons or matters; or (11) particular classes of persons or matters; and (b) otherwise apply generally or be limited in its application by reference to stated exceptions or factors. (4) A standard may— Dun FBWN 12 15 17 1921 24 26 28 s 16 20 s17 Financial Intermediaries (a) make different provision for— (i) different persons or matters; or (11) different classes of persons or matters; or (b) apply differently by reference to specified exceptions or factors. (5) A standard may authorise a matter to be decided, applied or regulated from time to time by a stated person or body. (6) A standard may make provision about a particular aspect of a matter even though provision is made by this Act about another aspect of the matter or about another matter. Publication of standards 16.(1) When QOFS's board, by resolution, makes a standard, it must immediately— (a) gazette a copy of the resolution; and (b) prepare a summary of its terms; and (c) publish a notice in a newspaper circulating generally in the State— (i) notifying the making of the resolution; and (11) explaining succinctly the purpose, and intended operation, of the resolution. (2) QOFS must, as soon as practicable after the summary is prepared, give a copy of the summary to each society affected by the standard. (3) QOFS's board must take reasonable steps to ensure that copies of the resolution are available for inspection and purchase at QOFS's public office. (4) Contravention of this section for a resolution does not affect the validity of the resolution. Societies must comply with standards 17.(1) A society must comply with all relevant standards. Maximum penalty—400 penalty units. oon Dn fF W NY 12 14 16 19 21 2326 28 s18 21 s19 Financial Intermediaries (2) If a society contravenes a standard, any officer of the society who is in default commits an offence. Maximum penalty—400 penalty units. PART 4—FUNCTIONS AND POWERS OF QOFS Division 1—General Functions of QOFS under this Act 18. The functions of QOFS under this Act are to— (a) register, supervise and regulate societies; and (b) supervise and enforce compliance by societies with this Act and with standards; and (c) ensure that an effective and efficient system of prudential supervision is applied to societies; and (d) protect the interests of members of societies; and (e) administer the Cooperatives Supervision Fund; and (f) facilitate or direct the transfer of engagements of, or the merger of, societies; and (g) otherwise undertake the administration and enforcement of this Act; and (h) give information and statistics to the Treasurer about societies; and (i) advise, and make recommendations to, the Treasurer; and Gj) carry out the other functions conferred on it by this Act. General powers 19.(1) QOFS has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions under this Ne 25 s 20 22 s22 Financial Intermediaries Act. (2) Without limiting subsection (1), QOFS has the powers conferred on it under this Act. Application of variation under standards 20.(1) If a standard provides that the operation of the standard for a particular society may be varied by QOFS by temporarily changing a requirement of the standard, QOFS may temporarily change the requirement as allowed under the standard. (2) Subsection (1) does not limit QOFS's other powers. QOFKS to keep Treasurer informed 21. QOFS must— (a) keep the Treasurer informed of the operation, administration and enforcement of this Act; and (b) give the Treasurer reports and information about the matters as the Treasurer requires. Inspection of documents at QOFS's public office 22.(1) QOFS must keep at its public office— (a) rules of societies; and (b) documents required to be kept by it under this Act. (2) A person may, on payment of the fee prescribed under a regulation— (a) inspect at QOFS's public office during QOFS's ordinary business hours— (i) the rules of a society; and (11) other documents of a class prescribed under a regulation filed with, created by or otherwise held by QOFS; and (b) obtain from QOFS— (i) acertified copy of a society's certificate of incorporation and w C0 MOINDMN Bp 11 13 15 171922 25 27 s 23 23 s25 Financial Intermediaries a certified copy of, or of part of, a society's rules; or (11) a certified copy of, or extract from, another document that the person may inspect under paragraph (a)(11). Power of QOFS to reject documents 23.(1) This section applies if QOFS considers a document submitted to it— (a) contains matter contrary to law; or (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 (d) does not comply with the requirements of this Act; or (e) contains an error, alteration or erasure. (2) QOFS may refuse to register, or may reject, the document. (3) QOFS may ask— (a) that the document be appropriately amended or completed and resubmitted; or (b) that a fresh document be submitted in its place; or (c) if the document has not been duly completed—that a supplementary document be submitted. QOFS may require further information 24. QOFS may require a person who submits a document to it to also produce another document, or to give any information, that QOFS considers necessary to form an opinion whether it should refuse to register or should reject the document. Extension or abridgment of time 25.(1) QOFS may, on receipt of written application by a society or of its own initiative, extend or abridge the time within which anything is required w Fo COA YN AWN fF a wl rns KR WwW WN Nn Ree na Co Ne cow 2325 28 s 26 24 s 28 Financial Intermediaries to be done under this Act or the society's rules. (2) An application under subsection (1) may be made to QOFS even though the time sought to be abridged or extended has ended. Division 2—Specific powers Subdivision 1—Enforcement powers Appointment of inspectors 26.(1) QOFS may appoint a person, or class of persons, to be an inspector. (2) QOFS may appoint a person under subsection (1) only if— (a) QOFS considers the person has the necessary expertise or experience to be an inspector; or (b) the person has satisfactorily finished a course of training approved by QOFS. Powers of inspectors 27.1) An inspector— (a) has the powers given under this Act; and (b) is subject to the direction of QOFS in exercising the powers. (2) The powers of an inspector may be limited— (a) under a regulation; or (b) under a condition of appointment; or (c) by written notice given by QOFS to the inspector. Inspector's appointment terms 28.(1) An inspector holds office on the terms stated in the instrument of appointment. 15171921 24 s 29 25 s 30 Financial Intermediaries (2) An inspector— (a) if the appointment provides for a term of appointment—ceases holding office at the end of the term; and (b) if the terms of appointment provide—ceases holding office on ceasing to hold another office stated in the appointment terms (the "main office"); and (c) may resign by signed notice of resignation given to QOFS. (3) However, an inspector may not resign from the office under this Act (the "secondary office") if a term of employment to the main office requires the inspector to hold the secondary office. Inspector's identity card 29.(1) QOFS must give each inspector an identity card. (2) The identity card must— (a) contain a recent photo of the inspector; and (b) be signed by the inspector; and (c) identify the person as an inspector for this Act. (3) A person who ceases being an inspector must return the person's identity card to QOFS as soon as possible (but within 21 days) after the person ceases being an inspector, unless the person has a reasonable excuse. Maximum penalty—10 penalty units. (4) This section does not prevent the giving of a single identity card to a person for this and other Acts. Production or display of inspector's identity card 30.(1) An inspector may exercise a power in relation to someone only if— (a) the inspector first produces the inspector's identity card for the other person's inspection; or (b) the inspector has the inspector's identity card displayed so it is clearly visible to the other person. COM N DUNK WN e 121416 1822 25 27 29 s31 26 s 32 Financial Intermediaries (2) However, if for any reason it is not practicable to comply with subsection (1) before exercising the power, the inspector must produce the identity card for inspection by the other person at the first reasonable opportunity. Entry to places by inspector 31.(1) An inspector may enter a place only if— (a) (b) (c) (d) (e) its occupier consents to the entry; or the entry is authorised by a warrant; or the place is premises occupied by a society and the entry is made when the premises are open for conduct of business or otherwise open for entry; or the place is premises occupied by a banker or liquidator of a society and the entry is made when the premises are open for conduct of business or otherwise open for entry; or the place is premises that are not occupied for residential purposes, the inspector believes on reasonable grounds that accounting records or other documents prescribed under a regulation of, or any auditor's working papers relating 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. (2) However, an inspector may, without the occupier's consent or a warrant, enter— (a) (b) a public place when the place is open to the public; or the land around premises to ask its occupier for consent to enter the premises. Consent to entry 32.(1) This section applies if an inspector intends to ask an occupier of a place to consent to the inspector or another inspector entering the place. (2) Before asking for the consent, the inspector must tell the occupier— BwWNe 29 s 33 27 s 33 Financial Intermediaries (a) the purpose of the entry; and (b) that the occupier is not required to consent. (3) If the consent is given, the inspector may ask the occupier to sign an acknowledgment of the consent. (4) The acknowledgment must state— (a) that the occupier was told— (1) the purpose of the entry; and (11) that the occupier is not required to consent; and (b) the purpose of the entry; and (c) that the occupier gives the inspector consent to enter the place and exercise powers under this subdivision; and (d) the time and date the consent was given. (5) If the occupier signs an acknowledgment of consent, the inspector must immediately give a copy to the occupier. (6) Subsection (7) applies to a court if— (a) an issue arises, in a proceeding in or before the court, whether the occupier of a place consented to an inspector entering the place under this subdivision; and (b) an acknowledgment under this section is not produced in evidence for the entry; and (c) itis not proved that the occupier consented to the entry. (7) The court may presume that the occupier did not consent. Warrants to enter 33.(1) An inspector may apply to a magistrate for a warrant for a place. (2) The application must be sworn and state the grounds on which the warrant is sought. (3) The magistrate may refuse to consider the application until the inspector gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires. RW NY = ee BEo 0 emANXA DY a N eile' Rw Nn eee wornad Ne cow NN Ne 24 26 28 s 34 28 s 34 Financial Intermediaries Example— The magistrate may require additional information supporting the application to be given by statutory declaration. (4) The magistrate may issue a warrant only if the magistrate is satisfied there are reasonable grounds for suspecting — (a) there is a particular thing or activity (the "evidence") that may provide evidence of an offence against this Act; and (b) the evidence is, or may be within the next 7 days, at the place. (5) The warrant must state— (a) that a stated inspector may, with necessary and reasonable help and force, enter the place and exercise the inspector's powers under this subdivision; and (b) the offence for which the warrant is sought; and (c) the evidence that may be seized under the warrant; and (d) the hours of the day or night when the place may be entered; and (e) the date, within 7 days after the warrant's issue, when the warrant ends. Warrants—applications made other than in person 34.(1) An inspector may apply for a warrant by phone, fax, radio or other form of communication if the inspector considers it necessary because of— (a) urgent circumstances; or (b) other special circumstances, including, for example, the inspector's remote location. (2) Before applying for the warrant, the inspector must prepare an application stating the grounds on which the warrant is sought. (3) The inspector may apply for the warrant before the application is sworn. (4) After issuing the warrant, the magistrate must immediately fax a copy to the inspector if it is reasonably practicable to fax the copy. eC NDR WR WH | 111417 2024 26 28 30 s 34 29 s 34 Financial Intermediaries (5) If it is not reasonably practicable to fax a copy of the warrant to the inspector— (a) the magistrate must— (i) _ tell the inspector what the terms of the warrant are; and (11) tell the inspector the date and time the warrant was issued; and (b) the inspector must complete a form of warrant ("warrant form") and write on it— (i) the magistrate's name; and (11) the date and time the magistrate issued the warrant; and (11) the terms of the warrant. (6) The facsimile warrant, or the warrant form properly completed by the inspector, authorises the entry and the exercise of the other powers stated in the warrant issued by the magistrate. (7) The inspector must, at the first reasonable opportunity, send the magistrate— (a) the sworn application; and (b) if the inspector completed a warrant form—the completed warrant form. (8) On receiving the documents, the magistrate must attach them to the warrant. (9) Subsection (10) applies to a court if— (a) an issue arises, in a proceeding in or before the court, whether a power exercised by an inspector was not authorised by a warrant issued under this section; and (b) the warrant is not produced in evidence. (10) The court must presume that the exercise of the power was not authorised by a warrant issued under this section, unless the contrary is proved. SC ON DWN fF W NK eS eK Oo See BRWN eR num a nN ee \o NN re Oo N N NNN n BW N a NNN 'oon s 35 30 s 36 Financial Intermediaries General powers after entering places 35.(1) This section applies to an inspector who enters a place. (2) For monitoring or enforcing compliance with this Act, the inspector may— (a) search any part of the place; or (b) inspect or photograph any part of the place or anything at the place; or (c) copy a document at the place; or (d) take into or onto the place any persons or equipment the inspector reasonably requires for exercising a power under this subdivision; or (e) require the occupier of the place, or a person at the place, to give the inspector reasonable help to exercise the powers under paragraphs (a) to (d). (3) A person must comply with a requirement under subsection (2)(e), unless the person has a reasonable excuse. Maximum penalty—80 penalty units. (4) A requirement under subsection (2)(e) does not include a requirement to produce a document or give information.3 Power to seize evidence 36.(1) An inspector who enters a place with the occupier's consent may seize a thing in the place if— (a) the inspector reasonably believes the thing is evidence of an offence against this Act; and (b) seizure of the thing is consistent with the purpose of entry as told to the occupier when asking for the occupier's consent. (2) An inspector who enters a place with a warrant may seize the evidence for which the warrant was issued. 3 For the power to require documents to be produced see section 44. For the power to require information see section 43. FBFOoDoU ANID WNW BW NY YD See ee ROBY Se ee nN aw ee \o 22 24 26 28 s 37 31 s 38 Financial Intermediaries (3) An inspector may also seize anything else at a place if the inspector reasonably believes— (a) the thing is evidence of an offence against this Act; and (b) the seizure is necessary to prevent the thing being hidden, lost, or destroyed or used to continue or repeat the offence. (4) Also, an inspector may seize a thing if the inspector reasonably believes it has just been used in committing an offence against this Act. Powers supporting seizure 37.(1) Having seized a thing, an inspector may— (a) move the thing from the place where it was seized (the "place of seizure"); or (b) leave the thing at the place of seizure but take reasonable action to restrict access to it. Examples of restricting access to a thing— 1. Sealing a thing and marking it to show access to it is restricted. 2. Sealing the entrance to a room where the seized thing is situated and marking it to show access to it is restricted. (2) If an inspector restricts access to a seized thing, a person must not tamper, or attempt to tamper, with the thing or something restricting access to the thing without an inspector's approval. Maximum penalty for subsection (2)—80 penalty units. Receipt for seized things 38.(1) As soon as practicable after an inspector seizes a thing, the inspector must give a receipt for it to the person from whom it was seized. (2) However, if for any reason it is not practicable to comply with subsection (1), the inspector must leave the receipt in a conspicuous position and in a reasonably secure way at the place of seizure. (3) The receipt must describe generally each thing seized and its condition. (4) This section does not apply to a thing if it is impracticable or would YD AR BW NY 11 13 15 17 1924 2629 s39 32 s 42 Financial Intermediaries be unreasonable to give the notice required by the section given the thing's nature, condition and value. Return of seized things 39.(1) The inspector must return a seized thing to its owner at the end of— (a) 60 days; or (b) if a proceeding for an offence involving it is started within the 60 days—the proceeding and any appeal from the proceeding. (2) Despite subsection (1), the inspector must immediately return a thing seized as evidence to its owner if the inspector stops being satisfied its continued retention as evidence is necessary. Access to seized things 40.(1) Until a seized thing is returned, an inspector must allow its owner to inspect it and, if it is a document, to copy it. (2) Subsection (1) does not apply if it is impracticable or would be unreasonable to allow the inspection or copying. Impersonating inspectors 41. A person must not pretend to be an inspector. Maximum penalty—100 penalty units or 6 months imprisonment. Obstruction of inspector 42.1) A person must not obstruct an inspector in the exercise of a power, unless the person has a reasonable excuse. Maximum penalty—800 penalty units or 7 years imprisonment. (2) In this section— "obstruct" includes hinder, intimidate, resist or threaten. Ne FOO AY DD UNH WwW ee 14 16 1822 24 s 43 33 s 44 Financial Intermediaries Power to require information 43.(1) This section applies if QOFS reasonably believes— (a) an offence against this Act has just been committed; and (b) asociety may be able to give information about the offence. (2) QOFS may, by written notice given to the society, require the society to give information about the offence. (3) When making the requirement, QOFS must warn the society it is an offence to fail to give the information, unless the society has a reasonable excuse. (4) The society must give the information, unless the society has a reasonable excuse. Maximum penalty—400 penalty units. (5) It is a reasonable excuse for a society to fail to give information if complying with the requirement might tend to incriminate the society. Power to require production of certain documents 44.11) QOFS may, by written notice given to a person, require the person to produce for inspection by an inspector a document issued, or required to be kept, under this Act. (2) The person must comply with the requirement, unless the person has a reasonable excuse. Maximum penalty—400 penalty units. (3) An inspector to whom a document is produced may keep the document to make a copy of it. (4) If the inspector copies it, the inspector may require the person responsible for keeping the document to certify the copy as a true copy of the document. (5) The person must certify the copy, unless the person has a reasonable excuse. Maximum penalty—80 penalty units. (6) The inspector must return the document to the person as soon as BPO CMI AWN FB WN Ye Se See N eile' Rw 1720 23 26 28 30 s 45 34 s 46 Financial Intermediaries practicable after making the copy. (7) It is a reasonable excuse for a person to fail to produce a document or certify a copy of a document, if complying with the requirement may tend to incriminate the person. Inspector to give notice of damage 45.(1) This section applies if— (a) an inspector damages something when exercising or purporting to exercise a power; or (b) a person (the "other person") acting under the direction of an inspector damages something. (2) The inspector must promptly give written notice of particulars of the damage to the person who appears to be the owner of the thing. (3) If the inspector believes the damage was caused by a latent defect in the thing or circumstances beyond the inspector's or other person's control, the inspector may state it in the notice. (4) If, for any reason, it is impracticable to comply with subsection (2), the inspector must leave the notice in a conspicuous position and in a reasonably secure way where the damage happened. (5) This section does not apply to damage the inspector reasonably believes is trivial. (6) In this section— "owner" of a thing includes the person in possession or control of it. Compensation 46.(1) A person may claim compensation from the State if the person incurs loss or expense because of the exercise or purported exercise of a power under this subdivision, including, for example, in complying with a requirement made of the person. (2) Compensation may be claimed and ordered in a proceeding— (a) brought in a court with jurisdiction for the recovery of the amount of compensation claimed; or BRwWN Or DWN 12 141720 22 2630 s47 35 s47 Financial Intermediaries (b) for an offence brought against the person claiming compensation. (3) A court may order compensation to be paid only if satisfied it is just to make the order in the circumstances of the particular case. (4) A regulation may prescribe matters that may, or must, be taken into account by the court when considering whether it is just to make the order. Subdivision 2—Special meetings and inquiries Special meeting and inquiry 47.11) QOFS may, on the written application of a majority of the directors of a society or of not less than 10% of the members of a society, or on its own initiative— (a) call a special meeting of the society; or (b) hold an inquiry into affairs (including the working and financial condition) of the society. (2) An application under subsection (1) must be supported by the evidence that QOFS directs to show that— (a) the applicants have good reason for requiring the meeting or inquiry; and (b) the application is made without malicious motive. (3) If QOFS directs, notice of the application must be given to the society (4) Security for the expenses of a meeting or inquiry must be given— (a) if the meeting is called or inquiry is held on an application under subsection (1)—by the applicants; or (b) if paragraph (a) does not apply—by the persons and in the way QOFS directs. (5) QOFS 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 decided; and (c) despite the society's rules, give notice to members of the holding Ak WH a 11 14 16 18 2023 25 2729 s 48 36 s 48 Financial Intermediaries of the meeting or inquiry as it considers appropriate. (6) QOFS may, by written notice, direct the directors and the other persons it requires to attend the meeting or inquiry. (7) A person to whom a direction is given under subsection (6) must not fail to comply with the direction, unless the person has a reasonable excuse. Maximum penalty—800 penalty units or 4 years imprisonment. (8) A meeting held under this section has all the powers of a meeting called under the society's rules and has power to appoint a person to preside at the meeting, despite any rule of the society to the contrary. (9) QOFS, or a person nominated by it, may attend and address a meeting held under this section. (10) The expenses of and incidental to the meeting or inquiry may be defrayed by the applicants, or out of the society's funds, or by an officer or member, or former officer or member, in the proportions agreed to between QOFS and those persons. (11) The expenses may be recovered as a debt in a court having jurisdiction for the recovery of debts up to the amount involved. (12) In default of agreement under subsection (10), the expenses must be defrayed by the persons, and in the proportions, that the Supreme Court, on the application of QOFS, directs. Subdivision 3—Special power of intervention Intervention by QOFS 48.(1) QOFS may, by written notice given to a society, place it under direction if QOFS considers that— (a) the society has contravened this Act and, after being given written notice of the contravention by QOFS, has allowed the contravention to continue or has again contravened this Act; or (b) the society is trading unprofitably or has an accumulated deficit in its profit and loss appropriation account; or (c) the society's affairs are being conducted in an improper or Fo OMAN DAD UVF WN Ree Ree ee nA WN Ree na Nee SOM N pan 24 2629 s 48 37 s 48 Financial Intermediaries financially unsound way. (2) QOFS may, by written notice given to the society, revoke the notice. (3) While the society is under direction, QOFS may do all things it considers necessary to do under this Act. (4) Without limiting subsection (3), QOFS may— (a) (b) (c) (d) (e) (f) order an audit of the society's affairs at the society's expense by an auditor chosen by QOFS; or direct the society to change a practice QOFS considers is undesirable or unsound; or direct the society to cease or limit the raising or lending of funds or the exercise of other powers; or remove a director, or all the directors, of the society from office and appoint another director or other directors; or remove an auditor of the society from office and appoint another auditor; or give other directions about how the society's affairs are, or are not, to be conducted. (5) A director or auditor appointed under this section holds office for the term directed by QOFS. (6) A society and any officer of the society who is in default each commit an offence if the society— (a) (b) fails to comply with a direction given, or requirement made, under this section to the extent the society is capable of doing so, unless the society has a reasonable excuse; or obstructs, hinders or resists the exercise of QOFS's powers under this section, unless the society has a reasonable excuse. Maximum penalty for subsection (6)—1 600 penalty units or 7 years imprisonment. FBO CHM AR WA BW NY HE il oon wn = ee AR Ree na ee \o NN re Oo NR wpehNd BRwWN NN Hun NN on s 49 38 s 49 Financial Intermediaries Subdivision 4—Power to suspend operations of society Power to suspend operations 49.(1) QOFS may act under subsection (2) if it considers that it is necessary to do so— (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. (2) QOFS may, by written notice given to the society, direct the society not to do all or any of the following— (a) give financial accommodation to members; (b) raise funds; (c) grant security over the society's assets. (3) A notice under subsection (2) continues in force until it expires or is withdrawn by QOFS. (4) QOFS may, by a further written notice given to the society— (a) extend the period for which a notice under subsection (2) is to have force; or (b) amend the terms of the notice; or (c) withdraw the notice. (5) If a society fails to comply with a notice under this section, the society and any officer of the society who is in default each commit an offence. Maximum penalty—l1 600 penalty units or 7 years imprisonment. (6) Subsection (5) does not apply if the failure to comply happens with QOFS's written permission. Cm A DAWN BW wv Se Be NF oO eile' Rw Nn ee Na re \o ow NO wpohN NH oO N we NN ns s 50 39 s 50 Financial Intermediaries Subdivision 5—Administrators Appointment of administrator 50.(1) This section applies if— (a) QOFS considers that— (i) asociety has contravened this Act or the society's rules and, after being given written notice of the contravention by QOFS, has allowed the contravention to continue or has again contravened this Act or the rules; or (11) a society is trading unprofitably or has an accumulated deficit in its profit and loss appropriation account; or (11) a society's affairs are being conducted in an improper or financially unsound way; or (b) after making the inquiries about a society QOFS considers appropriate, QOFS is satisfied that it is in the interest of members or creditors that the society's affairs be conducted by an administrator; or (c) QOFS has certified that any of the events mentioned in section 184(1)(a), (b), (c) or (g)4 has happened in relation to a society. (2) QOFS may appoint an administrator to conduct a society's affairs. (3) The appointment must be made by written notice. (4) The notice of appointment must state— (a) the date of appointment; and (b) the appointee's name; and (c) the appointee's business address. (5) An administrator holds office until the administrator's appointment is revoked. Section 184 (Winding-up on certificate of QOFS) 27 s51 40 s 54 Financial Intermediaries Notice of change of administrator's particulars to be given to QOFS 51. If the administrator's name or business address changes, the administrator must immediately give QOFS written notice of the change. Effect of administrator's appointment 52.(1) On the appointment of an administrator of a society— (a) the society's directors cease to hold office; and (b) all contracts of employment with, or for providing administrative or secretarial services to, the society are terminated; and (c) the administrator may terminate a contract for providing other services to the society. (2) A director of a society may not be appointed or elected while the administrator is in office except in the circumstances mentioned in section 54(3). Administrator's powers and functions 53. An administrator of a society has the powers and functions of the society's board, including the board's powers of delegation. Revocation of administrator's appointment 54.(1) QOFS may revoke an administrator's appointment. (2) The revocation must happen by written notice. (3) Before revoking an administrator's appointment, QOFS must— (a) appoint another administrator; or (b) appoint a liquidator; or (c) ensure directors have been elected under the society's rules at a meeting called by the administrator under the rules; or (d) appoint directors of the society. (4) Directors elected or appointed under subsection (3)— (a) take office on the revocation of the administrator's appointment; w wmarAI HD Nn fF 1216 182022 24 26 s55 41 s 56 Financial Intermediaries and (b) for directors appointed under subsection (3)(d)—hold office, subject to section 58,5 until the end of the society's next annual general meeting. Administrator's duty on revocation of appointment 55.(1) Immediately on the revocation of an administrator's appointment, the administrator must prepare and give QOFS a report showing how the administration was carried out and, for that purpose, an administrator has access to the society's records and documents. (2) On giving the report and accounting fully for the society's administration to QOFS's satisfaction, the administrator is released from further duty to account for the society's administration other than because of fraud, dishonesty, negligence or wilful failure to comply with this Act. Expenses of administration 56.(1) The expenses of conducting a society's affairs by an administrator are payable from the society's funds. (2) The expenses include— (a) if the administrator is not an employee of QOFS—the administrator's remuneration at a rate approved by QOFS; or (b) if the administrator is an employee of QOFS—the amount that QOFS certifies should be paid to it as repayment of the administrator's remuneration. (3) An amount certified under subsection (2)(b) is a debt due to QOFS and may be sued for and recovered in a court having jurisdiction for the recovery of debts up to the amount involved. (4) An administrator has, for the expenses of conducting a society's affairs, the same priority on the winding-up of a society as the liquidator of the society has. 5 Section 58 (Additional powers of QOFS) BRwWN ona wn 1216 19 212427 s57 42 s58 Financial Intermediaries Administrator's liability 57.