ASSOCIATIONS INCORPORATION (AMENDMENT) ACT 1997

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ASSOCIATIONS INCORPORATION (AMENDMENT) ACT 1997

PARLIAMENT OF VICTORIA Associations Incorporation (Amendment) Act 1997 Act No. TABLE OF PROVISIONS Clause Page 1. Purpose 1 2. Commencement 1 3. Principal Act 2 4. Definitions 2 5. New section 7 substituted 4 7. Certificate of incorporation 4 6. Application to bring companies etc. under Act 5 7. Amendment of heading to Part III 8 8. New section 12A inserted 8 12A. Name to appear on business documents 8 9. New section 13A inserted 9 13A. Registered address of incorporated association 9 10. Rights of members under rules 9 11. New section 14B inserted 10 14B. Grievance procedure 10 12. Rights and liabilities of members 10 13. Powers of incorporated association 10 14. Alteration of rules 10 15. New section 22A inserted 11 22A. Rules to be made available to members 11 16. Address of public officer 12 17. New section 29 substituted 12 29. Special resolution 12 18. New sections 29A, 29B and 29C inserted 13 29A. Duties of committee members 13 29B. Disclosure of interest 14 29C. Voting on contract in which committee member has interest 15 19. Annual general meeting 16 20. New sections 30A and 30B inserted 17 30A. Accounting records 17 30B. Accounts of prescribed associations 17 21. Heading to Part VIIA substituted 19 "PART VIIA--TRANSFER OF INCORPORATION" 19 i 531159B.I1-20/5/97

Clause Page 22. New sections 31A, 31AA, 31AB and 31AC substituted 19 31A. Definition 19 31AA. Voluntary transfer of incorporation 19 31AB. Direction to transfer incorporation 20 31AC. Notice to Registrar 21 23. Validity of contracts 21 24. Effect of transfer of incorporation 21 25. New Part VIII inserted 22 PART VIII--WINDING UP AND CANCELLATION 22 Division 1--Voluntary winding up 22 32. Voluntary winding up 22 33. Distribution of assets on voluntary winding up 22 Division 2--Winding up by the court 24 34. Winding up by the court 24 Division 3--Winding up on certificate of Registrar 25 35. Winding up on certificate of Registrar 25 36. Procedure before certification 27 36A. Review of certificate 28 36B. Procedure for winding up on certificate 28 36C. Costs of winding up 29 Division 4--Application of Corporations Law 29 36D. Application of Corporations Law to winding up 29 Division 5--Cancellation of incorporation 30 36E. Cancellation of incorporation 30 37. Vesting of property after cancellation 32 26. New Part VIIIA inserted 33 PART VIIIA--POWERS OF INSPECTION 33 37A. Authorisation of inspectors 33 37B. Registrar to have functions of inspectors 34 37C. Inspector's identity card 34 37D. Inspectors may require certain persons to appear, answer questions and produce documents 34 37E. Inspectors' powers of entry 35 37F. Powers of inspectors on premises entered 36 37G. Functions of inspectors in relation to relevant documents 37 37H. Offence--failing to comply with requirements of inspector 38 37I. Protection from incrimination 39 37J. Privilege 39 ii 531159B.I1-20/5/97

Clause Page 37K. Police aid for inspectors 41 37L. Report on investigation 41 37M. Secrecy 41 27. New section 38A inserted 42 38A. Registrar may enter into arrangements or agreements 42 28. Evidentiary provisions 42 29. New section 45A inserted 42 45A. Method of lodgment 42 30. Documents lodged with Registrar 43 31. New section 47 substituted 43 47. Copies or extracts of records to be admitted in evidence 43 32. Service of documents 44 33. Changes in penalties 44 34. Regulations 44 35. New section 55 inserted 45 55. Transitional 45 36. Matters to be provided for in rules 46 NOTES 47 iii 531159B.I1-20/5/97

PARLIAMENT OF VICTORIA A BILL to amend the Associations Incorporation Act 1981 and for other purposes. Associations Incorporation (Amendment) Act 1997 The Parliament of Victoria enacts as follows: 1. Purpose The purpose of this Act is to amend the Associations Incorporation Act 1981 to improve the operation of that Act. 5 2. Commencement (1) Section 1 and this section come into operation on the day on which this Act receives the Royal Assent. 1 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 3 Act No. (2) Subject to sub-section (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (3) If a provision referred to in sub-section (2) does 5 not come into operation before 1 July 1998, it comes into operation on that day. Act No. 3. Principal Act 9713/1981. In this Act the Associations Incorporation Act Reprinted to 24 April 1996 1981 is called the Principal Act. incorporating amendments up to Act No. 14/1995. 10 4. Definitions (1) In section 3(1) of the Principal Act insert-- ' "accounting records" include-- (a) invoices, receipts, orders for the payment of money, bills of exchange, 15 cheques, promissory notes, vouchers and other documents of prime entry; and (b) documents and records that record those entries; and 20 (c) any working papers and other documents that are necessary to explain the methods and calculations by which accounts are made up; "accounts" means-- 25 (a) a combination of-- (i) an account of receipts and payments recording the total receipts and payments based on the cash method of accounting; 30 and 2 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 4 Act No. (ii) a statement of assets and liabilities; or (b) a combination of-- (i) an account of income and 5 expenditure recording the total income and expenditure based on the accrual method of accounting; and (ii) a balance sheet-- 10 together with any statements, reports and notes, other than auditors' reports, that are attached to and intended to be read with the account, statement or balance sheet, as the case may be; 15 "Administrative Appeals Tribunal" means the Administrative Appeals Tribunal established under the Administrative Appeals Tribunal Act 1984; "prescribed association" means an incorporated 20 association-- (a) that has gross receipts in that association's previous financial year in excess of $200 000 or such other amount as is prescribed by regulation; 25 or (b) that has gross assets in excess of $500 000 or such other amount as is prescribed by regulation; or (c) that is prescribed or of a class 30 prescribed by regulation; "relevant documents" means records or other documents, however compiled, recorded or stored, that relate to the incorporation and management of an incorporated association, 3 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 5 Act No. including membership records, accounts, accounting records and documents relating to transactions, dealings, business or property of the association;'. 5 (2) In section 3(1) of the Principal Act omit the definition of "books". (3) After section 3(2)(g) of the Principal Act insert-- "(h) That the members of the association or incorporated association derive pecuniary 10 profit through enjoyment of facilities or services provided by the association for social, recreational, educational or other like purposes; or (i) That the incorporated association makes any 15 payment of pecuniary profit to a member being another incorporated association having the same or similar purpose as the first incorporated association.". 