(Reprint No. 8)
South Australia
ASSOCIATIONS INCORPORATION ACT 1985
An Act to make provision for the incorporation, administration and
control of associations; and for other purposes.
This Act is reprinted pursuant to the Acts Republication Act 1967
and incorporates all amendments in force as at 15 July 2001.
It should be noted that the Act has not been revised (for obsolete
references, etc.) by the Commissioner of Statute Revision since the
reprint published on 1 June 1993.
Associations Incorporation Act 1985 [Act] Page 1 of 74
ASSOCIATIONS INCORPORATION ACT 1985
being
Associations Incorporation Act 1985 No. 30 of 1985
[Assented to 4 April 1985]1
as amended by
Associations Incorporation Act Amendment Act 1985 No. 100 of 1985 [Assented to 7
November 1985]2
Associations Incorporation (Miscellaneous) Amendment Act 1992 No. 36 of 1992
[Assented to 21 May 1992]3
Associations Incorporation (Miscellaneous) Amendment Act 1997 No. 29 of 1997
[Assented to 12 June 1997]4
Financial Sector Reform (South Australia) Act 1999 No. 33 of 1999 [Assented to 17
June 1999]5
District Court (Administrative and Disciplinary Division) Amendment Act 2000 No. 4 of
2000 [Assented to 20 April 2000]6
Statutes Amendment and Repeal (Attorney-General's Portfolio) Act 2000 No. 57 of 2000
[Assented to 20 July 2000]7
Associations Incorporation (Oppressive or Unreasonable Acts) Amendment Act 2000 No.
65 of 2000 [Assented to 16 November 2000]8
Statutes
Came into operation 28 June 1985: Gaz. 27 June 1985, p. 2244.
Amendment (Corporations) Act 2001 No. 23 of 2001 [Assented to 14 June 2001]9
1
2
Came into operation 28 June 1985: s. 2.
3
Came into operation 1 June 1993: Gaz. 20 May 1993, p. 1694.
4
Came into operation 1 February 1998: Gaz. 24 December 1997, p. 1860.
5
Schedule (item 5) came into operation 1 July 1999: being the date specified under
section 3(16) of the Financial Sector Reform (Amendments and Transitional
Provisions) Act (No. 1) 1999 of the Commonwealth as the transfer date for the
purposes of that Act.
6
Schedule 1 (cl. 3) came into operation 1 June 2000: Gaz. 18 May 2000, p. 2554.
7
Part 2 (s. 4) came into operation 14 August 2000: Gaz. 10 August 2000, p. 444.
8
Came into operation 15 February 2001: Gaz. 1 February 2001, p. 392.
9
Part 5 (ss. 9-19) came into operation 15 July 2001 (being the day on which the
Corporations Act 2001 of the Commonwealth came into operation: Commonwealth of
Australia Gazette No. S 285, 13 July 2001): Gaz. 21 June 2001, p. 2270.
NOTE:
×Asterisks indicate repeal or deletion of text.
×Entries appearing in bold type indicate the amendments incorporated
since the last reprint.
×For the legislative history of the Act see Appendix.
Associations Incorporation Act 1985 [Act] Page 2 of 74
SUMMARY OF PROVISIONS
PART 1
PRELIMINARY
1.Short title
3.Interpretation
3A.Exclusion of operation of Corporations Act
4.Act binds Crown
PART 2
ADMINISTRATION
DIVISION 1—THE COMMISSION
5.Administration by the Commission
6.Inspection of documents
7.Power of Commission to refuse to register or reject document, etc.
9.Annual report
DIVISION 2—POWER OF INSPECTION, ETC.
10.Power of Commission to require production of books
11.Power of Commission to carry out investigations in relation to books
12.Protection from liability
13.Privileged communications
14.Offences
15.Self-incrimination
16.Liens on books
17.Secrecy
PART 3
INCORPORATION OF ASSOCIATIONS
DIVISION 1—INCORPORATION
18.Eligibility for incorporation
19.Manner in which application for incorporation is to be made
20.Incorporation of association
21.Rights and liabilities of members
DIVISION 2—AMALGAMATION
22.Amalgamation
DIVISION 3—RULES
23.Rules binding on association and its members
23A.Contents of rules of an incorporated association
24.Alteration of rules
24A.Court may order variation of rules
DIVISION 4—POWERS
25.Powers of an incorporated association
DIVISION 5—TRANSACTIONS
26.Manner in which contracts may be made
27.Limitation of doctrine of ultra vires
Associations Incorporation Act 1985 [Act] Page 3 of 74
28.Abolition of doctrine of constructive notice in relation to incorporated
association
PART 4
MANAGEMENT OF INTERNAL AFFAIRS
DIVISION 1—THE COMMITTEE
29.Management of incorporated associations
30.Certain persons not to be members of the committee
31.Disclosure of interest
32.Voting on a contract in which a committee member has an interest
DIVISION 2—ACCOUNTS AND AUDIT OF PRESCRIBED ASSOCIATIONS
35.Accounts to be kept
36.Lodgment of periodic returns
37.Provisions relating to auditors acting under this Division
37A.Payment of auditor
38.Power of exemption
DIVISION 3—ANNUAL GENERAL MEETING
39.Annual general meeting
DIVISION 3A—DUTIES OF OFFICERS, ETC.
39A.Duties of officers, etc.
39B.Provisions indemnifying officers or auditors
DIVISION 3B—RECORDS
39C.Keeping of records
39D.Inspection of records
DIVISION 4—DISPUTES
40.Rules of natural justice to be applied in relation to adjudication of dispute
PART 5
COMPROMISE, WINDING UP, TRANSFER OF ACTIVITIES AND DISSOLUTION
DIVISION 1—GENERAL
40A.Power to compromise with creditors
40B.Power to enter into voluntary administration
41.Winding up of incorporated association
41A.Appeals from decisions of receivers, liquidators, managers, etc.
41B.Reports to be submitted to liquidator
41C.Declaration of solvency
41D.Disclosure to creditors on voluntary winding up
41E.Penalty for contravention of applied provisions
42.Power of Commission to require transfer of activities
43.Distribution of assets upon winding up
43A.Application for deregistration
44.Defunct associations
44A.Commission to act as representative of defunct association in certain events
45.Outstanding property of former association
46.Disposal of outstanding property
47.Liability of Commission and Crown as to property vested in Commission
48.Accounts
Associations Incorporation Act 1985 [Act] Page 4 of 74
49.Removal of name from register
DIVISION 2—OFFENCES
49AA.Interpretation and application
49AB.Non-disclosure
49AC.Failure to keep proper records
49AD.Incurring debts not likely to be paid
49AE.Powers of court
49AF.Frauds by officers
PART 6
MISCELLANEOUS
49A.General power of exemption of the Commission
49B.Immunity from liability
50.Right of appeal
51.Minutes
53.Investing or depositing money with association
53A.Reservation of name
54.Name of association to be printed, etc., on documents
55.Prohibition against securing profits for members
56.Public officer
57.Penalty for non-compliance with Act or a condition imposed under Act
58.Falsification of books
58A.General defence
59.Variation or revocation of trusts
60.Misrepresentation as to incorporation under this Act
61.Oppressive or unreasonable acts
62.Examination of persons concerned with associations
62A.Orders against persons concerned with associations
62B.Civil proceedings not to be stayed
62C.Form and evidentiary value of books
62D.Continuing offences
62E.Proceedings for offences
63.Evidentiary provision
64.Service upon incorporated associations
65.Use of abbreviation "Inc."
66.Fees in respect of lodging documents
67.Regulations
APPENDIX
LEGISLATIVE HISTORY
Associations Incorporation Act 1985 [Act] Page 5 of 74
The Parliament of South Australia enacts as follows:
PART 1
PRELIMINARY
Short title
1. This Act may be cited as the Associations Incorporation Act
1985.
* * * * * * * * * *
Interpretation
3. (1) In this Act, unless the contrary intention appears—
"accounting records" includes invoices, receipts, orders for the
payment of money, bills of exchange, cheques, promissory notes,
vouchers and other documents of prime entry, and books and
records which record such entries, and also includes such working
papers and other documents as are necessary to explain the
methods and calculations by which accounts are made up;
"accounts" of an incorporated association means—
(a)a combination of—
(i)an account of receipts and payments recording the total receipts
and payments based on the cash method of
accounting; and
(ii)a statement of assets and liabilities; or
(b)a combination of—
(i)an account of income and expenditure recording the total income
and expenditure based on the accrual method of
accounting; and
(ii)a balance sheet,
together with such statements, reports and notes, other than
auditors' reports, as are attached to and intended to be read
with the account, statement or balance sheet, as the case may be;
"association" includes society, club, institution or body;
"authorised person" means a person appointed by the Commission by
instrument in writing to be an authorised person for the purposes
of this Act;
"beneficiary" includes an object under a discretionary trust;
"body corporate" includes a body corporate within the meaning of
section 9 of the Corporations Act 2001 of the Commonwealth;
"books" includes any register or other record of information and
any accounts or accounting records, however compiled, recorded or
stored, and also includes any document;
"the Commission" means the Corporate Affairs Commission;
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"financial year", in relation to an incorporated association,
means—
(a)in the case of an association whose rules fix a period ending on
a specified day as the association's financial year—
(i)if such a period is fixed or varied at incorporation or during
the first financial year of the association—the
period not exceeding 18 months commencing on the
date of incorporation and ending on the day
specified;
(ii)if such a period is fixed or varied during any subsequent
financial year—the period not exceeding 12 months
commencing at the end of the last preceding
financial year and ending on the day specified;
(iii)each succeeding period of 12 months ending on the day
specified;
(b)in the case of an association whose rules do not fix a period as
the association's financial year—
(i)the period commencing on the date of incorporation and ending on
the next succeeding 30 June;
(ii)each succeeding period of 12 months ending on 30 June;
"gross receipts" of an incorporated association means the total
amount of the receipts of the association including any grant or
subsidy paid to or on behalf of the association by the Government
of the State or the Commonwealth, local government or an agency
of the Crown in right of the State or the Commonwealth, but not
including any money received by the association—
(a)by way of a membership fee, subscription, levy or other fee, if
any, paid by a member; or
(b)as a devise or bequest; or
(c)from the sale of any of the association's assets that had not
been originally purchased by the association for the
purpose of resale;
"incorporated association" means an association incorporated under
this Act;
"insolvent under administration" means a person who—
(a)under the Bankruptcy Act 1966 of the Commonwealth is a bankrupt
in respect of a bankruptcy from which he or she has
not been discharged; or
(b)under the law of a country other than Australia has the status
of an undischarged bankrupt,
and includes—
(c)a person who has executed a deed of arrangement under Part 10 of
the Bankruptcy Act 1966 of the Commonwealth or the
corresponding provisions of the law of a country other
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than Australia where the terms of the deed have not been fully
complied with; and
(d)a person whose creditors have accepted a composition under Part
10 of the Bankruptcy Act 1966 of the Commonwealth or
the corresponding provisions of the law of a country
other than Australia where a final payment has not
been made under that composition;
"member" of an incorporated association means—
(a)a person who is under the rules of the association a member of
the association; or
(b)a body that is under the rules of the association a member of
the association;
"officer" of an incorporated association means—
(a)any person who—
(i)occupies or acts in a position of—
(A)a member of the committee of the association; or
(B)the secretary, treasurer or public officer of the association;
or
(ii)is concerned, or takes part, in the management of the affairs
of the association,
by whatever name called and whether or not validly appointed to
occupy or duly authorised to act in the position; or
(b)the holder of any other office established by the rules of the
association (except a patron or the holder of some
other honorary office that confers no right to
participate in the management of the affairs of the
association); or
(c)any person in accordance with whose directions or instructions
the committee of the association is accustomed to act;
"prescribed association" means an incorporated association—
(a)that had gross receipts in that association's previous financial
year in excess of—
(i)$200 000; or
(ii)such greater amount as is prescribed by regulation; or
(b)that is prescribed or of a class prescribed by regulation;
"putative spouse" includes a person who is a putative spouse
notwithstanding that a declaration has not been made under the
Family Relationships Act 1975 in relation to that person;
"the repealed Act" means the Associations Incorporation Act 1956
repealed by this Act;
Associations Incorporation Act 1985 [Act] Page 8 of 74
"special resolution" of an incorporated association means—
(a)where the rules of the association provide for the membership of
the association—a resolution passed at a duly convened
meeting of the members of the association if—
(i)at least 21 days written notice specifying the intention to
propose the resolution as a special resolution
has been given to all members of the association;
and
(ii)it is passed at a meeting referred to in this paragraph by a
majority of not less than three-quarters of such
members of the association as, being entitled to
do so, vote in person or, where proxies are
allowed, by proxy, at that meeting;
(b)where the rules of the association do not provide for the
membership of the association—a resolution passed at a
duly convened meeting of the members of the committee
of the association if—
(i)at least 21 days written notice specifying the intention to
propose the resolution as a special resolution
has been given to all members of the committee;
and
(ii)it is passed at a meeting referred to in this paragraph by a
majority of not less than three-quarters of such
members of the committee as, being entitled to do
so, vote in person or, where alternates are
allowed, by alternates, at that meeting;
"total receipts and payments" means the amount arrived at by
aggregating receipts and payments in connection with all
activities of the association in that association's financial
year;
"transparency", in relation to a document, means—
(a)a developed negative or positive photograph of that document (in
this definition referred to as an "original
photograph") made, on a transparent base, by means of
light reflected from, or transmitted through, the
document; or
(b)a copy of an original photograph made by the use of
photosensitive material (being photosensitive material
on a transparent base) placed in surface contact with
the original photograph; or
(c)any one of a series of copies of an original photograph, the
first of the series being made by the use of
photosensitive material (being photosensitive material
on a transparent base) placed in surface contact with
a copy referred to in paragraph (b), and each
succeeding copy in the series being made, in the same
manner, from any preceding copy in the series.