(1) If a society incurs a loss because of fraud, dishonesty, negligence or wilful failure to comply with this Act or the society's rules by an administrator, the administrator is liable for the loss. (2) An administrator is not liable for other loss but must account for the loss in a report given under section 55.6 Additional powers of QOFS 58.(1) If QOFS appoints directors of a society under section 54(3)(d),7 QOFS may, by written notice given to the society, state— (a) atime during which this section is to apply to the society; and (b) the terms 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, QOFS may— (a) from time to time remove and appoint directors; and (b) vary, revoke or specify new terms in place of all or any of the terms stated under subsection (1); and (c) amend all or any of the rules stated under subsection (1). (3) QOFS may, by written notice given to the society, extend the time during which this section is to apply to a society. (4) A rule stated by QOFS under this section as a rule of a society— (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 invalid; and (c) has the same evidentiary value as is by this Act given to the society's rules and to copies of them. 6 Section 55 (Administrator's duty on revocation of appointment) 7 — Section 54 (Revocation of administrator's appointment) auN fBwhd 11316 19 22 2427 s 59 43 s 61 Financial Intermediaries Stay of proceedings 59.(1) This section applies if QOFS appoints an administrator to conduct a society's affairs. (2) A person must not begin or continue a proceeding in a court against the society until the administrator's appointment is revoked except with the leave of the Supreme Court and, if the court grants leave, under any terms the court imposes. (3) A person intending to apply for leave must give QOFS at least 10 days notice of intention to apply. (4) On the hearing of an application for leave, QOFS may be represented and may oppose the granting of the application. Administrator to report to QOFS 60. On the receipt of a request from QOFS, a society's administrator must, without delay, prepare and give QOFS a report showing how the administration is being carried out. Subdivision 6—Supervision fund and levy Cooperatives Supervision Fund 61.(1) The Cooperatives Supervision Fund established under the previous law continues and is taken to have been established under this Act. (2) The amount in credit in the fund immediately before the commencement may be used under this Act. (3) QOFS must pay into the fund— (a) all amounts received as supervision levy under this subdivision; and (b) income from the investment of amounts credited to the fund and the proceeds of the sale of investments. (4) QOFS must pay out of the fund— (a) payments for or towards the expenses of performing its functions and exercising its powers under this Act; and BO CO NINDWHR WN LY ee 1419 21 24 26 29 s 62 44 s 62 Financial Intermediaries (b) expenses incurred in administering the fund. (5) QOFS may invest amounts in the fund in the way it considers appropriate. Supervision levy 62.(1) QOFS may decide that an amount must be paid to it by societies as a supervision levy. (2) The amount of the levy may be fixed by QOFS as— (a) astated amount; or (b) a stated percentage of an amount to be decided, on a stated day, by reference to stated factors about societies (including, for example, the number of members in a society, reserves, obligations and debts and total assets); or (c) both a stated amount and a stated percentage. (3) If the levy is fixed, wholly or partly, as mentioned in subsection (2)(b), QOFS may include in the decision directions about how the levy is to be decided. (4) QOFS may— (a) fix the amount of the levy differently for different societies; and (b) decide that the levy is not payable by stated societies. (5) QOFS may, in the decision, require the levy to be paid in 1 amount by a stated time or permit the levy to be paid by stated instalments. (6) If QOFS permits the levy to be paid by instalments, it may, in the decision, allow a discount for payment in 1 amount by a stated time or require payment of an additional amount or percentage, by way of interest, in the instalments. (7) QOFS may, in the decision, require the payment of amounts, by way of late payment charge, interest or both, for amounts of levy not paid as required by the decision. (8) QOFS may include in the decision directions about how amounts of late payment charge and interest are to be decided. (9) Amounts of levy, when they are payable, are payable by the society w onan fs 12 151821 2325 2730 s 63 45 s 65 Financial Intermediaries concerned to QOFS, and may be sued for and recovered in a court having jurisdiction for the recovery of debts up to the amount of levy. (10) On the application of a society, QOFS may change— (a) an amount of levy payable by the society; or (b) the time within which an amount of levy is payable by the society. (11) An amount paid by a society as levy is treated as an expense in the society's accounts. (12) In subsections (9) to (11)— "levy" includes late payment charge and interest for levy. Consultation 63. In deciding the amount to be paid as supervision levy under section 62, QOFS may consult with industry bodies and societies if it is appropriate and practicable to consult with them. Failure to make payment an offence 64. If a society does not make a payment required to be made for a supervision levy, the society and any officer of the society who is in default each commit an offence. Maximum penalty—200 penalty units. PART 5—OBJECTS AND POWERS OF SOCIETIES Division 1—Objects Objects 65.(1) The objects of a society are to apply its funds in providing financial accommodation to its members— SC ON DWN fF W NK e Oo 131724 s 66 46 s 67 Financial Intermediaries (a) for the purchase of residential premises, or for residential development, by a member for the member's own use; or (b) for the refinancing or consolidation of existing residential loans provided by another society to a member; or (c) for the refinancing of a residential loan provided to a member by another entity; or (d) for another purpose authorised by this Act, a regulation or a standard. (2) A society must not provide financial accommodation to a member for another purpose. Maximum penalty—400 penalty units. (3) The application of the society's funds is subject to this Act, the relevant standards and the society's rules. Division 2—Powers Powers 66.(1) Without limiting section 76,8 but subject to this Act and the society's rules, a society has the powers mentioned in this division. (2) The fact that the doing of an act by a society would not be, or is not, in its best interests does not affect its power or legal capacity to do the act. Control of certain financial transactions 67.(1) In this section— "approved financial contracts" means— (a) futures contracts relating to— (i) securities issued or guaranteed by the Treasurer or the Government of the State or by the Commonwealth or another State; or 8 Section 76 (Effect of incorporation) ow! aon nn RW Ne eS an ion' wn 17 19 2123 25 s 67 47 s 67 Financial Intermediaries (ii) bills of exchange payable within 200 days that have been accepted or endorsed by a bank prescribed under a regulation; but only if made or dealt in or on a futures market of a futures exchange within the meaning of the Corporations Law; or (b) interest rate swap contracts, or forward interest rate contracts, to which a bank, or other body approved by QOFS for the purpose, is a party; or (c) options relating to contracts mentioned in paragraph (a) or (b); or (d) other contracts of a kind approved by QOFS_ under subsection (6). (2) Except as provided by this section, a society must not engage in transactions of the following kinds— (a) transactions relating to financial or other futures; (b) options in futures transactions; (c) forward interest rate transactions; (d) interest rate swap transactions; (e) other financial transactions of a kind specified in a standard. Maximum penalty—800 penalty units. (3) A society may enter into and deal in approved financial contracts only if it does so to reduce the risk of adverse variations— (a) in the costs of raising funds by the society; or (b) in the revenue obtainable by the society from investments made or financial accommodation provided by the society. (4) A society must not contravene subsection (3). Maximum penalty—800 penalty units. (5) A contract entered into by a society in contravention of this section may be enforced as if it were an approved financial contract entered into for a purpose mentioned in subsection (3) if another party to the contract entered into it in good faith and, when the other party entered into the contract, the other party did not suspect, and had no reason to suspect, the contravention. ro OU DAND ns WwW NR a a on DA nA FB WN e \o NN re Oo N N NN Rw NN nan wn WWwWNNN NRF OO WON s 68 48 s 70 Financial Intermediaries (6) QOFS may approve kinds of contracts under this section on terms it considers appropriate. Control of foreign currency transactions 68. A society must not— (a) invest any of its funds in foreign currency; or (b) carry out any of its activities in foreign currency. Maximum penalty—800 penalty units. Raising funds 69.(1) A society may raise funds to carry out its objects. (2) Funds may be raised from a financial institution or another entity (including a trustee). (3) A society may raise funds whether the repayment of the funds is guaranteed by the Treasurer or not. (4) However— (a) ifa-society has raised funds the repayment of which is guaranteed and the funds have not been repaid—the society must not raise further funds the repayment of which is not guaranteed; and (b) if a society has raised funds the repayment of which is not guaranteed and the funds have not been repaid—the society must not raise further funds the repayment of which is guaranteed. Maximum penalty for subsection (4)—800 penalty units. Division 3—Guarantees Treasurer's guarantee 70.(1) The Treasurer may execute a guarantee in favour of a financial institution or another entity (including a trustee) (an "approved entity") for the repayment of funds raised by a society. Ne Y A nA fB wo 11 13 161926 s71 49 s72 Financial Intermediaries (2) The Treasurer may charge the society a fee prescribed under a regulation for executing the guarantee. Society must enter into agreement before guarantee executed 71.(1) Before the Treasurer executes a guarantee, the society must first enter into an agreement with QOFS about the conduct of the society's affairs while the guarantee is in force. (2) The agreement must contain the terms stated in the relevant standard. Provisions about guarantees 72.(1) The following provisions apply to a guarantee executed by the Treasurer— (a) the guarantee is subject to the terms prescribed under a regulation and to any other terms the Treasurer decides; (b) the guarantee may include either or both of the following— (i) the interest, charges and expenses chargeable by the approved entity against the principal debtor in the normal course of its business; (11) the expenses of enforcing, obtaining, or trying to enforce or obtain, payment of the debt guaranteed and the interest, charges and expenses; (c) the approved entity must obtain and take the security for the payment of the principal debt (including any interest, charges and expenses chargeable) that the Treasurer may require; (d) the guarantee is enforceable against the Treasurer or against the Consolidated Fund only if— (i) the approved entity has exhausted all other rights and remedies for the recovery of the amount secured by the guarantee; or (11) the approved entity becomes entitled to appoint a receiver for the society; (e) an assignment of, or charge on, the rights conferred by the Ne YN ANA Ww 12 15182124 2629 s 73 50 s 73 Financial Intermediaries guarantee is effective against the Treasurer only if made with the Treasurer's written consent; (f) other provisions prescribed under a regulation. (2) A liability arising under a guarantee is to be satisfied out of the Consolidated Fund. PART 6—SOCIETIES Division 1—Formation and registration Formation of societies 73.(1) A body proposed to be a society may be formed by 5 or more adults. (2) A proposed society may be formed only if there has been a meeting to form the society at which 5 or more adults were present. (3) At the formation meeting, there must be presented— (a) a written statement showing— (i) _ the objects of the society; and (11) the reasons for believing that— (A) an application for registration of the society would be granted; and (B) if registered, the society will be able to carry out its objects successfully; and (b) acopy of the society's proposed rules. (4) If, at the formation meeting or a subsequent or adjourned meeting, 5 or more adults, after considering the statement and the rules, approve the rules (with or without amendment) and sign an application for membership, they may proceed to elect the first directors of the society under the rules as so approved. nk WwW NPE 12 1416 18 20 2326 s 74 51 s 74 Financial Intermediaries (5) The expenses of, and incidental to, the formation of the society may be paid out of the society's capital or income. Registration 74.(1) A proposed society formed under this part may apply to QOFS, under a regulation, to be registered under this Act as a society. (2) An application for registration must— (a) be made within 2 months after the formation meeting at which the first directors of the society were elected; and (b) be accompanied by— (i) (ii) (iii) (iv) (v) (vi) a statutory declaration by the person presiding at the formation meeting and the secretary of the meeting, stating that the requirements of section 73 have been complied with; and a copy of the statement presented to the meeting, signed by the person presiding and the secretary; and 2 copies of the proposed rules of the society, certified by the person presiding and the secretary to be the rules approved at the meeting; and a list containing the full name, date and place of birth, residential address and business occupation of each director; and a list containing the full name, address and occupation of each of 5 or more adults who attended the meeting and applied for membership; and such evidence as QOFS requires— (A) that the society is eligible for registration; and (B) that the society, if registered, will be able to comply with this Act and all relevant standards; and (C) that the society, if registered, will be able to carry out its objects successfully. (3) QOFS may, for this section, accept a statutory declaration as adequate Ne oN DA nk Ww 1113 15 17202326 28 30 s 75 52 s 76 Financial Intermediaries evidence of matters mentioned in the declaration. (4) If QOFS is satisfied that the society is eligible for registration, QOFS must— (a) register the society as a cooperative housing society; and (b) register its proposed rules. (5) A society is eligible for registration only if— (a) the society's application for registration complies with this Act; and (b) the proposed rules of the society are not contrary to this Act; and (c) there are reasonable grounds for believing the society will, if registered— (1) be able to comply with all relevant standards; and (11) be able to carry out its objects successfully; and (d) there is no good reason why the society and its rules should not be registered. Certificate of incorporation 75.(1) On registering a society, QOFS must issue a certificate of incorporation to the society. (2) The certificate of incorporation is evidence that all requirements of this Act about registration and matters precedent or incidental to registration have been complied with. Effect of incorporation 76. On the issue of a certificate of incorporation to a society, the society is a corporation with perpetual succession and— (a) has, subject to this Act and the society's rules, the legal capacity of a natural person; and (b) has a common seal; and (c) may sue and be sued in its corporate name. Fo OO ON DH FBP WN Se See N = w Ree ns 18 2024 26 28 s77 53 s 80 Financial Intermediaries Division 2—Rules Rules 77.(1) A society's rules must provide for the matters stated in a standard made for this subsection. (2) A society's rules may also provide for any matter that is necessary, expedient or desirable for the society's purposes. (3) If there is an inconsistency between a society's rule and this Act or a standard, this Act or the standard prevails and the rule is invalid to the extent of the inconsistency. Copies of rules 78.(1) A society must give a copy of its rules to a member or proposed member who asks for a copy and has paid the fee (if any) payable under subsection (2) to the society. Maximum penalty—10 penalty units. (2) A society may charge a fee for supplying the copy but only if the fee has been approved by its board. Society and members to be bound by rules 79. A society's rules bind the society, all its members, and all persons claiming through the society or a member, to the same extent as if— (a) each member had subscribed his or her name and attached his or her seal to the rules; and (b) there were contained in the rules a covenant on the part of each member and the member's legal representative to observe all the rules subject to this Act and the standards. Alteration of rules by special resolution 80.(1) A society's rules may be altered only if the alteration has been COI DAN BW Bw 1216 19 21 2326 s 81 54 s 83 Financial Intermediaries approved by special resolution of the members. (2) Subsection (1) applies subject to sections 81, 83 and 84.9 Alteration of rules by board of directors 81.(1) A society's rules may be altered by a resolution of its board if the alteration— (a) is required under this Act; or (b) is to give effect to a standard. (2) The society must give written notice of the alteration to its members not later than the day on which notice is given of the society's next general meeting. Maximum penalty—10 penalty units. (3) The notice may, with the written approval of QOFS, be given by advertisement published in a newspaper circulating generally in the area of the State in which the society operates. Registration of alteration of rules 82.(1) QOFS must register an alteration of a society's rules if QOFS is satisfied— (a) the alteration is not contrary to this Act or the standards; and (b) there is no good reason why the alteration should not be registered. (2) The alteration takes effect when it is registered. (3) The society's rules must be read subject to any registered alteration. Power of QOFS to require changes of rules 83.(1) This section applies if QOFS considers that a society's rules 9 Section 81 (Alteration of rules by board of directors) Section 83 (Power of QOFS to require changes of rules) Section 84 (Power of QOFS to change rules to facilitate transfer of engagements) SOM ND WB WwW eS an See BRWN 17 20 22 24 s 84 55 s 84 Financial Intermediaries should be altered— (a) to comply with this Act; or (b) to give effect to a standard; or (c) inthe interests of the society's members; or (d) in the public interest. (2) QOFS may, by written notice given to the society, require it, within a reasonable period stated in the notice, to alter its rules in a way stated in the notice or otherwise in a way approved by QOFS. (3) If the society fails to alter its rules as required by the notice, QOFS may alter its rules by notation on the registered copy of the rules. (4) QOFS must immediately give written notice to a society of — (a) an alteration of its rules made under this section; and (b) the day on which the alteration starts. (5) The society must give written notice of the alteration to its members not later than the day on which notice is given of the society's next general meeting. Maximum penalty—80 penalty units. (6) The notice may, with the written approval of QOFS, be given by advertisement published in a newspaper circulating generally in the area of the State in which the society operates. Power of QOFS to change rules to facilitate transfer of engagements 84.(1) If QOFS has directed a transfer of engagements under part 9,10 QOFS may alter the rules of the transferee society to the extent necessary to ensure the rules are appropriate. (2) QOFS must alter the rules by notation on the registered copy. (3) QOFS must immediately give written notice to a society of— (a) an alteration of its rules made under this section; and (b) the day on which the alteration starts. 10 Part 9 (Mergers and transfers of engagements) ow! CDaNQYD nA fF W NY See ee Ww NS a Dnt a nN Nee ome) 232628 s 85 56 s 86 Financial Intermediaries (4) The society must give written notice of the alteration to its members not later than the day on which notice is given of the society's next general meeting. (5) The notice may, with the written approval of QOFS, be given by advertisement published in a newspaper circulating generally in the area of the State in which the society operates. Division 3—Membership Members 85.(1) The members of a society are— (a) the persons who sign the application for membership on the formation of the society; and (b) the other persons who are admitted to membership under the society's rules. (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 the other persons who are admitted to membership under the merged society's rules. (3) The members of a society to which another society has transferred its engagements include the persons who, immediately before the transfer took effect, were members of the transferor society. (4) A person may exercise the rights of membership of a society only if the person has complied with the requirements for membership under the society's rules, including, for example, the payment of an amount. Members who are minors 86.(1) Subject to a society's rules, a minor may be a member. (2) A member of a society who is a minor cannot hold office in a society and cannot vote at a meeting of the society. (3) A member of a society is not entitled, because of the member's minority or former minority, to avoid the member's obligations or liabilities— DAunF WHR 11 13 1517 192227 29 s 87 57 s 88 Financial Intermediaries (a) as amember; or (b) under a deed, mortgage, bill, lien, charge, contract, instrument or other document entered into by the member as a member. Joint members 87.(1) Membership in a society may be joint if the society's rules provide for it. (2) If membership is joint, the following provisions apply— (a) the register of members must indicate that a person is a joint member; (b) the joint members may choose the order in which they are named in the register of members but, if they do not choose, the society may enter the names in the order it considers appropriate; (c) the joint member who is named first in the society's register of members is the primary joint member; (d) 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 to the primary joint member; (e) membership is taken to be solely that of the primary joint member to determine— (1) who is qualified to vote on a resolution at a meeting of the society; and (11) the number or proportion of members required to give effect to a provision of this Act or the society's rules. Cessation of membership 88.(1) A person ceases to be a member of a society as provided by the society's rules. (2) If a member of a society dies, the member's estate remains liable to pay an amount due by the member to the society under the society's rules. w co NAW fp 12 14 1618 20 22 24 27 29 s 89 58 s91 Financial Intermediaries Expulsion of member 89. A member of a society may be expelled, or have the member's membership rescinded, under the society's rules. Liability of members 90. A member of a society is not liable, because of the membership, to contribute towards the payment of the debts and liabilities of the society or the costs, charges and expenses of a winding-up of the society. Financial accommodation to, and deposits from, members and others 91.1) A society may provide financial accommodation only to its members. (2) A society must not provide financial accommodation to a person who is not a member of the society. Maximum penalty—10 penalty units. (3) A member of a society who wishes to obtain financial accommodation must apply to the society in the way approved by the society. (4) In providing financial accommodation to a member, a society may make a loan to a member only— (a) on condition that the member makes repayments of principal and interest calculated on the outstanding loan balance; or (b) ina way mentioned in the relevant standard; or (c) in another way prescribed under a regulation. Maximum penalty—40 penalty units. (5) A society must not accept a deposit of money from any person. Maximum penalty for subsection (5)—80 penalty units. w NAN 12 1518 20 2224 s 92 59 s 93 Financial Intermediaries Division 4—Name and office Name 92.(1) The registered name of a society is its name as stated in the society's rules for the time being registered under this Act. (2) QOFS must not register proposed rules, or an alteration of the rules of a society affecting the society's name, if QOFS is satisfied that the proposed name— (a) is undesirable; or (b) is likely to be confused with the name of a corporation or a registered business name. (3) If QOFS registers an alteration of a society's rules changing the society's name, QOFS may, on application by the society, amend its certificate of incorporation or issue a new certificate. (4) A society must publish a change of its name as directed by QOFS. Maximum penalty—10 penalty units. (5) A society must not use a name other than its registered name. Maximum penalty—80 penalty units. Society must have certain words as part of name 93.(1) A society's registered name must include the word 'Limited' at the end of its name. (2) A society's registered name must also include the words "Cooperative Housing Society' as part of its name. (3) A description of a society is not inadequate or incorrect merely because the society's registered name is given using— (a) the abbreviation 'Co-op' for the word 'Cooperative'; or (b) the abbreviation 'Ltd' for the word 'Limited'; or (c) the abbreviation 'No.' for the word 'Number'; or (d) the symbol '&' for the word 'and'. 20 22 24 2628 894 60 s 96 Financial Intermediaries Change of name does not affect identity 94.(1) A change of name of a society does not— (a) affect the society's identity; or (b) affect a right or obligation of the society or of a member or other person; or (c) make defective legal proceedings by or against the society. (2) A legal proceeding that might have been continued or started by or against the society under its former name may be continued or started by or against it under its new name. QOEFS may direct change of name 95. QOFS may direct a society to change its name if, through inadvertence or otherwise, the society is registered by a name that QOFS is satisfied is likely to be confused with the name of another corporation or a registered business name. Publication of name 96.(1) A society must ensure its registered name appears in legible letters on— (a) all business letters, notices, advertisements and other publications of the society; and (b) all bills of exchange, cheques, promissory notes, endorsements, orders for money or goods, invoices, receipts and other documents required in the society's business. Maximum penalty—80 penalty units. (2) A society must ensure its registered name and the words 'registered office' are displayed in a conspicuous place and in legible letters, on the outside of its registered office. Maximum penalty—80 penalty units. (3) A society must ensure its registered name is displayed in a conspicuous place and in legible letters on the outside of every other office OAN HD UB W NY 1214 17 19 2126 29 s97 61 s 98 Financial Intermediaries or place in which its business is carried on. Maximum penalty for subsection (3)—80 penalty units. Seal 97.(1) A society must ensure its registered name appears in legible letters on its seal. Maximum penalty—80 penalty units. (2) An officer of a society, or a person acting on its behalf, must not use a seal, purporting to be the society's seal, on which its registered name does not appear in legible letters. Maximum penalty for subsection (2)—80 penalty units. Registered office 98.(1) A society must have a registered office. (2) The first registered office of a society is the address appearing in the society's rules at the time of registration. (3) A society must give QOFS written notice of a proposed change of address. Maximum penalty—10 penalty units. (4) The new address becomes the society's registered office— (a) at the end of the day the change of address is registered by QOFS; or (b) ifa later day is specified in the notice—the later day. COmorn DA NAB Ww 12 14 16 18 20 s 99 62 s101 Financial Intermediaries PART 7—MANAGEMENT Division 1—Directors and officers Definition of "employee" for division 99. In this division— "employee" of a society, includes a person, or an employee of a person, who provides the society with services under a management contract. Board of directors 100.(1) The business and operations of a society are to be managed and controlled by a board of directors, the majority of whom must be resident in the State. (2) The board may exercise all the powers of the society. (3) However, the board's powers are subject to the restrictions imposed by this Act, relevant standards and the society's rules. (4) Every director acting in the society's business or operations under a resolution duly passed by the board is taken to be acting as the society's duly authorised agent. (5) Anything done by or in relation to a director is not invalid merely because of a defect or irregularity in the director's election or appointment. Meetings 101.(1) Meetings of a society's board must be held as often as is necessary for properly conducting the society's business. (2) Meetings of the board must be held at intervals of not longer than 3 months. (3) A quorum at a meeting of the board is the number of directors prescribed by the society's rules, but must not be less than half the total number of directors. Hn fF w \o 13 1518 21 23 26 s 102 63 s 104 Financial Intermediaries (4) A meeting of the board may be conducted in the way prescribed in the society's rules. Number of directors 102. The number of directors of a society must not be less than 5. Election or appointment of directors 103.(1) Subject to this Act, the directors of a society are elected or appointed, hold and vacate office, and retire or are removed from office, as prescribed by the society's rules. (2) A director holds office for a term (not longer than 3 years) prescribed by the society's rules. (3) Despite subsection (2), for a director elected at an annual general meeting of a society, the society's rules may specify a term of office ending at the end of the third annual general meeting of the society happening after the election. (4) A director is eligible for re-election or reappointment at the end of the director's term. (5) The directors must be elected— (a) at the society's annual general meeting; or (b) in another way prescribed by the society's rules. Alternate directors 104.(1) If authorised by a society's rules, a director may appoint a person, who is eligible to be a director of the society, to be the alternate director in place of that director. (2) The alternate director may act as a director in the absence of the director who appointed him or her. (3) The alternate director must not be an alternate for another director. Ne 2225 s 105 64 s 107 Financial Intermediaries Chairperson 105.(1) A chairperson of a society's board must be elected— (a) at the society's annual general meeting; or (b) in another way prescribed by the society's rules. (2) The chairperson— (a) must hold office; and (b) must retire; and (c) may be removed from office; as prescribed by the society's rules. Qualifications of directors 106. A person is not eligible to be a director of a society if the person— (a) is.aminor; or (b) is bankrupt, has applied to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounded with his or her creditors or made an assignment of his or her remuneration for their benefit; or (c) is prohibited from being a director of a corporation by the Corporations Law for a reason other than the person's age; or (d) has been convicted in the last 10 years— (i) of an indictable offence in relation to the promotion, formation or management of a corporation; or (11) of an offence involving fraud or dishonesty; or (111) of a prescribed offence. Vacation of office 107.