Co-operatives (South Australia) Regulations 2015

The Regulations draw on several concepts from the CNL (SA). A “co-operative” is an organisation registered under that Law, but the Regulations do not redefine it; they rely on the CNL (SA) definition (regulation 3(2)). “Distributing co-operative” and “non-distributing co-operative” are the modern labels for what were formerly “trading” and “non-trading” co-operatives, mapped in regulation 12(2)(c). The “Registrar” is the official appointed under the Act, who exercises powers such as granting exemptions and determining unsuitable names. “Old rules” means the rules that applied to a co-operative immediately before the Act commenced (22 May 2015) - these may continue to operate but are subject to the overriding force of the new legislative framework (regulation 12). “Approved form” is used in regulation 10(a) for exemption applications; if no such form exists, a written application suffices. “Fee notice” is defined by reference to the Legislation (Fees) Act 2019 (regulation 11(3)). The concept of “involved person” in regulation 9 is drawn from section 522 of the CNL (SA) - someone connected to the co-operative under investigation - and the Regulations specify that such a person gets witness-scale allowances from the District Court scale. “Exemption” is a recurring concept: the Registrar may exempt an entity from name restrictions (regulation 6(1)(c) and regulation 7(1)(c)), and such exemptions may be time-limited, conditional, varied or revoked by notice (regulations 6(2) and 7(2)). The Regulations also use “entity” broadly to include bodies corporate, unincorporated bodies, and individuals (this flows from the CNL (SA) definition). “Transfer” in regulation 8 means a co-operative applying to become a corporation under specified other Acts; this is a structural change of legal form, not a mere change of name. The concept of “unsuitable name” in regulation 5 is relatively open-ended - the Registrar need only be satisfied it is “likely to mislead” - but this is not elaborated further in the Regulations; the judgment is left to the Registrar. The “Secrecy” provision (regulation 4) identifies two prescribed entities to whom the Registrar may disclose information despite the general secrecy duty in section 13 of the Act.

The Regulations directly affect any co-operative registered or seeking registration under the CNL (SA) in South Australia. That includes agricultural co-operatives, housing co-operatives, consumer co-operatives, worker co-operatives, and any other entity that chooses the co-operative legal structure. Officers and directors of co-operatives must be aware of the name restrictions and the transition provisions. Entities that are not co-operatives but that wish to use the word “co-operative” in their name are affected by regulations 6 and 7, which create exemptions: for example, housing co-operatives under the South Australian Co-operative and Community Housing Act 1991 (regulation 7(1)(b)) and entities authorised under any jurisdiction’s Act to use the word (regulation 6(1)(a)). The Registrar (a public official) is the primary decision-maker under these regulations - the Registrar assesses name applications, grants or refuses exemptions, and sets fees. The South Australian Civil and Administrative Tribunal (SACAT) is affected by regulation 3A, which imposes a 21-day limit for review applications. The Independent Commissioner Against Corruption and the Office for Public Integrity are prescribed as recipients of confidential information under regulation 4, so they are indirectly affected in that they may receive data from the Registrar. Investigators appointed under the CNL (SA) and “involved persons” called for examination are affected by regulation 9, which governs their expense entitlements. Entities that take over a transitioning housing co-operative under the Community Housing Providers (National Law) (South Australia) Act 2013 are exempted from name restrictions (regulation 6(1)(b)). The fee waiver power in regulation 11(2) affects all fee-payers: the Registrar may reduce or refund fees, giving the Registrar discretion to relieve financial burden on co-operatives in individual cases. The transitional rules in regulation 12 affect every co-operative that existed before 22 May 2015 and has not yet updated its rules. Those co-operatives must be aware that their old rules are subject to override by the new laws, and that terminology changes (such as “trading co-operative” being replaced by “distributing co-operative”) affect the interpretation of their constitutional documents. Legal practitioners advising co-operatives must be familiar with these regulations to advise on registration, name approval, and compliance with the national law framework.

