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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
DRAFT BILL FOR PUBLIC COMMENT
The Government proposes to introduce into Parliament a
Bill to provide for the incorporation and regulation
of certain associations, to repeal the Associations
Incorporation Act 1987 and for connected purposes.
This draft Bill has been prepared for public comment but it
does not necessarily represent the Government's settled
position.
Associations Incorporation Bill 2006
CONTENTS
Part 1 -- Introductory
1. Short title 2
2. Commencement 2
3. Terms used in this Act 2
4. Forms may include statutory declaration 3
5. Restriction on use of "Incorporated" 3
Part 2 -- Exclusion from
Corporations legislation
6. Incorporated associations excluded from
Corporations legislation 5
7. Exceptions to section 6 5
Part 3 -- Application for
incorporation
Division 1 -- Eligibility
8. General eligibility for incorporation 7
186--1 page i
Associations Incorporation Bill 2006
Contents
9. Trading associations not eligible for incorporation 7
10. Regulations may declare associations to be
ineligible 8
Division 2 -- Requirements for application
11. Application to Commissioner 8
12. Objects or purposes 8
13. Application to include certain names and addresses 9
14. Particulars of public officer 9
15. Commissioner may require public notice of
application to be given 9
16. Request for refusal of incorporation 10
17. Change of address of incorporated association 10
Part 4 -- Incorporation and transfer
of incorporation
Division 1 -- Incorporation
18. Incorporation of association 12
19. Time to be allowed for the operation of section 16 12
20. Refusal of incorporation if inappropriate or against
public interest 13
21. Regulations may prescribe further grounds for
refusal 13
22. Review of refusal 13
23. Cessation of incorporation 14
24. When incorporation may be reinstated 14
Division 2 -- Effect of incorporation and
related matters
25. Effect of incorporation 15
26. Powers of an incorporated association 15
27. Power of incorporated association to act as trustee 16
28. Manner in which contracts may be made 16
29. Limitation of doctrine of ultra vires 17
30. Liability of officers, trustees and members 17
31. Authentication of documents 17
Division 3 -- The corporate name
Subdivision 1 -- Name restrictions
32. Names that are offensive, misleading etc. 18
33. Regulations may provide for name restrictions 18
page ii
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Contents
34. Review of Commissioner's decision about a name 18
Subdivision 2 -- Conferral of name
35. Name on incorporation 19
36. Corporate name to appear on documents 19
Subdivision 3 -- Change of name by amendment of
rules
37. Commissioner's approval required 19
38. Criteria to be applied by Commissioner 20
39. Issue of new certificate of incorporation 20
40. Review of Commissioner's decision 20
41. Commissioner may require public notice of
application to be given 21
42. Request for refusal of change of name 21
Subdivision 4 -- Change of name by order of
Commissioner
43. Change of name where corporate name later
determined to be inappropriate 22
44. Commissioner to give notice of intention to change
name 23
45. Issue of new certificate of incorporation 23
46. Review of Commissioner's proposal 23
Subdivision 5 -- Savings and other provisions on
change of name
47. Corporate identity and other matters are not
affected 24
Division 4 -- Transfer of incorporation
48. Definition 25
49. Incorporated association may apply for
incorporation under another law 25
50. Commissioner may direct an incorporated
association to apply for incorporation under
another law 25
51. Commissioner to give notice of intention 26
52. Review of proposed direction or amendment 27
53. Association to comply with direction 27
54. Cancellation of incorporation under this Act 28
55. Provisions about the transition to incorporation
under another law 28
page iii
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Contents
Part 5 -- Rules of incorporated
associations
Division 1 -- Effect of rules
56. Effect stated 30
Division 2 -- Content of rules
57. General requirements for content of rules 30
58. Restriction on distribution of surplus property 30
Division 3 -- Model rules and rules of existing
incorporated associations
59. Model rules 31
60. Automatic application of model rules 31
61. Rules of associations existing at the
commencement of this Act 32
62. Copy of rules to be kept 33
Division 4 -- Amendment of rules
63. Amendment of rules 33
64. Commissioner to be notified of amendments 33
65. Amendment of objects or purposes of incorporated
association 34
66. Commissioner may require public notice of
application under section 65 35
67. Request for refusal of change of name 35
Division 5 -- Provision of rules to members
68. Inspection by members 36
69. When member to receive copy of rules 36
Part 6 -- Management of
incorporated associations
Division 1 -- Management committee
70. Management of incorporated association 37
71. Duty of committee members to secure compliance
by association 37
72. Handing over of documents and records when
membership of committee ceases 37
Division 2 -- Pecuniary interest of committee
member in contract
73. Definition 38
page iv
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Contents
74. Disclosure of interest 38
75. Effect of disclosure 39
76. Voting on a contract in which a committee member
has a relevant interest 39
Division 3 -- Public officer
77. Incorporated association to have a public officer 40
78. Requirements for holding office 40
79. Vacancy in office 41
80. Commissioner to be notified of appointment 41
81. Role of public officer in service of documents on
incorporated association 42
82. Public officer to refer documents to the
management committee 42
83. Handing over of documents and records where
person has ceased to be the public officer 43
Division 4 -- Annual general meeting
84. Annual general meeting 44
Division 5 -- Special resolutions
85. Requirements for special resolution 44
86. Notice to be given 45
87. Commissioner may determine other requirements 45
88. Evidence of passing of resolution 46
Division 6 -- Register of members
89. Register to be maintained 46
90. Inspection of register by member 46
91. Commissioner may request copy of register 47
92. Member may apply for copy of register 47
93. Improper use of information in register 48
Division 7 -- Record of office holders
94. Record of office holders 48
95. Inspection of record by member 49
96. Member may request a copy of record 49
97. Improper use of information 50
98. Commissioner may ask apparent office holders to
provide information 50
page v
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Contents
Part 7 -- Accounts and audit
Division 1 -- Preliminary
99. Terms used in this Part 52
Division 2 -- Accounts
100. Keeping of accounting records 53
101. Retention of accounting records 54
102. When annual financial statements to be prepared 54
103. Financial statements to give true and fair account 54
104. Presentation of financial statements and solvency
statement at annual general meeting 55
105. Information to be provided by annual return 56
106. Lodgment of annual return with Commissioner 57
Division 3 -- Audit
Subdivision 1 -- Auditors, qualifications and
eligibility for appointment
107. Audit of tier 1 incorporated association 57
108. Report of auditor of tier 1 incorporated association 58
109. Audit of tier 2 incorporated association 58
110. Audit of tier 3 incorporated association 59
111. Restrictions on persons who may audit certain
financial statements 60
Subdivision 2 -- Provisions relating to auditors of all
incorporated associations
112. Access to records 60
113. Entitlement to information 60
114. Breaches of Act and rules to be noted in report 61
115. Offences in relation to auditor 61
116. Protection of auditor 61
Subdivision 3 -- Powers and duties of auditors of
tier 2 and tier 3 incorporated associations
117. Terms used in this Subdivision 62
118. Auditor to report on financial statements etc. 62
119. Report to state whether statements properly drawn
up 63
120. Position where Australian Accounting Standards
not complied with 63
121. Report to identify material defects and omissions 64
page vi
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Contents
122. Report to cover adequacy of information and
record keeping 64
123. Auditor may attend general meeting and be heard 64
124. Reporting of breaches of this Act to the
Commissioner 65
125. Removal of auditor to be reported 65
126. Payment of auditor 66
Subdivision 4 -- Special audits of financial affairs of
incorporated association
127. Commissioner may require special audit to be
carried out 66
Part 8 -- Amalgamation of
incorporated associations
128. Meaning of "new body" 68
129. Application for incorporation of body formed by
amalgamation 68
130. What is to be included in the application 68
131. Incorporation of the new body 69
132. Review of decision to refuse application 70
133. Vesting of property and liabilities in new body 70
Part 9 -- Winding up and
cancellation of incorporation
Division 1 -- Preliminary
134. Terms used in this Part 71
135. Object of this Part 71
136. Modifications of applied text of Corporations Act 72
Division 2 -- Voluntary winding up of
incorporated association that has
property to be distributed
Subdivision 1 -- Requirements for voluntary
winding up
137. When voluntary winding up may occur 72
138. Notice to be given to the Commissioner 72
139. Cancellation of incorporation 73
140. Corporations Act may be applied by the
regulations 74
page vii
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Contents
Subdivision 2 -- Distribution of surplus property on
voluntary winding up
141. Application of this Subdivision 74
142. Duty of association 74
143. Content and operation of distribution plan 74
144. Position where conditions attached to grant 75
145. Approval of distribution plan 75
146. If necessary Commissioner may determine
contents of plan 76
147. Time limit for implementation of plan 76
148. Review of Commissioner's decision 76
149. Reporting to Commissioner 77
Subdivision 3 -- Powers of Commissioner on default
under Subdivision 2
150. Grounds on which Commissioner may act 78
151. Commissioner may require association to show
cause 78
152. How association may show cause 78
153. Review of Commissioner's proposal 79
154. Making of declaration by the Commissioner 79
155. Effect of declaration 79
156. Distribution of surplus property under this
Subdivision 80
157. Cancellation of incorporation 81
Division 3 -- Cancellation of incorporation on
application by association that has no
debts or surplus property