5. New section 7 substituted 20 For section 7 of the Principal Act substitute-- "7. Certificate of incorporation (1) Subject to sub-section (2), if an application is made in accordance with section 5, the Registrar must grant a certificate of 25 incorporation of the association in the prescribed form. (2) The Registrar may refuse to incorporate an association or proposed association if the Registrar is satisfied that incorporation of the 30 association or proposed association under this Act would be inappropriate or inconvenient-- (a) by reason of the Registrar's assessment of-- 4 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 6 Act No. (i) the likely scale or nature of the activities of the association or proposed association; or (ii) the likely value or nature of the 5 property of the association or proposed association; or (iii) the extent or nature of the dealings which the association or proposed association has, or is likely to 10 have, with the public; or (b) for any other prescribed reason. (3) The Registrar must notify the applicant in writing of a decision to refuse to grant a certificate of incorporation and the reasons 15 for that refusal. (4) The person who made the application to the Registrar under section 5 may within 28 days after receiving notice of a decision of the Registrar to refuse to grant a certificate of 20 incorporation appeal to the Administrative Appeals Tribunal against the decision.". 6. Application to bring companies etc. under Act (1) After section 10(3) of the Principal Act insert-- "(3A) The person nominated as the first public 25 officer of the proposed incorporated association may perform all such acts and do all such things as may be necessary for securing the incorporation of the company, co-operative, society, association, institution 30 or body as an association under this Act, despite anything to the contrary which may be contained in the constitution or rules (if any) of the company, co-operative, society, association, institution or body.". 5 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 6 Act No. (2) For section 10(4) of the Principal Act substitute-- "(4) Subject to sub-section (4A), if an application is made in accordance with this section, the 5 Registrar must-- (a) grant a certificate of incorporation under this Act; and (b) give notice of the grant of the certificate of incorporation-- 10 (i) in the case of the incorporation of a company as an association, to the Australian Securities Commission; and (ii) in the case of the incorporation of 15 a co-operative, society, association, institution or other body, as an association, to the Registrar or other person having responsibilities under an Act in 20 relation to the registration of the co-operative, society, association, institution or other body; and (c) cause a notice of the grant of the certificate of incorporation to be 25 published in the Government Gazette. (4A) The Registrar may refuse to incorporate a company, co-operative, society, association, institution or body under this Act if the Registrar is satisfied-- 30 (a) that the company, co-operative, society, association, institution or body is carried on for the purpose of trading or securing pecuniary profit for its members; or 6 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 6 Act No. (b) that that incorporation would be inappropriate or inconvenient by reason of the Registrar's assessment of-- (i) the likely scale or nature of the 5 activities of proposed association; or (ii) the likely value or nature of the property of the proposed association; or 10 (iii) the extent or nature of the dealings which the proposed association is likely to have with the public; or (c) that any other prescribed reason for refusal exists. 15 (4B) The Registrar must notify the applicant in writing of a decision to refuse to grant a certificate of incorporation and the reasons for that refusal. (4C) The person who made the application to the 20 Registrar under this section may within 28 days after receiving notice of a decision of the Registrar to refuse to grant a certificate of incorporation appeal to the Administrative Appeals Tribunal against the decision.". 25 (3) In section 10(6) of the Principal Act for "(4)" substitute "(4A)". (4) In the Principal Act-- (a) in sections 10 and 11 before "society" (wherever occurring) insert "co-operative,"; 30 (b) in section 10(1) before "societies" insert "co-operatives,". 7 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 7 Act No. 7. Amendment of heading to Part III In the heading to Part III of the Principal Act after "NAMES" insert "AND REGISTERED ADDRESSES". 5 8. New section 12A inserted After section 12 of the Principal Act insert-- '12A. Name to appear on business documents (1) The name of an incorporated association must appear in legible characters-- 10 (a) on its common seal; and (b) in all notices, advertisements and other official publications of the incorporated association; and (c) in all its business documents. 15 (2) The registration number of an incorporated association specified in its certificate of incorporation must appear in legible characters-- (a) in all notices, advertisements and other 20 official publications of the incorporated association; and (b) in all its business documents. (3) If sub-section (1) or (2) is contravened, the incorporated association is guilty of an 25 offence and liable to a penalty not exceeding 5 penalty units. (4) In this section "business document" in relation to an incorporated association, means a document that is issued, signed or 30 endorsed by or on behalf of the incorporated association and is-- 8 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 9 Act No. (a) a business letter, statement of account, invoice or order for goods or services; or (b) a bill of exchange, promissory note, 5 cheque or other negotiable instrument; or (c) a receipt or letter of credit issued by the incorporated association; or (d) a document of a class prescribed as a 10 class of business documents.'. 9. New section 13A inserted After section 13 of the Principal Act insert-- "13A. Registered address of incorporated association 15 (1) An incorporated association must have a registered address which may be the address of the public officer. (2) Not later than 14 days after changing its registered address an incorporated 20 association must give the Registrar written notice of the new address. (3) If an incorporated association fails to comply with this section, the incorporated association and each member of the 25 committee of the incorporated association is guilty of an offence and liable to a penalty not exceeding 5 penalty units.". 10. Rights of members under rules In section 14A(2) and (4) of the Principal Act for 30 "Supreme Court" substitute "Magistrates Court". 9 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 11 Act No. 11. New section 14B inserted After section 14A of the Principal Act insert-- "14B. Grievance procedure (1) The rules of an incorporated association 5 must set out a grievance procedure for dealing with any dispute under the rules between-- (a) a member and another member; or (b) a member and the incorporated 10 association. (2) A member may appoint any person to act on behalf of the member in the grievance procedure. (3) The grievance procedure must allow for 15 natural justice to be applied.". 12. Rights and liabilities of members In section 15(1) of the Principal Act for "a member or officer" substitute "a member of the committee, the public officer or a member". 20 13. Powers of incorporated association In section 16(4) of the Principal Act for "becoming a trustee" substitute "the incorporated association becomes a trustee". 