(2) Except as otherwise provided, a reference in this Act to the
rules of an association is a reference to the rules relating to the
Associations Incorporation Act 1985 [Act] Page 9 of 74
constitution, powers, management and administration of the
association, and the rights and liabilities of its members, but
does not extend to rules, by-laws or ordinances relating to or
affecting personal dress or behaviour, practices, procedures or
other matters that are of a religious, ceremonial or doctrinal
nature, or any other prescribed matter.
(3) Where under the rules of an incorporated association
provision is made for confirmation or approval of a resolution of
the association by some other person or body, such a resolution is
not to be regarded as having been duly passed until it has been
confirmed or approved as required by the rules.
(4) A provision in the rules of an association requiring
confirmation or approval of a resolution or decision of the
association by some other person or body is not to be regarded as
oppressive or unreasonable.
* * * * * * * * * *
(6) For the purposes of this Act, a person is an associate of
another person if—
(a)they are partners; or
(b)one is a spouse, putative spouse, parent or child of the other;
or
(c)they are both trustees or beneficiaries of the same trust, or
one is a trustee and the other is a beneficiary of the same
trust; or
(d)one is a corporation and the other is a director of the
corporation; or
(e)one is a corporation and the other is a person who has a legal
or equitable interest in five per cent or more of the share
capital of the corporation; or
(f)they are related bodies corporate within the meaning of the
Corporations Act 2001 of the Commonwealth; or
(g)a chain of relationships can be traced between them under any
one or more of the above paragraphs.
Exclusion of operation of Corporations Act
3A. (1) An incorporated association is declared to be an excluded
matter for the purposes of section 5F of the Corporations Act 2001
of the Commonwealth in relation to the whole of the Corporations
legislation to which Part 1.1A of that Act applies.
(2) Subsection (1) does not exclude the application of provisions
of the Corporations Act 2001 of the Commonwealth to incorporated
associations to the extent that they relate to any matter that the
regulations provide is not to be excluded from the operation of
that Act.
Act binds Crown
4. This Act binds the Crown.
Associations Incorporation Act 1985 [Act] Page 10 of 74
Associations Incorporation Act 1985 [Act] Page 11 of 74
PART 2
ADMINISTRATION
DIVISION 1—THE COMMISSION
Administration by the Commission
5. (1) Subject to subsection (2), the Commission is responsible
for the administration of this Act.
(2) The Commission is, in relation to the administration of this
Act, subject to the control and direction of the Minister.
Inspection of documents
6. (1) For the purposes of this Act, the Commission must keep, in
such form as it thinks fit—
(a)a register of incorporated associations; and
(b)such other registers as the Commission thinks fit.
(2) Subject to subsection (2a) a person may, on payment of the
prescribed fee—
(a)inspect a register kept by the Commission under this Act; or
(b)inspect any document registered or held by the Commission under
this Act (not being a document that has been destroyed or
otherwise disposed of); or
(c)obtain from the Commission—
(i)a certified copy of, or extract from, an entry in a register
kept under this Act or the repealed Act; or
(ii)a certified copy of a certificate of incorporation issued under
this Act or the repealed Act; or
(iii)a certified copy of, or extract from, any document registered
or held by the Commission under this Act, or
registered or held under the repealed Act.
(2a) The Commission may, at the request of a person whose
residential address appears in a register or document that is
available for inspection under this section, take any steps
necessary to ensure that the person's address is not publicly
disclosed under this section.
(3) If a reproduction or transparency of a document is produced
for inspection, a person is not entitled pursuant to subsection (2)
to require the production of the original of that document.
(4) The reference in subsection (2)(c) to a certificate or
document includes, where a reproduction or transparency of that
certificate or document has been incorporated with a register kept
by the Commission, a reference to that reproduction or transparency
and, where such a reproduction or transparency has been so
incorporated, a person is not entitled pursuant to that subsection
to a copy of, or extract from, the original of that certificate or
document.
Power of Commission to refuse to register or reject document, etc.
Associations Incorporation Act 1985 [Act] Page 12 of 74
7. (1) If the Commission is of the opinion that a document
submitted to the Commission—
(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)by reason 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,
the Commission may refuse to register or may reject the document
and may request—
(f)that the document be appropriately amended or completed and
resubmitted; or
(g)that a fresh document be submitted in its place; or
(h)where the document has not been duly completed, that a
supplementary document in the prescribed form be submitted.
(2) The Commission may request a person who submits a document to
the Commission to produce to the Commission such other document, or
to furnish to the Commission such information, as the Commission
thinks necessary in order to form an opinion whether it should
refuse to register or should reject the document.
(3) If a person fails to comply with a request of the Commission
made pursuant to subsection (1) or (2) within 14 days after the
service on the person of the request, a court of summary
jurisdiction may, on an application of the Commission, order the
person to comply with the Commission's request within the time
specified in the order.
(4) An order made under subsection (3) may provide that all costs
of, and incidental to, the application are to be borne by the
person responsible for the non-compliance.
(5) A person who contravenes or fails to comply with an order
made under subsection (3) is guilty of an offence.
Maximum penalty:(a)if the offence is committed in respect of a
prescribed association—$5 000; or
(b)in any other case—$1 250.
* * * * * * * * * *
Annual report
9. (1) The Commission must, on or before 31 December in each
year, deliver to the Minister a report on the administration of
this Act during the period of 12 months that ended on the preceding
30 June.
(2) The Minister must cause a copy of the report to be laid
Associations Incorporation Act 1985 [Act] Page 13 of 74
before each House of Parliament.
DIVISION 2—POWER OF INSPECTION, ETC.
Power of Commission to require production of books
10. For the purpose of ascertaining whether the provisions of
this Act have been or are being complied with, an authorised person
may, by notice in writing, require—
(a)any incorporated association to produce to the authorised person
immediately or, if a time and place at which the books are
to be produced are specified in the notice, at that time and
place such books relating to affairs of the association as
are specified by the authorised person; or
(b)any person who is or has been an officer or employee of, or an
agent, banker, solicitor, auditor or other person acting in
any capacity for, or on behalf of, an incorporated
association (including an association that is in the course
of being wound up or has been dissolved) to produce to the
authorised person immediately such books relating to affairs
of the association as are specified by the authorised
person; or
(c)any person to produce to the authorised person immediately any
books relating to affairs of an incorporated association
(including an association that is in the course of being
wound up or has been dissolved) that are in the custody or
under the control of that person.
Power of Commission to carry out investigations in relation to
books
11. (1) Subject to this Division, where an authorised person
exercises a power under this Division to require another person to
produce books—
(a)if the books are produced, the authorised person—
(i)may take possession of the books and may make copies of, or take
extracts from, the books; and
(ii)may require the other person, or any person who was party to
the compilation of the books, to make a statement
providing any explanation that the person concerned is
able to provide as to any matter relating to the
compilation of the books or as to any matter to which
the books relate; and
(iii)may retain possession of the books for such period as is
necessary to enable the books to be inspected, and
copies of, or extracts from, the books to be made or
taken, by or on behalf of the Commission; and
(iv)during that period must permit a person who would be entitled
to inspect any one or more of the books if they were
not in the possession of the authorised person to
inspect that book or those books at any reasonable
time; or
(b)if the books are not produced, the authorised person may require
the other person—
Associations Incorporation Act 1985 [Act] Page 14 of 74
(i)to state, to the best of his or her knowledge and belief, where
the books may be found; and
(ii)to identify the person who, to the best of his or her knowledge
and belief, last had custody of the books and to
state, to the best of his knowledge and belief, where
that person may be found.
(2) Where an authorised person exercises a power under this
Division to require another person to produce books that are
recorded, kept and reproduced by electronic means, the other person
may comply with the requirement to produce those books by providing
a printed reproduction of the information contained in the books.
(3) Where this Division confers a power on an authorised person
to require a person to produce books relating to affairs of an
incorporated association, the authorised person also has power to
require that person (whether or not he or she requires that person
to produce books and whether or not any books are produced pursuant
to such a requirement), so far as the other person is able to do
so, to identify property of the association and explain the manner
in which the association has kept account of that property.
Protection from liability
12. A person is not subject to any liability by reason of
compliance with a direction or requirement given or made under this
Division.
Privileged communications
13. (1) Where—
(a)an authorised person makes a requirement under this Division of
a duly qualified legal practitioner in respect of a book;
and
(b)the book contains a privileged communication made by or on
behalf of the legal practitioner, or to the legal
practitioner, in his or her capacity as such,
the legal practitioner is entitled to refuse to comply with the
requirement unless the person to whom, or by or on behalf of whom,
the communication was made agrees to the legal practitioner
complying with the requirement but, where the legal practitioner so
refuses to comply with a requirement, he or she must immediately
furnish, in writing, to the authorised person—
(c)if he or she knows the name and address of the person to whom,
or by or on behalf of whom, the communication was made—that
name and address; and
(d)sufficient particulars to identify the book, or the part of the
book, containing the communication.