158. Application for cancellation 81
159. Content of application 82
160. Commissioner may grant application 82
161. Review of decision to refuse application 83
162. Liabilities not affected 83
Division 4 -- Winding up by the Supreme
Court
163. Grounds on which winding up may be ordered 83
164. By whom application may be made 83
165. Application of Corporations Act 84
166. Cancellation of incorporation 84
page viii
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Contents
Part 10 -- Certain remedial measures
available to the Commissioner
Division 1 -- Cancellation of incorporation by
the Commissioner on certain grounds
167. Grounds on which Commissioner may act 85
168. Commissioner may require association to show
cause 86
169. How association may show cause 86
170. Cancellation of incorporation 86
171. Powers of Commissioner in respect of property 87
172. Review of Commissioner's proposal to cancel
incorporation 87
Division 2 -- Direction by Commissioner to
transfer undertaking
173. Commissioner may direct an incorporated
association to transfer its undertaking to another
body corporate 88
174. Commissioner to give notice of intention 89
175. Review of proposed direction or amendment 89
176. Association to comply with direction 90
177. Power of Commissioner if association fails to
comply with direction 90
178. Effect of order 91
179. Cancellation of incorporation under this Act 92
Division 3 -- Direction by Commissioner to
convene general meeting
180. Commissioner may direct that general meeting be
convened 93
181. Review of direction 94
182. Rights of Commissioner or a delegate at meeting
convened under this Division 94
Division 4 -- Appointment of statutory
manager
183. Commissioner may appoint statutory manager 95
184. Statutory manager has functions of management
committee 95
185. Duration of appointment 96
186. Prerequisites to revocation of appointment 96
page ix
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Contents
187. Statutory manager to report to the Commissioner 97
188. Remuneration and expenses of statutory manager 98
189. Liability of statutory manager 99
190. Additional powers of Commissioner 99
191. Proceedings against association stayed 100
Part 11 -- Administration
Division 1 -- General
192. Commissioner 102
193. Delegation by Commissioner 102
194. Regulations for the obtaining of information by the
Commissioner 103
195. Information officially obtained to be confidential 103
196. Protection from liability for wrongdoing 104
197. Judicial notice 104
198. Evidentiary provisions 104
Division 2 -- Lodgment of documents with
Commissioner
199. Keeping of documents by Commissioner 105
200. Destruction of documents by Commissioner 106
201. Inspection etc. of documents 106
202. Commissioner's certification of document 106
203. No constructive notice of contents of documents 107
Division 3 -- Powers of investigation
204. Terms used in this Division 107
205. Authorised officers 108
206. Commissioner may require certain persons to
appear, answer questions and produce records 108
207. Powers of entry, search and seizure 110
208. Issue of search warrant 111
209. Execution of search warrant 112
210. Powers of authorised officers concerning records 113
211. Failure to comply with a requirement and related
provisions 113
212. Legal professional privilege 113
213. Self incrimination 114
214. Persons assisting an authorised officer 114
Division 4 -- Infringement notices
215. Terms used in this Division 114
page x
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Contents
216. Prescribed offences 115
217. Modified penalties 115
218. Giving of notice 115
219. Contents of notice 115
220. Extension of time 116
221. Withdrawal of notice 116
222. Benefit of paying modified penalty 116
223. No admission implied by payment 117
224. Application of penalties collected 117
225. Designation of authorised officers 117
Part 12 -- Miscellaneous
226. Jurisdiction of State Administrative Tribunal in
respect of disputes 119
227. False or misleading statements in documents 119
228. Time limit for prosecutions 120
229. Payment of fees on lodging documents 120
230. Regulations 120
231. Repeal 120
232. Consequential amendments 121
Schedule 1 -- Some circumstances
that do not make an association
ineligible for incorporation
Schedule 2 -- Vesting of property
and liabilities on incorporation
1. Terms used in this Schedule 124
2. Transfer of assets and liabilities and related
provisions 124
3. Trusts etc. not affected 125
4. Notation of registers 125
page xi
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Contents
Schedule 3 -- Content of rules of an
incorporated association
Division 1 -- Matters to be provided for in rules
Division 2 -- Particular requirements for
certain rules
1. Number of members who may call a general
meeting 128
2. Financial year of associations incorporated under
this Act 128
3. Transitional provisions as to financial year of
associations incorporated under a repealed Act 128
Schedule 4 -- Modifications to text of
Parts 5.4 to 5.8 of
the Corporations Act
Schedule 5 -- Grounds on which an
incorporated association may be
wound up by the Supreme Court
Schedule 6 -- Transitional provisions
Division 1 -- Preliminary
1. Interpretation 133
Division 2 -- Existing incorporated associations
2. Incorporation continued 133
3. Committee of existing association 133
Division 3 -- Continuation of certain matters in
progress
4. Existing applications for incorporation 133
5. Rule alteration in progress 134
6. Applications under repealed section 18 or 19 134
7. Applications for extension of time under repealed
section 23(1) 135
8. Applications for review made but not determined 135
9. Voluntary winding up in progress 135
10. Notice given under repealed section 34(1) 136
page xii
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Contents
11. Notice given under repealed section 35 136
Division 4 -- Amendment of rules by existing
incorporated associations and associations
to which clause 4(3) applies
12. Amendment of rules 136
13. Rules of existing incorporated associations to
which repealed Schedule 2 clause 4 applied 137
14. Amendments may be made by management
committee 137
15. Liability of incorporated association if rules are not
made compliant 138
16. Act modifications pending amendment of rules 139
Division 5 -- Other things to be done by
existing incorporated associations and
associations to which clause 4(3) applies
17. Notification of address 139
18. Appointment of public officer 140
19. Keeping of register of members 140
Division 6 -- Other provisions
20. When accounts and audit provisions start to apply
to existing incorporated associations 141
21. Property vested under repealed section 36 141
22. Constructive notice under section 189 of this Act 141
23. Time limit under section 214 of this Act 142
24. References in written laws 142
Division 7 -- Further provision may be made
25. Regulations 142
Schedule 7 -- Consequential
amendments
1. Children and Community Services Act 2004
amended 144
2. Criminal Procedure Act 2004 amended 144
3. Education Service Providers (Full Fee Overseas
Students) Registration Act 1991 amended 144
4. Hale School Act 1876 amended 145
5. Law Society Public Purposes Trust Act 1985
amended 145
page xiii
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Contents
6. Liquor Licensing Act 1988 amended 145
7. School Education Act 1999 amended 146
8. Taxation Administration Act 2003 amended 146
9. Volunteers (Protection from Liability) Act 2002
amended 147
10. References to "1895" amended to "2006" in
various Acts 147
11. References to "1987" amended to "2006" in
various Acts 148
Defined Terms
page xiv
[Draft Bill for public comment]
Western Australia
Associations Incorporation Bill 2006
A draft for public comment of
A Bill for
An Act to provide for the incorporation and regulation of certain
associations, to repeal the Associations Incorporation Act 1987 and
for connected purposes.
The Parliament of Western Australia enacts as follows:
page 1
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 1 Introductory
s. 1
Part 1 -- Introductory
1. Short title
This is the Associations Incorporation Act 2006.
2. Commencement
5 This Act comes into operation on a day to be fixed by
proclamation.
3. Terms used in this Act
In this Act, unless the contrary intention appears --
"a repealed Act" means --
10 (a) the Associations Incorporation Act 1987 repealed by
section 231; or
(b) the Associations Incorporation Act 1895 repealed by
section 47 of the Act mentioned in paragraph (a);
"amend", in relation to the rules of an incorporated association,
15 means replace, in whole or in part, add to or vary;
"annual general meeting" has the meaning given by
section 84(1);
"approved", in relation to a form, means approved by the
Commissioner for the purposes of the provision in which
20 the term appears;
"association" includes society, club, institution or body;
"Commissioner" means the person for the time being
designated as the Commissioner under section 192;
"Department" means the department of the Public Service
25 principally assisting in the administration of this Act;
"financial year" means the period provided for by or under
Schedule 3 Division 2 item 2 or 3;
"incorporated association" means an association that is, or is
taken to be, incorporated under this Act;
page 2
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Introductory Part 1
s. 4
"liability" means any liability, duty or obligation whether
actual, contingent or prospective, liquidated or
unliquidated, and whether owed alone or jointly or jointly
and severally with any other person;
5 "management committee", in relation to an incorporated
association, means the management committee provided
for by the rules of the association as required by Schedule 3
Division 1 item 5;
"officer" means a member of the management committee of an
10 incorporated association;
"property" means any legal or equitable estate or interest in, or
claim to, real or personal property of any description,
whether present or future and whether vested or contingent,
and includes --
15 (a) a thing in action; and
(b) money;
"public officer" means the person for the time being named or
appointed to be the public officer of an incorporated
association for the purposes of section 77(1);
20 "special resolution" means a resolution of an incorporated
association passed in accordance with Part 6 Division 5;
"the repealed Act" means the Associations Incorporation
Act 1987 repealed by section 231.
4. Forms may include statutory declaration
25 A form approved by the Commissioner for the purposes of this
Act may require that information or documents included in,
attached to or given with the form be verified by a statutory
declaration.