14. Alteration of rules 25 For section 22(2), (3) and (4) of the Principal Act substitute-- "(2) An alteration of the statement of purposes or the rules of an incorporated association does not take effect unless and until it is approved 30 by the Registrar. 10 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 15 Act No. (3) An application for the approval of an alteration must-- (a) be made by the public officer; and (b) be made in a form approved by the 5 Registrar; and (c) be accompanied by the prescribed fee; and (d) be made within 28 days after the alteration was passed by special 10 resolution; and (e) give notice of the special resolution and set out particulars of the alteration; and (f) be accompanied by a declaration signed by at least 2 members of the committee 15 of the incorporated association to the effect that the special resolution was passed in accordance with the Act; and (g) in the case of an alteration of the rules, be accompanied by a consolidated copy 20 of the rules of the incorporated association, including the alteration. (4) The Registrar must approve that alteration unless the Registrar is satisfied that the alteration is contrary to this Act or the 25 regulations.". 15. New section 22A inserted After section 22 of the Principal Act insert-- "22A. Rules to be made available to members An incorporated association must make a 30 copy of its rules available for inspection at any reasonable time by a member at the request of that member.". 11 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 16 Act No. 16. Address of public officer Section 28(2) of the Principal Act is repealed. 17. New section 29 substituted For section 29 of the Principal Act substitute-- 5 '29. Special resolution (1) For the purpose of this Act a resolution of an incorporated association is a special resolution if it is passed in accordance with this section. 10 (2) A special resolution is passed at a meeting if-- (a) of the entitled members of the incorporated association who vote in person or (if proxies are allowed) by 15 proxy at the meeting, not less than three quarters vote in favour of the resolution; and (b) any additional requirements of the rules of the incorporated association relating 20 to the passing of a special resolution have been met. (3) A resolution is not to be considered to have been passed as a special resolution under sub-section (2) unless not less than 21 days 25 notice has been given in accordance with the rules to all of the entitled members of the incorporated association specifying the intention to propose the resolution as a special resolution. 30 (4) At any meeting at which a special resolution is submitted, a declaration by the chairperson that the resolution has been carried is conclusive proof of the fact unless a poll is demanded. 12 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 18 Act No. (5) In this section "entitled member" means a member of the incorporated association who is entitled under the rules of the incorporated association to vote.'. 5 18. New sections 29A, 29B and 29C inserted After section 29 of the Principal Act insert-- "29A. Duties of committee members (1) A member or former member of the committee of an incorporated association 10 must not knowingly or recklessly make improper use of information acquired by virtue of his or her position in the incorporated association so as to gain, directly or indirectly, any pecuniary benefit 15 or material advantage for himself or herself or any other person, or so as to cause a detriment to the incorporated association. Penalty: 60 penalty units. (2) A member of the committee of an 20 incorporated association must not knowingly or recklessly make improper use of his or her position in the incorporated association so as to gain, directly or indirectly, any pecuniary benefit or material advantage for himself or 25 herself or any other person or so as to cause detriment to the incorporated association. Penalty: 60 penalty units. (3) If a person is found guilty of an offence against this section, the court, in addition to 30 imposing any penalty, may order the person to pay a sum specified by the court to the incorporated association as compensation. 13 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 18 Act No. (4) An order made under sub-section (3) must be taken to be a judgment debt due by the offender to the incorporated association and payment of any amount remaining unpaid 5 under the order may be enforced in the court by which it was made. 29B. Disclosure of interest (1) A member of the committee of an incorporated association who has any direct 10 or indirect pecuniary interest in a contract, or proposed contract, with the incorporated association-- (a) must, as soon as he or she becomes aware of his or her interest, disclose 15 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 in the statement submitted under section 30(3) 20 by the incorporated association to its members at the next annual general meeting of the incorporated association. Penalty: 10 penalty units. (2) Sub-section (1) does not apply in respect of a 25 pecuniary interest that exists only by virtue of the fact-- (a) that the member of the committee is an employee of the incorporated association; or 30 (b) that the member of the committee is a member of a class of persons for whose benefit the incorporated association is established; or 14 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 18 Act No. (c) that the member of the committee has the pecuniary interest in common with all or a substantial proportion of the members of the incorporated 5 association. (3) If 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 10 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 incorporated association on any ground arising from the fiduciary 15 relationship between the member and the association; and (b) the member is not liable to account for profits derived from the contract. 29C. Voting on contract in which committee 20 member has interest (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 incorporated 25 association must not take part in any decision of the committee with respect to that contract but may, subject to the provisions of this Part, take part in any deliberations with respect to that contract. 30 Penalty: 10 penalty units. (2) Sub-section (1) does not apply in respect of a pecuniary interest-- (a) that exists only by virtue of the fact that the member of the committee is a 15 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 19 Act No. member of a class of persons for whose benefit the incorporated association is established; or (b) that the member of the committee has 5 in common with all or a substantial proportion of the members of the incorporated association.". 19. Annual general meeting (1) After section 30(2) of the Principal Act insert-- 10 "(2A) The second and any subsequent annual general meeting must be held within 5 months after the end of the financial year of the incorporated association.". (2) In section 30(3) of the Principal Act for 15 "following particulars" substitute "particulars of the following". (3) After section 30(3)(d) of the Principal Act insert-- "and 20 (e) Any trust, held on behalf of the incorporated association by a person or body other than the incorporated association, in which funds or assets of the incorporated association are placed.". 