Maximum penalty:$5 000.
(2) Where—
(a)an authorised person, acting in pursuance of this Division,
requires a duly qualified legal practitioner to make a
statement providing an explanation as to any matter relating
Associations Incorporation Act 1985 [Act] Page 15 of 74
to the compilation of books or as to any matter to which any books
relate; and
(b)the legal practitioner is not able to make that statement
without disclosing a privileged communication made by or on
behalf of the legal practitioner, or to the legal
practitioner, in his or her capacity as such,
the legal practitioner is entitled to refuse to comply with the
requirement, except to the extent that he or she is able to comply
with the requirement without disclosing any privileged
communication referred to in paragraph (b), unless the person to
whom, or by or on behalf of whom, the communication was made agrees
to the legal practitioner complying with the requirement but, where
the legal practitioner so refuses to comply with a requirement, he
or she must immediately furnish, in writing, to the authorised
person—
(c)if he or she knows the name and address of the person to whom,
or by or on behalf of whom, the communication was made—that
name and address; and
(d)if the communication was made in writing—sufficient particulars
to identify the document containing the communication.
Maximum penalty:$5 000.
Offences
14. (1) A person must not, without reasonable excuse, refuse or
fail to comply with a requirement made under this Division.
Maximum penalty:(a)if the offence is committed in respect of a
prescribed association—$5 000; or
(b)in any other case—$2 500.
(2) A person must not, in purported compliance with a requirement
made under this Division, furnish information or make a statement
that is false or misleading in a material particular.
Maximum penalty:(a)if the offence is committed in respect of a
prescribed association—$5 000; or
(b)in any other case—$2 500.
(3) It is a defence to a prosecution for an offence against this
section if the defendant proves that he or she believed on
reasonable grounds that the information or statement was true and
was not misleading.
(4) A person must not, without reasonable excuse, obstruct or
hinder the Commission or another person in the exercise of any
power under this Division.
Maximum penalty:(a)if the offence is committed in respect of a
prescribed association—$5 000; or
(b)in any other case—$2 500.
Self-incrimination
15. (1) A person is not excused from making a statement providing
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an explanation as to any matter relating to the compilation of any
books or as to any matter to which any books relate pursuant to a
requirement made of him or her in accordance with this Division on
the ground that the statement might tend to incriminate him or her
but, where the person claims before making a statement that the
statement might tend to incriminate him or her, the statement is
not admissible in evidence against him or her in criminal
proceedings other than proceedings under section 14.
(2) Subject to subsection (1), a statement made by a person in
compliance with a requirement made under this Division may be used
in evidence in any criminal or civil proceedings against that
person.
Liens on books
16. Where an authorised person requires the production of any
books under this Division and a person has a lien on the books, the
production of the books does not prejudice the lien.
Secrecy
17. (1) An authorised person who, by reason of the authority
granted to him or her pursuant to this Act, acquires information
must not, except to the extent necessary to perform his or her
official duties or to perform a function or exercise a power
authorised by this Act, make a record of, or divulge or make use of
in any other way, the information acquired.
Maximum penalty:$10 000.
(2) Notwithstanding subsection (1), a person is not guilty of an
offence if he or she—
(a)produces a document to a court in the course of criminal
proceedings or proceedings taken under this or any other
Act; or
(b)divulges to a court during the course of any proceedings
referred to in paragraph (a), any matter or thing coming
under his or her notice in the performance of his or her
official duties or in the performance of a function or
exercise of a power referred to in subsection (1); or
(c)produces a document or divulges information to a person to whom,
in the opinion of the Commission, it is in the public
interest that the document be produced or the information be
divulged; or
(d)produces a document or divulges information that is required or
permitted by any other Act to be produced or divulged, as
the case may be.
Associations Incorporation Act 1985 [Act] Page 17 of 74
PART 3
INCORPORATION OF ASSOCIATIONS
DIVISION 1—INCORPORATION
Eligibility for incorporation
18. (1) An association formed—
(a)for a religious, educational, charitable or benevolent purpose;
or
(b)for the purpose of promoting or encouraging literature, science
or the arts; or
(c)for the purpose of providing medical treatment or attention, or
promoting the interests of persons who suffer from a
particular physical, mental or intellectual disability; or
(d)for the purpose of sport, recreation or amusement; or
(e)for the purpose of establishing, carrying on, or improving a
community centre, or promoting the interests of a local
community or a particular section of a local community; or
(f)for conserving resources or preserving any part of the
environmental, historical or cultural heritage of the State;
or
(g)for the purpose of promoting the interests of students or staff
of an educational institution; or
(h)for political purposes; or
(i)for the purpose of administering any scheme or fund for the
payment of superannuation or retiring benefits to the
members of any organisation or the employees of any body
corporate, firm or person; or
(j)for the purpose of promoting the common interests of persons who
are engaged in, or interested in, a particular business,
trade or industry; or
(k)for any purpose approved by the Minister,
is, subject to this Act, eligible to be incorporated under this
Act.
(2) Subject to subsection (4), an association of the kind
referred to in subsection (1)(i) is not, unless the Minister
otherwise approves, eligible to be incorporated under this Act.
(3) Subject to subsection (4), an association which is formed for
the purpose of furthering or protecting the interests of employers
or employees and which is eligible for registration under the
Industrial Relations Act (S.A.) 1972 is not, unless the Minister
otherwise approves, eligible to be incorporated under this Act.
(4) Subsections (2) and (3) do not apply to an association that
was, immediately before the commencement of this Act, an
association incorporated under the repealed Act.
Associations Incorporation Act 1985 [Act] Page 18 of 74
(5) Subject to subsection (6), an association of which—
(a)a principal or subsidiary object is to secure a pecuniary profit
for the members of the association or any of those members;
or
(b)a principal or subsidiary object is to engage in trade or
commerce,
is not, unless the Commission otherwise approves, eligible to be
incorporated under this Act.
(6) An association is not, for the purposes of this Act, to be
regarded as having as a principal or subsidiary object the securing
of a pecuniary profit for its members or any of its members or
engaging in trade or commerce by reason only of any one or more of
the following circumstances:
(a)that the association itself makes a pecuniary profit, unless
that profit or any part of it is or is to be divided among
or received by the members or any of them otherwise than in
accordance with section 55; or
(b)that the association buys or sells or deals in or provides goods
or services where those transactions are ancillary to the
principal objects of the association and, in the case of
transactions with non-members (other than spouses, children
or parents of members), the transactions—
(i)are not substantial in number or value in relation to the other
activities of the association; or
(ii)are intended to provide financial support to the association in
a manner that is directly related to the objects of
the association; or
(iii)consist in the charging of admission fees to functions
organised for the promotion of the objects of the
association; or
(c)that the association is established for the protection of a
trade, business, industry or calling in which the members
are engaged or interested, if the association itself does
not engage or take part in any such activity; or
(d)that the members of the association compete for trophies or
prizes in contests directly related to the objects of the
association.
(7) An approval of the Minister or the Commission under this
section may be given on such conditions as the Minister or the
Commission thinks fit.
Manner in which application for incorporation is to be made
19. (1) An application for the incorporation of an association
must be made to the Commission in the prescribed manner and form by
a person duly authorised by the association to apply for
incorporation.
(2) The application must be accompanied by—
Associations Incorporation Act 1985 [Act] Page 19 of 74
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(a)a copy of the rules of the association; and
(b)a statutory declaration made by the applicant verifying—
(i)that he or she is authorised by the association to apply for
registration; and
(ii)the particulars contained in the application; and
(iii)that the copy of the rules of the association which
accompanies the application is a true copy; and
(c)a copy of any instrument creating or establishing a trust—
(i)which is referred to in the rules of the association; or
(ii)upon which any rule of the association relies for its
operation; and
(ca)a copy of the settled draft of any instrument prepared for the
creation or establishment of a trust of which the
association is intended to be the trustee—
(i)where the contemplated trust is referred to in the rules of the
association; or
(ii)where any rule of the association relies on the contemplated
trust for its operation; and
(d)the prescribed fee.
Incorporation of association
20. (1) If, on an application for incorporation duly made under
this Part, the Commission is satisfied—
(a)that the association is eligible to be incorporated under this
Act; and
(b)that the rules of the association conform with the requirements
of this Act; and
(c)that the name of the association—
(i)is not such as to be misleading as to the nature, objects or
purposes of the association; and
(ii)is not such as is likely to be confused with the name of any
other body corporate or any registered business name;
and
(iii)is not undesirable as a name for an incorporated association;
and
(iv)conforms with any direction of the Minister relating to the
names of incorporated associations,
the Commission must, subject to subsection (2), register the rules
of the association and issue to the association a certificate of
incorporation.
(2) The Commission may—
Associations Incorporation Act 1985 [Act] Page 20 of 74
(a)decline to incorporate an association under this Act if, in its
opinion, it would be more appropriate for its activities to
be carried on by a body corporate incorporated under some
other Act; or
(b)with the consent of the Minister, decline to incorporate an
association under this Act if, in its opinion, the
incorporation of the association under this Act would not be
in the public interest.
(3) Upon incorporation under this section—
(a)the association becomes a body corporate—
(i)with perpetual succession and a common seal; and
(ii)with a corporate name as set out in the certificate of
incorporation (in which the word "Incorporated" must
appear as part, and at the end, of the name); and
(b)all real and personal property held by any person for or on
behalf of the association is vested in and held by the
incorporated association (subject to any trusts that may
affect that property); and
(c)all rights and liabilities (whether certain or contingent) of
the association immediately before the incorporation of the
association become rights and liabilities of the
incorporated association.
(4) The Registrar-General must—
(a)on the application of an incorporated association in which any
estate or interest in land has vested by virtue of this
section; and
(b)on production of such duplicate instruments of title and other
documents as the Registrar-General may require,
register the vesting of that estate or interest in land in the
association.
Rights and liabilities of members
21. (1) Membership of an incorporated association does not confer
on a member, except as may be provided by the rules of the
association, any right, title or interest in any real or personal
property of the association.
(2) Except as may be provided by the rules of the association, a
member of an association is not liable to contribute towards the
payment of the debts and liabilities of the association or the
costs, charges and expenses of a winding up of the association.
(3) Subsection (2) does not apply in respect of debts or
liabilities incurred by or on behalf of the association prior to
incorporation.
DIVISION 2—AMALGAMATION
Amalgamation
Associations Incorporation Act 1985 [Act] Page 21 of 74
22. (1) Any two or more incorporated associations—
(a)may, by special resolution passed by each association, resolve
to amalgamate; and
(b)may apply to the Commission for amalgamation as a single
incorporated association.
(2) An application under subsection (1)—
(a)must be made in the prescribed form; and
(b)must be accompanied by a copy of the special resolution passed
by each of the incorporated associations supporting the
amalgamation; and
(c)must be accompanied by a copy of the rules of the association
proposed to be formed by the amalgamation; and
(d)must be accompanied by a copy of any instrument creating or
establishing a trust—
(i)which is referred to in the rules of the association proposed to
be formed by the amalgamation; or
(ii)on which any rule of the association proposed to be formed by
the amalgamation relies for its operation; and
(da)must be accompanied by a copy of the settled draft of any
instrument prepared for the creation or establishment of a
trust of which the association proposed to be formed by the
amalgamation is intended to be the trustee—
(i)where the contemplated trust is referred to in the rules of the
association proposed to be formed by the amalgamation;
or
(ii)where any rule of the association proposed to be formed by the
amalgamation relies on the contemplated trust for its
operation; and
(e)must be accompanied by such certificates and other documents as
may be prescribed; and
(f)must be accompanied by the prescribed fee.