5. Restriction on use of "Incorporated"
30 A person must not carry on business or enter into a contract
under any name or title of which "Incorporated" or any
page 3
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 1 Introductory
s. 5
abbreviation of that word is the final word or abbreviation
unless the person is, or is taken to be, incorporated under this
Act or some other law.
Penalty: a fine of $10 000.
page 4
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Exclusion from Corporations legislation Part 2
s. 6
Part 2 -- Exclusion from Corporations legislation
6. Incorporated associations excluded from Corporations
legislation
The following matters are declared to be excluded matters for
5 the purposes of section 5F of the Corporations Act 2001 of the
Commonwealth in relation to the whole of the Corporations
legislation to which Part 1.1A of that Act applies, other than the
provisions specified in section 7 --
(a) an incorporated association;
10 (b) any act or omission of any person, body or other entity
in relation to an incorporated association.
7. Exceptions to section 6
(1) The provisions referred to in section 6 are --
(a) provisions that relate to any matter that the regulations
15 provide is not to be excluded from the operation of the
Corporations legislation; and
(b) provisions that relate to registration as a company under
Chapter 5B to the extent that an incorporated association
is authorised or required under Part 4 Division 4 of this
20 Act to become registered as a company under that
Chapter; and
(c) provisions that relate to the role of an incorporated
association in the formation of a company; and
(d) provisions that relate to substantial holdings, by or
25 involving an incorporated association, in a company;
and
(e) provisions that confer or impose functions on an
incorporated association as a member, or former
member, of a corporation; and
page 5
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 2 Exclusion from Corporations legislation
s. 7
(f) provisions that relate to dealings by an incorporated
association in securities of a body corporate, other than
securities of the incorporated association itself; and
(g) provisions that confer or impose functions on an
5 incorporated association in its dealings with a
corporation, not being dealings in securities of the
incorporated association; and
(h) provisions that relate to securities of an incorporated
association, other than debentures of or deposits with an
10 incorporated association; and
(i) provisions relating to financial markets and participants
in financial markets; and
(j) provisions relating to financial services licensees whose
licence covers dealing in, or providing advice about,
15 financial products; and
(k) provisions relating to carrying on a financial services
business; and
(l) provisions relating to financial statements, and audit of
financial statements, of financial services licensees
20 whose licence covers dealing in, or providing advice
about, financial products; and
(m) provisions relating to clients of financial services
licensees whose licence covers dealing in, or providing
advice about, financial products; and
25 (n) provisions relating to registers of interests in financial
products.
(2) The provisions specified in subsection (1) only apply to an
incorporated association to the extent to which an incorporated
association may engage in the activities covered by those
30 provisions.
page 6
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Application for incorporation Part 3
Eligibility Division 1
s. 8
Part 3 -- Application for incorporation
Division 1 -- Eligibility
8. General eligibility for incorporation
(1) Without limiting section 20(1) or 21, an association is eligible to
5 be incorporated under this Act if --
(a) it is formed and carried on for one or more lawful
purposes; and
(b) it has 6 or more members who under its rules have the
right to vote at its general meetings either in person or
10 by proxy or postal vote; and
(c) it is not excluded by section 9 or regulations made for
the purposes of section 10.
(2) The incorporation of an association under this Act is valid even
if the association was not eligible to be so incorporated.
15 9. Trading associations not eligible for incorporation
(1) An association is not eligible to be incorporated under this Act
if it is formed or carried on for the purpose of --
(a) trading; or
(b) securing pecuniary profit for its members from its
20 transactions.
(2) For the purposes of subsection (1)(b) a pecuniary profit that by
reason of a person's membership of an association is received
by any other person is taken to be a pecuniary profit to the
member by reason of the person's membership of that
25 association.
(3) Schedule 1 sets out some circumstances that do not make an
association ineligible under subsection (1).
page 7
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 3 Application for incorporation
Division 2 Requirements for application
s. 10
10. Regulations may declare associations to be ineligible
An association is not eligible to be incorporated under this Act
if it is an association that is --
(a) prescribed for the purposes of this section; or
5 (b) a member of a class of associations that is so prescribed.
Division 2 -- Requirements for application
11. Application to Commissioner
(1) An application for the incorporation of an association must be
made to the Commissioner in the approved form by a person
10 duly authorised by the association to apply for incorporation.
(2) An application must --
(a) state the name of the association; and
(b) specify its address (which may be the same as the
residential address of the public officer); and
15 (c) comply with the other requirements of this Division and
such other requirements as may be prescribed for the
purposes of this paragraph.
(3) An application must include a certificate given by the applicant
that the applicant is authorised by the association to apply for
20 incorporation.
(4) The applicant must provide the Commissioner with such
information and documents as the Commissioner may in writing
request.
12. Objects or purposes
25 (1) An application must set out the objects or purposes of the
association.
page 8
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Application for incorporation Part 3
Requirements for application Division 2
s. 13
(2) The objects or purposes must include a provision in, or
substantially in, the following terms --
The property and income of the association must be
applied solely towards the promotion of the objects or
5 purposes of the association and no part of that property
or income may be paid or otherwise distributed, directly
or indirectly, to any member of the association, except
in good faith in the promotion of those objects or
purposes.
10 13. Application to include certain names and addresses
An application must include a statement --
(a) showing the full names and addresses of at least
6 members of the association who under its rules have
the right to vote at its general meetings either in person
15 or by proxy or postal vote; and
(b) containing the signatures of each of those members.
14. Particulars of public officer
An application must --
(a) give the name and the residential and postal addresses
20 (which may be the same) of the person who is to be the
first public officer of the association; and
(b) show that the person named meets the requirements of
section 78(1) and has consented to being the public
officer.
25 15. Commissioner may require public notice of application
to be given
(1) The Commissioner may in writing require an applicant under
section 11 to give public notice of the application --
(a) by advertisement in a manner determined by the
30 Commissioner; or
page 9
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 3 Application for incorporation
Division 2 Requirements for application
s. 16
(b) in some other way that the Commissioner thinks
appropriate,
or by notification under both of those paragraphs.
(2) For the purposes of section 16, the applicant must include in the
5 public notice a statement in wording approved by the
Commissioner showing --
(a) that a written request, including the reasons for the
request, may be given to the Commissioner by any
person under section 16; and
10 (b) the period within which any request is to be received by
the Commissioner.
16. Request for refusal of incorporation
(1) Where public notice is given under section 15 in respect of an
association, any person may, in accordance with the terms of the
15 notice, request the Commissioner to decline to incorporate the
association under this Act.
(2) A request under subsection (1) must include the reasons for the
request.
(3) If the Commissioner refuses a request made under
20 subsection (1), the person who made the request may apply to
the State Administrative Tribunal for a review of the decision of
the Commissioner.
(4) An application under subsection (3) must be made within --
(a) 28 days; or
25 (b) such other period as is prescribed,
after the person receives notice of the refusal.
17. Change of address of incorporated association
If an incorporated association changes its address --
(a) as specified under section 11(2) or 130(1)(b); or
page 10
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Application for incorporation Part 3
Requirements for application Division 2
s. 17
(b) as notified under Schedule 6 clause 17; or
(c) as previously notified under this section,
the public officer of the association must, within 14 days after
the change occurs, give notice of the change to the
5 Commissioner.
Penalty: a fine of $1 000.
page 11
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 4 Incorporation and transfer of incorporation
Division 1 Incorporation
s. 18
Part 4 -- Incorporation and transfer of incorporation
Division 1 -- Incorporation
18. Incorporation of association
If, on an application made in accordance with Part 3, the
5 Commissioner is of the opinion that --
(a) the association is eligible to be incorporated under
this Act; and
(b) the name of the association is appropriate having regard
to section 32 and regulations made for the purposes of
10 section 33; and
(c) there is no reason why the application should be refused
under section 20 or regulations made for the purposes of
section 21,
the Commissioner must, subject to this Division, incorporate the
15 association by the issue to the association of a certificate of
incorporation in the approved form.
19. Time to be allowed for the operation of section 16
(1) The Commissioner is not to incorporate an association until --
(a) the time during which any request might be made under
20 section 16 has expired; and
(b) any request made under that section has been finally
refused.
(2) For the purposes of subsection (1) a request under section 16
has been finally refused if the request is refused by the
25 Commissioner and either --
(a) the time for making an application for review under
section 16(3) has expired without such an application
being made; or
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Associations Incorporation Bill 2006
Incorporation and transfer of incorporation Part 4
Incorporation Division 1
s. 20
(b) any application for review made under section 16(3) --
(i) has resulted in the Commissioner's refusal being
confirmed; or
(ii) has been dismissed or struck out.
5 20. Refusal of incorporation if inappropriate or against public
interest
(1) The Commissioner must not incorporate an association if in the
Commissioner's opinion --
(a) it is more appropriate for the activities of the association
10 to be carried on by a body corporate incorporated under
some other law; or
(b) the incorporation of the association is against the public
interest.
(2) The grounds on which the Commissioner may form the opinion
15 that subsection (1)(a) or (b) applies include without
limitation --
(a) the likely scale or nature of the activities of the
association; or
(b) the likely value or nature of the property of the
20 association; or
(c) the extent or nature of the dealings which the association
is likely to have with the public.
21. Regulations may prescribe further grounds for refusal
The Commissioner may also refuse an application for
25 incorporation on any ground prescribed for the purposes of this
section.