(1) The office of a director becomes vacant if the director— (a) dies; or (b) becomes a person who, under section 106, is not eligible to be a Oo DOAN Dn FP W NY 111416 18 21 23 26 s 108 65 s 108 Financial Intermediaries director; or (c) is absent from 3 consecutive ordinary meetings of the board without its leave; or (d) resigns by written notice of resignation given to the board; or (e) is 3 months in arrears for an amount payable to the society and has failed to make arrangements for payment satisfactory to the society; or (f) is removed from office by a resolution under section 108;!! or (g) completes a term of office. (2) If a casual vacancy happens in the office of a director as mentioned in subsection (1)(a) to (f), the board may appoint a person who is eligible to be a director to fill the vacancy. (3) The term of office of a director appointed to fill a casual vacancy ends at the end of the next annual general meeting of the society after the appointment. (4) A director may not be removed from office, and the office of a director does not become vacant, except as provided by this Act. Removal of directors 108.(1) A society may, by resolution, remove a director before the end of the director's term of office, despite anything in the society's rules or in an agreement between it and the director. (2) The resolution may be passed only if the society has given notice to members stating the proposed resolution and the day and time of the meeting when it is proposed the resolution will be made (the "removal meeting"). (3) The society must also give a copy of the notice to the director. (4) A society's rules may provide for— (a) the period of notice; and (b) the way notice may be given to members; and 11 Section 108 (Removal of directors) co NAN B&B WH 111417 202325 2729 s 109 66 s 109 Financial Intermediaries (c) any other relevant matter. (5) The director may make written representations to the society (of a reasonable length) before the removal meeting. (6) The society must promptly send to each member a copy of any written representations made by the director if— (a) the director asks the society to do so; and (b) there is enough time for the copies to be received by the members at least 2 days before the removal meeting. (7) At the removal meeting, the director— (a) is entitled to be heard on the resolution to remove the director; and (b) if the director has made written representations under subsection (5) and a copy has not been sent to members under subsection (6)—may require that the representations be read out. Declaration of interest 109.(1) A director of a society who is or becomes in any way (whether directly or indirectly) interested in a contract, or proposed contract, with the society must declare the nature and extent of the interest to the society's board under this section. Maximum penalty—400 penalty units or 2 years imprisonment. (2) Subsection (1) does not apply to a contract to provide financial accommodation if the provision of the financial accommodation does not contravene section 115.12 (3) For a proposed contract, the declaration must be made— (a) at the meeting of the board at which the question of entering into the contract is first considered; or (b) if the director was not at that time interested in the proposed contract—at the next meeting of the board held after the director becomes interested in the proposed contract. (4) Ifa director becomes interested in a contract with the society after it is 12° Section 115 (Financial accommodation to directors) C0 DY HD UNF Wn 13 1618 2125 27 s110 67 s111 Financial Intermediaries made, the declaration must be made at the next meeting of the board held after the director becomes interested in the contract. (5) For this section, a director makes a sufficient declaration if the director gives a general written notice to the board to the effect that the director— (a) isamember ofa specified entity; and (b) is taken to be interested in a contract that may, after the giving of the notice, be made with the entity. Declaration of possible conflict of duty or interest 110.(1) A director of a society who holds an office or has an interest in property by which, whether directly or indirectly, duties or interests might be created that could conflict with the director's duties or interests as director must, under subsection (2), declare at a meeting of the society's board the fact and the nature, character and extent of the conflict. Maximum penalty—400 penalty units or 2 years imprisonment. (2) The declaration must be made by the director— (a) ifthe director holds the office or has the interest when the director becomes a director—at the first meeting of the board held after— (i) the director becomes a director; or (11) the relevant facts about holding the office or having the interest come to the director's knowledge; whichever is the later; or (b) ifthe director starts to hold the office or acquires the interest after the director becomes a director—at the first meeting of the board held after the relevant facts about holding the office or having the interest come to the director's knowledge. Recording and effect of declaration 111.(1) This section applies to a declaration under section 109 or 110. (2) The declaration must be recorded in the minutes of the meeting at which it was made and, unless the board otherwise determines, the director eAY HD NnAPW Ne 111316 18 21 2426 28 30 s112 68 s 113 Financial Intermediaries must not— (a) be present during a deliberation of the board about the matter; or (b) take part in a decision of the board about the matter. (3) For making a determination of the board under subsection (2) about a director who has made a declaration, the director must not— (a) be present during a deliberation of the board making the determination; or (b) take part in the making by the board of the determination. Reporting declarations 112.(1) This section applies to a declaration under section 109 or 110. (2) The board must report the declaration— (a) to QOFS immediately after the making of the declaration; and (b) to the society's members at the next annual general meeting after the making of the declaration. Maximum penalty—80 penalty units. (3) A society must, within 3 months after the end of its financial year, file with QOFS a return stating— (a) all declarations made to the board during that financial year; and (b) all declarations in force at the end of the financial year. Maximum penalty for subsection (3)—80 penalty units. Sections 109-110 not of limiting effect 113. Sections 109 and 110 are in addition to any rule of law or a provision in a society's rules restricting a director from having an interest in contracts with the society or from holding offices or having interests involving duties or interests in conflict with the director's duties or interests as a director. eo NDR HN WN 1114 17 192326 s114 69 s 115 Financial Intermediaries General duty to make disclosure 114.(1) A director of a society must give written notice to the society— (a) of particulars about contracts necessary to enable the society to comply with section 132;13 and (b) of particulars of any change in the particulars mentioned in paragraph (a), including the consideration (if any) received because of the event giving rise to the change. (2) The notice must be given— (a) if the notice is under subsection (1)(a)—within 14 days after the person— (i) became a director; or (11) entered into the contracts; whichever happens last; and (b) if the notice is under subsection (1)(b)—within 14 days after the person becomes aware of the happening of the event giving rise to the change. (3) A society must, within 7 days after receiving a notice, send a copy to each of the other directors of the society. (4) A director or society must not contravene this section. Maximum penalty for subsection (4)—400 penalty units. Financial accommodation to directors 115.(1) A society must not provide financial accommodation to a director unless it is— (a) provided in the ordinary course of business; and (b) subject to the terms normally imposed by the society in similar dealings; and (c) approved by a majority of at least two-thirds of the directors present and voting on the matter at a meeting of the board at 13 Section 132 (Register of directors etc..) 23 26 28 s 116 70 s 118 Financial Intermediaries which a quorum is present. Maximum penalty—800 penalty units. (2) A director must not obtain financial accommodation given in contravention of subsection (1). Maximum penalty—800 penalty units or 4 years imprisonment. (3) In this section, a reference to— (a) the provision of financial accommodation to a director; or (b) the obtaining of financial accommodation by a director; includes a reference to a provision of financial accommodation to, or an obtaining of financial accommodation by, the director jointly with another person. Directors' remuneration 116. A director of a society must not knowingly receive remuneration that is not a fee, concession or other benefit approved at a general meeting of the society. Maximum penalty—80 penalty units. Management contracts 117.(1) A society must not enter into a management contract without QOFS's written approval. Maximum penalty—800 penalty units. (2) QOFS may give its approval on terms. (3) A management contract entered into in contravention of subsection (1) is void. Duties of officers 118.(1) An officer of a society must at all times act honestly in performing the functions and exercising the powers of the office. Maximum penalty— RW NY BEowu warNnI DAN ee 1419 21 23 26 s 118 71 s 118 Financial Intermediaries (a) 1600 penalty units or 7 years imprisonment— (i) if because of the contravention— (A) the society is, or its members are, deceived or defrauded; or (B) a creditor of the society, or a creditor of any other person, is deceived or defrauded; or (11) if paragraph (a) does not apply but the contravention was committed— (A) with the intention of deceiving or defrauding the society or its members, a creditor of the society or a creditor of any other person; or (B) for any other fraudulent purpose; or (b) 800 penalty units or 4 years imprisonment, in any other case. (2) An officer of a society must at all times exercise a reasonable degree of care and diligence in performing the functions and exercising the powers of the office and in protecting the interests of the society's members. Maximum penalty—400 penalty units. (3) An officer or employee of a society, or a former officer or employee of a society, must not make improper use of information acquired because of his or her position as an officer or employee to gain, directly or indirectly, an advantage for himself or herself or for any other person, or to cause detriment to the society. Maximum penalty—800 penalty units or 4 years imprisonment. (4) An officer or employee of a society must not make improper use of his or her position as an officer or employee, to gain, directly or indirectly, an advantage for himself or herself or for any other person, or to cause detriment to the society. Maximum penalty—800 penalty units or 4 years imprisonment. (5) Section 514 applies to subsection (2) as if, in subsection (1)(a) of the section, the words ", executive officer or employee" were omitted and the words "or executive officer" were substituted. 14 Section 5 (Interpretation—meaning of "officer'") RW NY Be ew Nb EF oOwW ON AY = w a Dnt a nN Nwponrere Nor OW Cw N we N NN pp NAW N o WW wp SeBoSs s119 72 s 120 Financial Intermediaries Effect of contravention of s 118 119.(1) If— (a) aperson is convicted of an offence against section 118; and (b) the court by which the person is convicted is satisfied that the society has suffered loss or damage because of the act or omission that constituted the offence; the court may, in addition to imposing a penalty, order the convicted person to pay compensation to the society of an amount stated by the court. (2) The order may be enforced as if it were a judgment of the court. (3) If a person contravenes section 118, the society may, whether or not the person has been convicted of an offence against the section for the contravention, recover from the person as a debt due to the society by action in a court having jurisdiction for the recovery of debts up to the amount involved— (a) if that person or any other person has made a profit because of the contravention—an amount equal to that profit; and (b) if the society has suffered loss or damage because of the contravention—an amount equal to that loss or damage. (4) This section and section 118 are in addition to and do not derogate from any other rule of law about the duties of officers and employees of a society. Unlawfully acting as director 120.(1) A person must not purport to act as a director of a society unless the person is a director of the society, or the alternate director of a director of the society. Maximum penalty—400 penalty units or 2 years imprisonment. (2) A director of a society must not permit a person who is not a director of the society, or the alternate director of a director of the society, to purport to act as a director of the society. Maximum penalty for subsection (2)—400 penalty units or 2 years imprisonment. aon Dun W WN 111316 18 20242831 $121 73 s 122 Financial Intermediaries Secretary 121.(1) The board of a society must appoint an individual who is 18 or more and who is resident in the State to be the secretary of the society. (2) If the office of secretary is vacant or for some other reason the secretary is not capable of acting, an act or thing required or authorised to be done by or in relation to the secretary may be done by or in relation to an assistant or deputy secretary or, if there is no assistant or deputy secretary or no assistant or deputy secretary is capable of acting, by or in relation to an officer of the society authorised by the directors to act as secretary either generally or in relation to the doing of the act or thing. (3) A provision of this Act or the rules requiring or authorising an act or thing to be done by or in relation to a director and the secretary is not satisfied by its being done by or in relation to the same person acting both as director and as, or in place of, the secretary. Liability of, and indemnity for, officers and employees 122.(1) A rule of, or contract with, a society is void if it purports to— (a) exempt an officer or employee of the society from a liability to the society for negligence, default, breach of duty or breach of trust; or (b) indemnify an officer or employee of the society against a liability mentioned in paragraph (a). (2) However, a society may indemnify an officer or employee of the society against a liability incurred by the officer or employee— (a) in defending civil proceedings about the society's affairs and resulting in judgment in favour of the officer or employee; or (b) in defending criminal proceedings about the society's affairs and resulting in the officer or employee being acquitted; or (c) for an application in proceedings mentioned in paragraph (a) or (b) in which relief is, under this Act, granted to the officer or employee by the Supreme Court. (3) Subsection (1) does not apply to— (a) a contract of insurance unless the premiums are paid by the COADUNF Wn 1214 16 1821 23 25 27 2932 s 123 74 s 125 Financial Intermediaries society; and (b) compulsory professional indemnity insurance even if the premiums are paid by the society. Division 2—Meetings Annual general meeting 123.(1) A society must hold its first annual general meeting within 18 months after it is registered under this Act. Maximum penalty—80 penalty units. (2) A society must hold every subsequent annual general meeting within 5 months after the close of its financial year, or within a further time allowed by QOFS or prescribed under a regulation. Maximum penalty for subsection (2)—80 penalty units. Special general meeting 124.(1) The board of a society may call a special general meeting of the society. (2) The board of a society must immediately proceed to call a special general meeting of the society if required to do so by not less than the number of members prescribed for the purpose by the society's rules. Quorum 125.(1) A general meeting of a society may deal with an item of business only if a quorum is present. (2) Subsection (1) does not apply to an item of business that may be dealt with by postal voting under the society's rules. (3) A quorum is as prescribed by the society's rules. 15 1721 23 s 126 75 s 128 Financial Intermediaries Notice of meeting 126.(1) Written notice of a general meeting of a society must be given personally or by post to each member of the society— (a) for an annual general meeting—at least 14 days before the date of the meeting; and (b) for a special general meeting—at least 7 days before the date of the meeting. (2) However, if the society's rules so provide, notice of an annual general meeting or special general meeting may be given to the society's members by advertisement published in a newspaper circulating generally in the area of the State in which the society operates. (3) Notice of a general meeting of a society must be displayed in a conspicuous place at the registered office and each other office of the society— (a) for an annual general meeting—for at least 14 days immediately before the date of the meeting; and (b) for a special general meeting—for at least 7 days immediately before the date of the meeting. (4) The failure by a member of a society to receive notice of a general meeting required to be given to the member by this Act does not invalidate the meeting. (5) A society must give notice of an annual general meeting, or a special general meeting, or display notice of an annual general meeting in accordance with this section. Maximum penalty for subsection (5)—80 penalty units. Voting 127. A member of a society may not exercise more than | vote on a question arising for determination by the society's members. Special resolutions 128.(1) For this Act, a special resolution is a resolution passed by a ia eee eu BwWN FPF OoKUA AD ALR WW RP Re ee on AWN NNR re OO NNN BRwWN N Nn 28 30 s 129 76 s 129 Financial Intermediaries majority of not less than two-thirds of the members who, being entitled to vote— (a) in any case—are present personally at a meeting at which a motion for the passing of the resolution is moved and vote on the resolution; or (b) for a merger or transfer of engagements under part 915—vote on the resolution by a postal ballot conducted— (i) under the society's rules; or (11) under a regulation; or (111) in a way approved by QOFS. (2) For a special resolution passed at a meeting, unless a poll is demanded, a declaration by the person presiding at the meeting that a resolution has been carried by a stated majority is evidence of the fact. (3) Written notice of a proposed special resolution, stating its terms, must be given personally or by post to each member of the society who is entitled to vote on the resolution at least 21 days before the date of the meeting or close of the postal ballot. (4) However, if a society's rules so provide, notice of a proposed special resolution, stating its terms, may be given to the members of the society entitled to vote on the resolution by advertisement published in a newspaper circulating generally in the area of the State in which the society operates. (5) A purported special resolution for which notice has not been given under subsection (3) or (4) is of no effect. (6) However, the failure by a member to receive notice of a proposed special resolution does not invalidate the passing of the resolution. (7) This section applies only to the matters required by this Act or a society's rules to be passed or approved by a special resolution. Registration of special resolution 129.(1) A society must, within 1 month after a special resolution has been passed, submit the resolution to QOFS for registration. 15 Part 9 (Mergers and transfers of engagements) CO ANXIDQR VBW NY e Oo RP Re WNre ee ee NAYDWN FA NNR KF COO we NN wh NN ns NN Na 30 s 130 77 s 132 Financial Intermediaries (2) A special resolution is of no effect until registered. (3) QOFS must register a special resolution of a society if satisfied that— (a) the special resolution is not contrary to— (i) this Act; or (11) a standard; and (b) there is no good reason why the special resolution should not be registered. Minutes 130. A society must cause full and accurate minutes to be kept of every meeting of its board, and of every meeting of its members. Maximum penalty—80 penalty units. Division 3—Registers and inspection Registers 131.(1) A society must keep the registers prescribed under a regulation. Maximum penalty—160 penalty units. (2) All registers required to be kept by a society under this Act must be kept at the society's registered office and be kept in the way, and contain the particulars, prescribed under a regulation. Maximum penalty—80 penalty units. (3) With the written consent of QOFS, all or any of the registers may be kept at an office of the society other than its registered office. (4) All registers must be kept within the State at all times. Register of directors etc. 132.(1) A society must keep a register of its directors, principal executive officer and secretary and enter in the register for each director, principal CQ HD Wn FF WHY 11 151822 26 s 132 78 s 132 Financial Intermediaries executive officer and secretary— (a) the person's present given name and surname; and (b) the person's former given name or surname (if any); and (c) the person's date and place of birth; and (d) the person's usual residential address; and (e) the person's business occupation (if any). Maximum penalty—160 penalty units. (2) A society must, within | month after a director, principal executive officer or secretary of the society changes his of her usual residential address, advise QOFS of the new usual residential address of the director, principal executive officer or secretary. Maximum penalty—10 penalty units. (3) A society must, within 7 days after receiving notice from a director under section 114(1)(a),!6 enter in its register, for the director, the particulars of contracts to which the notice relates and, for contracts entered into after the person became a director— (a) the consideration for the transaction (if any) because of which an entry is required to be made in the register; and (b) the date of— (i) the agreement for the transaction or, if it is later, the completion of the transaction; or (11) if there was no transaction—the happening of the event because of which an entry is required to be made in the register. Maximum penalty—160 penalty units. (4) A society must, within 3 days after receiving a notice from a director under section 114(1)(b), enter in its register the particulars of the change specified in the notice. Maximum penalty—160 penalty units. 16 Section 114 (General duty to make disclosure) s 133 79 s 133 Financial Intermediaries (5) Within | month beginning on the day on which a person becomes or ceases to be a director, the principal executive officer or secretary of a society, the society must file with QOFS a return in the approved form advising that fact and containing for a new director, principal executive officer or secretary the matters required by subsection (1) to be shown in the register. Maximum penalty—10 penalty units. (6) A register kept by a society under this section must be open for inspection— (a) by amember of the society, without fee; and (b) by another person, on payment for each inspection of the amount (if any) prescribed by the society's rules. (7) A society must produce its register at the start of each annual general meeting of the society and keep it open and accessible during the meeting to all persons attending the meeting. Maximum penalty—160 penalty units. (8) It is a defence to a prosecution for failing to comply with subsection (3) or (4) in relation to particulars about a director if the defendant proves that the failure was due to the failure of a director to comply with section 114 in relation to those particulars. Register of members 133.(1) A society must keep a register of members of the society and enter in the register— (a) the names and addresses of the members; and (b) the date of admission to membership; and (c) any other prescribed information. Maximum penalty—160 penalty units. (2) The register of members is evidence of membership of the society. (3) A member is entitled to have access only to the part of the register of members in which particulars of his or her membership are entered. (4) Subject to subsection (3), a society may refuse to allow a person to Om A DN BRWNHE 141820 23 252730 s 134 80 s 135 Financial Intermediaries have access to the register of members unless the person satisfies the society that the person requires access to— (a) call a meeting of members; or (b) undertake some other activity approved by QOFS. (5) Before a society allows a person, who has satisfied the society under subsection (4), to have access to the register of members, the society may require the person to enter into a contract with the society under which the person undertakes— (a) to restrict access to the information obtained by the person from the register to persons identified in the contract; and (b) to restrict use of the information obtained by the person from the register to a stated purpose. Inspection of documents at society's registered office 134. A society must keep a copy of the following documents at its registered office available for inspection without fee by members of the society, persons eligible for membership of the society and its creditors— (a) this Act and the regulation; (b) the society's rules; (c) each management contract for the society; (d) the society's last accounts, together with a copy of the report of the auditor on the accounts; (e) the last directors' report under section 145.17 Members entitled to particulars of their financial position 135. A society must, on being asked by a member of the society, give the member particulars of the person's financial position with the society as a member or borrower. 17 Section 145 (Directors' reports) CeANDUN FBP W NK 12 151821 26 s 136 81 s 138 Financial Intermediaries Members entitled to copies of registers 136.(1) This section applies if a member of a society asks the society to give the member a copy of a register or a part of a register kept by the society under this Act. (2) This section is subject to section 133(4).18 (3) The society must send the copy to the member— (a) if (b) if Maximum p: the society requires payment of an amount prescribed by the rules—within 21 days after payment of the amount is received by the society, or within a longer period approved by QOFS; or the society does not require payment of an amount—within days after the request is made, or within a longer period approved by QOFS. enalty for subsection (3)—80 penalty units. Division 4—Accounts Financial year 137.(1) The financial year of a society is from 1 January to 31 December. (2) If a society is registered (other than because of a merger) on a day falling between 1 July and 31 December in any year, its first financial year may, if the society elects, extend to 31 December in the following year. Accounting records to be kept 138. A society must— (a) ke ep accounting records that correctly record and explain the society's transactions and financial position; and (b) ke (i) ep the accounting records in a way that will enable— true and fair accounts of the society to be prepared 18 Section 133 (Register of members) eCeNnN Dn FwWN 12 17 1922 24 26 s 139 82 s 140 Financial Intermediaries periodically; and (11) the society's accounts to be conveniently and properly audited under this part; and (c) keep the accounting records for 7 years after the completion of the transactions to which they relate; and (d) keep the accounting records in writing in the English language or so as to enable the records to be readily accessible and readily convertible into writing in the English language; and (e) keep the accounting records at the society's registered office. Maximum penalty—400 penalty units. Inspection of accounting records 139.(1) A society must make its accounting records available at all reasonable times for inspection without fee by a director of the society and by anyone else authorised or permitted under this Act to inspect the accounting records. Maximum penalty—160 penalty units. (2) The Supreme Court may, on application by a director of a society, make an order authorising a registered company auditor acting for the director to inspect the society's accounting records. (3) A registered company auditor who inspects accounting records under a court order must not disclose to a person other than the director on whose application the order was made information acquired during the inspection. Maximum penalty—160 penalty units. (4) The cost of an inspection conducted under a court order must be met by the society. Profit and loss account and balance sheet 140. The directors of a society must, before the day on which notice of an annual general meeting of the society is given or, if an annual general meeting is not held within the period within which it is required by CMOIAD NHK Wy e Oo 1315 182125 28 s141 83 s 142 Financial Intermediaries section 12319 to be held, not less than 3 weeks before the end of the period, cause to be prepared— (a) a profit and loss account for the last financial year giving a true and fair view of the society's profit or loss for that financial year; and (b) a balance sheet as at the end of the last financial year giving a true and fair view of the society's state of affairs as at the end of that financial year. Audit 141.(1) The directors of a society must take reasonable steps to ensure the society's accounts are audited as required by this part before the day before which the accounts are required by this division to have been prepared. (2) The directors of a society must cause to be attached to, or endorsed on, the accounts the auditor's report given to the directors under division 5.20 Directors to ascertain certain matters 142. Before the profit and loss account and balance sheet are prepared, the directors of a society must take reasonable steps— (a) to ascertain what action has been taken in relation to the writing off of bad debts and the making of provisions for doubtful debts and to cause all known bad debts to be written off and adequate provision to be made for doubtful debts; and (b) to ascertain whether any current assets, other than current assets to which paragraph (a) applies, are unlikely to realise in the ordinary course of business their value as shown in the society's accounting records and, if so, to cause— (i) those assets to be written down to an amount they might be expected so to realise; or 19 Section 123 (Annual general meeting) 20 Division 5 (Audit) CID ARW NE 1113 1519 2123 26 29 s 143 84 s 144 Financial Intermediaries (11) adequate provision to be made for the difference between the amount of the value as so shown and the amount they might be expected so to realise; and (c) to ascertain whether any non-current asset is shown in the society's documents at an amount that, having regard to its value to the society as a going concern, is more than the amount it would have been reasonable for the society to spend to acquire the asset as at the end of the financial year and, unless adequate provision for writing down the asset is made, to cause to be included in the accounts information and explanations to prevent the accounts from being misleading because of the overstatement of the amount of the asset. Requirements applying to accounts 143.(1) The directors of a society must ensure the accounts— (a) comply with the requirements prescribed under a regulation; and (b) comply with applicable accounting standards. (2) The Treasurer may, by gazette notice, declare an accounting standard to be an applicable accounting standard for a society's accounts, with the changes stated in the notice. (3) The Treasurer may, by gazette notice, vary or revoke the notice. (4) If accounts prepared under subsection (1) would not otherwise give a true and fair view of the matters required by this section to be dealt with in the accounts, the society's directors must add the information and explanations necessary to give a true and fair view of the matters. Directors' statement 144.