(3) A party to an application under this section must, at the
request of the Commission, supply it with such further documents or
information as the Commission may require.
(4) Where the Commission is satisfied—
(a)that the association proposed to be formed by the amalgamation
is eligible to be incorporated under this Act; and
(b)that the rules of that association conform with the requirements
of this Act; and
(c)that the name of that association—
(i)is not such as to be misleading as to the nature, objects or
Associations Incorporation Act 1985 [Act] Page 22 of 74
purposes of the association; and
(ii)is not such as is likely to be confused with the name of any
other body corporate or any registered business name;
and
(iii)is not undesirable as a name for an incorporated association;
and
(iv)conforms with any direction of the Minister relating to the
names of incorporated associations,
the Commission must, subject to subsection (5), register the rules
of the association and issue to the association a certificate of
incorporation.
(5) The Commission may—
(a)decline to incorporate an association under subsection (4) if,
in its opinion, it would be more appropriate for its
activities to be carried on by a body corporate incorporated
under some other Act; or
(b)with the consent of the Minister, decline to incorporate an
association under subsection (4) if, in its opinion, the
incorporation of the association under this Act would not be
in the public interest.
(6) Upon incorporation of an association under subsection (4)—
(a)the association becomes a body corporate—
(i)with perpetual succession and a common seal; and
(ii)with a corporate name as set out in the certificate of
incorporation (in which the word "Incorporated" must
appear as part, and at the end, of the name); and
(b)any incorporated association that was a party to the application
for amalgamation is dissolved; and
(c)the property of the associations that were parties to the
application for amalgamation becomes the property of the
incorporated association formed by the amalgamation (subject
to any trusts that may affect that property); and
(d)the rights and liabilities (whether certain or contingent) of
the associations that were parties of the application for
amalgamation become rights and liabilities of the
incorporated association formed by the amalgamation.
(7) The Registrar-General must—
(a)on the application of an incorporated association in which any
estate or interest in land has vested by virtue of this
section; and
(b)on production of such duplicate instruments of title and other
documents as the Registrar-General may require,
register the vesting of that estate or interest in land in the
Associations Incorporation Act 1985 [Act] Page 23 of 74
association.
(8) A reference in a will or other instrument to an association
that is a party to an amalgamation under this section is, after the
amalgamation, to be construed (subject to any provision in the will
or other instrument to the contrary) as a reference to the
association formed by the amalgamation.
(9) Where property vests by virtue of this section in an
association, the vesting of the property, and any instrument
evidencing or giving effect to that vesting, are exempt from stamp
duty.
DIVISION 3—RULES
Rules binding on association and its members
23. (1) The rules of an incorporated association bind the
association and all members of the association.
(2) The reference in this section to the rules of an association
extends to rules, by-laws or ordinances of the association relating
to any matter.
Contents of rules of an incorporated association
23A. (1) The rules of an incorporated association—
(a)must state the name of the association and set out its objects;
and
(b)must not contain any provision that is contrary to or
inconsistent with this Act; and
(c)must contain provisions that, in the opinion of the Commission,
deal with the following matters with sufficient
particularity and certainty having regard to the nature and
objects of the association:
(i)membership in the case of an association that has members;
(ii)the powers, duties and manner of appointment of the committee
of the association;
(iii)the appointment of an auditor in the case of an association
that is a prescribed association;
* * * * * * * * * *
(v)the calling of and procedure at general meetings;
(vi)who has the management and control of the funds and other
property of the association;
(vii)the powers of the association and by whom and in what manner
they may be exercised;
(viii)the manner in which the rules of the association may be
altered;
(ix)any other matter prescribed by regulation.
(2) This section applies only to rules, or an alteration to
Associations Incorporation Act 1985 [Act] Page 24 of 7
rules, submitted to the Commission for registration after the
commencement of this section.
Alteration of rules
24. (1) An alteration to a rule of an incorporated association
may be made by a special resolution of the association unless other
provision is made in the rules of the association.
(2) An incorporated association must, within one month after
making an alteration to a rule, register the alteration with the
Commission.
Maximum penalty:$1 250.
(3) An application for registration of a proposed alteration of
the rules of an incorporated association—
(a)must be made in the prescribed form; and
(b)must be accompanied by a statutory declaration made by the
public officer verifying the alteration; and
(c)must be accompanied by the prescribed fee.
(4) Subject to subsection (5), where the Commission is satisfied
that the proposed alteration conforms with the requirements of this
Act, the Commission must register the alteration.
(5) Where an alteration to the rules of an incorporated
association consists of or includes an alteration to the name of
the association—
(a)the Commission must not register the alteration unless it is
satisfied that the name—
(i)is not such as to be misleading as to the nature, objects or
purposes of the association; and
(ii)is not such as is likely to be confused with the name of any
other body corporate or any registered business name;
and
(iii)is not undesirable as a name for an incorporated association;
and
(iv)conforms with any directions of the Minister as to the names of
incorporated associations; and
(b)the Commission must, if it registers the alteration, issue to
the association a new certificate of incorporation and make
an appropriate notation on the register of incorporated
associations.
(6) Subject to any provision in the rules of the association or a
resolution to the contrary, an alteration to the rules of an
incorporated association comes into force at the time that the
alteration is passed.
(7) Notwithstanding subsection (6), an alteration to the name of
an incorporated association does not come into force until the
alteration is registered by the Commission in accordance with this
Associations Incorporation Act 1985 [Act] Page 25 of 74
section.
Court may order variation of rules
24A. (1) The rules of an incorporated association may be varied,
on the application of the association, by the Supreme Court.
(2) Where the rules of the incorporated association provide for
the membership of the association, a meeting of the members must be
held, before an application is made under this section, to explain
the purposes of the proposed application and seek the views of the
members in relation to the proposed application.
(3) Notice of an application under this section must be given as
the Supreme Court directs.
(4) The Supreme Court may, on application under this section,
order that the rules of an incorporated association be varied in a
manner the Court thinks fit, if it is satisfied that—
(a)the rules unduly limit the conduct of the association's affairs;
and
(b)the variation of the rules—
(i)is consistent with the objects of the association; and
(ii)will not prejudice any member of the association; and
(iii)is justified in the circumstances of the particular case.
(5) Before making an order under this section the Supreme Court
must have regard to any views expressed by members of the
association in relation to the proposed variation at a meeting held
in accordance with subsection (2).
(6) The Commission is entitled to appear and be heard in relation
to an application under this section.
DIVISION 4—POWERS
Powers of an incorporated association
25. For the purpose of carrying out its objects, an incorporated
association may, subject to this Act and its rules—
(a)acquire, hold, deal with, and dispose of, any real or personal
property; and
(b)administer any property on trust; and
(c)open and operate ADI accounts; and
(d)invest its moneys—
(i)in any security in which trust moneys may, by Act of Parliament,
be invested; or
(ii)in any other manner authorised by the rules of the association;
and
(e)borrow money upon such terms and conditions as the association
thinks fit; and
Associations Incorporation Act 1985 [Act] Page 26 of 74
(f)give such security for the discharge of liabilities incurred by
the association as the association thinks fit; and
(g)appoint agents to transact any business of the association on
its behalf; and
(h)enter into any other contract it considers necessary or
desirable.
DIVISION 5—TRANSACTIONS
Manner in which contracts may be made
26. (1) Contracts may be made by or on behalf of an incorporated
association as follows:
(a)a contract which, if made between private persons, would be
required to be in writing under seal may be made by the
incorporated association under its common seal;
(b)a contract which, if made between private persons, would be
required to be in writing signed by the parties to be
charged may be made on behalf of the association in writing
by any person acting under its authority, express or
implied;
(c)a contract which, if made between private persons, would be
valid although made by parol only may be made by parol on
behalf of the association by any person acting under its
authority, express or implied.
(2) A contract may be varied or rescinded by or on behalf of an
incorporated association in the same manner as it is authorised to
be made.
Limitation of doctrine of ultra vires
27. (1) A contract made with an incorporated association is not
invalid by reason of any deficiency in the capacity of the
association to enter into, or carry out, the contract unless the
person contracting with the association has actual notice of the
deficiency.
(2) An incorporated association that enters into a contract that
would, but for the provisions of subsection (1), be invalid is
empowered to carry out the contract.
(3) This section does not prejudice an action by a member of an
incorporated association to restrain the association from entering
into or carrying out a transaction that lies beyond the powers
conferred on the association by this Act or its rules.
Abolition of doctrine of constructive notice in relation to
incorporated association
28. It is not to be presumed that a person dealing with an
incorporated association, or an agent of an incorporated
association, has notice of the rules of the association, or of any
other document registered by, or lodged with, the Commission in
relation to the association.
Associations Incorporation Act 1985 [Act] Page 27 of 74
PART 4
MANAGEMENT OF INTERNAL AFFAIRS
DIVISION 1—THE COMMITTEE
Management of incorporated associations
29. (1) Subject to this Act, the persons who have under the rules
of an incorporated association power to administer the affairs of
the association constitute, for the purposes of this Act, the
committee of the association.
(2) No person is to be precluded from being appointed as a member
of the committee of an incorporated association by reason only of
the fact that he or she is a member of a class of persons for whose
benefit the association is established.
(3) Subject to the rules of the association, no employee of an
incorporated association is to be precluded by reason of that
employment from being appointed as a member of the committee of the
association.
Certain persons not to be members of the committee
30. (1) A person who is an insolvent under administration must
not, without leave of the Commission, be a member of the committee
of an incorporated association, or be in any way (whether directly
or indirectly) concerned in or take part in the management of an
incorporated association.
Maximum penalty:$5 000.
(2) A person who has been convicted within or outside the State—
(a)on an indictment of an offence in connection with the promotion,
formation or management of a body corporate; or
(b)of an offence involving fraud or dishonesty punishable on
conviction by imprisonment for a period of not less than
three months; or
(c)of an indictable offence; or
(d)of—
(i)an offence against section 39A; or
(ii)an offence against a provision applied by section 41B; or
(iii)an offence against section 60,
must not, within a period of five years after his or her conviction
or, if he or she was sentenced to imprisonment, after his or her
release from prison, without leave of the Commission, be a member
of the committee of an incorporated association, or be in any way
(whether directly or indirectly) concerned in or take part in the
management of an incorporated association.
Maximum penalty:$5 000.
(3) When granting leave under this section, the Commission may
impose such conditions or limitations as it thinks fit and any
person contravening or failing to comply with any such condition or
Associations Incorporation Act 1985 [Act] Page 28 of 74
limitation that is applicable to him or her is guilty of an
offence.
Maximum penalty:$5 000.
(4) The Commission may, at any time, revoke leave granted by it
under this section.
Disclosure of interest
31. (1) A member of the committee of an incorporated association
who has any direct or indirect pecuniary interest in a contract, or
proposed contract, with the association—
(a)must, as soon as he or she becomes aware of his or her interest,
disclose the nature and extent of his or her interest to the
committee; and
(b)must disclose the nature and extent of his or her interest in
the contract at the next annual general meeting of the
association (if an annual general meeting is required to be
held by the association).
Maximum penalty:$5 000.