25 (4) After section 30(3) of the Principal Act insert-- "(3A) The statements submitted under sub-section (3) must-- (a) give a true and fair view of the financial position of the incorporated association 30 during and at the end of its last financial year; and (b) in the case of a prescribed association, be accompanied by the accounts 16 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 20 Act No. audited in accordance with section 30B.". (5) In section 30(4) of the Principal Act-- (a) after paragraph (a) insert-- 5 "(aa) in the case of a prescribed association, accompanied by a copy of the accounts audited in accordance with section 30B; and"; and (b) for "2 penalty units" substitute "5 penalty 10 units". (6) After section 30(7) of the Principal Act insert-- "(7A) An incorporated association must make available for inspection by its members a copy of the trust deed of any trust referred to 15 in a statement under sub-section (3)(e).". (7) In section 30(8) of the Principal Act for "2 penalty units" substitute "5 penalty units". 20. New sections 30A and 30B inserted After section 30 of the Principal Act insert-- 20 "30A. Accounting records An incorporated association must maintain adequate and accurate accounting records of the financial transactions of the incorporated association. 25 Penalty: 5 penalty units. 30B. Accounts of prescribed associations (1) A prescribed association must, after the end of each financial year of the incorporated association cause its accounts to be audited 30 by-- (a) a registered company auditor; or 17 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 20 Act No. (b) a firm of registered company auditors; or (c) a person who is a member of the Australian Society of Certified 5 Practising Accountants or the Institute of Chartered Accountants in Australia; or (d) any other person who is approved by the Registrar as an auditor of the 10 accounts of the incorporated association for the purposes of this section. Penalty: 10 penalty units. (2) A person may not be appointed as auditor of 15 the accounts of the incorporated association for the purposes of this section if the person is-- (a) a member of the committee of the incorporated association; or 20 (b) an employer or employee of a member of that committee; or (c) a member of the same partnership as a member of that committee; or (d) an employee of the incorporated 25 association. (3) A prescribed association must keep all accounting records of the incorporated association for a period of 7 years after the completion of the transactions to which they 30 relate. Penalty: 5 penalty units. (4) An incorporated association may apply in writing to the Registrar for an exemption from the requirements of sub-section (1). 18 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 21 Act No. (5) The Registrar may grant the exemption subject to any conditions the Registrar thinks fit. (6) The Registrar may at any time, by notice in 5 writing, vary or revoke an exemption under this section.". 21. Heading to Part VIIA substituted For the heading to Part VIIA of the Principal Act substitute-- 10 "PART VIIA--TRANSFER OF INCORPORATION" 22. New sections 31A, 31AA, 31AB and 31AC substituted For section 31A of the Principal Act substitute-- '31A. Definition 15 In this Part "prescribed body corporate" means-- (a) a company under the Corporations Law; or (b) a co-operative under the Co-operatives 20 Act 1996; or (c) any body corporate that is incorporated, registered or otherwise established under a law applying in Victoria or in any place outside Victoria and that is 25 prescribed for the purposes of this section. 31AA. Voluntary transfer of incorporation An incorporated association may apply to become registered or incorporated as a 30 prescribed body corporate. 19 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 22 Act No. 31AB. Direction to transfer incorporation (1) Subject to sub-section (2), the Registrar may, by notice to the incorporated association, direct an incorporated association to apply to 5 become registered or incorporated as a prescribed body corporate within the period (being not less than 6 months) specified in the notice and subject to any conditions specified in the notice. 10 (2) The Registrar may only give a direction under sub-section (1) if the Registrar is satisfied that the continued incorporation of the incorporated association under this Act would be inappropriate or inconvenient-- 15 (a) by reason of the Registrar's assessment of-- (i) the scale or nature of the activities of the incorporated association; or (ii) the value or nature of the property 20 of the incorporated association; or (iii) the extent or nature of the dealings which the incorporated association has with the public; or (b) for any other prescribed reason. 25 (3) Before giving a direction under sub-section (1), the Registrar must-- (a) give a notice to the incorporated association stating -- (i) the Registrar's intention to direct 30 the incorporated association to apply for incorporation or registration as a prescribed body corporate; and 20 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 23 Act No. (ii) the grounds for the proposed direction; and (iii) that the direction will be made if an answer showing cause to the 5 contrary is not received within 2 months after the date of the notice; and (b) give the incorporated association a reasonable opportunity to show cause 10 why the direction should not be given. (4) An incorporated association may appeal to the Administrative Appeals Tribunal against a direction under sub-section (1). (5) The Registrar must comply with a 15 determination of the Administrative Appeals Tribunal on an appeal under this section. 31AC. Notice to Registrar An incorporated association must notify the Registrar in writing of its transfer of 20 incorporation within 14 days after it is registered or incorporated as a prescribed body corporate.'. 23. Validity of contracts In section 31B of the Principal Act for "Minister" 25 substitute "Registrar". 24. Effect of transfer of incorporation (1) For section 31C(1) of the Principal Act substitute-- "(1) In this section, a reference to a transfer of 30 incorporation by an incorporated association is a reference to the registration or incorporation of the incorporated association as a prescribed body corporate.". 21 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 25 Act No. (2) For section 31C(2) of the Principal Act substitute-- "(2) Subject to this section, on a transfer of incorporation by an incorporated association, 5 the incorporated association ceases to be incorporated under this Act.". (3) In section 31C(3) of the Principal Act for "company" (wherever occurring) substitute "prescribed body corporate". 10 25. New Part VIII inserted For Part VIII of the Principal Act substitute-- 'PART VIII--WINDING UP AND CANCELLATION Division 1--Voluntary winding up 15 32. Voluntary winding up An incorporated association may be wound up voluntarily if the association so resolves by special resolution. 