(1) The directors of a society must cause to be attached to the accounts required to be laid before an annual general meeting, before the auditor reports on those accounts, a statement made under a resolution of the directors and signed by not less than 2 directors stating whether in the opinion of the directors— (a) the profit and loss account is drawn up so as to give a true and fair view of the society's profit or loss for the financial year; and SeCmIAMVA WNe ee NR 1416 182224 272932 s 145 85 s 145 Financial Intermediaries (b) the balance sheet is drawn up so as to give a true and fair view of the society's state of affairs as at the end of the financial year; and (c) as at the date of the statement, there are reasonable grounds to believe that the society will be able to pay its debts as and when they are payable. (2) The directors of a society must— (a) in forming an opinion on the matters mentioned in subsection (1)(a) and (b) for a statement under the subsection—have regard to circumstances that have arisen and information that has become available, since the end of the financial year to which the accounts relate, being circumstances or information that would, if the accounts were being prepared when the statement is made, have affected the determination of an amount or a particular in the accounts; and (b) if adjustments have not been made in the accounts to reflect circumstances or information of a kind mentioned in paragraph (a), being circumstances or information relevant to an understanding of the accounts, or of an amount or particular in the accounts—include in the statement information and explanations to prevent the accounts, or the amount or particular, from being misleading as a result of the adjustments not having been made. Directors' reports 145.(1) The directors of a society must, before (but not more than 3 weeks before) the day before which the accounts for its last financial year are required under this division to be prepared, cause to be prepared a report, prepared under a resolution of the directors and signed by at least 2 directors— (a) stating the names of the directors in office at the date of the report and stating for each director— (i) the qualifications, experience and special responsibilities (if any) of the director; and (11) any interest of the director in a contract or proposed contract with the society, being an interest declared by the director CI HD NBwW NYE 24 2629 31 33 s 145 86 s 145 Financial Intermediaries (b) (c) (d) (e) (f) (g) under division 12! since the commencement or the date on which particulars were last given under this paragraph; and stating that— (1) the society keeps a register under section 13222 containing information about the directors; and (11) the register is open for inspection— (A) by a member of the society, without fee; and (B) by anyone else, on payment of the amount (if any) prescribed by the society's rules; and stating— (i) the society's principal activities during its last financial year and any significant change in the nature of the activities that happened during that financial year; and (11) the net amount of the society's profit or loss for that financial year after provision for income tax; and containing a review of the society's operations during that financial year and of the results of the operations; and giving particulars of any significant change in the society's state of affairs that happened during that financial year; and giving particulars of any matter or circumstance that has arisen since the end of that financial year and that has significantly affected or may significantly affect— (i) _ the society's operations; or (11) the results of those operations; or (11) the society's state of affairs; in financial years after that financial year; and referring to— (i) likely developments in the society's operations; and 21 Division 1 (Directors and officers) 22 Section 132 (Register of directors etc.) CoN DA Wp WwW NE 13 15 17 19 21242628 s 145 87 s 145 Financial Intermediaries (11) the expected results of those operations; in financial years after that financial year. (2) If, in the opinion of the directors of a society, it would prejudice the society's interests if particular information required under subsection (1)(g) were to be included in a report— (a) the information need not be so included; and (b) the report must contain a statement that some or all of the information required under subsection (1)(g) has not been included in the report. (3) The report must state whether or not, during the financial year or since the end of the financial year, a director has received, or has become entitled to receive, a benefit because of a contract made (during that or any other financial year) with the society by— (a) the director; or (b) a firm of which the director is a member; or (c) an entity in which the director has a substantial financial interest. (4) If so, the report must state the general nature of each benefit that a director has received or to which a director has become entitled. (5) Subsections (3) and (4) do not apply to— (a) a benefit included in the total amount of emoluments received, or due and receivable, by directors shown under a regulation in force under section 143(1)(a);23 or (b) the fixed salary of a full-time employee of the society; or (c) the provision of financial accommodation to a director that— (i) does not contravene section 115;24 and (11) is shown in the society's accounts as required by an applicable accounting standard. (6) Subsection (7) applies if there is attached to or included with a report of the directors (the "first report") laid before a society at its annual general 23 Section 143 (Requirements applying to accounts) 24 Section 115 (Financial accommodation to directors) s 146 88 s 147 Financial Intermediaries meeting a statement, report or other document about the society's affairs, not being a statement, report or document required by this Act to be laid before the society in general meeting. (7) For section 222,25 the statement, report or other document, is taken to be part of the first report. Accounts and reports to be laid before annual general meeting 146.(1) The directors of a society must cause to be laid before each annual general meeting of the society— (a) a copy of the accounts made out under section 14026 for the society's last financial year; and (b) a copy of the auditor's report required by section 14127 to be attached to or endorsed upon the accounts; and (c) acopy of the statement by the directors required by section 14428 to be attached to the accounts; and (d) acopy of the directors' report made out under section 14529 for that financial year. (2) Copies of the accounts, statements and reports required to be laid before an annual general meeting by subsection (1) must be made available to the society's members at the registered office from the day before which the documents are required under this division to have been prepared until the holding of the annual general meeting. Contravention of division 147.(1) A director of a society must take reasonable steps to comply with or secure compliance with a provision of this division. 25 Section 222 (False, misleading or incomplete documents) 26 Section 140 (Profit and loss account and balance sheet) 27 Section 141 (Audit) 28 Section 144 (Directors' statement) 29 Section 145 (Directors' reports) Ap WNRe 24 s 148 89 s 148 Financial Intermediaries Maximum penalty— (a) 1 600 penalty units or 2 years imprisonment, if the offence is committed with intent to deceive or defraud creditors of the society or creditors of any other person or for a fraudulent purpose; or (b) 400 penalty units in any other case. (2) In a proceeding against a person for an offence against subsection (1) arising out of the accounts of a society not complying with an applicable accounting standard, the onus of proving that the accounts would not, if prepared under the standard, have given a true and fair view of the matters required by this division to be dealt with in the accounts lies on that person. (3) In a proceeding for an offence against subsection (1) arising out of an omission from the accounts of a society, it is a defence to prove that the information omitted was immaterial and did not affect the giving of a true and fair view of the matters required by this division to be dealt with in the accounts. (4) Subsection (5) applies if, after the end of the period within which the accounts of a society or a report of the directors of a society is or are required under this division to be prepared, QOFS, by written notice to each of the directors, requires the directors to produce the accounts or report to a person stated in the notice on a stated date and at a stated place, and the directors fail to produce the accounts or report as required by the notice. (5) In a proceeding for a failure to comply with the requirements of this division, proof of the failure to produce the accounts or report as required by the notice is evidence that the accounts or report were not prepared within the period. Division 5—Audit Meaning of "officer" for ss 149-150 148.(1) In sections 149 and 15030— "officer" of a society includes a receiver who is not also a manager. 30 Sections 149 (Person as society's auditor) and 150 (Firm as society's auditor) RwWN rFowoaon n WN alll alllretll Sletten DAunkRwWwWN eee o won NN bp Nr SO NN Rw NN Hun 29 s 149 90 s 149 Financial Intermediaries (2) For sections 149 and 150(1), a person is taken to be an officer of a society if the person has, at any time during the last 12 months, been an officer or promoter of the society. (3) However, QOFS may direct that subsection (2) does not apply to the person. (4) For sections 149 and 150, a person is not taken to be an officer of a society only because of — (a) being, or having been, the liquidator of the society; or (b) having been appointed as auditor of the society; or (c) being, or having been, authorised to accept, on behalf of the society, service of process or notices required to be served on the society. Person as society's auditor 149. A person must not— (a) consent to be appointed as auditor of a society; or (b) act as auditor of a society; or (c) prepare a report required by this Act to be prepared by a registered company auditor or by an auditor of a society; if— (d) the person is not a registered company auditor; or (e) the person is not ordinarily resident in the State; or (f) the person is indebted in an amount of more than $5 000 to the society; or (g) the person— (i) is an officer of the society; or (11) is a partner, employer or employee of an officer of the society; or (11) is a partner or employee of an employee of an officer of the society. Maximum penalty—160 penalty units. CID WHR WPRK 111416 18 2023 25 27 29 s 150 91 s 150 Financial Intermediaries Firm as society's auditor 150.(1) A firm must not— (a) consent to be appointed as auditor of a society; or (b) act as auditor of a society; or (c) prepare a report required by this Act to be prepared by a registered company auditor or by an auditor of a society; unless— (d) at least 1 member of the firm is a registered company auditor who is ordinarily resident in the State; and (e) ifthe business name under which the firm is carrying on business is not registered under the law of the State relating to business names—there has been filed with QOFS a return in the approved form showing, for each member of the firm, the member's full name and address as at the time when the firm so consents, acts or prepares a report; and (f) neither the firm nor the member of the firm responsible for conducting the audit, or signing the report, is indebted in an amount of more than $5 000 to the society; and (g) no member of the firm is— (i) an officer of the society; or (11) apartner, employer or employee of an officer of the society; or (11) a partner or employee of an employee of an officer of the society; and (h) no officer of the society receives remuneration from the firm for acting as a consultant to it on accounting or auditing matters. (2) The appointment of a firm as auditor of a society is taken to be an appointment of all persons who are members of the firm and are registered company auditors, whether resident in Australia or not, as at the date of the appointment. (3) If a firm that has been appointed as auditor of a society is reconstituted because of the death, retirement or withdrawal of a member or members or because of the admission of a new member or new members, s 150 92 s 150 Financial Intermediaries or both— (a) (b) (c) a person who was auditor because of subsection (2) and who has retired or withdrawn from the firm as previously constituted is taken to have resigned as auditor as from the day of the retirement or withdrawal but, unless the person was the only member of the firm who was a registered company auditor and, after the person's retirement or withdrawal, there is no member of the firm who is a registered company auditor, sections 155 and 1563! do not apply to the resignation; and a person who is a registered company auditor and who is admitted to the firm is taken to have been appointed as an auditor of the society as from the date of admission to the firm; and the reconstitution of the firm does not affect the appointment of the continuing members of the firm who are registered company auditors as auditors of the society. (4) Subsection (3) does not affect the operation of subsection (1). (5) Except as provided by subsection (3), the appointment of the members of a firm as auditors of a society because of the appointment of the firm as auditor of the society is not affected by the dissolution of the firm. (6) A report or notice purporting to be made or given by a firm appointed as auditor of a society is not taken to be duly made or given unless it is signed in the firm name and in his or her own name by a member of the firm who is a registered company auditor. (7) Each member of a firm must ensure the firm does not, in contravention of this section, consent to be appointed, or act as, auditor of a society, or prepare a report required by this Act to be prepared by an auditor of a society. Maximum penalty for subsection (7)—80 penalty units. 31 Sections 155 (Resignation of auditors) and 156 (Noticement of retirement etc. to be given) s 151 93 s 152 Financial Intermediaries Person must not disqualify self etc. from acting as society's auditor 151. A person must not— (a) if appointed auditor of a society—knowingly disqualify himself or herself while the appointment continues from acting as auditor of the society; or (b) if a member of a firm that has been appointed auditor of a society—knowingly disqualify the firm while the appointment continues from acting as auditor of the society. Appointment of auditors 152.(1) In this section, a reference to the appointment of a person or firm as auditor of a society includes a reference to the appointment of persons, firms, or a person or persons and a firm or firms, as auditors of the society. (2) Within 1 month of incorporation, the directors of a society must appoint, unless the society at a general meeting has appointed, a person or firm as auditor of the society. (3) Within 14 days of the appointment of the auditor, the society must give QOFS written notice of the appointment. Maximum penalty—80 penalty units. (4) A person or firm appointed as auditor under subsection (2) holds office, subject to this division, until the society's first annual general meeting. (5) A society must— (a) at its first annual general meeting appoint a person or firm as auditor of the society; and (b) at each subsequent annual general meeting, if there is a vacancy in the office of auditor, appoint a person or firm to fill the vacancy. Maximum penalty—160 penalty units. (6) A person or firm appointed as auditor under subsection (5) holds office— (a) until ceasing to be capable of acting as auditor because of CID ABW N 111417 2024 26 29 s 152 94 s 152 Financial Intermediaries section 149 or 150(1);32 or (b) until death or removal or resignation from office under section 154 or 155.33 (7) Within 1 month after a vacancy happens in the office of auditor of a society (other than a vacancy caused by the removal of an auditor from office), the directors must, if there is no surviving or continuing auditor of the society, appoint a person or firm to fill the vacancy unless the society at a general meeting has appointed a person or firm to fill the vacancy. (8) While a vacancy in the office of auditor continues, the surviving or continuing auditor (if any) may act. (9) A society must not, and the directors of a society must not, appoint a person or firm as auditor of the society unless the person or firm has, before the appointment, consented by written notice given to the society or to the directors to act as auditor and has not withdrawn consent by written notice given to the society or to the directors. (10) A notice given by a firm must be signed in the firm name and in his or her own name by a member of the firm who is a registered company auditor. (11) A purported ap pointment of a person or firm as auditor of a society in contravention of subsection (9) has no effect. (12) If an auditor of a society is removed from office at a general meeting under section 54— (a) the society may at that meeting (without adjournment), by a resolution passed by a majority of its members as, being entitled so to do, vote in person, immediately appoint as auditor a person or firm to whom has been sent a copy of the notice of nomination under section 153; or (b) if a resolution mentioned in paragraph (a) is not passed at that meeting, or could not be passed at that meeting only because a copy of the notice of nomination mentioned in the paragraph had not been sent to a person— 32 Section 149 (Person as society's auditor) or 150 (Firm as society's auditor) 33 Section 154 (Removal of auditors) or 155 (Resignation of auditors) s 153 95 s 153 Financial Intermediaries (1) the meeting may be adjourned to a date not earlier than 20 1 days and not later than 30 days after the day of the meeting; 2 and 3 (11) the society may, at the adjourned meeting, by ordinary 4 resolution, appoint as auditor a person or firm notice of 5 whose nomination for appointment as auditor has been 6 received by the society from a member of the society at least 7 14 clear days before the date of the adjourned meeting. 8 (13) If after the removal from office of an auditor, the society fails to 9 appoint another auditor under subsection (12), the society must, within 10 7 days after the failure, notify QOFS of the failure. 11 Maximum penalty—160 penalty units. 12 (14) As soon as practicable after receiving a notice under subsection (13), 13 QOFS must, unless there is another auditor of the society whom QOFS 14 believes is able to carry out the responsibilities of auditor alone and who 15 agrees to continue as auditor, appoint as auditor a person or firm that has 16 consented to be appointed. 17 (15) Subject to subsection (14), if a society does not appoint an auditor 18 when required by this division to do so, QOFS may, on the written 19 application of a member of the society, appoint as auditor of the society a 20 person or firm that has consented to be appointed. 21 (16) A person or firm appointed as auditor of a society under 22 subsection (7), (12), (14) or (15) holds office, subject to this division, until 23 the society's next annual general meeting. 24 (17) A director of a society must take all reasonable steps to comply 25 with, or to secure compliance with, subsection (2) or (7). 26 Maximum penalty—160 penalty units. 27 (18) A society that contravenes subsection (9) commits an offence. 28 Maximum penalty for subsection (18)—80 penalty units. 29 Nomination of auditors 30 153.(1) A society must not appoint a person or firm as auditor of the 31 society at its annual general meeting, not being a meeting at which an 32 auditor is removed from office, unless written notice of nomination of the 33 s 154 96 s 154 Financial Intermediaries person or firm as auditor was given to the society by a member— (a) before the meeting was called; or (b) not less than 3 weeks before the meeting. (2) A purported appointment of a person or firm as auditor of the society in contravention of subsection (1) has no effect. (3) If a society contravenes subsection (1), the society and any officer of the society who is in default each commit an offence. Maximum penalty—10 penalty units. (4) If notice of nomination of a person or firm for appointment as auditor is received by the society, whether for appointment at a meeting or an adjourned meeting mentioned in section 152(12) or at an annual general meeting, the society must not less than 7 days before the meeting or when notice of the meeting is given— (a) send a copy of the notice of nomination to each person or firm nominated and to each auditor of the society; and (b) cause a copy of the notice of nomination to be displayed in a conspicuous place at the society's registered office until the day of the meeting. Maximum penalty—10 penalty units. Removal of auditors 154.(1) An auditor of a society may only be removed from office by— (a) special resolution at a general meeting of the society; or (b) QOFS under section 48(4)(e).34 (2) If notice of a special resolution to remove an auditor is given, the society must immediately send a copy of the notice to the auditor and to QOFS. Maximum penalty—80 penalty units. (3) Within 7 days after receiving a copy of the notice, the auditor may 34 Section 48 (Intervention by QOFS) 2123 26 28 s 155 97 s 155 Financial Intermediaries make written representations of not more than a reasonable length to the society and ask that a copy of the representations be displayed by the society in a conspicuous place at the society's registered office until the day of the meeting at which the resolution is to be considered. (4) Unless QOFS, on the application of the society orders otherwise, the society must display a copy of the representations as required by the auditor, and the auditor may, without prejudice to the right to be heard orally or, if a firm is the auditor, to have a member of the firm heard orally on its behalf, require that the representations be read out at the meeting. Maximum penalty for subsection (4)—80 penalty units. Resignation of auditors 155.(1) An auditor of a society may, by written notice given to the society, resign if the auditor— (a) by written notice given to QOFS, has applied for consent to the resignation and stated the reasons for the application; and (b) at or about the same time as the auditor gave QOFS the notice, has given the society written notice of the application; and (c) has received QOFS's consent to the resignation. (2) QOFS must, as soon as practicable after receiving a notice from an auditor, notify the auditor and the society whether it consents to the resignation. (3) A statement made by an auditor in an application to QOFS for consent to the resignation or in answer to an inquiry by QOFS relating to the reasons for the application— (a) is not admissible in evidence in a civil or criminal proceeding against the auditor; and (b) may not be made the ground of a prosecution, action or suit against the auditor. (4) A certificate by QOFS that a statement was made in the application or in the answer to an inquiry by QOFS is evidence that the statement was made. (5) The resignation of an auditor takes effect on whichever of the CmoONANAUYN PWNH e Oo 13 15 17 202326 28 30 s 156 98 s 157 Financial Intermediaries following dates happens last— (a) the date (if any) stated for the purpose in the notice of resignation; (b) the date on which QOFS gives its consent to the resignation; (c) the date (if any) fixed by QOFS for the purpose. Notice of retirement etc. to be given 156.(1) If, on the retirement or withdrawal from a firm of a member, the firm will no longer be capable, because of section 150(1)(d)35 of acting as auditor of a society, the member retiring or withdrawing must give the society reasonable notice of retirement or withdrawal. Maximum penalty—80 penalty units. (2) On receipt of the notice by the society, the office of auditor becomes vacant. (3) Within 14 days after the removal of an auditor or the receipt of a notice of resignation, retirement or withdrawal from an auditor, the society must give QOFS a notice of the removal, resignation, retirement or withdrawal in the approved form. Maximum penalty for subsection (3)—10 penalty units. Effect of winding-up on office of auditor 157. An auditor of a society ceases to hold office if— (a) a special resolution is passed for the voluntary winding-up of the society; or (b) an order is made by the court for the winding-up of the society; or (c) QOFS issues a certificate under section 18436 for the society. 35 Section 150 (Firm as society's auditor) 36 Section 184 (Winding-up on certificate of QOFS) BR WwW NY CM ID WN 1416 19 21 23 s 158 99 s 159 Financial Intermediaries Fees and expenses of auditors 158. A society must pay the reasonable fees and expenses of an auditor, including the auditor's expenses in giving a report required to be given by this Act. Auditor's report 159.(1) An auditor of a society must report to the members on the accounts required to be laid before the society at the annual general meeting and on the society's accounting records and other records relating to the accounts. (2) The auditor must state in the report— (a) whether the accounts are in the auditor's opinion properly prepared— (i) so as to give a true and fair view of the matters required by section 14087 to be dealt with in the accounts; and (11) under this Act; and (111) under applicable accounting standards; and (b) if, in the auditor's opinion, the accounts have not been prepared under a particular applicable accounting standard— (i) whether, in the auditor's opinion, the accounts would, if prepared under that standard, have given a true and fair view of the matters required by section 140 to be dealt with in the accounts; and (11) if, in the auditor's opinion, the accounts would not, if so prepared, have given a true and fair view of those matters—the reasons for the opinion; and (1) if the directors have caused a statement to be attached to the accounts giving particulars of the quantified financial effect on the accounts of the failure to so prepare the accounts—the auditor's opinion of the particulars; and (iv) if neither subparagraph (11) nor (iii) applies—particulars of 37 Section 140 (Profit and loss account and balance sheet) RwWN COND Wn 14 16 18 2022 242729 s 159 100 s 159 Financial Intermediaries the quantified financial effect on the accounts of the failure to so prepare the accounts; and (c) any defect or irregularity in the accounts and any matter not set out in the accounts without regard to which a true and fair view of the matters dealt with by the accounts would not be obtained; and (d) ifthe auditor is not satisfied as to a matter mentioned in paragraph (a) or (b)—the reasons for not being satisfied. (3) The auditor of a society has a duty to form an opinion on each of the following matters— (a) whether the auditor has obtained all the information and explanations the auditor required; (b) whether proper accounting records and other records, including registers, have been kept by the society as required by this Act. (4) The auditor must state in the auditor's report particulars of any deficiency, failure or shortcoming for any matter mentioned in subsection (3). (5) The auditor must give the auditor's report to the society's directors in sufficient time to enable the society to comply with the requirements of section 14138 for the report. (6) The auditor's report— (a) must be attached to or endorsed on the accounts; and (b) if a member so requires—must be read before the society at the annual general meeting; and (c) must be open to inspection by a member at any reasonable time. (7) The auditor must, when giving the auditor's report, also give the society's directors a report as to— (a) the adequacy, in the auditor's opinion, of the systems adopted by the society to monitor and manage risks associated with its financial activities; and (b) any other matter of a kind prescribed in a standard made for this subsection. 38 Section 141 (Audit) s 160 101 s 160 Financial Intermediaries (8) When an auditor gives the society's directors a report under subsection (7), the auditor must also give QOFS a copy of the report. (9) An auditor of a society must not contravene this section. Maximum penalty for subsection (9)—80 penalty units. Powers and duties of auditor 160.(1) An auditor of a society has a right of access at all reasonable times to the accounting records and other records and registers of the society. (2) The auditor is entitled to require from an officer of the society any information and explanation that the auditor requires for the audit. (3) An auditor of a society, or an agent authorised by the auditor in writing for the purpose, is entitled to— (a) attend a general meeting of the society; and (b) receive all notices of, and other communications about, a general meeting that a member is entitled to receive; and (c) be heard at a general meeting that he or she attends on any part of the business of the meeting concerning the auditor in the capacity of auditor; and (d) be heard at a meeting mentioned in paragraph (c) even though— (i) the auditor retires at the meeting; or (11) a resolution to remove the auditor from office is passed at the meeting. (4) If an auditor becomes aware that the society or the directors has or have not complied with section 123, or the provisions of section 14639 about the laying of accounts before the society's annual general meeting, the auditor must immediately inform QOFS by written notice and, if accounts have been prepared and audited, send QOFS a copy of the accounts and of the auditor's report on the accounts. (5) Except if subsection (4) applies, if an auditor, while performing 39 Section 123 (Annual general meeting) Section 146 (Accounts and reports to be laid before annual general meeting) BW Ne eorAID WN 12 15 1720 22 242628 s 161 102 s 161 Financial Intermediaries duties as auditor of a society, is satisfied that— (a) there has been a contravention of this Act; and (b) the circumstances are such that, in the auditor's opinion, the matter has not been, or will not be, adequately dealt with by comment in the auditor's report on the accounts or by bringing the matter to the notice of the society's directors; the auditor must immediately report the matter to QOFS by written notice. (6) If an auditor of a society— (a) is not satisfied that the accounts comply with a particular applicable accounting standard; or (b) considers that the accounts do not comply with a particular applicable accounting standard; the auditor must report the matter to QOFS in writing within 7 days after giving to the society's directors the auditor's report under section 159.40 (7) If an auditor sends QOFS a report on the accounts under subsection (6), QOFS may, by written notice to the society, require it to give QOFS a copy of the accounts within 7 days after service of the notice. (8) In addition to any other report that an auditor, or former auditor, of a society is required to give to QOFS, an auditor, or former auditor, of a society must give QOFS any report about the society's affairs that QOFS requires and the auditor, or former auditor, is able to give. (9) An auditor, or former auditor, of a society must not contravene this section. Maximum penalty for subsection (9)—80 penalty units. Final audit on merger or transfer of engagements 161.