The Regulations create a mix of duties and rights. The main duty is on co-operatives and other entities to comply with name restrictions: a name must not be likely to mislead (regulation 5), and generally only a co-operative may use “co-operative” in its name (section 220(4) of the CNL (SA), with exemptions in regulation 6). Entities that are exempted must comply with any conditions attached to the exemption (regulation 6(1)(c) and 6(2)(b) allow variation or revocation, so the duty is ongoing). The Registrar has a duty to maintain secrecy under section 13 of the Act, but regulation 4 gives the Registrar a right to disclose to prescribed integrity bodies. The Registrar also has a duty to consider exemption applications made in the approved form with the fee and within a reasonable time (regulation 10). The right of an “involved person” is significant: upon attending an examination by an investigator, that person is entitled to allowances and expenses equivalent to a witness in the District Court (regulation 9). This is a substantive right to compensation for time and expense, which constrains investigators - they must pay or arrange payment. Co-operatives have the right to apply for transfer to another corporate form under regulation 8, but only to the three identified types of entities. This is a right but limited in scope: for example, a co-operative cannot transfer to a company limited by shares under the Corporations Act 2001 (Cth) unless that company is a building society, credit union or friendly society (regulation 8(c) uses the language “building society, credit union or friendly society” which are specific types). A co-operative has the right to operate under its old rules (regulation 12(1)), but that right is subject to override - if the Act, CNL (SA), CNR (SA) or these Regulations conflict, the new law prevails (regulation 12(2)(a)). This means the old rules are not a safe harbour; they are effective only to the extent they do not contradict the current law. A person affected by a Registrar decision has the right to apply to SACAT for review, but must do so within 21 days (regulation 3A) - a tight timeline that imposes a duty to act quickly. The Registrar has a right to waive, reduce or refund fees (regulation 11(2)), but no duty to do so; it is a discretionary power. Entities that are not co-operatives but that are exempted from name restrictions under regulation 6 or 7 have a duty to comply with any conditions, but also the right to rely on the exemption as a defence to a name prohibition offence.

The Regulations themselves do not create penalty provisions; they are subordinate legislation that sets out processes and exemptions for the CNL (SA). The enforcement teeth are in the CNL (SA) and the Act. For example, section 225(1) of the CNL (SA) prohibits an entity that is not a co-operative from using the word “co-operative” in its name in trade or business, and that is an offence. Regulation 7 provides exemptions to that prohibition, but if an entity uses the word without an exemption, it is exposed to prosecution under the CNL (SA). Similarly, section 220(4) of the CNL (SA) prohibits a corporation that is not a co-operative from having a name containing “co-operative”, and regulation 6 provides exemptions. A breach of those sections could lead to fines or other orders under the CNL (SA). The time limit for review in regulation 3A affects enforcement indirectly: if the Registrar refuses a name or an exemption, the applicant must challenge it within 21 days or lose the right to review. The Registrar’s power to revoke or vary exemptions (regulations 6(2) and 7(2)) is a form of enforcement - if an exempted entity breaches a condition, the Registrar can revoke the exemption, exposing that entity to liability under the CNL (SA). The secrecy provision (regulation 4) defines who can receive confidential information; unauthorised disclosure by the Registrar would be a breach of section 13 of the Act, which carries its own penalties. The fee provisions (regulation 11) allow the Registrar to waive or refund fees, which is not a penalty but a relief mechanism. However, failure to pay a prescribed fee could result in an application being refused (regulation 10(c) says the application must be accompanied by the relevant fee). No specific penalties are prescribed in these Regulations, so enforcement relies on the principal Act and the CNL (SA). The regulatory history shows a fee schedule was deleted in 2020, which could be seen as reducing the transparency of fees but does not change enforcement. The old rules transition (regulation 12) does not create penalties but ensures that any inconsistency with the new law is resolved in favour of the new law, meaning a co-operative relying on an inconsistent old rule could be in breach of the CNL (SA). Enforcement actions would be taken by the Registrar or through SACAT review.

