Corporations Amendment Regulations 2007 (No. 9) modifies section 173 of the Corporations Act 2001 dealing with the right of access to a member register of building societies, credit unions and friendly societies by inserting new subsections (1AA), (1AB), (3A) and (3B) and insertlng a new Part 3 of Chapter 2C Corporations Act dealing with use of information on a register of members.
Under section 173, companies are required to provide a copy of their register of members
within seven days to a person requesting access to the register and
paying the required fee. But section 173 was modified in the case of building societies and credit unions.
When corporate regulation of building societies, credit unions and friendly societies was transferred to ASIC in 2001, the Corporations Act had to be modified to deal with, for example, the concept of member shares, demutualisation and the right of access to the member register.
Part of the concern of mutuals was that, unlike other public
companies, as customers needed to be members, disclosure of the member
register also provided personal information about members in their
capacity as customers. Security concerns were also raised for companies whose membership is concentrated in the
defence or police sectors.
Subsection 173(3B) was inserted
by reg 12.8.06 of the Corporations Regulations 2001 (Cth).The modification was recently considered in Capricornia Credit Union Ltd v Australian Securities and Investment Commission [2007] FCAFC 79 .
The Government has addressed the concerns by requiring that where an applicant wishes to contact members and where a copy of the register has not been provided within 28 days of a personâs request for a copy, the company may (unless it reasonably believes the contact or material to be sent is not lawful) satisfy its obligations by providing the member register details to a secure third party provider such as a mailing house rather than the applicant directly.
The Regulation does not change the need for the applicant to have a lawful purpose for access but does provide a clearer process and member privacy safeguards. The Regulation also inserts a new ground on which a company can refuse access, namely the body is not satisfied that allowing the person to inspect or copy the register is in the interests of the members as a whole.
DISCLOSURE: I advised Capricornia Credit Union in its action.