33. Distribution of assets on voluntary winding 20 up (1) This section applies in relation to the winding up of an incorporated association under section 32. (2) If a special resolution relating to the 25 distribution of assets of the incorporated association on winding up has been passed by the incorporated association, the assets of the incorporated association must be dealt with or disposed of in accordance with the 30 special resolution. (3) The public officer of an incorporated association must, within 28 days after the 22 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 25 Act No. passing of a special resolution referred to in sub-section (2) lodge with the Registrar-- (a) notice in a form approved by the Registrar of the special resolution; and 5 (b) a statutory declaration signed by at least 2 members of the committee to the effect that-- (i) the special resolution was passed in accordance with this Act; and 10 (ii) all statements and documents required to be lodged with the Registrar under this Act have been lodged by the incorporated association or are lodged with the 15 notice. (4) If a special resolution relating to the distribution of assets of the incorporated association on winding up has not been passed by the incorporated association, the 20 assets must-- (a) if the rules of the incorporated association do not otherwise provide, be divided amongst the members of the association in equal shares; and 25 (b) if the rules otherwise provide, be dealt with in accordance with the rules. (5) Despite sub-sections (2) and (4), an asset or part of an asset of the incorporated association that consists of property supplied 30 by a government department or public authority, including the unexpended portion 23 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 25 Act No. of a grant must be returned to the department or authority that supplied it or to a body nominated by the department or authority. (6) Sub-section (5) does not apply if a contract 5 or agreement between the incorporated association and the government department or public authority makes express provision to the contrary. (7) This section applies subject to any trust 10 affecting the assets or any of the assets of the incorporated association. (8) Any person aggrieved by the operation of this section in relation to the assets of an incorporated association may apply to the 15 Supreme Court which may make any orders relating to the disposal of the assets that it thinks fit. (9) In this section "assets" in relation to an incorporated association, means the assets 20 remaining after satisfaction of the debts and liabilities of the incorporated association and the costs, charges and expenses of the winding up. Division 2--Winding up by the court 25 34. Winding up by the court (1) The Supreme Court may order the winding up of an incorporated association if-- (a) the incorporated association has by special resolution resolved that it be 30 wound up by the court; or (b) the incorporated association suspends its operations for a whole year; or 24 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 25 Act No. (c) the incorporated association is unable to pay its debts; or (d) the incorporated association has traded (except in accordance with section 51) 5 or secured pecuniary profit for its members; or (e) the incorporated association has, as trustee, traded (except in accordance with section 51) or secured pecuniary 10 profit for the members of the incorporated association; or (f) the incorporated association has engaged in activities outside the scope of its statement of purpose; or 15 (g) the court is of the opinion that it is just and equitable that the incorporated association should be wound up. (2) An application to the court for the winding up of an incorporated association must be 20 made by-- (a) the incorporated association; or (b) a member or creditor of the incorporated association; or (c) the Registrar. 25 Division 3--Winding up on certificate of Registrar 35. Winding up on certificate of Registrar (1) An incorporated association may be wound up on the certificate of the Registrar if the 30 necessary grounds for the taking of that action exist, as referred to in sub-section (2). 25 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 25 Act No. (2) The necessary grounds for taking that action exist if the Registrar certifies-- (a) that the number of members is reduced to less than 5; or 5 (b) that the incorporated association is not in operation; or (c) that the incorporated association has traded (except in accordance with section 51) or secured pecuniary profit 10 for its members; or (d) that the incorporated association has, as trustee, traded (except in accordance with section 51) or secured pecuniary profit for the members of the 15 incorporated association; or (e) that the incorporated association has not given to the Registrar statements in accordance with section 30(4) in respect of each of the preceding 2 20 years; or (f) that incorporation of the incorporated association has been obtained by mistake or fraud; or (g) that the incorporated association exists 25 for an illegal purpose; or (h) that the incorporated association has, after notice from the Registrar of any breach of this Act or the regulations or of the rules of the incorporated 30 association, failed to remedy the breach within the time specified in the notice; or (i) that the incorporated association has failed to comply with a direction of the 26 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 25 Act No. Registrar under section 31AB within the period specified in the notice under that section; or (j) that in the opinion of the Registrar, 5 circumstances exist which, in the public interest, justify the winding up of the incorporated association. (3) The Registrar must not certify under this section as to any matter unless the matter has 10 been proved to the Registrar's satisfaction. 36. Procedure before certification (1) Before giving a certificate under section 35, the Registrar must-- (a) give a notice to the incorporated 15 association stating-- (i) the Registrar's intention to give that certificate; and (ii) the grounds for giving the certificate; and 20 (iii) that the certificate will be given if an answer showing cause to the contrary is not received within 2 months after the date on which the notice is sent or published, 25 whichever is the later; and (b) give the incorporated association a reasonable opportunity to show cause why the direction should not be given. (2) A notice under sub-section (1) must be given 30 by-- (a) sending it by prepaid letter addressed to the registered address of the incorporated association; and 27 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 25 Act No. (b) publishing it in a newspaper circulating generally in the State. 36A. Review of certificate (1) An incorporated association may apply to the 5 Supreme Court to review a decision of the Registrar to give a certificate under section 35. (2) An application under sub-section (1) must be made within 28 days after the certificate is 10 given. 36B. Procedure for winding up on certificate (1) A winding up on a certificate of the Registrar commences-- (a) at the end of 28 days after the 15 certificate is given unless an application is made under section 36A; or (b) if an application is made under section 36A and the Supreme Court upholds the decision to give the certificate, on 20 the determination of the application. (2) On the commencement of the winding up, the Registrar may appoint a person to be the liquidator of the incorporated association. (3) The liquidator need not be a registered 25 liquidator under the Corporations Law. (4) The liquidator must within 10 days give notice of his or her appointment in the Government Gazette. (5) The liquidator must give such security as 30 may be prescribed and is entitled to receive such fees as are fixed by the Registrar. 