These Regulations are part of a suite of legislation governing co-operatives in South Australia. They are made under the Co-operatives National Law (South Australia) Act 2013 and sit alongside the Co-operatives National Law (South Australia) (CNL (SA)) and the Co-operatives National Regulations (South Australia) (CNR (SA)). The Regulations explicitly refer to and are subordinate to those instruments: regulation 3(2) imports CNL (SA) definitions, and regulation 12(2)(a) states that the Act, CNL (SA), CNR (SA) and these Regulations prevail over inconsistent old rules. The name restrictions in the Regulations directly engage section 220 of the CNL (SA) (which prohibits non-cooperative corporations from using the word) and section 225 (which prohibits non-cooperative entities from using the word in trade or business). The exemptions in regulation 6 and regulation 7 are exceptions carved out from those sections. The Regulations also interact with the Commonwealth Corporations Act 2001 via regulation 11(1): fees for matters under the Act that are not prescribed in a South Australian fee notice default to the fees under the Corporations (Fees) Act 2001. This creates a cross-reference to Commonwealth fee schedules, subject to the Registrar’s power to waive. Regulation 8 allows transfers to entities under the Associations Incorporation Act 1985 (SA), the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), and legislation for building societies, credit unions and friendly societies. This means a co-operative can exit the co-operative regime to become an incorporated association or a CATSI corporation, but not to become a standard company under the Corporations Act unless it falls within the friendly society etc. exception. The Community Housing Providers National Law (South Australia) Act 2013 is referenced in regulation 6(1)(b) to exempt entities taking over transitioning housing co-operatives. The South Australian Co-operative and Community Housing Act 1991 is referenced in regulation 7(1)(b) to define a type of housing co-operative that is exempt from name restrictions. The Legislation (Fees) Act 2019 is referenced in regulation 11(3) for the definition of “fee notice”. The South Australian Civil and Administrative Tribunal (SACAT) is the review body under the Act, and regulation 3A sets the time limit for applications to SACAT under section 9(4)(b) of the Act. The Independent Commissioner Against Corruption and the Office for Public Integrity are prescribed under regulation 4 as recipients of information under the secrecy provision. There is no direct interaction with the general law of contract or tort, but the Regulations affect the regulatory framework within which co-operatives operate.

The Co-operatives (South Australia) Regulations 2015 commenced on 22 May 2015 (Gazette 7.5.2015 p1679). They revoked the earlier Co-operatives Regulations 2012. The first variation came in 2016: the original regulation 2 was omitted under the Legislation Revision and Publication Act 2002, and Schedule 1 was substituted (Gazette 23.6.2016 p2310, effective 1.7.2016). In 2017, Schedule 1 was substituted again (Gazette 22.6.2017 p2352, effective 1.7.2017). In 2018, two variations occurred: on 22 February 2018, regulation 3A was inserted (Gazette 30.1.2018 p578) - this set the 21-day time limit for review applications to SACAT, which had not been in the original regulations. Then on 1 July 2018, Schedule 1 was substituted again (Gazette 21.6.2018 p2388). In 2019, Schedule 1 was substituted yet again (Gazette 13.6.2019 p1879, effective 1.7.2019). The most significant change occurred on 1 July 2020: regulation 11 was substituted and Schedule 1 was deleted (Gazette 4.6.2020 p2906, effective 1.7.2020). This deletion removed the fixed fee schedule from the regulations entirely, replacing it with a system where fees are set by a “fee notice” under the Legislation (Fees) Act 2019. The substituted regulation 11 also introduced the power for the Registrar to waive, reduce or refund fees, which had not been explicit in the earlier version. The legislative history notes that earlier versions (historical versions) exist for 1.7.2016, 1.7.2017, 22.2.2018, 1.7.2018, and 1.7.2019. The transition provision (regulation 12) has remained unchanged since commencement. No other provisions have been amended. The pattern of annual Schedule 1 substitutions from 2016 to 2019 indicates that fee amounts were adjusted each year, but the 2020 shift to a fee notice aligns with the state’s general legislative fees policy. The deletion of Schedule 1 may reduce regulatory burden on the government (no need to amend the regulations to change fees) but increases uncertainty for co-operatives, as fee amounts are no longer fixed in the regulation and may change more frequently at executive discretion.

