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This is a Bill, not an Act. For current law, see the Acts databases.
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
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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
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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
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Clause Page
THIS PAGE IS TO BE MASKED
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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.
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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
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(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,
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s. 5
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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--
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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.".
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(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
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(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,".
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Associations Incorporation (Amendment) Act 1997
s. 7
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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--
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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".
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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.
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s. 15
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(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.".
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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.
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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.
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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
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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
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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
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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
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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).
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(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.
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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
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(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.".
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(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
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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
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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
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(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).
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(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
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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
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(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.
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(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
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(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.
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(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
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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
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(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
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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
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(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
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(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;
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(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
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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
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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
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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
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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
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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.
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(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.".
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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
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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.".
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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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