(2) Subsection (1) does not apply in respect of a pecuniary
interest that exists only by virtue of the fact—
(a)that the member of the committee is an employee of the
association; or
(b)that the member of the committee is a member of a class of
persons for whose benefit the association is established; or
(c)that the member of the committee has the pecuniary interest in
common with all or a substantial proportion of the members
of the association.
(3) Where a member of the committee of an incorporated
association discloses a pecuniary interest in a contract, or
proposed contract, in accordance with this section, or his or her
interest is not such as need be disclosed under this section—
(a)the contract is not liable to be avoided by the association on
any ground arising from the fiduciary relationship between
the member and the association; and
(b)the member is not liable to account for profits derived from the
contract.
Voting on a contract in which a committee member has an interest
32. (1) A member of the committee of an incorporated association
who has any direct or indirect pecuniary interest in a contract, or
proposed contract, with the association must not take part in any
decision of the committee with respect to that contract (but may,
subject to complying with the provisions of this Division, take
part in any deliberations with respect to that contract).
Maximum penalty:$5 000.
(2) Subsection (1) does not apply in respect of a pecuniary
interest—
Associations Incorporation Act 1985 [Act] Page 29 of 74
* * * * * * * * * * (a)that exists only by virtue of the fact that the member of the
committee is a member of a class of persons for whose
benefit the association is established; or
(b)that the member of the committee has in common with all or a
substantial proportion of the members of the association.
DIVISION 2—ACCOUNTS AND AUDIT OF PRESCRIBED ASSOCIATIONS
* * * * * * * * * *
Accounts to be kept
35. (1) A prescribed association must keep its accounting records
in such a manner as will enable—
(a)the preparation from time to time of accounts that present
fairly the results of the operations of the association; and
(b)the accounts of the association to be conveniently and properly
audited in accordance with this Division.
Maximum penalty:$5 000.
(2) A prescribed association must, after the end of a financial
year of the association—
(a)cause accounts in respect of the financial year to be prepared;
and
(b)cause the accounts to be audited by a registered company
auditor, a firm of registered company auditors, a person who
is a member of the Australian Society of Certified
Practising Accountants or The Institute of Chartered
Accountants in Australia or such other person who may be
approved by the Commission as an auditor of the accounts of
the association for the purposes of this Division; and
(c)cause to be attached to the accounts, before the auditor reports
on the accounts, a statement made in accordance with a
resolution of the committee of the association and signed by
two or more members of the committee—
(i)stating whether or not—
(A)the accounts present fairly the results of the operations of the
association for the financial year and the state
of affairs of the association as at the end of
the financial year; and
(B)the committee has reasonable grounds to believe that the
association will be able to pay its debts as and
when they fall due; and
(ii)giving particulars—
(A)of any body corporate that is a subsidiary of the association
within the meaning of section 46 of the
Corporations Act 2001 of the Commonwealth; and
Associations Incorporation Act 1985 [Act] Page 30 of 74
(B)of any trust of which the association is a trustee.
Maximum penalty:$5 000.
(3) A prescribed association will not be taken to have complied
with subsection (2) unless the accounts prepared for a financial
year are submitted to the auditor in sufficient time to enable the
auditor to audit the accounts and furnish a report in respect of
the accounts in accordance with section 37(3).
(4) A person who is—
(a)an officer; or
(b)a partner, employer or employee of an officer; or
(ba)an employee; or
(c)a partner or employee of an employee,
of a prescribed association, may not be appointed as auditor of the
accounts of the association for the purposes of this section.
(5) The committee of a prescribed association must cause a report
of the committee to be made in accordance with a resolution of the
committee and signed by two or more members of the committee,
stating in relation to each officer of the association—
(a)whether or not, during the financial year to which the accounts
relate—
(i)the officer; or
(ii)a firm of which the officer is a member; or
(iii)a body corporate in which the officer has a substantial
financial interest,
has received or become entitled to receive a benefit as a result of
a contract between the officer, firm or body corporate and
the association, and if so the general nature of the
benefit;
(b)whether or not, during the financial year to which the accounts
relate, the officer has received directly or indirectly from
the association any payment or other benefit of a pecuniary
value, and if so the general nature and extent of that
benefit.
(6) The committee of a prescribed association that has members
must cause—
(a)the audited accounts including the statement prepared in
accordance with subsection (2)(c); and
(b)the auditor's report on those accounts; and
(c)the report of the committee prepared in accordance with
subsection (5),
Associations Incorporation Act 1985 [Act] Page 31 of 74
to be laid before the members of the association at the annual
general meeting of the association or, if an annual general meeting
is not to be held, within five months of the end of the financial
year to which the accounts relate.
(7) A member of the committee of an association who fails to take
all reasonable steps to comply with or secure compliance with this
section is guilty of an offence.
Maximum penalty:(a)if the offence is committed with intent to
deceive or defraud the association,
creditors of the association or
creditors of any other person or for any
fraudulent purpose—$20 000 or
imprisonment for four years; or
(b)in any other case—$5 000.
Lodgment of periodic returns
36. (1) A prescribed association must lodge with the Commission
such periodic returns, containing accounts and other information
relevant to the affairs of the association, as the regulations may
require.
(2) The requirements of the regulations in relation to periodic
returns and the accounts and other information to be contained in
them may vary according to the various classes of associations to
which the regulations are expressed to apply but no such regulation
may require the disclosure of the identity of members of the
association.
(3) If a prescribed association fails to comply with subsection
(1), the association is guilty of an offence.
Maximum penalty:$5 000.
Provisions relating to auditors acting under this Division
37. (1) An auditor of a prescribed association has a right of
access at all reasonable times to the accounting records and other
records of the association and is entitled to require from any
officer of the association such information and explanations as he
or she desires for the purposes of an audit.
(2) An officer of a prescribed association must not, without
lawful excuse—
(a)refuse or fail to allow an auditor of the association access,
for the purposes of this Division, to any accounting records
and other records of the association in his or her custody
or control; or
(b)refuse or fail to give any information or explanation as and
when required by the auditor; or
(c)otherwise hinder, obstruct or delay an auditor in the
performance of his or her duties or the exercise of his or
her powers as auditor.
Maximum penalty:$1 250.
(3) The auditor of a prescribed association must furnish to the
Associations Incorporation Act 1985 [Act] Page 32 of 74
committee of the association, in sufficient time to enable the
committee to comply with section 35(6), a report that states—
(a)in respect of accounts consisting of an account of income and
expenditure and a balance sheet, whether or not the auditor
is satisfied that these accounts are drawn up so as to
present fairly—
(i)the results of the association's activities for the
association's financial year; and
(ii)the financial state of the association at the end of the
association's financial year; and
(b)in respect of accounts consisting of an account of receipts and
payments and a statement of assets and liabilities, whether
or not the auditor is satisfied that these accounts present
fairly—
(i)the results of the association's activities for the
association's financial year; and
(ii)the financial state of the association at the end of the
association's financial year,
notwithstanding that the accounts may not have been prepared on the
accrual method of accounting; and
(c)whether the auditor has examined the accounts and auditors'
reports of—
(i)each body corporate that is a subsidiary of the association
within the meaning of section 46 of the Corporations
Act 2001 of the Commonwealth; and
(ii)each trust of which the association is a trustee,
and the conclusions drawn from the examination; and
* * * * * * * * * *
(e)whether the auditor has obtained all of the information and
explanations that he or she required from the association.
(4) If, in the course of performing his or her duties, an auditor
of a prescribed association is satisfied that—
(a)it is likely that there has been a contravention of, or failure
to comply with, a provision of this Act or a rule of the
association; or
(b)there is a deficiency in relation to the accounts or information
in respect of the activities of the association that, in the
auditor's opinion, will not be adequately dealt with by
bringing the matter to the notice of the committee of the
association,
the auditor must immediately report the matter to the Commission by
notice in writing.
(5) If an auditor is removed or dismissed as auditor of a
Associations Incorporation Act 1985 [Act] Page 33 of 74
prescribed association, the auditor must immediately report the
matter of his or her removal or dismissal and the circumstances of
the removal or dismissal to the Commission by notice in writing.
(6) An auditor of a prescribed association is not, in the absence
of malice on his or her part, liable to any action for defamation
in respect of any statement that he or she makes, orally or in
writing, in the course of performing his or her duties as an
auditor under this Act.
(7) In subsection (6)—
"auditor" includes a person who has been removed or dismissed as
the auditor of a prescribed association.
(8) Subsection (6) does not limit or affect any right, privilege
or immunity that an auditor has, apart from that subsection, as a
defendant in an action for defamation.
Payment of auditor
37A. The reasonable fees and expenses of an auditor of a
prescribed association are payable by the association.
Power of exemption
38. (1) The Commission may, on the written application of an
incorporated association to which this Division applies, or on its
own motion, exempt an association from the obligation to comply
with one or more provisions of this Division.
(2) An exemption under subsection (1) may be granted upon such
conditions as the Commission thinks fit and may, at any time, by
instrument in writing, be varied or revoked by the Commission.
DIVISION 3—ANNUAL GENERAL MEETING
Annual general meeting
39. (1) Subject to this section, a prescribed association must
hold an annual general meeting within five months after the end of
the financial year of the association.
(2) A prescribed association may hold its first annual general
meeting at any time within the period of 18 months after its
incorporation.
* * * * * * * * * *
(4) The Commission may, on the written application of a
prescribed association, or on its own motion, exempt an association
from the obligation to comply with a requirement of this section.
(5) An exemption under subsection (4) may be granted upon such
conditions as the Commission thinks fit and may, at any time, by
instrument in writing, be varied or revoked by the Commission.
(6) This section does not apply to an incorporated association
where the rules of the association do not provide for the
membership of the association.
DIVISION 3A—DUTIES OF OFFICERS, ETC.
Duties of officers, etc.
Associations Incorporation Act 1985 [Act] Page 34 of 74
39A. (1) An officer of an incorporated association must not, in
the exercise of his or her powers or the discharge of the duties of
his or her office, commit an act with intent to deceive or defraud
the association, members or creditors of the association or
creditors of any other person or for any fraudulent purpose.
Maximum penalty:$20 000 or imprisonment for four years.
(2) An officer or employee of an incorporated association, or
former officer or employee of an incorporated association, must not
make improper use of information acquired by virtue of his or her
position in the association so as to gain, directly or indirectly,
any pecuniary benefit or material advantage for himself or herself
or any other person, or so as to cause a detriment to the
association.
Maximum penalty:$20 000 or imprisonment for four years.
(3) An officer or employee of an incorporated association must
not make improper use of his or her position as such an officer or
employee so as to gain, directly or indirectly, any pecuniary
benefit or material advantage for himself or herself or any other
person, or so as to cause a detriment to the association.
Maximum penalty:$20 000 or imprisonment for four years.
(4) An officer of a prescribed association must at all times act
with reasonable care and diligence in the exercise of his or her
powers and the discharge of the duties of his or her office.
Maximum penalty:$1 250.
(5) A person who contravenes a provision of this section is
liable to the association for any profit made by him or her and for
any damage suffered by the association as a result of that
contravention.
Provisions indemnifying officers or auditors
39B. (1) Any provision, whether contained in the rules of an
incorporated association or in a contract with the association or
otherwise, exempting any officer or auditor of the association
from, or indemnifying him or her against, any liability to the
association that by law would otherwise attach to him or her in
respect of any negligence, default, breach of duty or breach of
trust of which he or she may be guilty in relation to the
association, is void.