22. Review of refusal
(1) If the Commissioner refuses an application for incorporation
under section 20 or regulations made for the purposes of
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Associations Incorporation Bill 2006
Part 4 Incorporation and transfer of incorporation
Division 1 Incorporation
s. 23
section 21 the applicant may apply to the State Administrative
Tribunal for a review of the decision of the Commissioner.
(2) An application under subsection (1) must be made within --
(a) 28 days; or
5 (b) such other period as is prescribed,
after the person receives notice of the refusal.
23. Cessation of incorporation
An incorporated association ceases to be incorporated under this
Act --
10 (a) on the automatic cancellation of the association's
incorporation by operation of section 54(1) or 131(3); or
(b) on the day specified by the Commissioner in an
instrument of cancellation made in respect of the
association under section 139(1), 157(1), 160(1), 166(1)
15 or 179(2) or Schedule 6 clause 9(3); or
(c) if section 170 applies, on the day provided for by
section 170(3).
24. When incorporation may be reinstated
(1) This section applies if the Commissioner is satisfied that the
20 incorporation of an association was cancelled under a provision
mentioned in section 23(b) or (c) --
(a) as a result of an error; or
(b) as a result of a fraud by a member of the association; or
(c) for the avoidance of a liability arising from an act,
25 matter or circumstance that occurred during the time
when the association was incorporated.
(2) Where this section applies, the Commissioner may, by
instrument published in the Gazette, reinstate the incorporation
of the association.
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Associations Incorporation Bill 2006
Incorporation and transfer of incorporation Part 4
Effect of incorporation and related matters Division 2
s. 25
(3) If the Commissioner exercises the power conferred by
subsection (2) in respect of an association, the incorporation of
the association is taken to have continued as if it had not been
cancelled.
5 Division 2 -- Effect of incorporation and related matters
25. Effect of incorporation
(1) On the incorporation of an association under this Act, the
association --
(a) becomes a body corporate with perpetual succession and
10 a common seal; and
(b) may sue or be sued in its corporate name.
(2) Schedule 2 has effect in relation to an association on its
incorporation.
26. Powers of an incorporated association
15 Subject to this Act and to its rules, an incorporated association
may do all things necessary or convenient for carrying out its
objects or purposes, and in particular, may --
(a) acquire, hold, deal with, and dispose of any property;
and
20 (b) open and operate bank accounts; and
(c) invest its money --
(i) as trust funds may be invested under Part III of
the Trustees Act 1962; or
(ii) in any other manner authorised by the rules of
25 the association;
and
(d) borrow money on such terms and conditions as the
association thinks fit; and
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Associations Incorporation Bill 2006
Part 4 Incorporation and transfer of incorporation
Division 2 Effect of incorporation and related matters
s. 27
(e) give such security for the discharge of liabilities
incurred by the association as the association thinks fit;
and
(f) appoint agents to transact any business of the association
5 on its behalf; and
(g) enter into any other contract it considers necessary or
desirable.
27. Power of incorporated association to act as trustee
An incorporated association may, unless its rules otherwise
10 provide, act as trustee and accept and hold property on trust, but
an incorporated association does not have power to do any act
or thing as a trustee that, if done otherwise than as a trustee,
would contravene this Act or the rules of the association.
28. Manner in which contracts may be made
15 (1) Contracts may be made by or on behalf of an incorporated
association as follows --
(a) a contract which, if made between natural persons,
would be required to be in writing under seal may be
made by the incorporated association under its common
20 seal;
(b) a contract which, if made between natural persons,
would be required to be in writing signed by the parties
may be made on behalf of the association in writing by
any person acting under its express or implied authority;
25 (c) a contract which, if made between natural persons,
would be valid although not in writing signed by the
parties may be made orally on behalf of the association
by any person acting under its express or implied
authority.
30 (2) A contract may be varied or rescinded by or on behalf of an
incorporated association in the same manner as it is authorised
to be made.
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Incorporation and transfer of incorporation Part 4
Effect of incorporation and related matters Division 2
s. 29
29. Limitation of doctrine of ultra vires
(1) A contract made with an incorporated association is not invalid
by reason of any deficiency in the legal capacity of the
association to enter into, or carry out, the contract unless the
5 person contracting with the association has actual notice of the
deficiency.
(2) An incorporated association that enters into a contract that
would, but for subsection (1), be invalid may carry out the
contract.
10 (3) This section does not prejudice an action by a member of an
incorporated association to restrain the association from
entering into a transaction that is beyond the powers of the
association.
30. Liability of officers, trustees and members
15 (1) An officer, trustee or a member of an incorporated association is
not by reason only of being such an officer, trustee or member
liable in respect of the liabilities of the association.
(2) Subsection (1) does not apply in respect of liabilities incurred
by or on behalf of the association before its incorporation.
20 31. Authentication of documents
A document or proceeding requiring authentication by an
incorporated association may be authenticated by the signature
of the public officer of the association and need not be
authenticated under the common seal of the association.
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Part 4 Incorporation and transfer of incorporation
Division 3 The corporate name
s. 32
Division 3 -- The corporate name
Subdivision 1 -- Name restrictions
32. Names that are offensive, misleading etc.
An incorporated association cannot have a name that in the
5 opinion of the Commissioner is --
(a) offensive, undesirable or otherwise unacceptable; or
(b) likely to mislead the public as to the objects or purposes
of the association; or
(c) identical with the name of an association that is, or is
10 taken to be, incorporated under this Act and is in
existence at the relevant time; or
(d) resembles the name of an association referred to in
paragraph (c) in a manner that is likely to mislead the
public; or
15 (e) identical to, or likely to be confused with, the name of
any other body corporate or any registered business
name.
33. Regulations may provide for name restrictions
An incorporated association cannot have --
20 (a) a name that is prescribed for the purposes of this section;
or
(b) a name of a kind that is so prescribed.
34. Review of Commissioner's decision about a name
(1) If the Commissioner refuses to incorporate an association
25 because the proposed name would, in the Commissioner's
opinion, not be appropriate having regard to section 32 or
regulations made for the purposes of section 33, the applicant
for incorporation may apply to the State Administrative
Tribunal for a review of the decision of the Commissioner.
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Associations Incorporation Bill 2006
Incorporation and transfer of incorporation Part 4
The corporate name Division 3
s. 35
(2) An application under subsection (1) must be made within --
(a) 28 days; or
(b) such other period as is prescribed,
after the applicant receives notice of the refusal.
5 Subdivision 2 -- Conferral of name
35. Name on incorporation
On the incorporation of an association under this Act, its
corporate name is the name of the association as stated in the
certificate of incorporation, concluding with the word
10 "Incorporated" or the abbreviation "Inc.".
36. Corporate name to appear on documents
(1) An incorporated association must ensure that a document
endorsed or issued by the association (including advertising
material) contains in legible characters the corporate name of
15 the association including the word "Incorporated" or the
abbreviation "Inc." as provided for by section 35.
(2) Subsection (1) applies whether or not the name of the
association as stated in the certificate of incorporation concludes
with the word "Incorporated" or the abbreviation "Inc.".
20 Subdivision 3 -- Change of name by amendment of rules
37. Commissioner's approval required
(1) An amendment to the rules of an incorporated association that
changes the name of the association does not take effect until
the approval of the Commissioner is given to the change.
25 (2) An application for the Commissioner's approval under
subsection (1) must be included in the notice lodged under
section 64(1) by the public officer of the incorporated
association.
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Associations Incorporation Bill 2006
Part 4 Incorporation and transfer of incorporation
Division 3 The corporate name
s. 38
38. Criteria to be applied by Commissioner
The Commissioner is not to approve a change of name unless
the Commissioner is of the opinion that the proposed name is
appropriate having regard to section 32 and regulations made
5 for the purposes of section 33.
39. Issue of new certificate of incorporation
(1) Where the Commissioner approves a change of name, the
Commissioner is to issue a new certificate of incorporation in
the approved form showing the new name of the incorporated
10 association.
(2) The Commissioner must not issue a new certificate of
incorporation under subsection (1) unless --
(a) the certificate of incorporation previously issued has
been returned to the Commissioner; or
15 (b) the Commissioner is satisfied that the certificate has
been lost or destroyed.
40. Review of Commissioner's decision
(1) If the Commissioner refuses to approve a change of name under
this Subdivision, the incorporated association concerned may
20 apply to the State Administrative Tribunal for a review of the
decision of the Commissioner.
(2) An application under subsection (1) must be made within --
(a) 28 days; or
(b) such other period as is prescribed,
25 after the incorporated association receives notice of the refusal.
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Associations Incorporation Bill 2006
Incorporation and transfer of incorporation Part 4
The corporate name Division 3
s. 41
41. Commissioner may require public notice of application
to be given
(1) The Commissioner may in writing require an applicant under
section 37(2) to give public notice of the application --
5 (a) by advertisement in a manner determined by the
Commissioner; or
(b) in some other way that the Commissioner thinks
appropriate,
or by notification under both of those paragraphs.
10 (2) For the purposes of section 42, the applicant must include in the
public notice a statement in wording approved by the
Commissioner showing --
(a) that a written request, including the reasons for the
request, may be given to the Commissioner by any
15 person under section 42; and
(b) the period within which any request is to be received by
the Commissioner.