28 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 25 Act No. (6) Any vacancy occurring in the office of liquidator is to be filled by a person appointed by the Registrar. 36C. Costs of winding up 5 The reasonable costs of a winding up under this Division are payable out of the property of the incorporated association. Division 4--Application of Corporations Law 36D. Application of Corporations Law to 10 winding up (1) The provisions of the Corporations Law with respect to the voluntary winding up of a company under that Law apply to the winding up of an incorporated association 15 under Division 1 or 3. (2) The provisions of the Corporations Law with respect to the winding up of a body other than a company under that Law apply to the winding up of an incorporated association 20 under Division 2. (3) Provisions of the Corporations Law applied under sub-section (1) or (2) are applied so far as they are applicable and with any modifications and exceptions that are 25 prescribed and as if a reference in any of those provisions-- (a) to an unregistered company were a reference to an incorporated association; and 30 (b) to the directors of a company were a reference to the members of the committee of an incorporated association; and 29 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 25 Act No. (c) to the secretary of a company were a reference to the public officer of an incorporated association; and (d) to the principal place of business of a 5 company were a reference to the registered address of the incorporated association. Division 5--Cancellation of incorporation 36E. Cancellation of incorporation 10 (1) If the Registrar is of the opinion that an incorporated association is not in operation he or she may, by notice, require the incorporated association to show good cause why its incorporation should not be 15 cancelled. (2) A notice under sub-section (1) must-- (a) be served on the incorporated association at its registered address; or (b) if service cannot reasonably be 20 effected, be published in a newspaper circulating generally in the State. (3) If, on the expiration of 28 days after the notice is given under sub-section (1), the Registrar is satisfied that the incorporation of 25 the association should be cancelled, the Registrar may, by notice published in the Government Gazette, cancel that incorporation. (4) The Registrar must send notice of the 30 cancellation of incorporation to the registered address of incorporated association. 30 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 25 Act No. (5) Despite the cancellation of incorporation, the liability (if any) of the public officer, any member of the committee or any member of the incorporated association continues and 5 may be enforced as if the incorporation had not been cancelled. (6) If an incorporated association has commenced to be wound up under Division 1, 2 or 3 before the Registrar cancels the 10 incorporation of the association under this Division-- (a) the Registrar may cancel the incorporation despite the winding up; and 15 (b) the cancellation of the incorporation does not affect the winding up. (7) If an incorporated association has commenced to be wound up under Division 3, the Registrar is not required to give notice 20 under sub-section (1) before cancelling the incorporation of the incorporated association under sub-section (3). (8) If the Registrar is satisfied that the incorporation of an incorporated association 25 was cancelled as a result of an error on the part of the Registrar, the Registrar may reinstate the association as an incorporated association. (9) On the reinstatement of an association under 30 sub-section (8)-- (a) the incorporated association is to be taken to have continued in existence as if it had not been dissolved; and (b) any property which may have vested in 35 the Registrar under section 37 is 31 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 25 Act No. revested in the incorporated association. 37. Vesting of property after cancellation (1) If the incorporation of an association is 5 cancelled under this Division-- (a) the property of the incorporated association vests in the Registrar; and (b) the Registrar may-- (i) give any directions as he or she 10 thinks just for or with respect to the payment of the debts and liabilities of the incorporated association, the distribution of its assets and the winding up of its 15 affairs; and (ii) appoint a person for the purpose of investigating the affairs of the incorporated association with a view to the realisation of its 20 assets, payment of debts, discharge of its liabilities, distribution of its assets and winding up of its affairs; and (iii) if the Registrar is not able to 25 arrange for the distribution of any property vested in him or her under this section, sell or otherwise dispose of or deal with that property; and 30 (iv) deduct any costs incurred by the Registrar under this section in relation to the incorporated association from the sale or disposal of the property vested in 35 him or her; and 32 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 26 Act No. (v) do all such other acts and things as are reasonably necessary to be done for the purpose of the exercise of his or her powers 5 under this section. (2) This section does not apply to an incorporated association which had commenced to be wound up before the cancellation. 10 (3) The Registrar must pay into the Consolidated Fund any amount received from the sale or disposition of property under sub-section (1)(iii) or (iv), after deduction of costs. (4) Any person who claims an entitlement to any 15 money paid into the Consolidated Fund under this section may apply to the Supreme Court for an order for payment of that amount to the person. (5) Any amount ordered to be paid to a person 20 under sub-section (4) shall be paid out of the Consolidated Fund (which is hereby to the necessary extent appropriated accordingly).'. 26. New Part VIIIA inserted After Part VIII of the Principal Act insert-- 25 "PART VIIIA--POWERS OF INSPECTION 37A. Authorisation of inspectors The Registrar may authorise any officer or employee of the public service to be an inspector for the purposes of this Act. 30 33 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 26 Act No. 37B. Registrar to have functions of inspectors The Registrar has and may exercise all the functions of an inspector and for that purpose is to be considered to be an 5 inspector. 37C. Inspector's identity card (1) The Registrar must provide each inspector with an identity card. (2) An identity card must contain a photograph 10 of the inspector. (3) An inspector must produce his or her identity card on request on applying for admission to any premises. 