(1) This section applies to a society that is dissolved as part of a merger, or transfer of engagements, under part 9.41 (2) The society's auditor must prepare a report containing the statements 40 Section 159 (Auditor's report) 41 Part 9 (Mergers and transfers of engagements) 27 s 162 103 s 162 Financial Intermediaries and information prescribed under a regulation about the society's accounts and accounting records for the financial year up to the date of the society's dissolution and for the previous financial year if an auditor's report has not been prepared for the society's accounts for that year. (3) The provisions of section 160 about the rights of access of an auditor to a society's records apply for the preparation of the report as if it were a report required under section 159. (4) The society's auditor must give the report to the directors of the merged society or transferee society within 2 months after the date of the merger or transfer and the directors of the merged society or transferee society must in turn, within 3 months after the date of the merger or transfer, give QOFS the auditor's report together with the accounts of the society dissolved as part of the merger or transfer. (5) An auditor of a society must not contravene this section. Maximum penalty—80 penalty units. (6) A director of a society must take all reasonable steps to ensure that a report required by this section to be given to the directors of a society or to QOFS is so given. Maximum penalty for subsection (6)—80 penalty units. Obstruction of auditor 162. An officer of a society must not— (a) fail without lawful excuse— (i) to allow an auditor of the society access, under this part, to the accounting records and other records and registers of the society that are in the possession or control of the officer; or (11) to give any information or explanation as and when required under this part; or (b) otherwise hinder, obstruct or delay an auditor in the performance of the duties or the exercise of the powers of an auditor. Maximum penalty—400 penalty units. on rninanwn BRwWNr Pere WnNnreovo Se nan & RP Re ona e \o 212427 29 s 163 104 s 164 Financial Intermediaries Qualified privilege 163.(1) An auditor of a society has qualified privilege in relation to— (a) an oral or written statement made by the auditor while exercising functions as auditor of the society; and (b) the giving to QOFS of a notice or report, or a copy of any accounts. (2) A person has qualified privilege in relation to the publishing of— (a) a document that is prepared by an auditor of a society while exercising functions as auditor of the society and is required under this Act to be given to QOFS, whether or not the requirement has been complied with; and (b) an oral or written statement made by the auditor while exercising functions as auditor of the society. (3) This section does not limit or affect any other right, privilege or immunity that an auditor or other person has as a defendant in an action for defamation. (4) In this section— "malice" includes ill-will to the person concerned or any other improper motive; "qualified privilege" means that a person— (a) has qualified privilege in proceedings for 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. Division 6—Returns and relief Returns 164.(1) A society must file returns with QOFS— (a) under a relevant standard; or (b) under a regulation. Maximum penalty—80 penalty units. FOO eMe YN AYN FW NY ee ion' wn eRe DAuns a nN ee \o No N re SO NN wh 2628 s 165 105 s 165 Financial Intermediaries (2) QOFS may, by written notice, require a society to file the further returns that QOFS requires. (3) A further return must contain the information required by the notice and must be filed as often as is required by the notice. (4) QOFS may, by written notice, require a society to file with a return or further return a report by a registered company auditor, or other person of a stated class, on stated matters to which the return relates. (5) A society must not fail to comply with a requirement of a notice given to it under this section, unless the society has a reasonable excuse. Maximum penalty for subsection (5)—400 penalty units. Relief from requirements as to accounts and audit 165.(1) The directors of a society may apply to QOFS in writing for an order relieving the directors, the society or the auditor of the society from compliance with any stated requirements of division 4 or 5 (other than section 138)42 (2) An application under subsection (1) must be accompanied by a written statement made under a resolution of the society's directors, signed by not less than 2 directors and stating the reasons for seeking the order. (3) QOFS may require the directors making the application to give information about the society's operations that QOFS thinks necessary to determine the application. (4) QOFS may make an order unconditionally or on terms it considers appropriate. (5) Notice of an order under subsection (4) must be given to the society. (6) QOFS may, if it considers it appropriate, make an order for a stated class of societies relieving the directors of a society included in the class, a society included in the class or the auditor of a society included in the class, from compliance with any stated requirements of division 4 or 5 (other than section 138). 42 Division 4 (Accounts) Division 5 (Audit) Section 138 (Accounting records to be kept) Oo eo NNW RW Ne e Oo 1315 172023 2628 s 165 106 s 165 Financial Intermediaries (7) QOFS may make an order under subsection (6) unconditionally or on terms it considers appropriate. (8) Notice of an order under subsection (6) must be published in the gazette. (9) QOFS may make an order about a society or a class of societies only if QOFS considers, for each requirement of this Act stated in the order, that compliance with the requirement— (a) would make accounts, or a report required about the accounts, misleading; or (b) would be inappropriate to the circumstances of the society, or of the societies included in the class; or (c) would impose unreasonable burdens on— (i) the society, an officer of the society or the auditor of the society; or (11) the societies, or officers or auditors of the societies, included in the class. (10) The order may be limited in its effect to a period stated in the order. (11) QOFS may, on application by the directors of a society or on its own initiative, revoke or suspend the order. (12) A revocation or suspension does not take effect— (a) for an order under subsection (4)—until written notice of the revocation or suspension is given to the society; or (b) for an order under subsection (6)—auntil notice of the revocation or suspension is published in the gazette. Rw Ne Be ew Nv Fo ©em ADU aon' Bw FR loon a nN ee \o N Co Nw Ne NN Rw s 166 107 s 168 Financial Intermediaries PART 8—CHARGES Registration of charges 166.(1) Part 3.5 of the Corporations Law43 applies to a society with all necessary changes and any changes prescribed under a regulation. (2) Without limiting subsection (1), the provisions of part 3.5 of the Corporations Law are to be applied as if— (a) areference to a company were a reference to a society; and (b) areference to the commission were a reference to QOFS. PART 9—MERGERS AND TRANSFERS OF ENGAGEMENTS Definitions for part 167. In this part— "certificate of confirmation" means a certificate given by QOFS to confirm a transfer of engagements. "transferee society" means a society to whom another society is to transfer, or has transferred, its engagements. "transferor society" means a society that is to transfer, or has transferred, its engagements. Application of part 168. This part applies only if— (a) all funds raised by the societies proposing to consolidate their assets, liabilities and undertakings by way of merger, or transfer of engagements, and not repaid were provided by the same entity; 43 Part 3.5 of the Corporations Law (Charges) on DAN FW bw 12 14 16 18 20 22 s 169 108 s 169 Financial Intermediaries (b) and either— (i) a guarantee is in force for each of the societies; or (11) a guarantee is not in force for any of the societies. Application for registration of merger or transfer of engagements 169.(1) If 2 or more societies propose to consolidate all of their assets, liabilities and undertakings by way of merger, or transfer of engagements, the societies may, after complying with this section, apply for the registration of the merger, or transfer of engagements. (2) The proposed merger, or transfer of engagements, must have been approved by a special resolution of each society involved unless QOFS has decided that it may be approved by the society's board. (3) Each society must send to each of its members a statement approved by QOFS stating— (a) (b) (c) (d) (e) (f) (g) the financial position of each of the societies as shown in financial statements that have been prepared as at a date that is not more than 6 months before the date of the statement; and the interest that an officer of any of the societies has in the proposed merger, or transfer of engagements; and the compensation or other consideration proposed to be paid, or other incentive proposed to be given, to an officer or member of a society in relation to the proposed merger, or transfer or engagements; and whether the proposal is a merger, or transfer of engagements and the reason for the merger, or transfer of engagements; and how the societies' reserves will be dealt with on the merger or transfer of engagements; and if there is a management contract for any of the societies—what is to happen to the contract; and any other matter specified by QOFS. (4) The statement must be sent to the members so that it will, in the BR WwW NY ona wn 12 14 1619 2123 25 27 29 31 s170 109 s170 Financial Intermediaries ordinary course of post, reach each member who is entitled to vote on the special resolution not later than— (a) ifthe resolution is to be decided at a meeting—21 days before the date of the meeting; or (b) if the resolution is to be decided by a postal ballot—21 days before the day on or before which the ballot papers must be returned by members voting in the ballot. (5) QOFS may exempt a society from having to comply with all or part of subsection (3). (6) QOFS may grant an exemption, or approve a statement, on terms it considers appropriate. (7) An application for the registration of a merger or transfer of engagements must be made in the way and form required by QOFS. (8) An application for a proposed merger must be accompanied by 2 copies of the proposed rules of the merged society and any other particulars required by QOFS. (9) An application for a proposed transfer of engagements must be accompanied by 2 copies of the proposed rules of the transferee society and any other particulars required by QOFS. QOEFS may register merged society 170.(1) This section applies if societies have applied to register a merger and QOFS is satisfied that— (a) the societies involved have complied with section 169; and (b) the proposed rules of the merged society are adequate; and (c) there are reasonable grounds for believing that the merged society will be able to comply with all relevant standards; and (d) the certificates of incorporation of the societies involved in the merger have been— (i) surrendered to QOFS; or (11) lost or destroyed; and (e) there is no good reason why the merged society and its rules See ee ON =~ SoS CM AUDA BW NY a Dnt Ree Re 'oon 22 24 26 28 30 s171 110 s172 Financial Intermediaries should not be registered. (2) QOFS must— (a) register the merged society; and (b) register its rules; and (c) cancel the registration of the societies involved in the merger. (3) On registering the merged society, QOFS must issue to the society a certificate of incorporation. (4) A merger takes effect on the issue of the certificate of incorporation. Certificate of confirmation (voluntary transfer) 171.(1) This section applies to a transfer of engagements following an application under section 169.44 (2) QOFS must issue a certificate of confirmation if it is satisfied that— (a) the societies have complied with section 169; and (b) the rules, or proposed rules, of the transferee society are adequate; and (c) the certificate of incorporation of the transferor society has been— (i) surrendered to QOFS; or (11) lost or destroyed; and (d) there is no good reason why the transfer should not take effect. QOFS may direct a transfer of engagements 172.(1) QOFS may, by written notice given to a society, direct it to transfer its engagements to another society if the board of the transferee society has, by resolution, consented to the proposed transfer. (2) QOFS must give a copy of the direction to the transferee society. (3) The direction must state that the transferor society must surrender its certificate of incorporation to QOFS or satisfy QOFS that its certificate has 44 Section 169 (Application for registration of merger or transfer of engagements) orAninan un fF WwW WY 11 13 15 1719 2226 s 173 111 s 173 Financial Intermediaries been lost or destroyed. (4) QOFS may direct a society to transfer its engagements only if— (a) QOFS considers that— (i) the society has contravened this Act or the society's rules and, after being given written notice of the contravention by QOFS, has allowed the contravention to continue or has again contravened this Act or the rules; or (11) the society is trading unprofitably or has an accumulated deficit in its profit and loss appropriation account; or (11) the society's affairs are being conducted in an improper or financially unsound way; or (b) after making inquiries about | or both of the societies that QOFS considers appropriate, QOFS is satisfied that it is in the interest of members or creditors of the society that is to be directed to transfer its engagements; or (c) QOFS has certified, for the society, that any of the events mentioned in section 184(1)(a), (b), (c) or (g)45 has happened. Society to comply with direction 173.(1) A society must take all reasonable steps to comply with a direction to transfer its engagements. Maximum penalty—1 600 penalty units. (2) An officer of a society must not— (a) fail to take all reasonable steps to secure compliance by the society with a direction to transfer its engagements; or (b) by a wilful act or omission, be the cause of a failure by the society to comply with a direction to transfer its engagements. Maximum penalty—l1 600 penalty units or 7 years imprisonment. 45 Section 184 (Winding-up on certificate of QOFS) ion Fo OA NDUNF WW NV Ree PU nA BW Pp ee Na 20 22 24 26 s174 112 s 178 Financial Intermediaries Certificate of confirmation (transfer by direction) 174.(1) This section applies to a transfer of engagements by a direction under section 172.46 (2) If the transfer takes effect immediately, the direction must be accompanied by a certificate of confirmation. (3) If the transfer does not take effect immediately— (a) the direction must state the day when QOFS proposes to issue the certificate of confirmation; and (b) when QOFS is satisfied that the societies have complied with the direction, it must issue a certificate of confirmation. Who receives the certificate of confirmation 175. QOFS must give a certificate of confirmation to the transferee society. When transfer of engagements takes effect 176. A transfer of engagements takes effect on the day of issue of the certificate of confirmation of the transfer, or a later day specified in the certificate. Cancellation of registration 177. QOFS must cancel the transferor society's registration. Effect of merger on societies 178.(1) This section applies on a merger of societies taking effect. (2) The merged society is the successor of the merging societies. (3) Without limiting subsection (2)— (a) the members of each merging society become members of the merged society; and 46 Section 172 (QOFS may direct a transfer of engagements) ow! eA HD ns wn e 13 1619 2123 25 s 179 113 s 180 Financial Intermediaries (b) (e) all assets and liabilities of each merging society become assets and liabilities of the merged society without any conveyance, transfer or assignment; and in all documents (including, for example, a contract to which a merging society was a party), a reference to a merging society is a reference to the merged society; and a legal proceeding by or against a merging society that is not finished when the merger takes effect may be continued and finished by or against the merged society; and the duties, obligations, immunities, rights and privileges applying to a merging society apply to the merged society. Effect of transfer of engagements on societies 179.(1) This section applies on a transfer of engagements taking effect. (2) The transferee society is the successor of the transferor society. (3) Without limiting subsection (2)— (a) (b) (c) (d) (e) the members of the transferor society become members of the transferee society; and all assets and liabilities of the transferor society become assets and liabilities of the transferee society without any conveyance, transfer or assignment; and in all documents (including, for example, a contract to which the transferor society was a party), a reference to the transferor society is a reference to the transferee society; and a legal proceeding by or against the transferor society that is not finished when the merger takes effect may be continued and finished by or against the transferee society; and the duties, obligations, immunities, rights and privileges applying to the transferor society apply to the transferee society. Effect of merger or transfer of engagements on guarantees 180.(1) This section applies on a merger or transfer of engagements FO UMA NQ AUN FR WNHE ee Sl a on' na FB W N ee Na Nee SOM N N ayes N NN Hun NN on 30 s 181 114 s 181 Financial Intermediaries taking effect, if a guarantee is in force for each of the societies involved in the merger or transfer of engagements. (2) On a merger— (a) each existing guarantee must be surrendered to the Treasurer; and (b) anew guarantee must be executed for the merged society for the amount outstanding under all the guarantees. (3) On a transfer of engagements— (a) each existing guarantee, other than the most recent guarantee if it is for the transferee society, must be surrendered to the Treasurer who must vary the most recent guarantee to cover the total amount outstanding under all the guarantees; or (b) each existing guarantee must be surrendered to the Treasurer who must execute a new guarantee for the transferee society for the total amount outstanding under all the guarantees. PART 10—EXTERNAL ADMINISTRATION Division I—Receivers and managers Receivers and managers 181.(1) Part 5.247 of the Corporations Law applies to a society with all necessary changes and any changes prescribed under a regulation. (2) Without limiting subsection (1), a reference in part 5.2 of the Corporations Law— (a) to the commission is taken to be a reference to QOFS; and (b) to the gazette—is a reference to the Queensland Government Gazette. 47 Part 5.2 of the Corporations Law (Receivers, and other controllers, of property of corporations) e Foon NA DAWN FW NK eRe wn os 19 21 24 s 182 115 s 184 Financial Intermediaries Division 2—Administration of society's affairs Administration of society's affairs with view to executing deed of arrangement 182.(1) Part 5.3A48 of the Corporations Law applies to a society with all necessary changes and any changes prescribed under a regulation. (2) Without limiting subsection (1), a reference in part 5.3A of the Corporations Law to the commission is taken to be a reference to QOFS. Division 3—Winding-up Winding-up 183.(1) A society may be wound-up voluntarily or by the Supreme Court or on a certificate of QOFS. (2) Subject to this division, a society may be wound-up in the way and circumstances in which a company may be wound-up under the Corporations Law. Winding-up on certificate of QOFS 184.(1) For a winding-up on a certificate of QOFS, the society may be wound-up if QOFS certifies that— (a) the society has not started business within a year of registration or has suspended or ceased to carry on business for more than 6 months; or (b) an event (to be stated in the certificate) has happened on the happening of which a regulation or the society's rules provide that the society is to be wound-up; or (c) the registration of the society has been obtained by mistake or fraud; or 48 Part 5.3A of the Corporations Law (Administration of a company's affairs with a view to executing a deed of company arrangement) ND nO Wp 11 1317 192225 s 184 116 s 184 Financial Intermediaries (d) the society exists for an illegal purpose; or (e) the society has, after notice by QOFS of a contravention of this Act or the society's rules, failed, within the time stated in the notice, to remedy the contravention or has committed a further contravention of a kind stated in the notice; or (f) there are, and have been for a period of 1 month immediately before the date of the certificate, insufficient directors of the society to constitute a quorum under the society's rules; or (g) because of an investigation under this Act into the society's affairs, it is in the interests of the public, or members or creditors of the society, that the society be wound-up. (2) QOFS may certify under subsection (1) only if the event has been proved to its satisfaction. (3) If QOFS certifies under subsection (1), QOFS may appoint a person to be the society's liquidator. (4) The liquidator appointed by QOFS may be employed in the office of QOFS and, if so, need not be a registered liquidator under the Corporations Law. (5) The liquidator, unless employed in the office of QOFS, is entitled to receive an amount of remuneration QOFS considers appropriate, having regard to the rate of payment that normally would apply for such an appointment. (6) A vacancy in the office of a liquidator appointed under subsection (3) must be filled by a person appointed by QOFS for the purpose. (7) A winding-up on a certificate of QOFS is taken to start at the date of the certificate of QOFS. (8) The liquidator must, within 14 days after the appointment, give notice of the appointment by gazette notice. rr OO onan OA BWN il oon wn eee ee CYQNHDA NS NN e- OO N N NN Rw NN Hun NN on s 185 117 s 186 Financial Intermediaries Application of Corporations Law to winding-up 1 185.(1) Subject to this division, parts 5.4, 5.4A, 5.4B, 5.5 and 5.649 of the Corporations Law apply to the winding-up or dissolution of a society or to a defunct or dissolved society with all necessary changes and any changes prescribed under a regulation. 35 (2) In the application of parts 5.4, 5.4A, 5.4B, 5.5 and 5.6 of the 6 Corporations Law to the winding-up of a society, a reference in those 7 provisions— 8 (a) to a special resolution—is a reference to a special resolution within the meaning of this Act; and 1 (b) to the commission—is a reference to QOFS; and 11 (c) to the gazette—is a reference to the Queensland Government 12 Gazette; and 13 (d) toa voluntary winding-up—includes a reference to a winding-up 14 of a society on a certificate of QOFS. 15 Voluntary winding-up 16 186.(1) If a society is to be wound-up voluntarily, a person employed in 17 the office of QOFS may be appointed liquidator. 18 (2) Ifa society is being wound-up voluntarily and a vacancy happens in 19 the office of liquidator, a person employed in the office of QOFS may be 20 appointed liquidator to fill the vacancy. 21 (3) An appointment under subsection (1) or (2) is effective only if it is 22 made with QOFS's written approval. 23 (4) A person appointed as liquidator under this section need not be a 24 registered liquidator under the Corporations Law. 25 (5) The remuneration payable to a liquidator appointed under this section 26 must be paid to QOFS. 27 49 Part 5.4 of the Corporations Law (Winding up in insolvency) Part 5.4A of the Corporations Law (Winding up by the Court on other grounds) Part 5.4B of the Corporations Law (Winding up in insolvency or by the court) Part 5.5 of the Corporations Law (Voluntary winding up) Part 5.6 of the Corporations Law (Winding up generally) s 187 118 s 190 Financial Intermediaries Vacancy in office of liquidator on voluntary winding-up 187.(1) This section applies if— (a) asociety is being wound-up voluntarily; and (b) the liquidator was not appointed under section 186; and (c) a vacancy happens in the office of liquidator that, in QOFS's opinion, is unlikely to be filled in the way provided by part 5.5 of the Corporations Law. (2) QOFS may appoint as liquidator a person qualified for the appointment under part 5.5 of the Corporations Law. Remuneration of liquidator on voluntary winding-up 188. Despite anything in this Act or the Corporations Law, the remuneration paid to the liquidator of a society wound-up voluntarily must not be more than the amount fixed by QOFS. Cancellation of registration 189. As soon as is practicable after a society is dissolved or taken to be dissolved, QOFS must register the dissolution and cancel the registration of the society. PART 11—SPECIAL INVESTIGATIONS Definition of "officer" for part 190. In this part— "officer" of a society includes— (a) a person who acts, or who at any time acted, as banker, solicitor, auditor or in another capacity for the society; and (b) a person who— (i) _ has, or has at any time had, in his or her possession property Oo eo NYDN FB W WN 12162023 25 s191 119 s191 Financial Intermediaries of the society; or (11) is indebted to the society outside the normal trading terms of the person's membership; or (11) is capable of giving information about the society's affairs; and (c) if an investigator has reasonable grounds for suspecting or believing that a person is a person mentioned in paragraph (b)—that person. Appointment of investigators 191.(1) QOFS may appoint an investigator to investigate a society's affairs if QOFS considers that it is desirable to do so— (a) for the protection of the public, or of the society's members or creditors; or (b) in the public interest. (2) QOFS may appoint a person as investigator only if the person has, in QOFS's opinion, the appropriate expertise for the position (whether because of training or otherwise). (3) QOFS must, in the instrument appointing an investigator, state full particulars of the appointment including— (a) the matters into which the investigations are to be made, being all the affairs or particular affairs of the society; and (b) the terms (if any) of the investigator's appointment. (4) QOFS may— (a) in the instrument appointing an investigator, state the period during which the investigation is to be made; and (b) at any time, by written notice given to an investigator, vary— (i) particulars stated in the instrument of appointment, being particulars mentioned in subsection (3)(a) or (b); or (11) the period during which the investigation is to be made. CID AHR Wp 11 13 1619 21 23 25 28 s 192 120 s 194 Financial Intermediaries (5) QOFS may, by written notice given to an investigator, terminate the appointment at any time. Two or more investigators appointed 192.(1) This section applies if 2 or more investigators are appointed to investigate a society's affairs (whether by the same instrument or by different instruments). (2) Each of the investigators may exercise the powers or perform the functions independently of the other investigator or investigators. Powers of investigators 193.(1) An investigator may, by written notice given to an officer of a society the affairs of which are being investigated, require the officer— (a) to produce to the investigator all documents of the society and other documents about the society's affairs in the possession or under the control of the officer; and (b) to give the investigator all reasonable help with the investigation; and (c) to appear before the investigator for examination on oath or affirmation. (2) An investigator may administer an oath or affirmation. (3) If documents are produced to an investigator, the investigator may take possession of the documents for the period the investigator considers necessary for the investigation. (4) During the period, the investigator must permit a person who would be entitled to inspect any 1 or more of those documents, if they were not in the investigator's possession, to inspect at all reasonable times the documents that person would be entitled to inspect. Examination of officers 194.(1) If a society's affairs are being investigated, an officer of the society must not— Ne eN DNF WwW 11 1316 18 2124 26 29 s 195 121 s 195 Financial Intermediaries (a) fail to comply with a requirement of an investigator under section 193 to the extent to which the officer is able to comply with it, unless the officer has a reasonable excuse; or (b) in purported compliance with a requirement, knowingly give information that is false or misleading in a material particular; or (c) when appearing before an investigator for examination under a requirement— (i) state anything the officer knows is false or misleading in a material particular; or (11) fail to be sworn or make an affirmation. Maximum penalty—800 penalty units or 4 years imprisonment. (2) A legal practitioner acting for the officer— (a) may attend the examination; and (b) to the extent that the investigator permits— (i) may address the investigator; and (11) may examine the officer; about matters in relation to which the investigator has questioned the officer. (3) A person who complies with the requirement of an investigator under this section does not incur liability to another person merely because of the compliance. (4) A person required to attend for examination under this part is entitled to the allowances and expenses prescribed under a regulation. (5) It is a reasonable excuse for an officer to fail to comply with a requirement of an investigator under section 193 if complying with the requirement might tend to incriminate the officer. Privileged communications 195.(1) An officer who is a legal practitioner may refuse to give information or produce a document to an investigator if— (a) the information or document is a privileged communication between the legal practitioner as such and another person; and CO IAD AR WHPHH 11131517 1922 2428 30 s 196 122 s 196 Financial Intermediaries (b) the other person does not agree to its being given or its production; and (c) subsection (2) does not apply. (2) If the society to which the information or document relates is being wound-up, the legal practitioner must give the information or produce the document if the liquidator agrees to its being given or to its production. Maximum penalty—400 penalty units or 2 years imprisonment. (3) A legal practitioner commits an offence if the practitioner— (a) refuses to give information or produce a document to an investigator on the ground that it is a privileged communication between the legal practitioner and another person who has not agreed to its being given or to its production; and (b) knows the name of the other person and the residential or other address at which the person might be found; and (c) fails to comply with a request by the investigator to give the investigator the name and address in writing. Maximum penalty for subsection (3)—400 penalty units or 2 years imprisonment. Failure of officer to comply with requirement of investigator 196.(1) This section applies if an officer of a society fails to comply with a requirement of an investigator appointed to investigate the society's affairs. (2) The investigator may, if the investigator considers that the officer did not have a lawful excuse for the failure, certify the failure by signed writing to the Supreme Court. (3) If an investigator gives a certificate under subsection (2), the Supreme Court may inquire into the case and— (a) order the officer to comply with the requirements of the investigator within a period fixed by the court; or (b) ifthe court is satisfied that the officer failed without lawful excuse to comply with the requirement of the investigator—punish the officer in the same way as if the officer had been guilty of eonrAN DUNK WY Ne 1114 16 18 212427 29 31 s 197 123 s 198 Financial Intermediaries contempt of the court and may also make an order under paragraph (a). Recording of examination 197.(1) An investigator may cause to be made a record of the questions asked and the answers given at an examination under this part. (2) A record of the examination of a person under this part may be used in evidence in a legal proceeding against the person. (3) A copy of the record of the examination of a person must be given without fee to the person on the written request of the person. (4) This section does not affect or limit the admissibility of other written or oral evidence. (5) QOFS may give a copy of the record of the examination to a legal practitioner who satisfies QOFS that the practitioner is acting for a person who is conducting, or is in good faith contemplating, legal proceedings in relation to affairs being investigated by an investigator. (6) A legal practitioner to whom a copy of the record is given must— (a) use the record only for the institution or preparation of, and in the course of, legal proceedings; and (b) not publish or communicate the record or a part of it for any other purpose. Maximum penalty—400 penalty units or 2 years imprisonment. (7) If a report is made under section 199,50 a record made under this section about the report must be given with the report. Delegation of powers by investigator 198.(1) An investigator may delegate the investigator's powers under this part except— (a) the power to administer oaths or affirmations; and (b) the power to examine on oath or affirmation. 