42. Request for refusal of change of name
(1) Where public notice is given under section 41 in respect of a
20 change of name, any person may, in accordance with the terms
of the notice, request the Commissioner to decline to approve
the change.
(2) A request under subsection (1) must include the reasons for the
request.
25 (3) If the Commissioner refuses a request made under
subsection (1), the person who made the request may apply to
the State Administrative Tribunal for a review of the decision of
the Commissioner.
(4) An application under subsection (3) must be made within --
30 (a) 28 days; or
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Associations Incorporation Bill 2006
Part 4 Incorporation and transfer of incorporation
Division 3 The corporate name
s. 43
(b) such other period as is prescribed,
after the person receives notice of the refusal.
Subdivision 4 -- Change of name by order of Commissioner
43. Change of name where corporate name later determined to
5 be inappropriate
(1) This section applies if an association has been incorporated
under this Act but the Commissioner becomes of the opinion --
(a) that the corporate name of the association is
inappropriate having regard to section 32 or regulations
10 made for the purposes of section 33; and
(b) that the decision of the Commissioner under
section 18(b) in respect of the association was made in
error.
(2) This section also applies if an association was incorporated
15 under the repealed Act but the Commissioner becomes of the
opinion --
(a) that the corporate name of the association is
inappropriate having regard to section 8 of that Act; and
(b) the decision made under section 9(1)(c) of that Act in
20 respect of the association was made in error.
(3) Subject to sections 44 and 46, the Commissioner may by order
served on the incorporated association --
(a) declare that the corporate name of the association is
cancelled; and
25 (b) determine a different corporate name for the association.
(4) An order under subsection (3) takes effect --
(a) on the day on which it is served; or
(b) if some other day is specified in the order, on that day.
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Associations Incorporation Bill 2006
Incorporation and transfer of incorporation Part 4
The corporate name Division 3
s. 44
44. Commissioner to give notice of intention to change name
(1) Before the Commissioner serves an order on an incorporated
association under section 43, the Commissioner must give
notice in writing to the association stating --
5 (a) the change of name proposed by the Commissioner; and
(b) the grounds on which the Commissioner is proposing to
act; and
(c) that written submissions on the proposed change of
name may be made to the Commissioner within a
10 specified period.
(2) The period specified under subsection (1)(c) is not to be less
than 28 days after the notice is given.
(3) Before the Commissioner serves an order on an incorporated
association under section 43 the Commissioner must have
15 regard to any submission made by the association in accordance
with the notice.
45. Issue of new certificate of incorporation
(1) Where an order under section 43 takes effect the Commissioner
is to issue a new certificate of incorporation in the approved
20 form showing the new name of the incorporated association.
(2) The Commissioner must not issue a new certificate of
incorporation under subsection (1) unless --
(a) the certificate of incorporation previously issued has
been returned to the Commissioner; or
25 (b) the Commissioner is satisfied that the certificate has
been lost or destroyed.
46. Review of Commissioner's proposal
(1) An incorporated association to which notice is given under
section 44 may, not later than the end of the period specified
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Associations Incorporation Bill 2006
Part 4 Incorporation and transfer of incorporation
Division 3 The corporate name
s. 47
under section 44(1)(c), apply to the State Administrative
Tribunal for a review of the Commissioner's proposal.
(2) If an application is so made, the Commissioner cannot serve an
order under section 43 unless --
5 (a) the application results in the Commissioner's proposal
being confirmed; or
(b) the application is dismissed or struck out.
Subdivision 5 -- Savings and other provisions on change of name
47. Corporate identity and other matters are not affected
10 (1) This section applies to a change of name of an incorporated
association that --
(a) is approved under Subdivision 3; or
(b) takes effect under Subdivision 4.
(2) The change of name does not affect --
15 (a) the corporate identity of the incorporated association; or
(b) its rights and obligations; or
(c) any legal proceeding by or against it.
(3) A reference in an agreement or instrument to the incorporated
association by its former name is unless the context otherwise
20 requires to be read as a reference to the incorporated association
by its new name.
(4) A legal proceeding that might have been continued or
commenced by or against the incorporated association in its
former name may be continued or commenced by or against it
25 in its new name.
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Associations Incorporation Bill 2006
Incorporation and transfer of incorporation Part 4
Transfer of incorporation Division 4
s. 48
Division 4 -- Transfer of incorporation
48. Definition
In this Division --
"prescribed body corporate" means --
5 (a) a company within the meaning of the Corporations
Act 2001 of the Commonwealth that is taken to be
registered in Western Australia; or
(b) a body corporate under --
(i) some other written law of the State; or
10 (ii) a written law of the Commonwealth,
that is prescribed for the purposes of this definition.
49. Incorporated association may apply for incorporation under
another law
An incorporated association may apply for registration or
15 incorporation as a prescribed body corporate if the
association --
(a) has obtained the approval of the Commissioner to the
application being made; and
(b) makes the application in accordance with the terms and
20 conditions of that approval.
50. Commissioner may direct an incorporated association to
apply for incorporation under another law
(1) This section applies if the Commissioner is satisfied that the
continued incorporation of an association under this Act would
25 for any reason be inappropriate or inconvenient, including --
(a) on account of the incorporated association having, in the
opinion of the Commissioner, ceased to be eligible to be
incorporated under this Act; or
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Associations Incorporation Bill 2006
Part 4 Incorporation and transfer of incorporation
Division 4 Transfer of incorporation
s. 51
(b) because of --
(i) the scale or nature of the activities of the
incorporated association; or
(ii) the value or nature of the property of the
5 incorporated association; or
(iii) the extent or nature of the dealings which the
incorporated association has with the public,
as determined by the Commissioner.
(2) The Commissioner may in writing direct the incorporated
10 association to apply for, and do all things that are reasonably
necessary to obtain, registration or incorporation as a prescribed
body corporate.
(3) A direction under subsection (2) --
(a) must specify the period within which the application is
15 to be made; and
(b) may specify any terms and conditions that are to be
observed in making the application for registration or
incorporation or doing the things that are reasonably
necessary to obtain it.
20 (4) The Commissioner may, by notice in writing to the incorporated
association --
(a) from time to time extend the period referred to in
subsection (3)(a); or
(b) revoke or amend a direction given under subsection (2).
25 51. Commissioner to give notice of intention
(1) Before the Commissioner gives a direction to an incorporated
association under section 50(2) or notice of an amendment
under section 50(4)(b), the Commissioner must give notice in
writing to the association stating --
30 (a) the Commissioner's intention to give the direction or
make the amendment; and
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Associations Incorporation Bill 2006
Incorporation and transfer of incorporation Part 4
Transfer of incorporation Division 4
s. 52
(b) the grounds on which the Commissioner is proposing to
act; and
(c) that written submissions on the proposed direction or
amendment may be made to the Commissioner within a
5 specified period.
(2) The period specified under subsection (1)(c) is not to be less
than 28 days after the notice is given.
(3) Before the Commissioner gives or amends a direction to an
incorporated association under section 50 the Commissioner
10 must have regard to any submission made by the association in
accordance with the notice.
52. Review of proposed direction or amendment
(1) An incorporated association to which a notice is given under
section 51 may, not later than the end of the period specified
15 under section 51(1)(c), apply to the State Administrative
Tribunal for a review of the proposed direction or amendment.
(2) If an application is so made, the Commissioner cannot give the
direction or make the amendment unless --
(a) the application results in the Commissioner's proposed
20 action being confirmed; or
(b) the application is dismissed or struck out.
53. Association to comply with direction
(1) Subject to section 52, an incorporated association must comply
with a direction given to the association under section 50(2) or a
25 direction as amended under section 50(4)(b).
(2) A contract to which an incorporated association is a party is not
illegal, void or unenforceable by reason only of a failure by the
association to comply with a direction under section 50.
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Associations Incorporation Bill 2006
Part 4 Incorporation and transfer of incorporation
Division 4 Transfer of incorporation
s. 54
54. Cancellation of incorporation under this Act
(1) The registration or incorporation of an incorporated association
as a prescribed body corporate automatically cancels the
incorporation of the association under this Act.
5 (2) Where an incorporated association becomes registered or
incorporated as a prescribed body corporate, the body must
notify the Commissioner in writing of the registration or
incorporation within 14 days after it occurs.
Penalty: a fine of $5 000.
10 55. Provisions about the transition to incorporation under
another law
(1) In this section, a reference to a transfer of incorporation by an
incorporated association is a reference to an incorporated
association becoming registered or incorporated as a prescribed
15 body corporate (the "body corporate").
(2) The transfer of incorporation by an incorporated association
does not affect --
(a) the identity of the association which is to be taken to be
the same body before and after the transfer of
20 incorporation; or
(b) any act, matter or thing done or omitted to be done, or
any circumstance subsisting, before the transfer to the
extent that the act, matter, thing, omission or
circumstance has any relevance to the association after
25 the transfer.
(3) Without limiting subsection (2) --
(a) proceedings by or against an incorporated association
subsisting immediately before the transfer of
incorporation may be continued by or against the body
30 corporate in the name of the incorporated association;
and
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Associations Incorporation Bill 2006
Incorporation and transfer of incorporation Part 4
Transfer of incorporation Division 4
s. 55
(b) proceedings that might have been brought by or against
an incorporated association immediately before the
transfer of incorporation may be commenced by or
against the body corporate.