The source text contains no references to any litigation history. There are no reported cases, tribunal decisions, or court mentions within the Regulations themselves. This is unsurprising for a procedural regulation; most litigation involving co-operatives would centre on the CNL (SA) provisions rather than on these regulations. However, the Regulations do set procedural frameworks that could give rise to review applications. Regulation 3A gives SACAT jurisdiction to review Registrar decisions, with a 21-day time limit. Any published SACAT decisions concerning the CNL (SA) would be relevant, but the source does not list them. Regulation 5’s criterion that a name is unsuitable if “likely to mislead” could be contested in a review; the Regulations provide no further criteria, so a tribunal would likely apply general principles of misleading conduct. The exemption provisions (regulations 6 and 7) give the Registrar broad discretion to grant, condition, vary or revoke exemptions, and any challenge would be based on procedural fairness or error of law. No specific cases are cited. The absence of litigation history in the source does not mean no litigation exists; it could mean the Regulations have not been the subject of reported challenges. In practice, co-operative name disputes are rare. The fee waiver power (regulation 11(2)) is discretionary and unlikely to be litigated unless alleged to be exercised capriciously. The secrecy provision (regulation 4) could be relevant in a proceeding about disclosure of co-operative information, but again no cases are mentioned. The transitional old rules provision (regulation 12) could be litigated if a co-operative seeks to rely on old rules that are inconsistent with the new law, but the regulation is clear that the new law prevails. A prudent researcher would check SACAT databases and South Australian court records for any decisions citing these regulations, but the source provides no such history.

Several aspects of these Regulations can trap the unwary. First, the 21-day time limit for review to SACAT (regulation 3A) is very short. A co-operative that receives an adverse Registrar decision (for example, refusal of a name or exemption) must act quickly. The Tribunal may allow a longer period, but relying on that is risky. A missed deadline could forfeit the right to challenge. Second, the exemption scheme in regulations 6 and 7 is conditional. Even if an entity obtains an exemption, the Registrar may vary or revoke it at any time by written notice (regulation 6(2) and 7(2)). The exemption may also be time-limited. An entity relying on an exemption should monitor its conditions and duration; there is no automatic renewal. Third, the fee structure changed in 2020. Schedule 1 was deleted, so fees are now set by a fee notice under the Legislation (Fees) Act 2019. This fee notice may not be as easily accessible as the regulation itself. A co-operative that assumes fees are still those listed in the old Schedule 1 could be mistaken. Checking the current fee notice is essential. Fourth, regulation 11(2) gives the Registrar power to waive, reduce or refund fees, but this is discretionary. There is no entitlement to a waiver. Co-operatives should budget for fees and not assume relief. Fifth, the transitional old rules provision (regulation 12) is a double-edged sword. A co-operative may think it can continue under its old rules unchanged. However, regulation 12(2)(a) provides that if there is any inconsistency with the Act, CNL (SA), CNR (SA) or these Regulations, the new law prevails. This means a co-operative that fails to update its rules to comply with the current law could find itself in breach without realising it. For example, old rules that refer to “trading co-operative” are now read as “distributing co-operative” (regulation 12(2)(c)), but that may affect distribution entitlements. Any rule that contradicts the CNL (SA) is void to the extent of inconsistency. Sixth, the name prohibition in section 220(4) of the CNL (SA) and the exemptions in regulation 6 are not identical for all entities. For instance, the exemption for entities taking over a transitioning housing co-operative (regulation 6(1)(b)) is narrow - it applies only if the entity is registered under the Community Housing Providers National Law and takes over under clause 15 of Schedule 3 of the Community Housing Providers (National Law) (South Australia) Act 2013. This is a specific factual scenario. General housing co-operatives are exempt under regulation 7(1)(b) (use restrictions) but not necessarily from the name prohibition in regulation 6. The distinction between the prohibition on corporations using the word (section 220) and the prohibition on any entity using it in trade (section 225) is important. Separate exemptions exist for each, and an entity may need both. Seventh, the suitability of a name under regulation 5 turns on the Registrar’s satisfaction that it is “likely to mislead”. This is a subjective test with no further guidance. A co-operative cannot rely on a name being factually accurate; the Registrar may consider broader context. Finally, the secrecy provision (regulation 4) prescribes two integrity bodies but does not limit them from further sharing information. A co-operative that provides information to the Registrar should be aware that it may be passed on to the ICAC or OPI without further consent.