50 Section 199 (Report of investigator) FBO CO NID WH wo Ree Ree ee nA WN e a Lion' on NR Ne) N pan N aS) 26 28 s 199 124 s 199 Financial Intermediaries (2) An investigator may delegate the powers only to a person who has, in the investigator's opinion, the appropriate expertise for exercising the powers (whether because of training or otherwise). (3) A delegate must produce the instrument of delegation for inspection on request by an officer of a society the affairs of which are being investigated. Report of investigator 199.(1) An investigator may, and if so directed by QOFS must, make interim reports to QOFS. (2) On the completion or termination of the investigation, the investigator must report to QOFS the investigator's opinion about the affairs of a society the investigator has investigated, together with the facts on which the opinion is based. (3) An investigator may, when making a report, give to QOFS any documents of which the investigator has taken possession under section 193(3).351 (4) QOFS— (a) may keep the documents for the period it considers necessary to enable a decision to be made as to whether or not a legal proceeding ought to be instituted because of the investigation; and (b) may keep the documents for a further period it considers necessary to enable the proceeding to be instituted and prosecuted; and (c) may permit other persons to inspect the documents while they are in its possession; and (d) may permit the use of the documents for the purposes of a legal proceeding instituted because of the investigation; and (e) must permit a person who would be entitled to inspect any of the documents if they were not in QOFS's possession to inspect at all reasonable times the documents that the person would be entitled to inspect. 51 Section 193 (Powers of investigators) DAN WN 1113 15192225 27 2931 s 200 125 s 200 Financial Intermediaries (5) A copy of a final report must, and a copy of the whole or any part of an interim report may, if QOFS considers it appropriate, be sent by QOFS to the registered office of the society to which it relates. (6) However, QOFS is not bound to give a society or any other person a copy of a report, or any part of a report, by an investigator if it considers that there is good reason for not divulging the contents of the report or part. (7) QOFS may, if it considers that it is in the public interest to do so, cause the whole or any part of a report to be printed and published. (8) If an investigator has caused a record of an examination under this part to be sent to QOFS with the report to which the record relates, a copy of the record may be given to the persons and on terms QOFS considers appropriate. (9) Subsection (8) applies subject to section 197.52 Proceedings following investigation 200.(1) If, from a report under section 199 or from the record of an examination under this part, QOFS considers that an offence may have been committed by a person and that a prosecution ought to be instituted, QOFS may cause a prosecution to be instituted and prosecuted. (2) QOFS may, by written notice given before or after the institution of a prosecution under subsection (1), require an officer of the society the affairs of which were investigated (not being an officer who is or, in QOFS's opinion, is likely to be, a defendant in the proceeding) to give all help for the prosecution or proposed prosecution that the officer is reasonably able to give. (3) If the officer fails to comply with the requirement stated in the notice, the Supreme Court may, on QOFS's application, direct the officer to comply with the requirement. (4) If, from a report under section 199 or from the record of an examination under this part, QOFS considers that proceedings ought in the public interest to be brought by a society the affairs of which were investigated by the investigator, for the recovery of damages for fraud, 52 Section 197 (Recording of examination) CIA AWK WPeH 12 1618 202224 262931 s 201 126 s 202 Financial Intermediaries misfeasance or other misconduct in connection with the society's affairs, or for the recovery of the society's property, QOFS may cause proceedings to be instituted accordingly in the society's name. Admission of investigator's report in evidence 201.(1) A document certified by QOFS as a copy of an investigator's report is admissible in legal proceedings as evidence of— (a) the investigator's report of the investigator's opinion for part 10, division 3;53 and (b) the facts or matters found by the investigator to exist. (2) The court before which legal proceedings are brought against a society or other person for matters dealt with in an investigator's report under section 199 may order that a copy of the report be given to the society or person. (3) This section does not diminish the protection given to witnesses by law. Expenses of investigation 202.(1) The expenses of and incidental to an investigation into a society's affairs (including the costs incurred and payable by QOFS in a proceeding brought by it in a society's name) must be paid by QOFS. (2) However, if QOFS considers that the whole or a part of the expenses of and incidental to an investigation (including the costs incurred and payable by it in a proceeding brought by it in a society's name) should be paid by the society, QOFS may by order— (a) direct that the whole, or part of, the expenses be paid by the society; or (b) if QOFS has already paid the expenses under subsection (1)—direct the society to rermburse QOFS; or (c) in either case—direct the society to reimburse QOFS for the remuneration of an employee of QOFS connected with the 53. Part 10 (External administration), division 3 (Winding-up) Ne w on Dn fp 1113 15 182123 25 27 29 s 202 127 s 202 Financial Intermediaries investigation. (3) The order may state— (a) the amount of the expenses to be paid or reimbursed; and (b) how and when the payment or reimbursement of the expenses is to be made. (4) The society named in the order, to the extent stated in the order, is liable to pay the expenses or reimburse QOFS for the expenses. (5) An amount for which the society is liable under the order may be recovered as a debt due to QOFS in a court having jurisdiction for the recovery of debts up to the amount involved. (6) An investigator may include in the report a recommendation whether— (a) an order under subsection (2) should be made; or (b) an application under subsection (7) for a similar order should be made; or (c) both an order and an application should be made. (7) An application may be made to a court by or on behalf of QOFS for the court to make the same order as QOFS may make under subsection (2). (8) The court may make an order with respect to the application or its subject matter as it considers appropriate. (9) Subsections (3), (4) and (5) apply to an order by the court as if it were an order made by QOFS. (10) An application under subsection (7) may be made— (a) during proceedings in the court instituted in the society's name under section 200(4);54 or (b) on, or within 14 days after, a conviction by the court in proceedings certified by QOFS for the purposes of the application to have been instituted as a result of an investigation under this part of affairs of a stated society. 54 Section 200 (Proceedings following investigation) s 203 128 s 205 Financial Intermediaries Concealing etc. document 203.(1) A person must not— (a) conceal, destroy, mutilate or alter a document of or about a society the affairs of which are being investigated under this part; or (b) send, cause to be sent or conspire with another person to send, out of the State such a document or property belonging to or under the control of the society. Maximum penalty—l1 600 penalty units or 7 years imprisonment. (2) In a proceeding for an offence against subsection (1), it is a defence if the person charged proves that he or she did not act with intent to defeat the purposes of this part or to delay or obstruct the carrying out of an investigation under this part. PART 12—REVIEW OF DECISIONS AND APPEALS QOFS to review certain decisions 204.(1) A person whose interests are affected by a decision of QOFS made under this Act may, by written notice given to QOFS, ask QOFS to review the decision. (2) Only 1 request may be made by a person for each decision. (3) QOFS must comply with the request. (4) When reviewing a decision, QOFS must give the person who asked for the review an opportunity to appear before QOFS and make a submission about the decision. (5) QOFS may confirm, vary or reverse the decision. Appeals 205.(1) A person aggrieved by a decision of QOFS on a review may appeal against the decision. CNIYDHD NAPW NY 1113 1720 2227 s 206 129 s 206 Financial Intermediaries (2) A regulation may prescribe matters about appeals including for example— (a) establishing or identifying the entity to which appeals are to be made; and (b) procedures about appeals. PART 13—MISCELLANEOUS Division 1—Evidence Certificates 206.(1) In a proceeding, a document appearing to be a certificate of registration, certificate of incorporation or other certificate issued by QOFS under this Act, or a copy of that type of document appearing to be certified as such by QOFS, is evidence of the matters stated in the certificate or copy. (2) Judicial notice must be taken of the imprint of QOFS's seal appearing on a document and the document must be presumed to have been properly sealed until the contrary is proved. (3) A copy of, or extract from, a document filed with, created or otherwise held by QOFS, and certified to be a true copy or extract under QOFS's seal— (a) is admissible in a proceeding as the original document; and (b) has the same validity in evidence as the original document or the extracted part of the original document. (4) In a proceeding, a certificate of QOFS stating that a requirement of this Act specified in the certificate— (a) had, or had not, been complied with at a date or within a period stated in the certificate; or (b) had been complied with at a date stated in the certificate but not nN BW NPE 11141721 23 25 s 207 130 s 210 Financial Intermediaries before that date; is evidence of the matters stated in the certificate. Rules 207. A printed copy of a society's rules appearing to be certified by the society's secretary to be a true copy of its registered rules is evidence of the rules. Registers 208.(1) The registers kept under this Act are evidence of the particulars directed or authorised by or under this Act to be inserted. (2) A copy of an entry in a register appearing to be certified by the secretary of the society concerned to be a true copy of the entry concerned is evidence of the particulars to which the entry relates. Minutes 209.(1) An entry in the minutes purporting to be— (a) aminute of the business transacted at a meeting of a society or its board; and (b) signed by the chairperson of the meeting at which the business was transacted or a subsequent meeting; is evidence that the business as recorded was transacted at the meeting and that the meeting was duly called and held. (2) An entry in the minutes of a meeting of a society to the effect that a resolution was carried or was lost is evidence of the fact without proof of the number or proportion of votes recorded for or against the resolution. Entries 210. A copy of an entry in a book of a society regularly kept in the course of business is, if certified by statutory declaration of the secretary to be a true copy of the entry, admissible in evidence in any case if, and to the same extent as, the original entry itself is admissible. Nn w 1114 16 18 20 222628 s211 131 s 213 Financial Intermediaries Division 2—Offences Defaults by societies 211.(1) A society must comply with a lawful requirement under this Act to give information to QOFS or another person. (2) If a society contravenes subsection (1), the society and any officer of the society who is in default each commit an offence. Maximum penalty for subsection (2)—400 penalty units or 2 years imprisonment. Restrictions on powers 212.(1) A society must not contravene a restriction imposed on its powers, or about its exercise of its powers, under this Act. (2) If a society contravenes subsection (1), the society and any officer of the society who is in default each commit an offence. Maximum penalty for subsection (2)—800 penalty units or 4 years imprisonment. Interpretation provision for ss 214-216 213.(1) In sections 214, 215 and 216— "appropriate officer" means— (a) fora society being wound-up—the liquidator; and (b) for a society under the management of an administrator—the administrator; and (c) for a society the affairs of which are being investigated under part 1155—the person nominated as the appropriate officer in the particular case by QOFS; and (d) for a society for which a receiver or manager of all or any of the society's property has been appointed, whether by the Supreme 55 Part 11 (Special investigations) oN AN BW Ww 11 13 15 1719 21 2326 s 213 132 s 213 Financial Intermediaries (e) Court or under the powers contained in an instrument—the receiver or manager; and for a society that, within the meaning of subsection (2), has ceased to carry on business or is unable to pay its debts—QOFS. "relevant day" means— (a) (b) (c) (d) (e) (f) for a society being wound-up—the day on which under this Act the winding-up has started or is taken to have started; and for a society under the management of an administrator—the day on which the administrator is appointed; and for a society the affairs of which are being investigated under part 11—the day on which the investigator was appointed; and for a society for which a receiver or manager has been appointed—the day on which the receiver or manager was appointed; and for a society that has, within the meaning of subsection (2), ceased to carry on business—the day on which a letter was first sent to the society or a notice was first published in the gazette for the society; and for a society that, within the meaning of subsection (2), is unable to pay its debts—the day on which the execution or other process was returned unsatisfied in whole or in part. "society to which this section applies" means a society— (a) (b) (c) (d) (e) (2) For (a) that is being wound-up; or that is under the management of an administrator; or the affairs of which are being investigated under part 11; or for which a receiver or manager has been appointed, whether by the court or under the powers contained in an instrument; or that, within the meaning of subsection (2), has ceased to carry on business or cannot pay its debts. subsection (1)— a society is taken to have ceased to carry on business if QOFS— (i) has sent to the society by post a letter under section 572(1) s 214 133 s214 Financial Intermediaries (ii) of the Corporations Law as applied by part 10, division 356 and has not, within 1 month of sending the letter, received an answer to the effect that the society is carrying on business; or has published in the gazette a notice under section 572(3)57 of the Corporations Law as so applied; and (b) asociety is taken to be unable to pay its debts only if execution of other process issued on a judgment, decree or order of a court in favour of a creditor of the society is returned unsatisfied in whole or part. Offences by officers 214.(1) An officer, or former officer, of a society to which this section applies who— (a) does not to the best of the person's knowledge and belief fully and truly disclose to the appropriate officer— (i) (ii) all the property of the society; and how and to whom and for what consideration and when the society disposed of any part of its property, other than any part that has been disposed of in the ordinary course of the society's business; or (b) does not deliver up to the appropriate officer, or as the appropriate officer directs— (i) (ii) all the property of the society in the person's custody or under the person's control and that the person is required by law to deliver up; or all documents in the person's custody or under the person's control belonging to the society and that the person is required by law to deliver up; or (c) within 5 years before the relevant day or at any time on or after 56 Part 10 (External administration), division 3 (Winding-up) 57 Section 572 of the Corporations Law (Notice by Commission of intention to deregister defunct company) SOCMI AW BWNHE e 13 15 1820 22 2427 $214 134 $214 Financial Intermediaries that day— (i) has concealed any part of the society's property to the value of $100 or more, or has concealed a debt due to or from the society; or (11) has fraudulently removed part of the society's property to the value of $100 or more; or (11) has concealed, destroyed, mutilated or falsified, or has been privy to the concealment, destruction, mutilation or falsification of a document affecting, or about, the society's property or affairs; or (iv) has made, or has been privy to the making of, a false entry in a document affecting or about the society's property or affairs; or (v) has fraudulently parted with, altered or made an omission in, or has been privy to fraudulent parting with, altering or making an omission in a document affecting or about the society's property or affairs; or (vi) by a false representation or other fraud, has obtained on credit for or on behalf of the society, property that the society has not subsequently paid for; or (vii) has obtained on credit for or on behalf of the society, under the false pretence that the society is carrying on business, property that the society has not subsequently paid for; or (vili)has pawned, pledged or disposed of any of the society's property that has been obtained on credit and has not been paid for, unless the pawning, pledging or disposing was in the ordinary course of the society's business; or (d) knowingly makes a material omission in a statement about the society's affairs; or (e) knowing or believing that a false debt has been proved by a person, fails for a period of 1 month to inform the appropriate officer of the knowledge or belief; or (f) prevents the production of a document affecting or about the society's property or affairs; or s 215 135 s 215 Financial Intermediaries (g) within 5 years before the relevant day, or at any time on or after that day, has attempted to account for any part of the society's property by making entries in the society's documents showing fictitious transactions, losses or expenses; or (h) within 5 years before the relevant day, or at any time on or after that day, has been guilty of a false representation or other fraud for obtaining the consent of the society's creditors or any of them to an agreement about the society's affairs or to the winding-up; commits an offence. Maximum penalty—800 penalty units or 4 years imprisonment. (2) It is a defence to a charge— (a) under subsection (1)(a), (b) or (d) or subsection (1)(c)(1), (vii) or (viii), if the accused person proves that the person had no intent to defraud; and (b) under subsection (1)(c)(ii1) or (iv) or subsection (1)(f), if the accused person proves that the person had no intent to conceal the society's state of affairs or to defeat the law. (3) If a person pawns, pledges or disposes of property in circumstances that amount to an offence under subsection (1)(c)(viii), a person who takes in pawn or pledge or otherwise receives the property knowing it to be pawned, pledged or disposed of in those circumstances commits an offence. Maximum penalty—800 penalty units or 4 years imprisonment. Incurring debts not likely to be paid 215.(1) If an officer of a society to which this section applies was knowingly a party to the contracting of a debt by the society and had at the time the debt was contracted, no probable or reasonable grounds of expectation, after taking into consideration the society's other liabilities (if any) at the time, of the society being able to pay the debt, the officer commits an offence. Maximum penalty—400 penalty units. (2) If any business of a society to which this section applies has been carried on with intent to defraud the society's creditors or creditors of OO DIY WDAYN PwWPK 11 13161921262830 33 s 216 136 s 216 Financial Intermediaries another person or for a fraudulent purpose, a person who was knowingly a party to the carrying on of the business in that way commits an offence. Maximum penalty—800 penalty units or 14 years imprisonment. Powers of Supreme Court 216.(1) If a person has been convicted of an offence under section 215, the Supreme Court, on the application of QOFS or a prescribed person, may declare that the person is personally responsible without any limitation of liability — (a) (b) for a conviction under section 215(1)—for the payment to the society of an amount equal to the whole of the debt to which the conviction relates or the part of the debt the Supreme Court considers appropriate; and for a conviction under section 215(2)—for the payment to the society of the amount required to satisfy all or any of the society's debts as the court considers appropriate. (2) For a society to which a conviction mentioned in subsection (1) relates, the prescribed persons under the subsection are— (a) (b) the appropriate officer; and a creditor of the society authorised by QOFS to make an application under subsection (1). (3) If the Supreme Court makes a declaration under subsection (1) about a person, it may— (a) (b) give further directions it considers appropriate to give effect to the declaration and, in particular, may order that the liability of the person under the declaration is a charge on— (i) a debt or obligation due from the society to the person; or (11) any charge or any interest in any charge on any of the society's assets held by or vested in the person or a corporation or person on the person's behalf or a person claiming as assignee from or through the person liable or a corporation or person acting on the person's behalf; or from time to time make any further order necessary to enforce a Ne w COND Lf 111417 20 22 242830 s217 137 s 218 Financial Intermediaries charge imposed under this subsection. (4) This section has effect despite the fact that the person concerned is criminally liable for the matters on the ground on which the declaration is made. (5) On the hearing of an application under subsection (1), the appropriate officer or other applicant may give evidence or call witnesses. (6) In subsection (3)— "assignee" includes a person to whom or in whose favour, by the direction of the person liable, the debt, obligation, or charge was created, issued or transferred or the interest created, but does not include an assignee for valuable consideration (other than consideration by way of marriage) given in good faith and without notice of any of the matters on which the conviction or declaration was made. Inducement to be appointed as liquidator 217. A person must not give, or agree or offer to give, to a member or creditor of a society valuable consideration for securing the person's appointment or nomination, or to securing or preventing the appointment or nomination of another person, as the liquidator of the society. Maximum penalty—400 penalty units or 2 years imprisonment. Falsification of records 218.(1) An officer of a society must not destroy, mutilate, alter or falsify a document or security, or make or be privy to the making of a false or fraudulent entry in a document, belonging to the society with intent to defraud or deceive a person. (2) A person who has a duty to record information in the documents of a society must not fail to record the information in the documents— (a) with intent to defraud another person; or (b) knowing that the failure will render other matter contained in the documents false or misleading in a material particular. Maximum penalty—l1 600 penalty units or 7 years imprisonment. 1618 2224 26 29 s 219 138 s221 Financial Intermediaries Frauds by officers 219. An officer of a society must not— (a) by false pretence, or by means of another fraud, induce a person to give credit to the society; or (b) with intent to defraud creditors of the society, make or cause to be made a gift or transfer of, or charge on, or cause or connive at the levying of an execution against, the society's property; or (c) with intent to defraud the society's creditors, conceal or remove part of the society's property within 2 months before, or on or after, the date of an unsatisfied judgment or order for payment of money obtained against the society. Maximum penalty—l1 600 penalty units or 7 years imprisonment. Definition of "relevant person" for ss 221-222 220. In sections 221 and 222— "relevant person" means a person exercising powers under this Act, and includes an inspector. False or misleading statements 221.(1) A person must not— (a) state anything to QOFS or a relevant person that the person knows is false or misleading in a material particular; or (b) omit from a statement made to QOFS or a relevant person anything without which the statement is, to the person's knowledge, misleading in a material particular. Maximum penalty—800 penalty units or imprisonment for 4 years. (2) It is enough for a complaint for an offence against subsection (1)(a) to state the statement made was false or misleading to the person's knowledge. Bw N = ee rFoO eo ARAN a N 14 16 18 20 2226 s 222 139 s 223 Financial Intermediaries False, misleading or incomplete documents 222.(1) A person must not give to QOFS or a relevant person a document containing information the person knows is false, misleading or incomplete in a material particular. Maximum penalty—800 penalty units or imprisonment for 4 years. (2) However, a person does not commit an offence against subsection (1) if the person, when giving the document— (a) tells QOFS or the relevant person, to the best of the person's ability, how it is false, misleading or incomplete; and (b) if the person has, or can reasonably obtain, the correct information—gives QOFS or the relevant person the correct information. (3) It is enough for a complaint for an offence against subsection (1) to state that the document was false, misleading or incomplete to the person's knowledge. Power of court to assess damages against certain persons 223.(1) In this section— "prescribed person" means— (a) a liquidator or provisional liquidator of the society concerned; or (b) if the society concerned is under the management of an administrator—the administrator or a member of the society; or (c) aperson authorised by QOFS to apply under subsection (3). "society to which this section applies" means a society— (a) that is being wound-up; or (b) that is under the management of an administrator; or (c) the affairs of which are being investigated under part 11;58 or (d) for which a receiver or manager has been appointed, whether by the Supreme Court or under the powers contained in an 58 Part 11 (Special investigations) 1719 21 2326 28 s 223 140 s 223 Financial Intermediaries instrument; or (e) that, within the meaning of subsection (2), has ceased to carry on business or is unable to pay its debts; or (f) that has entered into a compromise or scheme of arrangement with its creditors. (2) For subsection (1), a society has ceased to carry on business, or is unable to pay its debts, in the circumstances mentioned in section 213(2).59 (3) Subsection (4) applies if, on application by QOFS or a prescribed person, the Supreme Court is satisfied that a person who has taken part in the formation, promotion, administration, management or winding-up of a society to which this section applies— (a) has misapplied or kept or become liable or accountable for property of the society; or (b) has been guilty of negligence, default, breach of trust or breach of duty in relation to the society and that the society has suffered, or is likely to suffer, loss or damage as a result. (4) The Supreme Court may make | or both of the following orders— (a) an order directing the person to pay money or transfer property to the society; (b) an order directing the person to pay to the society the amount of the loss or damage. (5) This section applies to the receipt of an amount or property by an officer or former officer of the society, whether by way of salary or otherwise, that appears to the Supreme Court to have been unfair or unjust to the society or its members. (6) This section applies despite the fact that the person concerned may be criminally liable for the matters for which the order is sought. (7) If the Supreme Court is satisfied that an application was made under this section without reasonable cause, it may order the whole or a part of the costs incurred by the person against whom the order was sought to be paid by the applicant. 59 Section 213 (Interpretation provision for ss 214-216) FBPOoOUDAe YA NB WY il oon wn re nRnn p a nN ee \o NN re Oo NNNWN nA B WN NN Na WwWwnNyN Poo ew s 224 141 s 226 Financial Intermediaries False copies of rules 224. A person must not— (a) (b) give a member of a society or a person intending or applying to become a member, a copy of the rules or an alteration of the rules other than those that have been properly registered, representing that they are binding on the society's members; or make an alteration in any of the rules of the society after they have been properly registered and circulate them representing that they have been properly registered. Maximum penalty—160 penalty units. Fraud or misappropriation 225. A person must not— (a) (b) by false representation or imposition obtain possession of property of a society; or having property of a society in the person's possession, withhold or misapply the property, or wilfully apply part of the property, to purposes other than those stated or authorised in the society's rules or under this Act. Maximum penalty—l1 600 penalty units or 7 years imprisonment. Commissions 226.(1) An officer of a society must not accept a commission, fee or reward, whether monetary or otherwise, from a person for or about that person's transaction with the society. Maximum penalty—80 penalty units. (2) An officer of a society who commits an offence against subsection (1) is indebted to the society for double the value or amount of the commission, fee or reward. COI ANRW NY LY e Oo 12 14 1618 2226 s 227 142 s 229 Financial Intermediaries Officers and other persons in default 227. If this Act provides that an officer of a society who is in default commits an offence, the reference to the officer who is in default is, for a contravention of, or an offence against, this Act, a reference to an officer of the society (including a person who later ceased to be an officer of the society) who is in any way by act or omission, directly or indirectly, knowingly concerned in or party to the contravention or offence. Division 3—Legal proceedings Indictable and summary offences 228.(1) An offence against this Act for which the maximum penalty of imprisonment is 2 years or more is an indictable offence. (2) Any other offence against this Act is a summary offence. Proceedings for indictable offences 229.(1) A proceeding for an indictable offence against this Act may be taken, at the election of the prosecution— (a) by way of summary proceedings under the Justices Act 1886; or (b) on indictment. (2) A magistrate must not hear an indictable offence summarily if— (a) the defendant asks at the start of the hearing that the charge be prosecuted on indictment; or (b) the magistrate considers that the charge should be prosecuted on indictment. (3) If subsection (2) applies— (a) the magistrate must proceed by way of an examination of witnesses for an indictable offence; and (b) aplea of the person charged at the start of the proceeding must be disregarded; and (c) evidence brought in the proceeding before the magistrate decided ADU BwWN 11 15 1720 22 25 27 s 230 143 s 232 Financial Intermediaries to act under subsection (2) is taken to be evidence in the 1 proceeding for the committal of the person for trial or sentence; 2 and 3 (d) before committing the person for trial or sentence, the magistrate 4 must make a statement to the person as required by the Justices 5 Act 1886, section 104(2)(b). 6 (4) The maximum penalty that may be summarily imposed for an 7 indictable offence is 165 penalty units or 1 years imprisonment. 8 Limitation on who may summarily hear indictable offence 9 proceedings 10 230.(1) A proceeding must be before a magistrate if it is a proceeding— 11 (a) for the summary conviction of a person on a charge for an 12 indictable offence; or 13 (b) for an examination of witnesses for a charge for an indictable 14 offence. 