Victorian Consolidated Legislation

Associations Incorporation Act 1981 - SECT 10

Application to bring companies etc. under this Act

10. Application to bring companies etc. under this Act



(1) A company limited by guarantee within the meaning of the Corporations Act
that is taken to be registered in Victoria or a co-operative, society,
association, institution or body formed, or incorporated or registered under
the Co-operatives Act 1996 or the Industrial and Provident Societies Act 1958
or any Act relating to the incorporation, formation or registration of
co-operatives, societies, associations, institutions or bodies (whether before
or after the commencement of this Act) may apply for incorporation under this
Act if-

   (a)  the company, co-operative, society, association, institution or body
        has-

   (i)  in the case of a company, passed a special resolution approving the
        application; or

   (ii) in any other case, resolved in accordance with its rules that the
        application be made;

   (b)  the purposes of the company, co-operative, society, association,
        institution or body are purposes for which an incorporated association
        may lawfully be carried on; and

   (c)  the company, co-operative, society, association, institution or body
        has rules that comply with this Act or, upon incorporation under this
        Act, that will so comply, whether by reason of the adoption of new
        rules or the model rules or the alteration of its articles of
        association or former rules.





(2) A company, co-operative, society, association, institution or body that
intends to make an application under subsection (1) may, notwithstanding
anything to the contrary in any other Act, make an alteration of its articles
of association or rules, or adopt new rules or the model rules, to have effect
from the date on which a certificate of incorporation is granted to it under
this Act as if it were an incorporated association and the articles or rules
were the rules of an incorporated association.

(3) An application by a company, co-operative, society, association,
institution or body under subsection (1) shall be in the form approved by the
Registrar and-

   (a)  shall state-

   (i)  its proposed name upon incorporation, being a name under which an
        association may be incorporated in accordance with section 12;

* * * * *

   (iii) the name and address in Victoria of a member who has attained the age
        of 18 years and who is resident in the State and who has been
        nominated as the first public officer of the proposed incorporated
        association;

   (b)  shall be accompanied by-

   (i)  its certificate of, or other document evidencing its incorporation,
        formation or registration;

   (ii) a statement of purposes as proposed to be in force upon its
        incorporation under this Act;

   (iii) a copy of its articles of association or rules as proposed to be in
        force upon its incorporation under this Act, being rules that comply
        with section 6, or a statement that its rules will be the model rules
        or the model rules with the changes specified in the statement;

   (iiia) particulars of any trust relating to the company, co-operative,
        society, institution, association or body and a copy of any deed or
        other instrument creating or embodying those trusts;

   (iv) the name, address and occupation of each director, or member of its
        committee or other governing body; and

   (v)  the prescribed fee; and



   (c)  shall contain such other particulars (if any) as are prescribed.

(3A) The person nominated as the first public 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 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.

(4) Subject to subsection (4A), if an application is made in accordance with
this section, the Registrar must-

   (a)  grant a certificate of incorporation under this Act; and

   (b)  give notice of the grant of the certificate of incorporation-

   (i)  in the case of the incorporation of a company as an association, to
        the Australian Securities and Investments Commission; and

   (ii) in the case of the incorporation of a co-operative, society,
        association, institution or other body, as an association, to the
        Registrar or other person having responsibilities under an Act in
        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
        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-

   (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

   (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 activities of proposed association;
        or

   (ii) the likely value or nature of the property of the proposed
        association; or

   (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.

(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 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 apply to the Tribunal for
review of the decision.

(5) The incorporation of a company, co-operative, society, association,
institution or body under this section does not affect the identity of the
company, co-operative, society, association, institution or body which shall
be deemed to be the same body before and after the incorporation and no act,
matter or thing shall be affected or abated by the incorporation and, in
particular, any right or claim subsisting by or against the company,
co-operative, society, association, institution or body immediately before its
incorporation under this section may be continued by or against the
incorporated association in its former name or commenced by or against the
incorporated association in the name of the incorporated association.





(6) Section 3(2) applies for the purposes of the interpretation of the
reference in subsection (4A) to trading or securing pecuniary profit as if a
reference in section 3(2) to an association were a reference to a company,
co-operative, society, association, institution or body.

(7) Sections 8 and 9 apply upon the granting of a certificate of incorporation
under this section of a co-operative, society, association, institution or
body that immediately before the issue of that certificate was not a body
corporate as if a reference in those sections to an association were a
reference to the co-operative, society, association, institution or body.

(8) A reference in this section to a company, co-operative, society,
association, institution or body does not include a reference to a trade union
registered under the Trade Unions Act 1958.