Compliance with these Regulations requires attention to several procedural steps. First, any co-operative applying for registration or a change of name must ensure the proposed name is not unsuitable (regulation 5) and that it does not infringe the prohibitions on using “co-operative” unless it qualifies for an exemption. For a co-operative, using “co-operative” is allowed (section 220(4) of the CNL (SA) prohibits non-cooperative corporations, so a co-operative is fine). But if the entity is not a co-operative but wants to use the word, it must apply for an exemption under regulation 6(1)(c) or rely on one of the other exemptions (e.g., a housing co-operative under the 1991 Act). The application procedure is set out in regulation 10: use the approved form (or write if none), apply within a reasonable time before the event, and pay the fee. Check the fee notice under the Legislation (Fees) Act 2019 for the current fee - do not rely on any old Schedule 1. The exemption may be time-limited, so note the expiry date. Keep a copy of the exemption notice and any conditions. If the Registrar varies or revokes the exemption, respond promptly. Second, for co-operatives that existed before 22 May 2015 and wish to continue under old rules, review those rules for consistency with the CNL (SA) and these Regulations. Regulation 12(2)(a) says the new law prevails if inconsistent, so identify any conflicting provisions. For example, old rules that give members voting rights in a way that contradicts the CNL (SA) are overridden. Also, automatically update terminology: replace “trading co-operative” with “distributing co-operative” and “non-trading co-operative” with “non-distributing co-operative” in all documents (regulation 12(2)(c)). It is prudent to amend the rules formally to adopt the new terminology to avoid confusion. Third, if the Registrar calls for an examination of an involved person, the person is entitled to claim allowances and expenses at the District Court scale (regulation 9). The co-operative should facilitate payment or ensure the person makes a claim. Fourth, respect the secrecy obligations. If a co-operative receives confidential information from the Registrar, it should handle it carefully. The prescribed bodies (ICAC, OPI) are the only additional recipients. Fifth, if a co-operative wishes to transfer its registration to another corporate form, it must apply to become an incorporated association under the Associations Incorporation Act 1985, a CATSI corporation under the Commonwealth Aboriginal and Torres Strait Islander Act, or a building society/credit union/friendly society under relevant legislation (regulation 8). Check that the proposed transfer form is covered. Sixth, any application to the Registrar for an exemption (e.g., from name restrictions) should comply with regulation 10: use the approved form if one exists, allow reasonable time, and pay the fee. If there is no approved form, submit a written application. Seventh, if the Registrar makes a decision that affects the co-operative (e.g., refusing a name or revoking an exemption), file a review application with SACAT within 21 days (regulation 3A). Keep a diary of the date of the decision. If more time is needed, seek an extension from the Tribunal promptly. Eighth, monitor fee notices and pay all required fees. The Registrar may waive or reduce fees (regulation 11(2)) but there is no entitlement; a co-operative in financial distress should apply for a reduction in writing. Ninth, ensure that any entity using “co-operative” in its name that is not itself a co-operative has an exemption under regulation 6 or 7, and complies with any conditions. Finally, maintain records of all applications, exemptions, and correspondence with the Registrar to demonstrate compliance if challenged.