15 (2) However, if a proceeding for an indictable offence is brought before a 16 Justice who is not a magistrate, jurisdiction is limited to taking or making a 17 procedural action or order within the meaning of the Justices of the Peace 18 and Commissioners for Declarations Act 1991. 19 Limitation on time for starting summary proceedings 20 231. A proceeding for an offence against this Act by way of summary 21 proceeding under the Justices Act 1886 must start within 2 years after the 22 alleged offence is committed. 23 Continuing offences 24 232.(1) #— 25 (a) under this Act anything is required or directed to be done within a 26 particular period or before a particular time; and 27 (b) failure to do the thing within the period or before the time 28 constitutes an offence; and 29 $s 233 144 s 233 Financial Intermediaries then— (d) (e) (f) the thing is not done within the period or before the time; the obligation to do the thing continues, despite the fact that the period has expired or the time has passed, until the thing is done; and if a person is convicted of an offence that is constituted by failure to do the thing within that period or before the time—the person commits a separate and further offence for each day after the day of the conviction during which the failure to do the thing continues; and the penalty that applies to each separate and further offence is 8 penalty units. (2) If— (a) (b) (c) under this Act anything is required or directed to be done but no period within which or time by which the thing is to be done is specified; and failure to do the thing constitutes an offence; and a person is convicted of an offence for a failure to do the thing; the person commits a separate and further offence for each day after the day of the conviction during which the failure to do the thing continues and the penalty that applies to each separate and further offence is 8 penalty units. Injunctions 233.(1) This section applies if a person has engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute— a contravention of this Act; or attempting to contravene this Act; or aiding, counselling or procuring a person to contravene this Act; or inducing or attempting to induce (whether by threats, promises or otherwise) a person to contravene this Act; or 2427 29 31 s 233 145 s 233 Financial Intermediaries (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of this Act; or (f) conspiring with others to contravene this Act. (2) The Supreme Court may, on the application of QOFS or a person whose interests have been, are or would be affected by the conduct mentioned in subsection (1), grant an injunction restraining the person from engaging in the conduct and, if in the court's opinion it is desirable to do so, requiring that person to do anything. (3) Ifa person has failed, is failing, or is proposing to fail, to do anything that the person is required to do under this Act, the Supreme Court may, on the application of QOFS or a person whose interests have been, are or would be affected by the failure to do the thing, grant an injunction requiring the person to do the thing. (4) If an application is made for an injunction under subsection (2) or (3), the Supreme Court may grant an injunction by consent of all the parties to the proceeding, whether or not the court is satisfied that the subsection applies. (5) The Supreme Court may grant an interim injunction pending determination of an application under subsection (1). (6) The Supreme Court may discharge or vary an injunction granted under this section, and may grant an injunction on terms. (7) The power of the Supreme Court to grant an injunction restraining a person from engaging in conduct may be exercised— (a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in the conduct; and (b) whether or not the person has previously engaged in conduct of that kind; and (c) whether or not there is an imminent danger of substantial damage to another person if the person engages, or continues to engage, in the conduct. (8) The power of the Supreme Court to grant an injunction requiring a person to do a thing may be exercised— (a) whether or not it appears to the court that the person intends to fail again, or to continue to fail, to do the thing; and COANE WHY 1113 1517 19 21 23 25 27 2932 34 s 234 146 s 234 Financial Intermediaries (b) whether or not the person has previously failed to do the thing; and (c) whether or not there is an imminent danger of substantial damage to another person if the person fails, or continues to fail, to do the thing. (9) If QOFS applies to the Supreme Court for the grant of an injunction under this section, the court must not require the applicant or another person, as a condition of granting an interim injunction, to give an undertaking as to damages. (10) If the Supreme Court has power under this section to grant an injunction restraining a person from engaging in particular conduct or requiring a person to do a particular thing, the court may, either in addition to or in substitution for the grant of the injunction, order the person to pay damages to another person. (11) The Supreme Court's powers under this section are in addition to its other powers. Power to grant relief 234.(1) This section applies to a person who is— (a) an officer of a society; or (b) an auditor of a society, whether or not the auditor is an officer of the society; or (c) an expert for a matter in relation to which the civil proceeding has been taken or the claim will or might arise; or (d) a receiver, receiver and manager, liquidator or other person appointed or directed by the Supreme Court to carry out a duty in relation to a society. (2) If, in a civil proceeding against a person to whom this section applies for negligence, default, breach of trust or breach of duty in a capacity because of which the person is such a person, it appears to the Supreme Court before which the proceeding is taken that the person is or may be liable in relation to the negligence, default or breach but has acted honestly and, having regard to all the circumstances of the case, including those connected with the person's appointment, ought fairly to be excused for the COND NABPW NH \o See eee KRWpPNr Oo eR num 1821 23 26 283032 s 235 147 s 235 Financial Intermediaries negligence, default or breach, the court may relieve the person either wholly or partly from the liability on such terms as the court considers appropriate. (3) If a person to whom this section applies has reason to believe that a claim will or might be made against the person for negligence, default, breach of trust or breach of duty in a capacity because of which the person is such a person, the person may apply to the Supreme Court for relief. (4) The Supreme Court has the same power to grant relief under subsection (3) as it would have had under subsection (2) if it had been a court before which a proceeding against the person for negligence, default, breach of trust or breach of duty had been brought. Division 4—Other matters Secrecy 235.(1) In this section— "court" includes a tribunal, authority or person having power to require the production of documents or the answering of questions. "person to whom this section applies" means a person who is or has been— (a) a director or member of QOFS; or (b) an officer or employee of QOFS. "produce" includes permit access to. "protected document" means a document that— (a) contains information that concerns a person; and (b) is obtained or made by a person to whom this section applies in the course of, or because of, the person's duty under this Act. "protected information" means information that— (a) concerns a person; and (b) is disclosed to, or obtained by, a person to whom this section applies in the course of, or because of, the person's duties under this Act. Coo MmON Nn Bp WwW Noe e an 13 15 17 192124 26 28 s 236 148 s 236 Financial Intermediaries (2) A person to whom this section applies must not— (a) make a record of protected information; or (b) whether directly or indirectly, divulge or communicate to a person protected information about another person. Maximum penalty—160 penalty units. (3) However, subsection (2) does not apply if the record is made, or the information divulged or communicated— (a) under this Act; or (b) in the performance of duties, as a person to whom this section applies, under this Act. (4) Unless it is necessary to do so for carrying this Act into effect, a person to whom this section applies is not required— (a) to divulge or communicate protected information to a court; or (b) to produce a protected document in court. (5) This section applies subject to section 134.60 Abolition of doctrine of ultra vires 236.(1) The object of this section is— (a) to abolish any application of the doctrine of ultra vires to societies; and (b) to ensure that societies give effect to any restrictions on their powers, but without affecting the validity of their dealings with outsiders. (2) In this section, a reference to the doing of an act by a society includes a reference to— (a) the making of an agreement by the society; and (b) a transfer of property to or by the society. 60 Section 134 (Inspection of documents at society's registered office) 17 19 2124 26 s 236 149 s 236 Financial Intermediaries (3) Sections 66 and 766! apply to a society subject to any restrictions on its powers expressly imposed under this Act or the society's rules. (4) A society contravenes this subsection if— (a) asociety exercises a power contrary to a restriction mentioned in subsection (3); or (b) the society does an act otherwise than in pursuance of its objects under this Act. (5) The exercise of the power, or the act, is not invalid merely because of the contravention. (6) An officer of a society who is involved in the contravention contravenes this subsection. (7) An act of the officer is not invalid merely because, by doing the act, the officer contravenes subsection (6). (8) The society or officer does not commit an offence merely because of a contravention of this section. (9) The fact that— (a) by exercising a power mentioned in subsection (4)(a), or doing an act mentioned in subsection (4)(b), a society contravened, or would contravene, subsection (4); or (b) by doing a particular act, an officer of a society contravened, or would contravene, subsection (6); may be asserted or relied on only in the following circumstances— (c) a prosecution of a person for an offence against this Act; (d) an application for an injunction under section 2336? to restrain the society from entering into an agreement; (e) a proceeding (other than an application for an injunction) by the society, or by a member of the society, against an officer or former officer of the society; 61 Section 66 (Powers) Section 76 (Effect of incorporation) 62 Section 233 (Injunctions) FBO CA NID Wp WwW NE ion' wn Ree ns e a Ree Re 'oon Nw a) NN wioN Nw Aw NO wpeN wornD s 237 150 s 237 Financial Intermediaries (f) an application by QOFS of by a member of the society for the winding-up of the society. (10) Subsection (11) applies if, had subsection (9) not been enacted, the Supreme Court would have power under section 23363 to grant, on the application of a person, an injunction restraining a society, or an officer of a society, from engaging in particular conduct constituting a contravention of subsection (4) or (6). (11) The Supreme Court may, on the application of the person, order the society or the officer to pay damages to the person or to someone else. (12) This section applies subject to section 67.64 (13) In this section— "restriction" includes prohibition. Persons having dealings with a society 237.(1) A person having dealings with a society is entitled to make the assumptions mentioned in subsection (3) and, in a proceeding about the dealings, any assertion by the society that the matters that the person is entitled to assume were not correct must be disregarded. (2) A person having dealings with a person who has acquired, or purports to have acquired, title to property from a society (whether directly or indirectly) is entitled to make the assumptions mentioned in subsection (3) and, in a proceeding about the dealings, any assertion by the society or the second person that the matters the first person is entitled to assume were not correct must be disregarded. (3) The assumptions that a person is, because of subsection (1) or (2), entitled to make are— (a) that, at all relevant times, this Act and the society's rules have been complied with; and (b) that a person who appears, from returns filed with or given to QOFS under this Act, to be a director, the principal executive 63 Section 233 (Injunctions) 64 Section 67 (Control of certain financial transactions) CO ADNRYW NE 111517 192123 25 27 29 s 237 151 s 237 Financial Intermediaries (c) (d) (e) (f) officer or the secretary of the society has been properly appointed and has authority to exercise the powers and perform the functions customarily exercised or performed by a person of that type for a society; and that a person who is held out by the society to be an officer or agent of the society has been properly appointed and has authority to exercise the powers and perform the functions customarily exercised or performed by an officer or agent of the kind concerned; and that an officer or agent of the society who has authority to issue a document for the society has authority to warrant that the document is genuine and that an officer or agent of the society who has authority to issue a certified copy of a document for the society has authority to warrant that the copy is a true copy; and that a document has been properly sealed by the society if— (i) it bears what appears to be an imprint of the society's seal; and (11) the sealing of the document appears to be authenticated under the society's rules by a person or persons mentioned in the rules as authorised to attest the sealing of the document who, because of paragraph (b) or (c), may be assumed to be that person or those persons ; and that the directors, secretary, officers, employees and agents have properly performed their duties to the society. (4) However, a person is not entitled to assume a matter mentioned in subsection (3) if— (a) (b) the person has actual knowledge that the assumption would be incorrect; or because of the person's connection or relationship with the society, the person ought to know that the assumption would be incorrect. (5) If, because of subsection (4), a person is not entitled to make a particular assumption— (a) if the assumption is about dealings with the oNDWN BwWHH \o eee eu BRWNHO Nn Ree na NNN ee Nr owWw Ww NN Rw NN Hun NYnwu on Ww wh roo WwW WwW wn w as s 238 152 s 239 Financial Intermediaries society—subsection (1) does not apply to an assertion by the society about the assumption; and (b) if the assumption is about dealings about an acquisition or purported acquisition from the society of title to property—subsection (2) does not apply to an assertion by the society or someone else about the assumption. Effect of fraud 238.(1) Section 237 operates— (a) to entitle a person to make the assumptions mentioned in section 237(3) in relation to dealings with a society; or (b) to entitle a person to make the assumptions mentioned in section 237(3) in relation to an acquisition or purported acquisition (whether direct or indirect) of title to property from a society; even if a person mentioned in section 237(3)(b), (c), or (e) or an officer, agent or employee of the society mentioned in section 237(3)(d) or (f}— (c) has acted or is acting fraudulently in relation to the dealings, or in relation to the acquisition or purported acquisition of title to property from the society; or (d) has forged a document that appears to have been sealed or behalf of the society. (2) However, subsection (1) does not operate to entitle a person to make the assumptions if the person mentioned in subsection (1)(a) or (b) of this section has actual knowledge that the person mentioned in section 237(3)(b), (c) or (e), or the officer, agent or employee of the society mentioned in section 237(3)(d) or (f), has acted or is acting fraudulently, or has forged a document, as mentioned in subsection (1)(c) or (d) of this section. Abolition of doctrine of constructive notice 239. A person dealing with a society, or an agent of a society, is not to be presumed to have notice of the society's rules and any document registered DAunBRwW NY 1214 161922 24262832 s 240 153 s 242 Financial Intermediaries by or filed with QOFS in relation to the society. Approval of forms 240. QOFS may approve forms for use under this Act. Division 5—Regulations Regulation making power 241. The Governor in Council may make regulations under this Act. Specific regulation making powers 242.(1) A regulation may make provision about— (a) the keeping of registers and records by QOFS; and (b) the filing or registration of documents, the time and way of submitting documents for filing or registration and the requirements with which documents filed with QOFS must comply; and (d) prescribing fees for the registration or exemption of societies and fees to be paid for a document filed, registered with or issued by QOFS or for an act or service required or authorised to be performed by QOFS; and (e) prescribing the way in which, the persons by whom, and the directions or requirements under which, forms are required or authorised to be signed, prepared or completed and generally regulating the signing, preparation and completion of forms; (g) the calling of, conduct of, and procedure and voting at meetings required or authorised to be held, the number of persons forming a quorum at a meeting, the sending of notices of meetings to persons entitled to attend meetings, the filing with QOFS of and notices of meetings and of resolutions passed at meetings; and (h) the proof of debts of a society, the time within which debts can or may be proved and generally regulating the proving of debts. 1113 1517 1921 2326 28 s 243 154 s 243 Financial Intermediaries (2) A regulation may provide that, if a document required to be filed with, or given to, QOFS is signed or filed or given on behalf of a person by the person's agent duly authorised in writing, the original or a verified copy of the authority must be filed or given with, endorsed on or attached to the document. (3) A regulation may be made— (a) creating offences against the regulation; and (b) fixing a maximum penalty of a fine of not more than 20 penalty units for a contravention of the regulation. (4) A power conferred by this section to make a regulation providing for the imposition of fees may be exercised by providing for all or any of the following matters— (a) specific fees; (b) maximum or minimum fees; (c) scales of fees; (d) the reduction, waiver or refund of fees. Further specific regulation making powers 243.(1) A regulation may make provision about— (a) the powers of societies and, in particular, may— (i) withdraw powers of a stated kind conferred by this Act or a society's rules; and (11) restrict the scope of powers of a stated kind conferred by this Act or a society's rules; and (111) make provision of a savings or transitional nature about a withdrawal or restriction; and (b) the information to be contained in returns to QOFS; and (c) the circumstances in which, and the period within which, returns must be filed with QOFS; and (d) documents that must be incorporated in, or be given with, the returns; and Oo co ws Dn APWNK RP Re NRO ee Bee Hn nn f& WwW 1821 23 25 28 30 s 244 155 s 246 Financial Intermediaries (e) permitting a society subject to any stated terms, exceptions or qualifications, to insert in an account or report under this Act, in substitution for an amount that the society would be required or permitted to be set out in the accounts or report, an amount ascertained under a regulation (not being an amount that is more than $500 more or less than the first amount). (2) For subsection (1)(e), the insertion of zero is taken to be the insertion of an amount. Transitional regulations 244.(1) A regulation may make provision about anything for which— (a) it is necessary or convenient to make provision because of a continuing society becoming registered under this Act as a society; and (b) this Act does not make provision or enough provision. (2) A regulation under subsection (1) may be given retrospective operation to a date not earlier than the day of commencement. (3) This section expires | year after it commences. PART 14—TRANSITIONAL Continuing societies 245.(1) Each continuing society continues in existence and is taken to be a society registered and incorporated under this Act. (2) Subsection (1) applies even though the previous law is repealed. Application for certificate of incorporation 246.(1) On application by a continuing society, QOFS must issue to the society a certificate of incorporation stating that the society is incorporated under this Act. CA DNF WNHE 1216 21 26 s 247 156 s 249 Financial Intermediaries (2) QOFS must not issue a certificate of incorporation to a continuing society under subsection (1) unless the society— (a) surrenders to QOFS its certificate of incorporation under the previous law; or (b) satisfies QOFS that the certificate has been lost or destroyed. Guarantees 247.(1) A guarantee executed under part 7 of the previous law and in force immediately before the commencement continues in existence and is taken to have been executed under this Act. (2) Subsection (1) applies subject to section 180.65 Rules 248.(1) The rules of a continuing society, in force immediately before the commencement, become its rules under this Act. (2) The rules have effect subject to this Act. Society started to have been formed under previous law 249.(1) This section applies if, before the commencement, the formation of a body as a cooperative housing society under the previous law has started, but the body has not been registered under the previous law as a cooperative housing society. (2) The formation of the body as a cooperative housing society under the previous law is taken to have started if a meeting has been called to form the cooperative housing society. (3) The previous law continues to apply to the formation of the body as a cooperative housing society but application may be made under section 7466 of this Act for the body to be registered under this Act as a cooperative housing society. 65 Section 180 (Effect of merger or transfer of engagements on guarantees) 66 Section 74 (Registration) nN BW NPE oon lon 13 1719 2124 26 s 250 157 s 251 Financial Intermediaries (4) For the application, the reference in section 74(2)(b)(i) of this Act to section 7367 is taken to be a reference to section 8 of the previous law. (5) The society may be registered under this Act if its rules are not contrary to the previous law, even though they are contrary to this Act. (6) On registration, the rules have effect subject to this Act. Existing loans 250.(1) This section applies to a loan made by a continuing society under the previous law if the loan is in existence at the commencement. (2) A standard may provide for the transition of the loan to a loan complying with section 91(4).68 (3) The standard must require the transition to happen within 12 months after the commencement. (4) The standard must not operate to the disadvantage of a person other than a society by— (a) decreasing the person's rights; or (b) imposing additional liabilities on the person. (5) The conditions of the loan are taken to be changed to the extent necessary to comply with the standard. Directors 251.(1) An existing term of office of a director of a continuing society that is not due to end until 3 years or more after the commencement ends at the end of the third annual general meeting of the society after the commencement. (2) Subsection (1) does not, by implication, prevent the office of the director becoming vacant at an earlier time. 67 Section 73 (Formation of societies) 68 Section 91 (Financial accommodation to, and deposits from, members and others) A BW por 2123 25 s 252 158 s 255 Financial Intermediaries Management contracts 252.(1) This section applies to a management contract entered into before the commencement. (2) A society must give QOFS a copy of the management contract within | month after the commencement. Maximum penalty—80 penalty units. (3) A management contract entered into before the commencement becomes void 6 months after the commencement unless QOFS directs that it continue in operation. Annual general meeting 253.(1) This section applies if— (a) the time within which a continuing society must hold its annual general meeting under the previous law has been extended under the law; and (b) the extension of time is in force immediately before the commencement. (2) The extension of time is taken to have been allowed by QOFS under section 123(2).69 Special resolutions 254. A special resolution passed by a continuing society under the previous law, but not registered under the law before the commencement, may be registered by QOFS under this Act. Appointment of auditor 255.(1) This section applies if, on the commencement, a continuing society— (a) does not have an auditor; or 69 Section 123 (Annual general meeting) Cont DA NKR WH 11 1316 18 2125 s 256 159 s 257 Financial Intermediaries (b) does not have an auditor qualified for appointment as an auditor under section 149 or 150.70 (2) Within 6 months beginning on the commencement, a society's directors must appoint, unless the society at a general meeting has appointed, a person or firm as auditor of the society. (3) Subject to part 7, division 5,7! the person or firm holds office until the next annual general meeting of the society. (4) A director of a society must take all reasonable steps to comply with, or to secure compliance with, subsection (2). Maximum penalty for subsection (4)—160 penalty units. Special meeting or inquiry 256.(1) This section applies if, before the commencement, a special meeting or inquiry has been called or started in relation to a continuing society under section 52 or 53 of the previous law. (2) The meeting or inquiry may continue under this Act and is taken to have been called or started under section 47 of this Act.72 Winding-up 257.(1) This section applies if— (a) under the previous law, a certificate has been issued for the winding-up of a continuing society; and (b) immediately before the commencement, a person has not been appointed liquidator of the society because of the certificate. (2) The certificate is taken to have been issued by QOFS under section 184 of this Act73 and the society may be wound-up accordingly. 70 Section 149 (Person as society's auditor) Section 150 (Firm as society's auditor) 71 Part 7 (Management), division 5 (Audit) 72 Section 47 (Special meeting and inquiry) 73 Section 184 (Winding-up on certificate of QOFS) CH NAD APW POR e Oo 1316 18 20 22 24 s 258 160 s 259 Financial Intermediaries Act not to apply to certain continuing societies being wound-up 258.(1) This section applies to a continuing society the winding-up of which was started, but not finished, before the commencement. (2) The provisions of this Act for the winding-up of societies do not apply to the continuing society. (3) The society is to be wound-up in the same way as if this Act had not been enacted. (4) Subsection (1) does not limit the operation of the Acts Interpretation Act 1954. (5) This section has effect despite any other provision of this Act. PART 15—APPLICATION OF ACT WITH CHANGES TO CERTAIN ENTITIES Application of Act 259.(1) This Act applies to The Cairns Cooperative Weekly Penny Savings Bank Limited— (a) as if the amendments set out in schedule 1, part 174 were made, including the provisions 'not applied'; and (b) with all other necessary changes and any other changes prescribed under a regulation. (2) This Act applies to the entities mentioned in schedule 275— (a) as if the amendments set out in schedule 1, part 276 were made, including the provisions 'not applied'; and 74 Schedule 1 (Act applies to certain entities as if amended) part 1 (Application of Act to The Cairns Cooperative Weekly Penny Savings Bank Limited) 75 Schedule 2 (Terminating building societies) 76 Schedule 1 (Act applies to certain entities as if amended) part 2 (Application of Act to terminating building societies) Oo eo ND ns Wn e Oo 12 15 17 19 22 s 260 161 s 261 Financial Intermediaries (b) with all other necessary changes and any other changes prescribed under a regulation. PART 16—REPEALS AND AMENDMENTS Repeals 260. The following Acts are repealed— ¢ — the Building Societies Act 1985 * the Co-operative Housing Societies Act 1958 Amendment of Queensland Office of Financial Supervision Act 1992 261. Schedule 3 amends the Queensland Office of Financial Supervision Act 1992. NOR ND Wn fF 11 Financial Intermediaries SCHEDULE 1 ACT APPLIES TO CERTAIN ENTITIES AS IF AMENDED section 259 PART 1—APPLICATION OF ACT TO THE CAIRNS COOPERATIVE WEEKLY PENNY SAVINGS BANK LIMITED 1. Section 18 (Functions of QOFS under this Act)— Section 18(f)— omit, insert— '(f) facilitate the conversion of a society to a company; and'. 2. Section 65 (Objects)— Section 65(1) and (2)— omit, insert— "65.(1) A society has the objects set out in its rules.'. 3. Section 66 (Powers)— omit, insert— 'Powers *66.(1) Without limiting subsection (2), a society has the powers stated in its rules and, subject to this Act and its rules, the powers mentioned in this division. '(2) A society is a corporation with perpetual succession and— (a) has, subject to this Act and the society's rules, the legal capacity 11 1315 172023 Financial Intermediaries SCHEDULE | (continued) of a natural person; and (b) has a common seal; and (c) may sue and be sued in its corporate name. "(3) The fact that the doing of an act by a society would not be, or is not, in its best interests does not affect its power or legal capacity to do the act.'. 4. Section 69 (Raising funds)— Section 69(2), (3) and (4)— omit. 5. Part 5, division 3 (Guarantees)— not applied. 6. Part 6, division 1 (Formation and registration)— not applied. 7. Section 77 (Rules)— Section 77(1)— omit. 8. Section 80 (Alteration of rules by special resolution)— Section 80(2), *, 83 and 84'— omit, insert— 'and 83'. nk WwW NY 12 141719 Financial Intermediaries SCHEDULE | (continued) 9. Section 84 (Power of QOFS to change rules to facilitate transfer of engagements)— not applied. 10. Section 91 (Financial accommodation to, and deposits from, members and others)— (1) Section 91, heading— omit, insert— 'Financial accommodation to members'. (2) Section 91(4) and (5)— omit. 11. Section 93 (Society must have certain words as part of name)— (1) Section 93(2), 'Housing Society'— omit. (2) Section 93(3)(c) and (d)— omit. 12. Section 123 (Annual general meeting)— (1) Section 123(1)— omit. (2) Section 123(2), 'every subsequent"— omit, insert— ' > an. 13. Section 128 (Special resolutions)— (1) Section 128(1)(b)— w oOo ND WB 1214171921 23 Financial Intermediaries SCHEDULE 1 (continued) omit. (2) Section 128 (3), 'or close of the postal ballot'— omit. 14. Section 137 (Financial year)— omit, insert— 'Financial year '137. The financial year of a society is from | July to the following 30 June.'. 15. Section 161 (Final audit on merger or transfer of engagements)— omit, insert— 'Final audit on conversion "161.(1) This section applies to a society that converts to a company under part 9.77 '(2) The society's auditor must prepare a report containing the statements and information prescribed under a regulation about the society's accounts and accounting records for the financial year up to the day the society is registered as a company under the Corporations Law and for the previous financial year if an auditor's report has not been prepared for the society's accounts for that year. "(3) The provisions of section 160 about the rights of access of an auditor to a society's records apply for the preparation of a report as if it were a report required under section 159.78 '(4) The society's auditor must give the report to the directors of the company within 2 months after the day the society is registered as a company and the directors of the company must in turn, within 3 months 77 Part 9 (Conversion to a company) 78 Section 160 (Powers and duties of auditor) Section 159 (Auditor's report) w eA HD un fF 11 13 151719 2124Financial Intermediaries SCHEDULE | (continued) after the day the company is registered, give QOFS the auditor's report together with the society's accounts. "(5) An auditor of a society must not contravene this section. Maximum penalty—80 penalty units. '(6) A director of a society, or of a company, must take all reasonable steps to ensure that a report required by this section to be given to the directors of a company or to QOFS is so given. Maximum penalty for subsection (6)—80 penalty units.'