(2) Notwithstanding anything in this section, an incorporated
association may, pursuant to its rules or otherwise, indemnify an
officer or auditor against any liability incurred by him or her in
defending any proceedings, whether civil or criminal, in which
judgment is given in his or her favour or in which he or she is
acquitted.
(3) Subsection (1) does not apply in respect of a contract of
insurance.
DIVISION 3B—RECORDS
Keeping of records
39C. (1) An incorporated association must keep such accounting
Associations Incorporation Act 1985 [Act] Page 35 of 74
records as correctly record and explain the transactions of the
association and the financial position of the association.
(2) The accounting records must be kept at the place at which the
association is situated or established within the State or in the
custody of an officer of the association in accordance with its
rules or a resolution of the committee of the association.
(3) If an incorporated association fails to comply with
subsection (1), the association and any officer of the association
who is in default are each guilty of an offence.
Maximum penalty:(a)if the offence is committed in respect of a
prescribed association—$2 500; or
(b)in any other case—$1 250.
Inspection of records
39D. (1) A member of an incorporated association may apply to the
District Court for an order authorising an inspection of the
association's books on behalf of the member by a person authorised
under this Act to audit the accounts of a prescribed association or
a legal practitioner.
(2) If the Court is satisfied that—
(a)the member is acting in good faith; and
(b)the inspection is for a proper purpose,
the Court may make an order authorising a person authorised under
this Act to audit the accounts of a prescribed association or a
legal practitioner, at a time specified in the order, to inspect
and make copies of or take extracts from the association's books.
(3) The Court may, on an application under this section, make
such further or other orders as it thinks fit, including an order
for costs.
DIVISION 4—DISPUTES
Rules of natural justice to be applied in relation to adjudication
of dispute
40. Where the committee of an incorporated association exercises
any power of adjudication that it may have in relation to a dispute
between its members, or a dispute between itself and members of the
association, the rules of natural justice must be observed.
Associations Incorporation Act 1985 [Act] Page 36 of 74
PART 5
COMPROMISE, WINDING UP, TRANSFER OF ACTIVITIES AND DISSOLUTION
DIVISION 1—GENERAL
Power to compromise with creditors
40A. An incorporated association is declared to be an applied
Corporations legislation matter for the purposes of Part 3 of the
Corporations (Ancillary Provisions) Act 2001 in relation to Part
5.1 of the Corporations Act 2001 of the Commonwealth, subject to
the following modifications:
(a)the modifications necessary to give effect to this section and
the succeeding provisions of this Part; and
(b)such other modifications (within the meaning of Part 3 of
Corporations (Ancillary Provisions) Act 2001) as may be
prescribed by the regulations.
Power to enter into voluntary administration
40B. An incorporated association is declared to be an applied
Corporations legislation matter for the purposes of Part 3 of the
Corporations (Ancillary Provisions) Act 2001 in relation to the
provisions of Part 5.3A and Division 3 of Part 5.9 of the
Corporations Act 2001 of the Commonwealth, subject to the following
modifications:
(a)the modifications necessary to give effect to this section and
the succeeding provisions of this Part; and
(b)such other modifications (within the meaning of Part 3 of
Corporations (Ancillary Provisions) Act 2001) as may be
prescribed by the regulations.
Winding up of incorporated association
41. (1) Subject to the succeeding provisions of this Part, an
incorporated association may be wound up—
(a)by the Supreme Court; or
(b)voluntarily; or
(c)on the certificate of the Commission issued with the consent of
the Minister.
(2) An incorporated association is declared to be an applied
Corporations legislation matter for the purposes of Part 3 of the
Corporations (Ancillary Provisions) Act 2001 in relation to the
provisions of Parts 5.4B, 5.5, 5.6, Divisions 1 and 2 of Part 5.7B,
Division 3 of Part 5.9 and Part 5A.1 of the Corporations Act 2001
of the Commonwealth, subject to the following modifications:
(a)the modifications necessary to give effect to this section and
the succeeding provisions of this Part; and
(b)such other modifications (within the meaning of Part 3 of
Corporations (Ancillary Provisions) Act 2001) as may be
prescribed by the regulations.
(3) The grounds on which an incorporated association may be wound
up by the Supreme Court are as follows:
Associations Incorporation Act 1985 [Act] Page 37 of 74
(a)that the association has by a special resolution resolved that
it be wound up by the Court; or
(b)that—
(i)the association has not commenced any activity or function; and
(ii)more than one year has elapsed since the date of its
incorporation; or
(c)that the association is unable to pay its debts; or
(d)that members of the committee of the association have acted in
the affairs of the association in their own interests rather
than in the interests of the members as a whole, or in any
other manner whatsoever that appears to be unfair or unjust
to other members; or
(e)that affairs of the association are being conducted in a manner
that is oppressive or unfairly prejudicial to, or unfairly
discriminatory against, a member or members or in a manner
that is contrary to the interests of the members as a whole;
or
(f)that an act or omission, or a proposed act or omission, by or on
behalf of the association was or would be oppressive or
unfairly prejudicial to, or unfairly discriminatory against,
a member or members or was or would be contrary to the
interests of the members as a whole; or
(g)that the Court is of the opinion that it is just and equitable
that the association be wound up.
(4) For the purposes of subsection (3), if—
(a)a creditor, by assignment or otherwise, to whom the association
is indebted in a sum exceeding $1 000 then due, has served
on the association a demand, signed by or on behalf of the
creditor, requiring the association to pay the sum so due
and the association has, for three weeks after service of
the demand, failed to pay the sum or secure or compound for
it to the reasonable satisfaction of the creditor; or
(b)execution or other process issued on a judgment, decree or order
of any court in favour of a creditor of the association is
returned unsatisfied in whole or in part; or
(c)the Court, after taking into account any contingent and
prospective liabilities of the association, is satisfied
that the association is unable to pay its debts,
the association is to be taken to be unable to pay its debts.
(5) Where an application has been filed with the Court for the
winding up of an incorporated association on the ground that it is
unable to pay its debts, the association is not, without the leave
of the Court, entitled to resolve that it be wound up voluntarily.
(6) Subject to subsection (5), an incorporated association may,
by a special resolution, resolve that it be wound up voluntarily.
Associations Incorporation Act 1985 [Act] Page 38 of 74
(7) The grounds on which the Commission may issue a certificate
for the winding up of an incorporated association are as follows:
(a)that the association has contravened or failed to comply with a
condition imposed in relation to the association by the
Commission or the Minister under this Act;
(b)that the incorporation of the association has been obtained by
mistake or fraud;
(c)that the association has, after notice by the Commission of any
breach of this Act or the rules of the association, failed,
within the time referred to in the notice, to remedy the
breach;
(d)that the association has not, within three months of notice
being given by the Commission under section 42, requested
the Commission to transfer its undertaking to another body
corporate;
(e)that the association is defunct.
(8) For the purposes of this Act, the winding up of an
incorporated association on the certificate of the Commission
commences on application to the Supreme Court by the Commission and
lodgment with the Court of a copy of the certificate and is to
proceed as if the association had by special resolution resolved
that it be wound up by the Court.
(9) The Supreme Court may, on an order being made for the winding
up of an incorporated association by the Court (including a winding
up on the certificate of the Commission), if the Commission
nominates a person who is not a registered company liquidator for
appointment as the liquidator of the association, appoint the
person so nominated as the liquidator of the association.
(10) The Commission may, in relation to the voluntary winding up
of an incorporated association, approve the appointment of a person
who is not a registered company liquidator as the liquidator of the
association.
(11) The reasonable costs of a winding up are payable out of the
property of the association.
Appeals from decisions of receivers, liquidators, managers, etc.
41A. (1) A person aggrieved by an act, omission or decision of—
(a)a person administering a compromise or arrangement;
(b)a receiver, or a receiver and manager, of property of an
incorporated association;
(c)a liquidator or provisional liquidator of an incorporated
association,
may appeal to the Supreme Court in respect of that act, omission or
decision.
(2) The Court may, on an appeal pursuant to subsection (1),
confirm, reverse or modify the act or decision, or remedy the
Associations Incorporation Act 1985 [Act] Page 39 of 74
omission, as the case may be, and make such orders and give such
directions as it thinks fit.
Reports to be submitted to liquidator
41B. (1) Where an incorporated association is wound up by the
Supreme Court—
(a)the members of the committee of the association (as at the date
the order for winding up was made or any earlier date
specified by the liquidator) must submit a report to the
liquidator in the prescribed form within 14 days after the
making of the winding up order; and
(b)any officer or former officer of the association who has
received notice in writing from the liquidator must submit a
report to the liquidator, containing the information
specified in the notice, within 14 days of service of the
notice.
(2) A liquidator must, within seven days after receiving a report
under this section, lodge a copy of that report with the Supreme
Court and the Commission.
(3) On application by a committee or person required to submit a
report under this section, the liquidator may, if satisfied that
special reasons exist, extend the time for submitting that report.
(4) The liquidator must, as soon as practicable, notify the
Commission of any extension of time granted under subsection (3).
(5) A person who fails to comply with a requirement of subsection
(1), (2) or (4) is guilty of an offence.
Maximum penalty:$5 000.
(6) The liquidator must reimburse a person who has made a report
under this section, out of the property of the association, for the
reasonable costs of making the report.
Declaration of solvency
41C. (1) Where it is proposed to wind up an incorporated
association voluntarily, a majority of the members of the committee
may make a written declaration to the effect that they have made an
inquiry into the affairs of the association and that, at a meeting
of the committee, they have formed the opinion that the association
will be able to pay its debts in full within a period not exceeding
12 months after the commencement of the winding up.
(2) A declaration made under this section must be made and lodged
with the Commission before the date on which notices of the meeting
at which the resolution for winding up is to be proposed are sent
out, or at a later date approved by the Commission.
(3) A statement showing the affairs of the association, in the
form prescribed by the regulations, must be attached to a
declaration under this section.
(4) A declaration under this section has no effect unless—
(a)the resolution for voluntary winding up is passed within the
period of five weeks after the making of the declaration or
Associations Incorporation Act 1985 [Act] Page 40 of 74
filewithin any further period approved by the Commission (whether
approved before or after the end of that five week period);
and
(b)the other requirements of this section have been complied with.
(5) A member of the committee who makes a declaration under this
section (including a declaration that has no effect in accordance
with subsection (4)) without having reasonable grounds for the
opinion stated in the declaration is guilty of an offence.
Maximum penalty:$5 000 or imprisonment for one year.
(6) If the association is voluntarily wound up within the period
of five weeks after the making of the declaration or a further
period approved by the Commission under subsection (4)(a) but its
debts are not paid or provided for in full within the period stated
in the declaration, it will be presumed, unless the contrary is
shown, that a member of the committee who made the declaration did
not have reasonable grounds for his or her opinion.
Disclosure to creditors on voluntary winding up
41D. (1) Where a meeting of creditors of an incorporated
association is to be held in accordance with Division 3 of Part 5.5
of the Corporations Act 2001 of the Commonwealth, as it applies to
the incorporated association by virtue of this Part, the committee
of the association must—
(a)cause to be laid before the meeting of creditors a report in the
form prescribed by the regulations, and verified by all
members of the committee, as to the affairs of the
association, made up to the latest practicable date before
the notices of the meeting of creditors were sent; and
(b)appoint a member of the committee to attend the meeting of
creditors.