5 (4) Without limiting subsection (2), a transfer of incorporation does
not affect --
(a) any obligation or liability incurred under this Act; or
(b) any penalty, forfeiture or punishment incurred in respect
of any offence committed against this Act; or
10 (c) any investigation, proceeding or remedy in respect of
any such obligation, liability, penalty, forfeiture or
punishment,
and any such investigation, proceeding or remedy may be
instituted, continued or enforced and any such penalty,
15 forfeiture or punishment may be imposed as if section 54(1) had
not been passed.
(5) This section has effect in relation to a matter concerning an
incorporated association that is registered as a company under
the Corporations Act 2001 of the Commonwealth only to the
20 extent that the matter is not dealt with by that Act.
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Associations Incorporation Bill 2006
Part 5 Rules of incorporated associations
Division 1 Effect of rules
s. 56
Part 5 -- Rules of incorporated associations
Division 1 -- Effect of rules
56. Effect stated
(1) The rules of an incorporated association bind the association
5 and the members of the association as if --
(a) they contained an agreement on the part of each member
to be bound by and observe all the provisions of the
rules; and
(b) that agreement were duly executed by each member.
10 (2) Subsection (1) has effect only so far as the rules are consistent
with this Act.
Division 2 -- Content of rules
57. General requirements for content of rules
(1) The rules of an incorporated association must at all times --
15 (a) include provision in respect of each of the matters set
out in Schedule 3 Division 1; and
(b) comply with the requirements specified in Schedule 3
Division 2; and
(c) be otherwise consistent with this Act.
20 (2) An incorporated association must ensure that subsection (1) is
complied with.
58. Restriction on distribution of surplus property
(1) There is implied in the rules of every incorporated association a
provision that, on the winding up of the association under Part 9
25 Division 2 or 4, its surplus property, as defined in section 134,
can only be distributed to one or more of the following --
(a) an incorporated association;
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Associations Incorporation Bill 2006
Rules of incorporated associations Part 5
Model rules and rules of existing incorporated associations Division 3
s. 59
(b) a company limited by guarantee that is registered as
mentioned in section 150 of the Corporations Act 2001
of the Commonwealth;
(c) a company holding a licence that continues in force
5 under section 151 of that Act;
(d) a local government;
(e) a body corporate that --
(i) is a member or former member of the
incorporated association; and
10 (ii) at the time of the distribution of surplus property,
has rules that prevent the distribution of property
to its members;
(f) a trustee for a body corporate referred to in
paragraph (e).
15 (2) The provision mentioned in subsection (1) has effect despite any
inconsistent provision in the rules of an incorporated
association.
Division 3 -- Model rules and rules of existing incorporated
associations
20 59. Model rules
(1) Regulations are to be made prescribing model rules for an
incorporated association.
(2) The model rules are to be taken to comply with section 57.
60. Automatic application of model rules
25 (1) This section applies to an association that is incorporated after
the commencement of this Act.
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Part 5 Rules of incorporated associations
Division 3 Model rules and rules of existing incorporated associations
s. 61
(2) Except as provided in subsection (3), on the incorporation of the
association the rules of the association consist of --
(a) the statement of --
(i) the association's name; and
5 (ii) the objects or purposes of the association,
as accepted by the Commissioner for the purposes of the
incorporation; and
(b) the model rules in the form in which they existed
immediately before the day of incorporation.
10 (3) On the incorporation of an association under section 131, the
rules of the association consist of --
(a) the statement referred to in subsection (2)(a); and
(b) the rules referred to in section 130(1)(c) as accepted by
the Commissioner for the purposes of the incorporation.
15 (4) Subsections (2) and (3) do not affect the ability of an
incorporated association or of the management committee of an
incorporated association to amend the rules of the association in
accordance with this Part after the association is incorporated.
61. Rules of associations existing at the commencement of
20 this Act
(1) This section applies to an association that was incorporated
under a repealed Act and whose incorporation has effect
immediately before the commencement of this Act.
(2) The rules of the incorporated association as in force
25 immediately before the commencement of this Act continue to
have effect but without limiting --
(a) the ability of the association, or of the management
committee of the association, to amend the rules of the
association in accordance with this Part or Schedule 6
30 clause 14; or
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Associations Incorporation Bill 2006
Rules of incorporated associations Part 5
Amendment of rules Division 4
s. 62
(b) the operation of section 57 as qualified by Schedule 6
Division 4.
62. Copy of rules to be kept
An incorporated association must keep a copy of its rules as in
5 force from time to time.
Division 4 -- Amendment of rules
63. Amendment of rules
(1) An incorporated association may amend its rules by special
resolution but not otherwise.
10 (2) An amendment cannot be made under subsection (1) that would
contravene section 57.
(3) An amendment to the rules of an incorporated association does
not take effect until --
(a) section 64(1) is complied with; or
15 (b) where applicable, an approval is given under
section 37(1) or 65(1).
64. Commissioner to be notified of amendments
(1) Where an incorporated association has passed a special
resolution for the purposes of section 63(1), the public officer of
20 the association must lodge the required documents with the
Commissioner within --
(a) 28 days after the special resolution is passed; or
(b) such longer period as the Commissioner may allow.
Penalty: a fine of $1 000.
25 (2) The required documents are --
(a) a notice of the special resolution setting out particulars
of the amendments; and
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Associations Incorporation Bill 2006
Part 5 Rules of incorporated associations
Division 4 Amendment of rules
s. 65
(b) a certificate in the approved form that the resolution was
duly passed as a special resolution and that the
amendments do not contravene section 57; and
(c) a copy of rules of the incorporated association as in
5 force at the time when the special resolution was passed
marked up to show the amendments to which the special
resolution relates.
(3) The certificate under subsection (2)(b) must be signed by
2 members of the management committee of the incorporated
10 association.
(4) Any application to the Commissioner for an extension of time
under subsection (1)(b) is to be made by the public officer and
is to be so made in the approved form and not later than 14 days
after the resolution is passed.
15 65. Amendment of objects or purposes of incorporated
association
(1) An amendment to the rules of an incorporated association that
changes the objects or purposes of the association does not take
effect until the approval of the Commissioner is given to the
20 change.
(2) An application for the Commissioner's approval under
subsection (1) must be included in the notice lodged under
section 64(1) by the public officer of the incorporated
association.
25 (3) If the Commissioner refuses to approve the amendment, the
incorporated association may apply to the State Administrative
Tribunal for a review of the decision of the Commissioner.
(4) An application under subsection (3) must be made within --
(a) 28 days; or
30 (b) such other period as is prescribed,
after the incorporated association receives notice of the refusal.
page 34
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Rules of incorporated associations Part 5
Amendment of rules Division 4
s. 66
66. Commissioner may require public notice of application
under section 65
(1) The Commissioner may in writing require an applicant under
section 65 to give public notice of the application --
5 (a) by advertisement in a manner determined by the
Commissioner; or
(b) in some other way that the Commissioner thinks
appropriate,
or by notification under both of those paragraphs.
10 (2) For the purposes of section 67, the applicant must include in the
public notice a statement in wording approved by the
Commissioner showing --
(a) that a written request, including the reasons for the
request, may be given to the Commissioner under
15 section 67 by any person; and
(b) the period within which any request is to be received by
the Commissioner.
67. Request for refusal of change of name
(1) Where public notice is given under section 66 in respect of a
20 change to the objects or purposes of an association, any person
may, in accordance with the terms of the notice, request the
Commissioner to decline to approve the change.
(2) A request under subsection (1) must include the reasons for the
request.
25 (3) If the Commissioner refuses a request made under
subsection (1), the person who made the request may apply to
the State Administrative Tribunal for a review of the decision of
the Commissioner.
(4) An application under subsection (3) must be made within --
30 (a) 28 days; or
page 35
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 5 Rules of incorporated associations
Division 5 Provision of rules to members
s. 68
(b) such other period as is prescribed,
after the person receives notice of the refusal.
Division 5 -- Provision of rules to members
68. Inspection by members
5 (1) At the request of a member of an incorporated association, the
association must make the copy of its rules referred to in
section 62 available for inspection by the member.
(2) The member may make a copy of or take an extract from the
copy of the rules but does not have the right to remove them for
10 that purpose.
69. When member to receive copy of rules
(1) Without limiting section 68, an incorporated association
must --
(a) at the request of a member of the association, give to the
15 member a copy of the association's rules, or of any
particular part of those rules to which the request relates,
as in force at the time of the request; and
(b) give to each person who becomes a member of the
association a copy of the association's rules as in force
20 when the membership commences.
(2) An incorporated association must not make a charge for taking
any action that it is required to take under this section.
(3) The regulations may make provision for --
(a) the manner in which a copy of an incorporated
25 association's rules or of any part of those rules may be,
or must be, given under this section; or
(b) the circumstances and manner in which notice of any
amendment to an incorporated association's rules must
be given to members of the association.
page 36
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Management of incorporated associations Part 6
Management committee Division 1
s. 70
Part 6 -- Management of incorporated associations
Division 1 -- Management committee
70. Management of incorporated association
(1) The management committee of an incorporated association is
5 the governing body of the association with authority, in the
name of the association, to exercise and perform the powers,
functions and duties of the association and control and manage
its affairs.