. 16. Part 9 (Mergers and transfers of engagements)— omit, insert— 'PART 9—CONVERSION TO A COMPANY 'Society may convert "167.(1) A society may apply to QOFS for approval of a proposal that it convert to a company. "(2) Subsection (1) applies subject to the society's rules. 'Proposal to convert by society to be approved by members "168.(1) Before a society applies to QOFS for approval to convert, the proposal and the memorandum of association and articles of association (if any) proposed for the company must be approved— (a) ina postal ballot in which not less than 20% of the members of the society have voted; and (b) by not less than 75% of the members who have voted. '(2) The postal ballot must be conducted— (a) under the society's rules; or moa rnan fF Ww NK 14 1821 23Financial Intermediaries (b) (c) SCHEDULE 1 (continued) under a regulation; or in a way approved by QOFS. "(3) Before a society applies to QOFS for approval to convert, the society must send to each of its members— (a) (b) (c) (d) a summary, approved by QOFS and containing the information prescribed under a regulation, of the memorandum of association and articles of association (if any) of the proposed company; and a copy of reports, valuations and other material prepared by experts that may be required and approved by QOFS; and a statement, the contents of which have been approved by QOFS, about— (i) _ the society's financial position; and (11) the reasons for the proposal to convert; and (111) the interest that its officers may have in the conversion; and (iv) the compensation or other consideration proposed to be paid, or other incentive proposed to be given, to its officers arising out of the conversion; and (v) payments to be made to its members arising out of the conversion; and any other matters that QOFS directs. "(4) The part of a statement under subsection (3)(c)(i) must include— (a) (b) (c) the society's profit and loss account for the period up until a day not more than 6 months before the day proposed for the conversion, giving a true and fair view of the society's profit or loss for the period; and a balance sheet as at the end of the last day of the period to which the profit and loss account relates, giving a true and fair view of the society's state of affairs on the day; and a report prepared by the society's auditor containing statements and information prescribed under a regulation about the society's accounts for the period to which the profit and loss account RW NY SB oe ew Ww NY FO CDA ADM os RP Ree NAW ee \o No N re SO NNWNN nABwWN NN bp ona Ww wh roo Financial Intermediaries SCHEDULE 1 (continued) relates. "(5) The documents mentioned in subsection (3), and the ballot papers to be used in the postal ballot, must be sent to the society's members so that they will in the ordinary course of post reach each member who is entitled to vote not later than 21 days before the day on or before which the ballot papers must be returned by members voting in the ballot. "(6) QOFS may exempt a society from having to comply with all or any of subsection (3) or (4). "(7) QOFS may grant an exemption, or approve a summary or statement, on terms it considers appropriate. "QOEFS may direct as to percentage "169.(1) This section applies if— (a) a postal ballot is conducted under section 168(1); and (b) less than 20% of the society's members vote in the postal ballot. "(2) QOFS may, by written notice given to the society, direct that for the postal ballot, section 168(1) is taken to have had effect as if the percentage stated by QOFS in the notice had been substituted for the 20% at all relevant times. "(3) QOFS may give the notice only if QOFS considers it is in the interests of the public, and of the society's members, to do so. "(4) The notice has effect according to its tenor. "Application by society to QOFS for approval of proposal 170.(1) An application for conversion by a society must be made in the approved form and must be accompanied by— (a) 2 copies of the proposed memorandum of association and articles of association (if any) of the proposed company; and (b) a copy of the register of members of the society verified by statutory declaration of a director and made up so as to be complete and correct as at a day not more than 6 days before the SCO ON ANRWN 1214 1618 20 24 26 28Financial Intermediaries (c) (d) SCHEDULE 1 (continued) day of the application; and a statement stating the day and terms on which the conversion of the society to a company is proposed to take effect; and any other documents or information that QOFS requires. "(2) In deciding whether or not to approve the proposal to convert, QOFS must have regard to— (a) (b) (c) (d) the public interest; and the interests of the members of the society to which the proposal relates; and the information given to those members about the proposal and about the interests of directors and others promoting the proposal; and proposals for the payment of expenses associated with the proposal; and (e) any other relevant matter. "(3) QOFS may— (a) approve the proposal to convert on terms it considers appropriate; (b) or refuse to approve the proposal. 'Effect of conversion of society to company "171.(1) This section applies if— (a) (b) (c) a proposal by a society that it convert to a company is approved by QOFS; and the company is formed and incorporated under the terms of QOFS's approval; and other terms of the approval about the transfer of membership or any other matter are complied with. "(2) On the day the society is registered as a company under the Corporations Law— mon an fF Wh 1114 16 18 21 23 25 27 29 Financial Intermediaries SCHEDULE | (continued) (a) the property of the society vests in the company without any conveyance, transfer or assignment subject to any debt, liability or obligation affecting the property; and (b) the debts and liabilities of the society become debts and liabilities of the company; and (c) the society's personality merges in that of the company. 'Surrender of certificate of incorporation etc. "172.(1) A society that proposes to convert to a company must surrender its certificate of incorporation to QOFS. Maximum penalty—80 penalty units. "(2) On the conversion of a society to a company, the society stops being a society under this Act. 'Certificate of QOFS '173.(1) QOFS may, on application by the company resulting from a conversion and production of evidence that QOFS may require, issue to the company a certificate stating that a conversion has taken effect. (2) A certificate issued by QOFS under subsection (1) is evidence as to the matters so certified and that the terms of the approval have been complied with.'. 17. Section 236 (Abolition of doctrine of ultra vires)— Section 236(3), 'Sections 66 and 76 apply'— omit, insert— "Section 66 applies'. 18. Section 244 (Transitional regulations)— Section 244(1)(a)— Hn nk WnNe 12 15182123 25 Financial Intermediaries SCHEDULE | (continued) omit, insert— '(a) it is necessary or convenient to make provision because of The Cairns Cooperative Weekly Penny Savings Bank Limited becoming a society under this Act; and'. 19. Section 245 (Continuing societies)— omit, insert— 'Society continues '245.(1) The Cairns Cooperative Weekly Penny Savings Bank Limited registered under the previous law immediately before the commencement ("Cairns Cooperative") continues in existence and is taken to be a society under this Act and to have been registered and incorporated under this Act. "(2) Cairns Cooperative ceases to be a society under the previous law.'. 20. Section 246 (Application for certificate of incorporation)— Section 246— omit, insert— "Application for certificate of incorporation '246.(1) On application by Cairns Cooperative, QOFS must issue to the cooperative a certificate of incorporation stating that the cooperative is incorporated under this Act. "(2) QOFS must not issue a certificate of incorporation to Cairns Cooperative under subsection (1) unless the cooperative— (a) surrenders to QOFS its certificate of incorporation under the previous law; or (b) satisfies QOFS that the certificate has been lost or destroyed.'. 21. Section 247 (Guarantees)— not applied. 26 Financial Intermediaries SCHEDULE | (continued) 22. Section 248 (Rules)— 1 Section 248(1), 'a continuing society'— 2 omit, insert— 3 'Cairns Cooperative'. 4 23. Section 249 (Society started to have been formed under previous 5 law)— 6 not applied. 7 24. Section 250 (Existing loans)— 8 not applied. 9 25. Section 251 (Directors)— 10 (1) Section 251(1), 'a continuing society'— 11 omit, insert— 12 'Cairns Cooperative'. 13 (2) Section 251(1), 'the society'— 14 omit, insert— 15 'the cooperative'. 16 26. Section 252 (Management contracts)— 17 not applied. 18 27. Section 253 (Annual general meeting)— 19 Section 253(1), 'a continuing society'— 20 omit, insert— 21 'Cairns Cooperative'. 22 Financial Intermediaries SCHEDULE | (continued) 28. Section 254 (Special resolutions)— Section 254, 'a continuing society'— omit, insert— "Cairns Cooperative'. 29. Section 255 (Appointment of auditor)— omit, insert— "Appointment of auditor °255.(1) This section applies if, on the commencement, Cairns Cooperative— (a) does not have an auditor; or (b) does not have an auditor qualified for appointment as an auditor under section 149 or 150.79 "(2) Within 6 months beginning on the commencement, the cooperative's directors must appoint, unless the cooperative at a general meeting has appointed, a person or firm as auditor of the cooperative. "(3) Subject to part 7, division 5,80 the person or firm holds office until the next annual general meeting of the cooperative. "(4) A director of the cooperative must take all reasonable steps to comply with, or to secure compliance with, subsection (2). Maximum penalty for subsection (4)—160 penalty units.'. 30. After section 255— insert— 79 Section 149 (Person as society's auditor) Section 150 (Firm as society's auditor) 80 Part 7 (Management), division 5 (Audit) BR WwW NY ona nr nN 1417 19 22 Financial Intermediaries SCHEDULE | (continued) 'Proceedings under previous law '255A. The registrar under the previous law may institute proceedings under that law in relation to Cairns Cooperative for things done or not done before the commencement.'. 31. Section 256 (Special meeting or inquiry)— Section 256(1), 'a continuing society under section 52 or 53'— omit, insert— "Cairns Cooperative under section 102 or 103'. 32. After section 256— insert— Register '256A. A register kept by the registrar under the previous law may be incorporated in a register kept by QOFS under this Act.'. 33. Section 257 (Winding-up)— omit, insert— "Winding-up '257.(1) This section applies if— (a) under the previous law, a certificate has been issued for the winding-up of Cairns Cooperative; and (b) immediately before the commencement, a person has not been appointed liquidator of the cooperative because of the certificate. (2) The certificate is taken to have been issued by QOFS under section 184 of this Act'! and the cooperative may be wound-up accordingly.'. 81 Section 184 (Winding-up on certificate of QOFS) BRwWN onrnnun 11 13 1517 19 21 23Financial Intermediaries SCHEDULE | (continued) 34. Section 258 (Act not to apply to certain continuing societies being 1 wound-up)— not applied. 3 35. After section 258— 4 insert— 5 'Documents 6 '258A. A certificate or other document, about Cairns Cooperative, issued 7 or registered by, filed with or given to the registrar under the previous law 8 has effect as if it were a certificate or other document issued or registered 9 by, filed with or given to QOFS under this Act.'. 10 36. Schedule 4 (Dictionary)— 11 (1) Schedule 4, definitions "certificate of confirmation", "continuing 12 society", "guarantee", "previous law", "society", "transferee society" 13 and "transferor society"— 14 omit. 15 (2) Schedule 4— 16 insert— 17 ' "previous law" means the Co-operative and Other Societies Act 1967. 18 "society" means The Cairns Cooperative Weekly Penny Savings Bank 19 Limited.'. 20 Financial Intermediaries SCHEDULE | (continued) PART 2—APPLICATION OF ACT TO TERMINATING BUILDING SOCIETIES 37. Part 1, division 4 (Effect of Primary Producers' Cooperative Associations Act 1923)— not applied. 38. Section 18 (Functions of QOFS under this Act)— Section 18(f)— omit, insert— '(f) facilitate the transfer of engagements from a society to a cooperative housing society; and'. 39. Part 5 (Objects and powers of societies)— omit, insert— "PART 5—OBJECTS AND POWERS OF SOCIETIES 'Objects "65. The objects of a society are its objects under the previous law..'. 'Powers "66.(1) The powers of a society are its powers under the previous law, including its powers as a corporation under that law. '(2) A society is a corporation with perpetual succession and— (a) has acommon seal; and (b) may sue and be sued in its corporate name. CoO mWmN DD 12 15 18 20Financial Intermediaries SCHEDULE | (continued) '(3) The fact that the doing of an act by a society would not be, or is not, in its best interests does not affect its power or legal capacity to do the act.'. 40. Part 6, division 1 (Formation and registration)— not applied. 41. Section 77 (Rules)— Section 77(1) and (2)— not applied. 42. Section 80 (Alteration of rules by special resolution)— Section 80(2), *, 83 and 84'— omit, insert— 'and 83'. 43. Section 84 (Power of QOFS to change rules to facilitate transfer of engagements)— not applied. 44. Section 91 (Financial accommodation to, and deposits from, members and others)— omit, insert— 'Financial accommodation "91. A society must not provide financial accommodation to anyone. Maximum penalty—400 penalty units.'. Ne 11 13 16 1820 Financial Intermediaries SCHEDULE | (continued) 45. Section 93 (Society must have certain words as part of name)— 1 not applied. 2 46. Section 123 (Annual general meeting)— 3 (1) Section 123(1)— 4 omit. 5 (2) Section 123(2), 'every subsequent"— 6 omit, insert— 7 'an'. 8 47. Section 128 (Special resolutions)— 9 Section 128(1)(b), 'merger or'— 10 omit. 11 48. Section 137 (Financial year)— 12 omit, insert— 13 'Financial year 14 '137. The financial year of a society is from 1 July to the following 15 30 June.'. 16 49. Section 161 (Final audit on merger or transfer of engagements)— 17 omit, insert— 18 'Final audit on transfer of engagements 19 '161.(1) This section applies to a society that is dissolved as part of a 20 transfer of engagements under part 9.82 21 82 Part 9 (Transfers of engagements) Financial Intermediaries SCHEDULE | (continued) '(2) The society's auditor must prepare a report containing the statements and information prescribed under a regulation about the society's accounts and accounting records for the financial year up to the date of the society's dissolution and for the previous financial year if an auditor's report has not been prepared for the society's accounts for that year. '(3) The provisions of section 16083 about the rights of access of an auditor to a society's records apply for the preparation of the report as if it were a report required under section 159.84 '(4) The society's auditor must give the report to the directors of the transferee society within 2 months after the date of the transfer and the directors of the transferee society must in turn, within 3 months after the date of the transfer, give QOFS the auditor's report together with the accounts of the society dissolved as part of the transfer. "(5) An auditor of a society must not contravene this section. Maximum penalty—80 penalty units. "(6) A director of a society must take all reasonable steps to ensure that a report required by this section to be given to the directors of a society or to QOFS is so given. Maximum penalty for subsection (6)—80 penalty units.'. 50. Part 9 (Mergers and transfers of engagements)— omit, insert— "PART 9—TRANSFERS OF ENGAGEMENTS 'Interpretation for part "167.(1) In this part— "certificate of confirmation" means a certificate given by QOFS to confirm a transfer of engagements. 83 Section 160 (Powers and duties of auditor) 84 Section 159 (Auditor's report) OND UNARWNE 1215 1721 24 26 Financial Intermediaries SCHEDULE 1 (continued) "transferee society" means a cooperative housing society to whom a society under this Act is to transfer, or has transferred, its engagements. "transferor society" means a society under this Act that is to transfer, or has transferred, its engagements to a cooperative housing society. "(2) A term used in this part and relating to a cooperative housing society has the same meaning as it has in the law about cooperative housing societies. "Application of part "168. This part applies only if all funds raised by the transferor society and the transferee society and not repaid were provided by the same entity. 'Application for registration of transfer of engagements "169.(1) If a society under this Act and a cooperative housing society propose to consolidate all of their assets, liabilities and undertakings by way of the society under this Act transferring its engagements to the cooperative housing society, the societies may, after complying with this section, apply for the registration of the transfer of engagements. '(2) The proposed transfer of engagements must have been approved by a special resolution of each society unless QOFS has decided that it may be approved by the society's board. "(3) Each society must send to each of its members a statement approved by QOFS stating— (a) the financial position of each of the societies as shown in financial statements that have been prepared as at a date that is not more than 6 months before the date of the statement; and (b) the interest that an officer of any of the societies has in the proposed transfer of engagements; and (c) the compensation or other consideration proposed to be paid, or other incentive proposed to be given, to an officer or member of a society in relation to the proposed transfer or engagements; and CAD HAR WNUY 11 14161922 2427 29Financial Intermediaries SCHEDULE 1 (continued) (d) the reason for the transfer of engagements; and (e) how the societies' reserves will be dealt with on the transfer of engagements; and (f) if there is a management contract for any of the societies—what is to happen to the contract; and (g) any other matter specified by QOFS. '(4) The statement must be sent to the members so that it will, in the ordinary course of post, reach each member who is entitled to vote on the special resolution not later than— (a) ifthe resolution is to be decided at a meeting—21 days before the date of the meeting; or (b) if the resolution is to be decided by a postal ballot—21 days before the day on or before which the ballot papers must be returned by members voting in the ballot. "(5) QOFS may exempt a society from having to comply with all or part of subsection (3). "(6) QOFS may grant an exemption, or approve a statement, on terms it considers appropriate. "(7) An application for the registration of a transfer of engagements must be made in the way and form required by QOFS. "(8) An application for a proposed transfer of engagements must be accompanied by 2 copies of the proposed rules of the transferee society and any other particulars required by QOFS. 'Certificate of confirmation (voluntary transfer) "170.(1) This section applies to a transfer of engagements following an application under section 169.85 "(2) QOFS must issue a certificate of confirmation if it is satisfied that— 85 Section 169 (Application for registration of transfer of engagements) rr O OMAN HD Uns WN eee ee BRWN RP Re ee on AWN Ne cow NNN WNe 25 27 Financial Intermediaries (a) (b) (c) (d) SCHEDULE | (continued) the societies have complied with section 169; and the rules, or proposed rules, of the transferee society are adequate; and the certificate of incorporation of the transferor society has been— (i) surrendered to QOFS; or (11) lost or destroyed; and there is no good reason why the transfer should not take effect. "Who receives the certificate of confirmation '171. QOFS must give a certificate of confirmation to the transferee society. "When transfer of engagements takes effect '172. A transfer of engagements takes effect on the day of issue of the certificate of confirmation of the transfer, or a later day specified in the certificate. "Cancellation of registration "173. QOFS must cancel the transferor society's registration. 'Effect of transfer of engagements on societies "174.(1) This section applies on a transfer of engagements taking effect. '(2) The transferee society is the successor of the transferor society. "(3) Without limiting subsection (2)— (a) (b) the members of the transferor society become members of the transferee society; and all assets and liabilities of the transferor society become assets and liabilities of the transferee society without any conveyance, transfer or assignment; and YD nA fF WN o 1316 1820 22 24Financial Intermediaries SCHEDULE | (continued) (c) inall documents (including, for example, a contract to which the transferor society was a party), a reference to the transferor society is a reference to the transferee society; and (d) a legal proceeding by or against the transferor society that is not finished when the merger takes effect may be continued and finished by or against the transferee society; and (e) the duties, obligations, immunities, rights and privileges applying to the transferor society apply to the transferee society.'. 51. Section 236 (Abolition of doctrine of ultra vires)— Section 236(3), 'Sections 66 and 76 apply'— omit, insert— "Section 66 applies'. 52. Section 247 (Guarantees)— not applied. 53. Section 249 (Society started to have been formed under previous law)— not applied. 54. Section 250 (Existing loans)— not applied. 55. After section 255— insert— 'Administrator etc. '255A.(1) An administrator of a continuing society appointed under CIA AWK WHE 1114 16 19 2123 Financial Intermediaries SCHEDULE 1 (continued) section 12486 of the previous law is taken to be appointed by QOFS under section 5087 of this Act. "(2) Directors of a continuing society appointed under section 124(10) of the previous law are taken to have been appointed under section 54(3)(d)88 of this Act. "(3) Action taken in relation to a continuing society under section 125 of the previous law is taken to have been taken by QOFS under section 5889 of this Act. 'Investigations '255B.(1) If, immediately before the commencement, an investigation is being conducted into the affairs of a continuing society under part 10, division 3 of the previous law, the investigation may continue under part 1190 of this Act. '(2) For continuing the investigation, QOFS may appoint an investigator under section 1919! of this Act. "(3) A document or other information properly obtained by the person conducting the investigation before the commencement may be had regard to by the person continuing the investigation. '. 56. Section 256 (Special meeting or inquiry)— Section 256(1)(a), 'section 52 or 53'— omit, insert— 'section 179'. 86 Section 124 (Special general meeting) 87 Section 50 (Appointment of administrator) 88 Section 54 (Revocation of administrator's appointment) 89 Section 58 (Additional powers of QOFS) 90 Part 11 (Special investigations) 91 Section 191 (Appointment of investigators) CID NAPBW PORK 1113 15 172022 Financial Intermediaries SCHEDULE | (continued) 57. Schedule 4 (Dictionary)— (1) Schedule 4, definitions "continuing society", "guarantee", "previous law" and "society"— omit. (2) Schedule 4— insert— continuing society" — 1. Continuing society means a terminating building society registered under the previous law immediately before the commencement. 2. The terminating building societies registered under the previous law are mentioned in schedule 2. "cooperative housing society" means an entity registered as a cooperative housing society under the law of the State about cooperative housing societies. "previous law" means the Building Societies Act 1985. "society" means an entity mentioned in schedule 2.'. Financial Intermediaries SCHEDULE 2 1 TERMINATING BUILDING SOCIETIES 2 section 259(2) 3 Australia and New Zealand Terminating Mutual Benefit Building Society Bremer Mutual Benefit Building Society No. 1 Manchester Unity Mutual Benefit Building Society No. 4 Manchester Unity Mutual Benefit Building Society No. 5 Mt Gravatt Terminating Mutual Benefit Building Society Mutual Benefit Building Society No. 1 Queensland Mutual Building Society 10 oOo NN DW Financial Intermediaries SCHEDULE 3 AMENDMENT OF QUEENSLAND OFFICE OF FINANCIAL SUPERVISION ACT 1992 section 261 1. Section 3, definitions "cooperative housing society" and "terminating building society"— omit. 2. Section 3— insert— 6 6 cooperative housing society" means a society registered under the Financial Intermediaries Act 1995, and includes a society within the meaning of that Act as applied under section 259 of that Act.'. 3. Section 26, 'terminating building society,'— omit. 4. Section 33(f), 'terminating building society,'— omit. 5. Section 38(2), 'terminating building society,'— omit. 6. Section 52(2)(a)(ii), 'terminating building society or'— omit, insert— 'The Cairns Cooperative Weekly Penny Savings Bank Limited or a'. 1114 16 18 20Financial Intermediaries SCHEDULE 3 (continued) 7. Section 52(2)(a)(iii) and (iv), 'terminating building society,'— omit. 8. Section 53(4), after '7958'— insert— ', the Financial Intermediaries Act 1995'. 9. Section 53(4)(b), 'terminating building society,'— omit. 10. Section 53(5), after '7958'— insert— ', the Financial Intermediaries Act 1995'. 11. Section 53(5)(b), 'terminating building society,'— omit. 12. After section 55— insert— 'QOEFS's public office "55A. QOFS must maintain a public office.'. 13. Section 58(2)— insert— '(f) asupervision levy decided under the Financial Intermediaries Act 12 1416 18 Financial Intermediaries SCHEDULE 3 (continued) 1995, part 4, division 2, subdivision 6.92'. 14. Section 61(2)(a)(iii) and (iv)— omit, insert— "(iil) the Financial Intermediaries Act 1995, section 6293; and'. 15. Section 62(c) and (d)— omit, insert— '(c) for its functions under the Financial Intermediaries Act 1995— industry bodies and cooperative housing societies.'. 16. Section 64A, 'Building Societies Act 1985, the Co-operative Housing Societies Act 1958 and the'— omit. 17. Section 64B, 'Building Societies Act 1985, the Co-operative Housing Societies Act 1958'— omit, insert— 'Financial Intermediaries Act 1995". 18. Section 64C, 'Building Societies Act 1985, the Co-operative Housing Societies Act 1958'— omit, insert— 'Financial Intermediaries Act 1995". 92 Part 4 (Functions and powers QOFS), division 2 (Specific powers), subdivision 6 (Supervision fund and levy) 93 Section 62 (Supervision levy) mar n wm 11 13 15 17 19 Financial Intermediaries SCHEDULE 3 (continued) 19. After section 67— insert— 2 'Persons with financial interests in The Cairns Cooperative Weekly 3 Penny Savings Bank Limited 4 "68.(1) This section applies to a person who— 5 (a) isa prescribed person at the commencement; and 6 (b) because of the amendment of section 5294 by the Financial 7 Intermediaries Act 1995—has a financial interest because the 8 person— 9 (i) has money deposited with The Cairns Cooperative Weekly 10 Penny Savings Bank Limited ("the cooperative"); or 11 (11) is in receipt of a loan from the cooperative; or 12 (iii) is a member of the cooperative. 13 "(2) For section 52(5) in its application to the financial interest, the person 14 is taken to have become a prescribed person on the commencement. 15 "(3) Words and expressions used in section 52 have the same meanings 16 in this section. 17 "(4) Subsections (1) to (3) are laws to which the Acts Interpretation Act 18 1954, section 20A applies. 19 "(5) This section expires 6 months after it commences.'. 20 94 Section 52 (Effect of administrator's appointment) Financial Intermediaries SCHEDULE 4 DICTIONARY section 3 "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; and (b) documents and records that record such entries; and (c) working papers and other documents necessary to explain 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 balance sheets, and includes statements, reports and notes (other than auditors' reports or directors' reports) attached to, or intended to be read with, any of those accounts or balance sheets. "affairs of a society" for a society has the same meaning as "affairs of a body corporate" has for a body corporate in section 53 of the Corporations Law. "applicable accounting standard" means an accounting standard as applying under section 143. "appropriate officer", for sections 214, 215 and 216, see section 213. "approved entity" see section 70(1). "approved financial contracts" see section 67. "approved form" see section 240. "board" means the board of directors of the society. "certificate of confirmation" see section 167. Financial Intermediaries SCHEDULE 4 (continued) "continuing society" means a cooperative housing society registered under 1 the previous law immediately before the commencement. 2 "director" see section 4. 3 "employee"— 4 (a) for part 7, division 1, see section 99; 5 (b) of QOFS includes— 6 (i) an officer of QOFS; and 7 (ii) a person whose services are made available to QOFS; and 8 (iii) a person engaged by QOFS on a contract for services. 9 "executiveofficer" of a society, means a person (however described) who 10 is concerned, or takes part, in the management of the society. 11 "guarantee" means a guarantee executed by the Treasurer under 12 section 70. 13 "inspector" see section 26. 14 "lot" has the meaning given by the Building Units and Group Titles Act 15 1980. 16 "management contract" means a contract or other arrangement under 17 which— 18 (a) a person who is not an officer of a society agrees to perform the 19 whole, or a substantial part, of the society's functions; or 20 (b) a society agrees to perform the whole or a substantial part of its 21 functions— 22 (i) ima particular way; or 23 (11) under the directions of a person; or 24 (1i1) subject to specified restrictions or terms. 25 "officer" — 26 (a) for sections 149 and 150, see section 148; or 27 (b) for part 11, see section 190; or 28 Financial Intermediaries SCHEDULE 4 (continued) (c) inany case, see section 5. "previous law" means the Co-operative Housing Societies Act 1958. "QOFS" means the Queensland Office of Financial Supervision. "QOFS's board" means the board of directors of QOFS. "registered company auditor" means a person registered as an auditor, or taken to be registered as an auditor, under part 9.2 of the Corporations Law. "registered office" of a society, see section 98. "relevant day", for sections 214, 215 and 216, see section 213. "relevant person", for sections 221 and 222, see section 220. "residential development" means— (a) construction or improvement of residential premises; or (b) conversion of a building to residential premises; or (c) improvement of land if— (i) residential premises are situated or being constructed on the land; and (11) the improvement is of a type normally associated with land containing residential premises; or (d) acquisition of land for a purpose mentioned in paragraph (a), (b) or (c). "residential premises" means a building or lot occupied, or to be occupied, by a person as the person's principal place of residence, whether as owner, under a lease or tenancy agreement or otherwise, and— (a) includes a building or lot declared under a regulation to be residential premises under this Act; but does not include— (b) a building not situated within Australia; or (c) a building or lot declared under a regulation not to be residential premises under this Act. CoC Om NDN FF WY N a Rw NY KF S&S eR num Lion' on Ne cow NNN WNe Nw Aw Ny N nN aw NN \o co Financial Intermediaries SCHEDULE 4 (continued) "residential loan" means financial accommodation provided to a person 1 for the purchase of residential premises or for residential development. 2 "society" means a society registered under this Act as a cooperative 3 housing society. 4 "society to which this section applies", for sections 214, 215 and 216, see 5 section 213. 6 "special resolution" see section 128. 7 "standard" means a standard in force under part 3. 8 "Supreme Court" includes a Supreme Court judge. 9 "transferee society" see section 167. 10 "transferor society" see section 167. 11 © State of Queensland 1995