(2) A member of the committee appointed under subsection (1)(b)
must attend the meeting of creditors and disclose to the meeting
the affairs of the association and the circumstances leading up to
the proposed winding up.
(3) The committee must, not later than seven days after the
report referred to in subsection (1)(a) is laid before the meeting
of creditors, lodge a copy of the report with the Commission.
(4) If a committee or a committee member fails to comply with a
requirement of this section, each committee member or that
particular committee member (as the case may be) is guilty of an
offence.
Maximum penalty:$5 000.
Penalty for contravention of applied provisions
41E. A person who contravenes or fails to comply with a provision
of the Corporations Act 2001 of the Commonwealth, as it applies to
an incorporated association by virtue of this Part, is guilty of an
offence.
Maximum penalty:$5 000 or imprisonment for 1 year.
Associations Incorporation Act 1985 [Act] Page 41 of 74
Power of Commission to require transfer of activities
42. (1) Where the Commission is of the opinion—
(a)that an incorporated association has ceased to be an association
eligible to be incorporated under this Act; or
(b)that the undertaking or operations of an incorporated
association are being carried on by a body corporate
incorporated under some other Act, or would more
appropriately be carried on by such a body corporate,
it may give notice to the association under this section.
(2) If, within three months of the date of a notice under
subsection (1), the incorporated association requests the
Commission to transfer its undertaking to a body corporate
specified in the request, the Commission may, by instrument
published in the Gazette, order that the undertaking of the
association be transferred accordingly.
(3) On the date specified in the order under subsection (2)—
(a)the incorporated association is dissolved; and
(b)the property of the association becomes the property of the body
corporate referred to in the order; and
(c)the rights and liabilities of the association (whether certain
or contingent) become rights and liabilities of the body
corporate referred to in the order.
(4) The Registrar-General must—
(a)on the application of a body corporate in which any estate or
interest in real property has vested by virtue of this
section; and
(b)on production of such duplicate instruments of title and other
documents as the Registrar-General may require,
register the vesting of that estate or interest in land in the body
corporate.
(5) The vesting of property in a body corporate by virtue of this
section, and any instrument evidencing or giving effect to that
vesting, are exempt from stamp duty.
Distribution of assets upon winding up
43. (1) Subject to subsection (1a), it is not lawful to
distribute among members, former members or associates of members
or former members of an incorporated association any surplus assets
available for distribution at the completion of the winding up of
the association under this Part.
(1a) The surplus assets of an incorporated association may, with
the consent of the Commission, be distributed among the members of
the association if each of the members of the association is also
an incorporated association that has identical or similar aims and
objects.
(2) Subject to this section and any order of the Supreme Court,
Associations Incorporation Act 1985 [Act] Page 42 of 74
the surplus assets of an incorporated association are, on a winding
up of the association, to be distributed in accordance with—
(a)the rules of the association; or
(b)where there are no valid rules of the association governing
distribution of the surplus assets—a special resolution of
the association.
(3) The Supreme Court may, on the application of the Commission,
a liquidator or a member of an incorporated association, determine
how surplus assets of the association are to be distributed on a
winding up.
(4) The Court must, in determining how the surplus assets of an
association are to be distributed, have regard to the objects of
the association and any relevant provisions of the rules of the
association.
(5) In this section—
"surplus assets", in relation to the winding up of an incorporated
association, means those assets that remain after the liabilities
of the association have been discharged and the costs and
expenses of the winding up have been paid.
Application for deregistration
43A. (1) A person authorised by a special resolution of an
incorporated association that has surplus assets of a value not
exceeding the prescribed amount may apply to the Commission, in the
form prescribed by the regulations, for deregistration of the
association.
(2) Where it is impracticable for an incorporated association to
authorise a person to make an application under this section
because the association no longer has an active membership, the
Commission may accept an application signed by not less than two
people each of whom is—
(a)an officer of the association; or
(b)a member of the association; or
(c)a person who, in the opinion of the Commission, has a proper
interest in the application.
(3) An application under this section must be accompanied by—
(a)a declaration in the prescribed form stating that the
association has no liabilities and is not a party to any
legal proceedings; and
(b)a statement setting out the proposed manner of distributing the
association's surplus assets (or, where distribution has
already occurred, setting out the basis on which that
distribution was made); and
(c)any other prescribed material; and
(d)the prescribed fee.
Associations Incorporation Act 1985 [Act] Page 43 of 74
(4) A party to an application under this section must, at the
request of the Commission, supply it with such further documents or
information as the Commission may require.
(5) Where an incorporated association making an application under
this section does not have any valid rules governing the
distribution of surplus assets on deregistration, the two people
making an application under subsection (2) may request that the
Commission approve the manner or proposed manner of distribution.
(6) The Commission must, in approving a manner of distribution of
surplus assets of an incorporated association, have regard to the
objects of the association and any relevant provisions of the rules
of the association.
(7) Within one month of the receipt of an application under this
section, the Commission must publish a notice, in a newspaper
circulating generally throughout the State, setting out the
prescribed particulars of the application and inviting members of
the public to make written submissions to the Commission, within
one month of the date of publication of the notice, in relation to
the application.
(8) In relation to an incorporated association that has not
distributed its surplus assets, the Commission may, but is not
obliged to, after the expiration of one month from the date of
publication of the notice under subsection (7), approve the
application for deregistration of the association if satisfied
that—
(a)the proposed manner of distribution of surplus assets is
consistent with the requirements under section 43 in
relation to distribution of assets upon winding up or with
an approval of the Commission; and
(b)no member of the public will suffer undue hardship as a result
of deregistration of the association.
(9) In relation to an incorporated association that has
distributed its surplus assets, the Commission must, after the
expiration of one month from the date of publication of the notice
under subsection (7) or after the receipt of evidence satisfactory
to the Commission as to the manner of distribution of surplus
assets (whichever is the later), approve the application for
deregistration of the association if satisfied that—
(a)the manner of distribution of surplus assets was consistent with
the requirements under section 43 in relation to
distribution of assets upon winding up or with an approval
of the Commission; and
(b)no member of the public will suffer undue hardship as a result
of deregistration of the association.
(10) Within one month of an application under this section being
approved, the Commission must publish a notice in the Gazette
advising members of the public that the association named in the
notice was deregistered under this section on the date specified in
the notice.
(11) On publication of a notice in the Gazette under subsection
Associations Incorporation Act 1985 [Act] Page 44 of 74
(10), the association named in the notice will be taken to be
dissolved.
(12) In this section—
"prescribed amount" means—
(a)$5 000; or
(b)if a greater amount is prescribed by regulation, that amount;
"surplus assets", in relation to the deregistration of an
incorporated association, means those assets that remain after
the liabilities of the association have been discharged and the
costs and expenses of deregistration have been paid.
Defunct associations
44. (1) Where the Commission is of the opinion that an
incorporated association is defunct, it may, by notice served upon
the association or, where service cannot reasonably be effected in
accordance with this Act, by notice published in a daily newspaper
circulating generally throughout the State, require the association
to show good cause why the association should not be dissolved.
(2) If, upon the expiration of one month from giving notice under
subsection (1), the Commission is satisfied that the incorporated
association should be dissolved, it may, by notice published in the
Gazette, cancel the incorporation of the association, whereupon the
incorporated association is dissolved.
(3) If the Commission is satisfied that an incorporated
association was dissolved as a result of an error on the part of
the Commission, the Commission may reinstate the association as an
incorporated association after which the association is to be taken
to have continued in existence as if it had not been dissolved and
any property which may have vested in the Commission under section
45 is revested in the association.
Commission to act as representative of defunct association in
certain events
44A. (1) Where, after an association has been dissolved (whether
before or after the commencement of this Act), it is proved to the
satisfaction of the Commission—
(a)that the association, if it still existed, would be legally or
equitably bound to carry out, complete or give effect to
some dealing, transaction or matter; and
(b)that, in order to carry out, complete or give effect to that
dealing, transaction or matter, some purely administrative
act, not being of a discretionary kind, should have been
done by or on behalf of the association, or should be done
by or on behalf of the association if the association still
existed,
the Commission may, as representing the association or its
liquidator under the provisions of this section, do that act or
cause that act to be done.
(2) The Commission may execute or sign any relevant instrument or
document adding a memorandum stating that it has done so pursuant
Associations Incorporation Act 1985 [Act] Page 45 of 74
to this section, and any such execution or signature has the same
force, validity and effect as if the association, if it still
existed, had duly executed the instrument or document.
Outstanding property of former association
45. * * * * * * * * * *
(2) Any estate or interest in outstanding property of an
association that is dissolved under this Act vests in the
Commission.
(3) In this section—
"outstanding property", in relation to an association, means any
property, whether within or outside the State, which was vested
in the association, to which the association was entitled, or
over which the association had a disposing power, at the time
that the association was dissolved but which was not got in,
realised upon or otherwise disposed of or dealt with at that
time.
Disposal of outstanding property
46. (1) Upon proof to the satisfaction of the Commission that
there is vested in it by force of section 45 any estate or interest
in property, whether solely or together with any other person, of a
beneficial nature and not merely held in trust, the Commission may
get in, sell or otherwise dispose of or deal with that estate or
interest, or any part of that estate or interest, as it sees fit.
(2) The power of the Commission under subsection (1) to sell or
otherwise dispose of or deal with any such estate or interest may
be exercised, either solely or together with any other person, by
public auction, public tender or private contract and in such
manner, for such consideration and upon such terms and conditions
as the Commission thinks fit, and includes power to rescind any
contract and resell or otherwise dispose of or deal with that
property as the Commission thinks expedient, and power to make,
execute, sign and give such contracts, instruments and documents as
the Commission thinks necessary.
(3) There is payable to the Commission in respect of the exercise
of the powers conferred upon the Commission by subsections (1) and
(2), out of any income derived from, or the proceeds of sale or
other disposition of, the estate or interest concerned, such
commission as is prescribed.
(4) The Commission may apply any moneys received by it in the
exercise of any power conferred on it by this section in defraying
the costs and expenses of and incidental to the exercise of that
power and pay the remainder (if any) of the moneys to the
Treasurer.
(5) The Treasurer must pay all moneys paid to him or her under
this section into the Consolidated Account.
(6) A person making a claim in respect of any money paid to the
Treasurer under subsection (4) may apply to the Supreme Court for
an order of payment of an amount to him or her and the Court, if
satisfied that an amount should be paid to him or her, must make an
order for the payment accordingly.
Associations Incorporation Act 1985 [Act] Page 46 of 74
(7) On the making of an order under subsection (6) for payment of
an amount to a person or where the Treasurer is otherwise of the
opinion that an amount should be paid to a person out of moneys
paid to the Treasurer under this section, the Treasurer must pay
that amount to that person out of moneys lawfully available for
that purpose.
Liability of Commission and Crown as to property vested in
Commission
47. Property vested in the Commission by operation of section 45
is liable and subject to all charges, claims and liabilities
imposed on or affecting that property by reason of any laws as to
rates, taxes, charges or any other matter or thing to which the
property would have been liable or subject had the property
continued in the possession, ownership or occupation of the
association, but there is not to be imposed, on the Commission or
the Crown, any duty, obligation or liability whatsoever to do or
suffer any act or thing required by any such law to be done or
suffered by the owner or occupier other than the satisfaction or
payment of any such charges, claims or liabilities out of the
property of the association so far as it is, in the opinion of the
Commission, properly available for and applicable to such a
payment.