(2) Subsection (1) has effect in relation to an incorporated
10 association subject to this Act and the rules of the association.
(3) The validity of anything done or omitted to be done by a
management committee is not affected by any defect afterwards
discovered in the appointment or qualification of a person
purporting to be a member of the committee or the deputy or
15 alternate of a member.
71. Duty of committee members to secure compliance by
association
A member of the management committee of an incorporated
association must take all reasonable steps to secure compliance
20 by the association with its obligations under this Act.
Penalty: a fine of $5 000.
72. Handing over of documents and records when membership
of committee ceases
(1) In this section --
25 "relevant documents and records" means documents and
records pertaining to the management of the affairs of an
incorporated association that --
(a) if subsection (2)(a) applies, were in the possession of
the member immediately before the member's death;
30 or
page 37
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 6 Management of incorporated associations
Division 2 Pecuniary interest of committee member in contract
s. 73
(b) if subsection (2)(b) applies, are in the possession of
the person who has ceased to be a member of the
management committee.
(2) This section applies where a member of the management
5 committee of an incorporated association --
(a) dies; or
(b) otherwise ceases to be a member of the committee.
(3) As soon as is practicable after a person has ceased to be a
member of the management committee of an incorporated
10 association --
(a) the person; or
(b) if subsection (2)(a) applies, the personal representative
of the person,
must deliver to a member of that management committee all
15 relevant documents and records or, in the case of relevant
documents or records that are stored on a computer, a copy of
all such documents and records.
Penalty: a fine of $10 000.
Division 2 -- Pecuniary interest of committee member
20 in contract
73. Definition
In this Division --
"relevant interest" means a direct or indirect pecuniary interest
in a contract or proposed contract made by, or in the
25 contemplation of, the management committee.
74. Disclosure of interest
(1) A member of the management committee of an incorporated
association who has a relevant interest must, as soon as the
page 38
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Management of incorporated associations Part 6
Pecuniary interest of committee member in contract Division 2
s. 75
member becomes aware of the interest, disclose the nature and
extent of it to the committee.
Penalty: a fine of $10 000.
(2) Subsection (1) does not apply to a pecuniary interest that exists
5 only by virtue of --
(a) the member of the management committee being an
employee of the incorporated association; or
(b) the member of the management committee being a
member of a class of persons for whose benefit the
10 association is established.
(3) An incorporated association must cause a disclosure made under
this section by a member of the management committee to be
recorded in the minutes of the meeting of the committee at
which it is made.
15 75. Effect of disclosure
Where a member of the management committee of an
incorporated association discloses a relevant interest in a
contract or the member's interest in a contract is not such as
need be disclosed under section 74 --
20 (a) the contract is not liable to be avoided by the association
on any ground arising from the fiduciary relationship
between the member and the incorporated association;
and
(b) the member is not liable to account for profits derived
25 from the contract.
76. Voting on a contract in which a committee member has
a relevant interest
(1) A member of the management committee of an incorporated
association who has a relevant interest must not take part in any
30 deliberations or decision of the committee with respect to the
contract concerned.
Penalty: a fine of $10 000.
page 39
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 6 Management of incorporated associations
Division 3 Public officer
s. 77
(2) Subsection (1) does not apply to a relevant interest that exists
only by virtue of the member of the management committee
being a member of a class of persons for whose benefit the
association is established.
5 Division 3 -- Public officer
77. Incorporated association to have a public officer
(1) An incorporated association must have a public officer.
(2) On the incorporation of an association, the person named as the
public officer in the application for incorporation is the first
10 public officer of the incorporated association.
78. Requirements for holding office
(1) A person is eligible to be named or appointed as the public
officer of an incorporated association only if the person is a
natural person and --
15 (a) is, or will be on the incorporation of the association, a
member of the management committee of the
association; and
(b) has reached 18 years of age; and
(c) is resident in the State.
20 (2) The public officer of an incorporated association may hold any
other office of the association unless the rules of the association
otherwise provide.
(3) The validity of anything done or omitted to be done by a person
purporting to act as the public officer of an incorporated
25 association is not affected by any defect afterwards discovered
in the appointment or qualification of the person.
page 40
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Management of incorporated associations Part 6
Public officer Division 3
s. 79
79. Vacancy in office
(1) An incorporated association must appoint a person to fill any
vacancy in the office of public officer within 28 days after it
occurs.
5 (2) For the purposes of subsection (1), a vacancy occurs in the
office of public officer of an incorporated association if the
public officer --
(a) dies; or
(b) resigns from the office by giving the management
10 committee of the association a signed letter of
resignation; or
(c) is removed from office under subsection (3); or
(d) ceases to be a resident of the State; or
(e) is an insolvent under administration as that term is
15 defined in the Corporations Act 2001 of the
Commonwealth.
(3) An incorporated association may at any time, in accordance
with its rules, remove the association's public officer from that
office.
20 80. Commissioner to be notified of appointment
(1) A public officer must, within 14 days after being appointed
under section 79(1), give written notice of the appointment to
the Commissioner in the approved form.
(2) The notice must include the person's full name and the person's
25 residential and postal addresses (which may be the same).
(3) If an address of a public officer changes, the public officer must,
within 14 days after the change occurs, give written notice of
the change to the Commissioner.
Penalty applicable to subsections (1) and (3): a fine of $1 000.
page 41
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 6 Management of incorporated associations
Division 3 Public officer
s. 81
81. Role of public officer in service of documents on
incorporated association
(1) In this section --
"address of the public officer" means the address of the public
5 officer of an incorporated association last notified to the
Commissioner under section 80;
"served on" includes given, delivered or sent to.
(2) A process, notice or other document to be served on an
incorporated association is to be served on the association by
10 addressing it to the association and --
(a) sending it by post to the postal address of the public
officer; or
(b) leaving it at the residential address of the public officer
with any person apparently over 18 years of age.
15 (3) Subsection (2) applies even if at the time when the process,
notice or other document is sent or left, there is a vacancy in the
office of public officer of the incorporated association
concerned.
82. Public officer to refer documents to the management
20 committee
Where a person who --
(a) is the public officer of an incorporated association; or
(b) was at any time during the preceding 2 years the public
officer of an incorporated association,
25 receives a process, notice or other document addressed to the
association and sent or left as mentioned in section 81, the
person must, as soon as practicable, bring it to the attention of
the management committee of the association.
Penalty: a fine of $1 000.
page 42
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Management of incorporated associations Part 6
Public officer Division 3
s. 83
83. Handing over of documents and records where person has
ceased to be the public officer
(1) In this section --
"relevant documents and records" means documents and
5 records that --
(a) pertain to the management of the affairs of an
incorporated association; and
(b) are in the possession of a person who has ceased to
be the public officer of the association by reason of
10 the person having been the holder of that office.
(2) This section applies where a person has ceased to be the public
officer of an incorporated association by operation of
section 79(2) (other than paragraph (a)) but has not ceased to be
a member of the management committee of the association.
15 (3) As soon as is practicable after the incorporated association has
appointed a successor to the person as the public officer of the
association the person must deliver to that successor --
(a) all relevant documents and records; or
(b) in the case of relevant documents or records that are
20 stored on a computer, a copy of all such documents and
records.
Penalty: a fine of $10 000.
(4) This section does not limit the application of section 72 to a
person, or the person's personal representative, where the
25 person has ceased to be the public officer of an incorporated
association and has also ceased to be a member of the
management committee of the association.
page 43
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 6 Management of incorporated associations
Division 4 Annual general meeting
s. 84
Division 4 -- Annual general meeting
84. Annual general meeting
(1) An incorporated association must in each calendar year hold a
general meeting called its annual general meeting.
5 (2) Despite subsection (1), an incorporated association may hold its
first annual general meeting at any time within 18 months after
incorporation.
(3) Except as allowed by subsection (2), an incorporated association
must hold its annual general meeting --
10 (a) within 4 months after the end of the association's
financial year; or
(b) within such longer period as the Commissioner may on
a particular occasion allow.
(4) If an incorporated association wishes to seek the
15 Commissioner's approval to a longer period as mentioned in
subsection (3)(b), the application for approval must be made by
the public officer of the incorporated association and must be so
made not later than 90 days after the end of the association's
financial year.
20 Division 5 -- Special resolutions
85. Requirements for special resolution
(1) For the purposes of this Act, a resolution of an incorporated
association is a special resolution if it --
(a) is passed at a general meeting of the association; and
25 (b) is supported by the votes of not less than three-fourths of
the members of the association who cast a vote at the
meeting.
page 44
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Management of incorporated associations Part 6
Special resolutions Division 5
s. 86
(2) A person is taken to cast a vote at a general meeting as
mentioned in subsection (1)(b) if the person has a right under
the rules of the association to vote on the resolution and --
(a) votes in person at the meeting; or
5 (b) where proxies or postal votes are allowed by the rules of
the association, votes on the resolution by proxy or
postal vote.
86. Notice to be given
(1) Before the general meeting, written notice of --
10 (a) the proposed special resolution; and
(b) the time and place of the general meeting at which it is
proposed to move the resolution,
must be given, as required under the rules of the incorporated
association, to each member of the association.