37D. Inspectors may require certain persons to 15 appear, answer questions and produce documents (1) For the purpose of ascertaining whether the provisions of this Act and the regulations have been complied with, an inspector may 20 by notice in the prescribed form-- (a) require an incorporated association to produce to the inspector at a time and place specified in the notice specified relevant documents relating to the 25 incorporated association; and (b) require any person who is involved in the activities of an incorporated association to produce to the inspector at a time and place specified in the 30 notice specified relevant documents relating to the incorporated association; and 34 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 26 Act No. (c) require any person who is involved in the activities of an incorporated association-- (i) to attend before the inspector at a 5 time and place specified in the notice; and (ii) to answer any questions put to the person by the inspector relating to the promotion, formation, 10 membership, control, transactions, dealings, business or property of the incorporated association. (2) A person is to be considered to be involved in the activities of an incorporated 15 association if the person-- (a) is or has been an officer or employee of, or an agent, banker, legal practitioner, auditor or other person acting in any capacity for or on behalf 20 of, the incorporated association (including an incorporated association that is in the course of being wound up or has had its incorporation cancelled); or 25 (b) is a person who has any relevant documents relating to the incorporated association in his or her possession or control; or (c) is a person who was a party to the 30 creation of any relevant documents relating to the incorporated association. (3) A person is not subject to any liability by reason of complying with a requirement made or purportedly made under this section. 35 37E. Inspectors' powers of entry 35 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 26 Act No. (1) If an incorporated association or person does not comply with a requirement of an inspector under section 37D within the time specified in the notice, the inspector may 5 enter any of the following premises-- (a) any premises on which the affairs or activities of an incorporated association are managed or conducted; (b) any premises on which the inspector 10 suspects on reasonable grounds there is evidence of the commission of an offence under this Act or the regulations; (c) any premises on which the inspector 15 suspects on reasonable grounds there are relevant documents. (2) Despite sub-section (1), the written consent of the occupier is required to enter-- (a) any part of premises not used for the 20 management or conduct of the affairs or activities of an incorporated association; and (b) any part of premises used for residential purposes (whether or not the part is also 25 used for the management or conduct of the affairs or activities of an incorporated association). 37F. Powers of inspectors on premises entered An inspector has the following powers on 30 premises that the inspector is authorised to enter-- (a) power to search for evidence of any contravention of this Act or the regulations; 36 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 26 Act No. (b) power to search for relevant documents and to require any person on the premises to produce to the inspector any relevant documents in the person's 5 custody or under the person's control; (c) power to require any person on the premises who is apparently involved in the management or conduct of the affairs or activities of an incorporated 10 association to answer questions or provide information; (d) power to exercise the functions of an inspector under section 37G in relation to any relevant documents found on the 15 premises or produced to the inspector. 37G. Functions of inspectors in relation to relevant documents (1) An inspector has the following powers in relation to relevant documents found by an 20 inspector on premises entered by the inspector or produced to the inspector pursuant to a requirement made under this Part-- (a) power to take possession of the 25 documents or secure them against interference; (b) power to make copies, or take extracts from, the documents; (c) power to require any person who was 30 party to the creation of the documents to make a statement providing any 37 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 26 Act No. explanation that the person is able to provide as to any matter relating to the creation of the documents or as to any matter to which the documents relate; 5 (d) power to retain possession of the documents for such reasonable period as is necessary to enable the documents to be inspected, and copies of, or extracts from, the documents to be 10 made or taken. (2) While an inspector retains possession of a document, the inspector must permit a person who would be entitled to inspect the document were it not in the possession of the 15 inspector to inspect the document at any reasonable time and make a copy of, or take extracts from, the document. (3) If an inspector takes possession of or secures against interference any relevant document 20 and a person has a lien on the document, the inspector's actions do not prejudice the lien. (4) An inspector must not take possession of a document apparently in the possession or custody of a person unless the inspector 25 makes out and tenders to the person a written receipt-- (a) identifying the document; and (b) stating the name of the inspector and the reason why the document is being 30 seized. 37H. Offence--failing to comply with requirements of inspector (1) A person must not refuse or fail, without reasonable excuse, to comply with a 38 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 26 Act No. requirement of an inspector under this Part to produce relevant documents. Penalty: 60 penalty units. (2) A person must not-- 5 (a) give information to an inspector that the person knows to be false or misleading in a material particular; or (b) produce a document that the person knows to be false or misleading in a 10 material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information. Penalty: 60 penalty units. 15 (3) A person must not without reasonable excuse obstruct or hinder an inspector exercising functions under this Act. Penalty: 60 penalty units. 37I. Protection from incrimination 20 A person may refuse or fail to give information, produce a document or do any other thing that the person is required to do by or under this Part if the giving of the information, the production of the document 25 or the doing of that other thing would tend to incriminate the person. 37J. Privilege (1) A legal practitioner is entitled to refuse to comply with a requirement under section 30 37D or 37E relating to a relevant document if-- (a) the document contains a privileged communication made by or on behalf of 39 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 26 Act No. or to the legal practitioner in his or her capacity as a legal practitioner; or (b) the legal practitioner is not able to comply with the requirement without 5 disclosing a privileged communication made by or on behalf of or to the legal practitioner in his or her capacity as a legal practitioner. (2) The legal practitioner is not entitled to refuse 10 to comply with the requirement to the extent that he or she is able to comply with it without disclosing the privileged communication. (3) The legal practitioner is also not entitled to 15 refuse to comply with the requirement if the person by or on behalf of whom the communication was made or (if the person is an incorporated association in the course of being wound up) the liquidator agrees to the 20 legal practitioner complying with the requirement. (4) If the legal practitioner refuses to comply with the requirement, he or she must immediately furnish in writing to the 25 Registrar-- (a) the name and address of the person to whom or by or on behalf of whom the communication was made (if known to the legal practitioner); and 30 (b) sufficient particulars to identify the document containing the communication (if the communication was made in writing). Penalty: 60 penalty units. 