Accounts
48. The Commission must—
(a)keep a record of any property coming into its possession or
under its control or to its knowledge vested in it by force
of section 45 and of its dealings with that property; and
(b)keep accounts of all moneys arising from those dealings and of
how they have been disposed of; and
(c)keep all accounts, vouchers, receipts and papers relating to
that property and those moneys.
Removal of name from register
49. On the dissolution of an incorporated association, its name
is to be removed from the register of incorporated associations.
DIVISION 2—OFFENCES
Interpretation and application
49AA. (1) This Division applies to an incorporated association—
(a)that is being or has been wound up;
(b)that has been in the course of being wound up, where the winding
up has been stayed or terminated;
(c)of which a provisional liquidator has been appointed;
(d)that is or has been under administration;
(e)that has executed a deed of arrangement (even if the deed has
since been terminated);
(f)that is defunct or is unable to pay its debts.
(2) For the purposes of this Division, an incorporated
Associations Incorporation Act 1985 [Act] Page 47 of 74
association will be taken to be defunct if, and only if, the
Commission has served or published notice in respect of the
association under section 44(1).
(3) For the purposes of this Division, an incorporated
association will be taken to be unable to pay its debts if, and
only if, execution or other process issued on a judgement, decree
or order of any court in favour of a creditor of the association is
returned unsatisfied in whole or in part.
(4) In this Division—
"appropriate officer" means—
(a)in relation to an incorporated association that is being, has
been or has been being wound up—the liquidator;
(b)in relation to an incorporated association of which a
provisional liquidator has been appointed—the
provisional liquidator;
(c)in relation to an incorporated association that is or has been
under administration—the administrator;
(d)in relation to an incorporated association that has executed a
deed of arrangement—the deed's administrator;
(e)in relation to an incorporated association that is defunct or is
unable to pay its debts—the Commission;
"relevant day" means—
(a)in relation to an incorporated association that has been wound
up or is being or has been being wound up—
(i)if, because of the application of Division 1A of Part 5.6 of the
Corporations Act 2001 of the Commonwealth, as
applied by virtue of this Part, the winding up is
taken to have begun on the day when an order that
the association be wound up was made—the day on
which the application for the order was filed;
(ii)otherwise—the day on which the winding up is taken, because of
Division 1A of Part 5.6 of the Corporations Act
2001 of the Commonwealth, as applied by virtue of
this Part, to have begun;
(b)in relation to an incorporated association of which a
provisional liquidator has been appointed—the day on
which the provisional liquidator was appointed;
(c)in relation to an incorporated association that is or has been
under administration—the day on which the
administration began;
(d)in relation to an incorporated association that has executed a
deed of arrangement—the day on which the deed was
executed;
(e)in relation to an incorporated association that is defunct—the
day on which notice was served or published under
Associations Incorporation Act 1985 [Act] Page 48 of 74
section 44(1);
(f)in relation to an incorporated association that is unable to pay
its debts—the day on which execution or other process
was first returned unsatisfied in whole or in part in
respect of the association.
Non-disclosure
49AB. (1) An officer or former officer of an incorporated
association to which this Division applies who—
(a)does not, to the best of the person's knowledge and belief,
fully and truly disclose to the appropriate officer—
(i)all the property of the association; and
(ii)how, to whom, for what consideration and when the association
disposed of any part of its property, except such part
as has been disposed of in accordance with the rules
of the association; or
(b)does not deliver up to the appropriate officer, or as the
appropriate officer directs—
(i)all the property of the association in the person's custody or
under the person's control and that the person is
required by law to deliver up; or
(ii)all documents in the person's custody or under the person's
control belonging to the association and that the
person is required by law to deliver up; or
(c)has, within five years before the relevant day or at any time on
or after that day—
(i)fraudulently concealed or removed any part of the association's
property to the value of $100 or more; or
(ii)concealed a debt due to or from the association; or
(iii)fraudulently parted with, altered or made any omission in, or
been privy to fraudulent parting with, altering or
making an omission in, a document affecting or
relating to affairs of the association; or
(iv)by a false representation or other fraud, obtained on credit
for or on behalf of the association, property that the
association has not subsequently paid for; or
(v)fraudulently pawned, pledged or disposed of property of the
association that has been obtained on credit and has
not been paid for; or
(d)fraudulently makes any material omission in a statement relating
to the affairs of the association; or
(e)knowing or believing that a false debt has been proved by a
person, fails for a period of one month to inform the
appropriate officer of the knowledge or belief; or
(f)prevents the production of any document affecting or relating to
Associations Incorporation Act 1985 [Act] Page 49 of 74
the affairs of the association; or
(g)within five years before the relevant day, or at any time on or
after that day, has attempted to account for any part of the
association's property by making entries in the
association's documents showing fictitious transactions,
losses or expenses; or
(h)within five years before the relevant day, or at any time on or
after that day, has been guilty of any false representation
or other fraud for the purpose of obtaining the consent of
the association's creditors or any of them to an agreement
relating to the association's affairs or to the winding up,
commits an offence.
Maximum penalty:$10 000 or two years imprisonment.
(2) If a person pawns, pledges or disposes of property in
circumstances that amount to an offence under subsection (1)(c)(v),
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:$10 000 or two years imprisonment.
Failure to keep proper records
49AC. (1) If—
(a)a provision of section 39C was not complied with, in respect of
a incorporated association to which this Division applies,
during the whole or any part of the period of two years
immediately preceding the relevant day or the period between
the incorporation of the association and the relevant day,
whichever is the shorter; and
(b)the incorporated association was at any time during that period,
or became at a later time, an incorporated association to
which this Division applies,
a member of the committee of the association who failed to take all
reasonable steps to secure compliance by the association with the
provision throughout that period and any other officer of the
association who is in default each commit an offence.
Maximum penalty:(a)if the offence is committed in respect of a
prescribed association—$5 000 or one
year imprisonment; or
(b)in any other case—$5 000.
(2) It is a defence to proceedings against a person under this
section if it is proved that the person had reasonable grounds to
believe and did believe that a competent and reliable person was
charged with the duty of seeing that the requirements of section
39C were complied with and was in a position to discharge that
duty.
(3) A person who has been convicted of an offence under section
39C(3) constituted by a particular act, omission or course of
conduct (including a course of omissions) is not liable to be
Associations Incorporation Act 1985 [Act] Page 50 of 74
prosecuted for, or convicted of, an offence under this section
constituted by the same act, omission or course of conduct during
the same period or any part of it.
Incurring debts not likely to be paid
49AD. (1) Where—
(a)an incorporated association has incurred a debt; and
(b)immediately before the time when the debt was incurred—
(i)there were reasonable grounds to expect that the incorporated
association will not be able to pay all its debts as
and when they become due; or
(ii)there were reasonable grounds to expect that, if the
incorporated association incurs the debt, it will not
be able to pay all its debts as and when they become
due; and
(c)the incorporated association was, at the time when the debt was
incurred, or becomes, at a later time, an incorporated
association to which this Division applies,
a person who was a member of the committee of the association, or
took part in the management of the association, at the time when
the debt was incurred commits an offence.
Maximum penalty:$5 000 or one year imprisonment.
(2) In any proceedings against a person under subsection (1) it
is a defence if proved—
(a)that the debt was incurred without the person's express or
implied authority or consent; or
(b)that at the time when the debt was incurred, the person did not
have reasonable cause to expect—
(i)that the incorporated association would not be able to pay all
its debts as and when they became due; or
(ii)that, if the incorporated association incurred that debt, it
would not be able to pay all its debts as and when
they became due.
(3) Where—
(a)an incorporated association has done an act (including the
making of a contract or the entering into of a transaction)
with intent to defraud creditors of the association or of
any other person or for any other fraudulent purpose; and
(b)the incorporated association was at the time when it does the
act, or becomes at a later time, an incorporated association
to which this Division applies,
a person who was knowingly concerned in the doing of the act with
that intent or for that purpose commits an offence.
Maximum penalty:$10 000 or two years imprisonment.
Associations Incorporation Act 1985 [Act] Page 51 of 74
(4) A certificate issued by a court stating that a person
specified in the certificate—
(a)was convicted of an offence under subsection (1) in relation to
a debt specified in the certificate incurred by an
incorporated association so specified; or
(b)was convicted of an offence under subsection (3) in relation to
an incorporated association specified in the certificate,
is, in any proceedings, prima facie evidence of the matters stated
in the certificate.
(5) A document purporting to be a certificate issued under
subsection (4) will, unless the contrary is established, be deemed
to be such a certificate and to have been duly issued.
Powers of court
49AE. (1) A court that convicts a person of an offence under
section 49AD may, on application by the Commission or the
liquidator of the incorporated association (if any), declare that
the person is personally responsible without any limitation of
liability—
(a)in the case of a conviction under section 49AD(1)—for the
payment to the incorporated association of an amount equal
to the whole of the debt to which the conviction relates or
such part of the debt as the court considers appropriate;
and
(b)in the case of a conviction under section 49AD(3)—for the
payment to the incorporated association of the amount
required to satisfy all or any of the association's debts,
as the court considers appropriate.
(2) A court that makes a declaration under this section may make
any consequential and ancillary orders and directions.
(3) This section has effect despite the fact that the person
concerned is criminally liable in relation to the matters on the
ground on which the declaration is made.
(4) On the hearing of an application under this section, the
applicant may give evidence or call witnesses.
Frauds by officers
49AF. (1) A person who, while an officer of an incorporated
association—
(a)by false pretences or by means of any other fraud, induces a
person to give credit to the association or to a related
body corporate; or
(b)with intent to defraud the association or a related body
corporate, or members or creditors of the association or a
related body corporate, makes or purports to make, or causes
to be made or to be purported to be made, any gift or
transfer of, or charge on, or causes or connives at the
levying of any execution against, property of the
association or of a related body corporate; or
Associations Incorporation Act 1985 [Act] Page 52 of 74
(c)with intent to defraud the association or a related body
corporate, or members or creditors of the association or of
a related body corporate, conceals or removes any part of
the property of the association or of a related body
corporate after, or within two months before, the date of
any unsatisfied judgement or order for payment of money
obtained against the association or a related body
corporate,
is guilty of an offence.
Maximum penalty:$10 000 or two years imprisonment.
(2) In this section "related body corporate" has the same meaning
as in the Corporations Act 2001 of the Commonwealth.
Associations Incorporation Act 1985 [Act] Page 53 of 74
MISCELLANEOUS
General power of exemption of the Commission
49A. (1) The Commission may, on the application of an
incorporated association, an officer of an incorporated
association, or a person authorised by an incorporated association
to make an application under this section—
(a)extend any limitation of time prescribed by or under this Act
whether or not the prescribed period has expired; or
(b)exempt the association or any officer of the incorporated
association from the obligation to comply with any provision
of this Act.
(2) An application under subsection (1) may be granted by the
Commission on such conditions as it thinks fit.
(3) Where an incorporated association or an officer of an
incorporated association contravenes or fails to comply with a
condition imposed by the Commission under subsection (2), the
association or the officer (as the case may be) is guilty of an
offence.
Maximum penalty:(a)if the offence is committed in respect of a
prescribed association—$5 000; or
(b)in any other case—$1 250.
(4) The Commission may, at any time by instrument in writing,
revoke or vary an extension or exemption under subsection (1).
Immunity from liability
49B. (1) A person engaged in the administration or enforcement of