35 40 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 26 Act No. 37K. Police aid for inspectors (1) An inspector may call to his or her aid a member of the police force if he or she is obstructed, or believes on reasonable 5 grounds that he or she will be obstructed, in the exercise of his or her functions as an inspector. (2) A member of the police force has, while acting in aid of an inspector, all the functions 10 of an inspector. 37L. Report on investigation As soon as practicable after completing an investigation under this Part, an inspector must give a written report on the result of the 15 investigation to the Registrar. 37M. Secrecy An inspector must not disclose information acquired in the course of an investigation under this Part except-- 20 (a) for the purpose of conducting the investigation and making a report of the investigation; or (b) for the purpose of any criminal proceedings; or 25 (c) for the purpose of any proceedings under this Act; or (d) with the consent of the person to whom the information relates. Penalty: 60 penalty units.". 30 41 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 27 Act No. 27. New section 38A inserted After section 38 of the Principal Act insert-- "38A. Registrar may enter into arrangements or agreements 5 The Registrar may enter into arrangements or agreements with any person or body to act as the agent of the Registrar in the carrying out of his or her functions except any function under section 7(2), 10(4A), 31AB, 10 35 or 36E.". 28. Evidentiary provisions After section 44(1)(b) of the Principal Act insert-- "(ba) that, on a date specified in the certificate, the 15 registered address of a specified incorporated association last notified under this Act to the Registrar was the address specified in the certificate;". 29. New section 45A inserted 20 After section 45 of the Principal Act insert-- "45A. Method of lodgment (1) Subject to section 45, it is sufficient compliance with a requirement under this Act or the regulations that a document be 25 lodged with the Registrar if the Registrar receives a copy of the document by facsimile or electronic transmission. (2) If the Registrar receives from a person a copy of a document under sub-section (1), 30 the Registrar may require that person to produce and lodge the original within the time specified by the Registrar. 42 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 30 Act No. (3) If the person does not comply with a requirement of the Registrar within the specified time, the person is to be taken not to have lodged the document.". 5 30. Documents lodged with Registrar After section 46(ec) of the Principal Act insert-- "(ca) is illegible in any part;". 31. New section 47 substituted For section 47 of the Principal Act substitute-- 10 "47. Copies or extracts of records to be admitted in evidence (1) Subject to this section, in any legal proceedings (whether proceedings under this Act or otherwise), a copy of or extract from a 15 record relating to affairs of an incorporated association is admissible in evidence as if it were the original record or the relevant part of the original record. (2) A copy of or extract from a record is not 20 admissible in evidence under sub-section (1) unless it is proved that the copy or extract is a true copy of the record or of the relevant part of the record. (3) For the purposes of sub-section (2), evidence 25 that a copy of or extract from a record is a true copy of the record or of a part of the record may be given either orally or by an affidavit or statutory declaration by a person who has compared the copy or extract with 30 the record or the relevant part of the record.". 43 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 32 Act No. 32. Service of documents In section 48 of the Principal Act for "address of the public officer" substitute "registered address of the incorporated association". 5 33. Changes in penalties (1) In section 49(1) of the Principal Act for "50 penalty units or imprisonment for one year, or both" substitute "60 penalty units". (2) In section 49(2) of the Principal Act for "25 10 penalty units or imprisonment for six months, or both" substitute "60 penalty units". (3) In section 50(1) of the Principal Act for "2 penalty units" substitute "5 penalty units". (4) In section 51(1) of the Principal Act for "5 penalty 15 units" substitute "60 penalty units". (5) In section 52 of the Principal Act for "5 penalty units" substitute "10 penalty units". (6) In section 54(2)(a) and (d) of the Principal Act for "1 penalty unit" substitute "5 penalty units". 20 (7) For section 54(2)(ac) of the Principal Act substitute-- "(ac) prescribe offences against this Act or the regulations for the purposes of section 50B;". 34. Regulations 25 (1) For section 54(2)(b) of the Principal Act substitute-- "(b) make provision for the accounts to be kept and the financial statements to be prepared by incorporated associations or incorporated 30 associations in a class of incorporated associations; 44 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 35 Act No. (ba) make additional provision for the audit of accounts of incorporated associations or incorporated associations in a class of incorporated associations; 5 (bb) make provision for fees to be paid for the lodgment with the Registrar of applications, notices, statements and other documents and for inspection or copying of documents held by the Registrar;". 10 (2) After section 54(3)(b) of the Principal Act insert-- "and (c) may apply, adopt or incorporate any statement of accounting standards or 15 statement of accounting practice issued by any body at any time before the regulation is made.". (3) In section 54(4) of the Principal Act for "section 6(2) of the Subordinate Legislation Act 1962" 20 substitute "section 23(2) of the Subordinate Legislation Act 1994". 35. New section 55 inserted After section 54 of the Principal Act insert-- "55. Transitional 25 An incorporated association existing immediately before the date of commencement of section 35 of the Associations Incorporation (Amendment) Act 1997 must amend its rules (whether by 30 adoption of a model rule or otherwise) within 12 months after that commencement to provide for the matters set out in section 14B and item 17 of the Schedule.". 45 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 s. 36 Act No. 36. Matters to be provided for in rules (1) In the Schedule to the Principal Act, in item 13 for "books, documents" substitute "relevant documents". 5 (2) In the Schedule to the Principal Act, after item 16 insert-- "17. The grievance procedures for settling disputes under the rules between the incorporated association and any of its 10 members or between a member and any other member.". 46 531159B.I1-20/5/97

Associations Incorporation (Amendment) Act 1997 Notes Act No. NOTES By Authority. Government Printer for the State of Victoria. 47 531159B.I1-20/5/97

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