15 (2) The notice must set out the wording of the proposed special
resolution.
(3) If notice is not given in accordance with subsections (1) and (2)
the special resolution has no effect.
87. Commissioner may determine other requirements
20 (1) On application made by an incorporated association, the
Commissioner may in writing determine other requirements for
a special resolution of the association if the Commissioner is
satisfied that it is not possible or practicable for a provision of
section 85 or 86 to be complied with.
25 (2) The Commissioner may specify the period for which a
determination under subsection (1) is in force, and may at any
time revoke or amend a determination.
(3) Despite sections 85 and 86, a resolution of an incorporated
association is a special resolution if it is passed in accordance
30 with a determination in force under subsection (1).
page 45
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 6 Management of incorporated associations
Division 6 Register of members
s. 88
88. Evidence of passing of resolution
(1) At a meeting at which a resolution proposed as a special
resolution is submitted, a declaration by the person presiding
that the resolution has been passed as a special resolution is
5 evidence of that fact.
(2) Subsection (1) does not apply if, during the meeting at which
the resolution is submitted, a poll is demanded --
(a) in accordance with the rules of the association; or
(b) if the rules do not make provision as to the manner in
10 which a poll may be demanded, by at least 3 members of
the association present in person or, where proxies are
allowed, by proxy.
(3) If a poll is taken under subsection (2), a declaration by the
person presiding as to the result of the poll is evidence of the
15 matter so declared.
Division 6 -- Register of members
89. Register to be maintained
An incorporated association must --
(a) maintain a register of its members in accordance with
20 the regulations; and
(b) record in the register any change in the membership of
the association within 28 days after the change occurs.
90. Inspection of register by member
(1) An incorporated association must, at the request of a member,
25 make the register of members available for inspection by the
member, but subject to any rule of the kind mentioned in
subsection (2).
page 46
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Management of incorporated associations Part 6
Register of members Division 6
s. 91
(2) The rules of an incorporated association may require a member
who wishes to inspect the register of members to satisfy --
(a) the management committee of the association; or
(b) a senior executive officer of the association designated
5 by resolution of the management committee,
by statutory declaration or otherwise, that the purpose of the
inspection is directly connected with the affairs of the
association.
(3) A member inspecting the register of members may make a copy
10 of, or take an extract from, the register but is not entitled to
remove the register for that purpose.
91. Commissioner may request copy of register
The Commissioner may request an incorporated association to
provide the Commissioner with a copy of the register of
15 members and the association must comply with the request
within 14 days after it is made.
92. Member may apply for copy of register
(1) A member of an incorporated association may request the
association to provide the member with a copy of the register of
20 members.
(2) The request is to be made by application in writing
accompanied by a statutory declaration setting out the purpose
for which the application is made.
(3) If the management committee of the association is satisfied that
25 the purpose set out in the application is directly connected with
the association's affairs, the association must comply with the
request on payment of any amount required to be paid under
subsection (4).
page 47
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 6 Management of incorporated associations
Division 7 Record of office holders
s. 93
(4) The management committee may --
(a) determine a reasonable charge for the cost of complying
with a request under subsection (1); and
(b) require the person making the request to pay the charge
5 to the association.
(5) The regulations may make provision for --
(a) the manner in which a copy of the register of members
may be, or must be, provided to a member under
subsection (1); and
10 (b) the maximum amount, or a method of calculating the
maximum amount, that may be charged under
subsection (4).
93. Improper use of information in register
A person must not use or disclose information in the register of
15 members of an incorporated association except for a purpose --
(a) that is directly connected with the affairs of the
association; or
(b) that is related to the administration of this Act.
Penalty: a fine of $10 000.
20 Division 7 -- Record of office holders
94. Record of office holders
(1) In this section --
"address" means --
(a) in the case of the public officer, both the residential
25 address and the postal address of that officer; and
(b) in any other case, the residential address or the postal
address.
page 48
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Management of incorporated associations Part 6
Record of office holders Division 7
s. 95
(2) An incorporated association must maintain a record of --
(a) the names and addresses of the persons who --
(i) are members of its management committee; or
(ii) hold other offices of the association provided for
5 by its rules;
and
(b) the name and address of any person who is authorised to
use the common seal of the association; and
(c) the name and address of any person who is appointed or
10 acts as a trustee on behalf of the association.
95. Inspection of record by member
(1) At the request of a member of an incorporated association, the
association must make the record referred to in section 94
available for inspection by the member.
15 (2) The member may make a copy of or take an extract from the
record but does not have the right to remove it for that purpose.
96. Member may request a copy of record
(1) An incorporated association must, at the request of a member,
provide the member with a copy of the record maintained under
20 section 94, but subject to any rule of the kind mentioned in
subsection (2).
(2) The rules of an incorporated association may require a member
who wishes to be provided with a copy of the record maintained
under section 94 to satisfy --
25 (a) the management committee of the association; or
(b) a senior executive officer of the association designated
by resolution of the management committee,
by statutory declaration or otherwise, that the purpose for which
the record is to be provided is directly connected with the affairs
30 of the association.
page 49
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 6 Management of incorporated associations
Division 7 Record of office holders
s. 97
(3) The regulations may make provision for the manner in which a
copy of the record may be, or must be, provided to a member
under subsection (1).
(4) An incorporated association must not make a charge for taking
5 any action that it is required to take under this section.
97. Improper use of information
A person must not use or disclose information in the record
maintained under section 94 except for a purpose --
(a) that is directly connected with the affairs of the
10 association; or
(b) that is related to the administration of this Act.
Penalty: a fine of $10 000.
98. Commissioner may ask apparent office holders to provide
information
15 (1) This section applies to a person if it appears to the
Commissioner that the person is or may be a member of the
management committee, or the public officer, of an
incorporated association.
(2) The Commissioner may, by notice served on the person, require
20 the person, within the time specified in the notice, to give to the
Commissioner in writing --
(a) particulars of the person's residential address; and
(b) in addition, in the case of a person who it appears to the
Commissioner is or may be the public officer,
25 particulars of the person's postal address; and
(c) a statement showing --
(i) whether or not the person holds or has held the
office specified in the Commissioner's notice;
and
page 50
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Management of incorporated associations Part 6
Record of office holders Division 7
s. 98
(ii) if the person has held the office, when the person
ceased to hold it.
(3) The person must comply with any requirement made on the
person by a notice under subsection (2).
5 Penalty: a fine of $5 000.
page 51
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 7 Accounts and audit
Division 1 Preliminary
s. 99
Part 7 -- Accounts and audit
Division 1 -- Preliminary
99. Terms used in this Part
In this Part --
5 "accounting records" includes --
(a) invoices and receipts; and
(b) orders for the payment of money, bills of exchange,
cheques, promissory notes and vouchers; and
(c) other documents of prime entry; and
10 (d) books, registers and records (however compiled,
recorded or stored) that record the documents and
information necessary to explain the methods and
calculations by which financial statements are made
up;
15 "financial statements", in relation to an incorporated
association, means --
(a) a combination of --
(i) a statement of the receipts and payments of
the association recording its total receipts and
20 payments based on the cash method of
accounting; and
(ii) a statement of the property and liabilities of
the association;
or
25 (b) a combination of --
(i) a statement of the income and expenditure of
the association recording its total income and
expenditure based on the accrual method of
accounting; and
page 52
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Accounts and audit Part 7
Accounts Division 2
s. 100
(ii) a balance sheet,
together with the statements, reports and notes, other than
an auditor's report, attached to and intended to be read with
the statement or balance sheet;
5 "gross receipts or gross income", in relation to an
incorporated association, means the total amount of --
(a) the receipts of the association (where the cash method
of accounting applies); or
(b) the income of the association (where the accrual
10 method of accounting applies),
including a grant or subsidy paid to or for the benefit of the
association by or on behalf of --
(c) the Commonwealth; or
(d) the State; or
15 (e) a local government; or
(f) any other body;
"tier 1 incorporated association" means an incorporated
association other than a tier 2 incorporated association or
tier 3 incorporated association;
20 "tier 2 incorporated association" has the meaning given by
section 109;
"tier 3 incorporated association" has the meaning given by
section 110.
Division 2 -- Accounts
25 100. Keeping of accounting records
(1) An incorporated association must keep accounting records that
correctly record and explain --
(a) the transactions of the association (including any
transactions as trustee); and
30 (b) the financial position of the association.
page 53
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 7 Accounts and audit
Division 2 Accounts
s. 101
(2) An incorporated association must keep its accounting records in
such a way that --
(a) true and fair financial statements of the association can
be prepared from time to time; and
5 (b) the association's financial statements can conveniently
and properly be audited in accordance with this Part.
101. Retention of accounting records
An incorporated association must retain its accounting records
in respect of a transaction for at least 7 years after the
10 transaction was completed.
102. When annual financial statements to be prepared
An incorporated association must ensure that financial
statements for the association are prepared before the end of the
period within which an annual general meeting of the
15 association is required to be held under section 84.
103. Financial statements to give true and fair account
(1) In this section --
"financial transactions" means --
(a) where the cash method of accounting applies, receipts
20 and payments; or
(b) where the accrual method of accounting applies,
income and expenditure.
(2) The financial statements must not be misleading.
(3) The financial statements must give a true and fair account of --
25 (a) the financial transactions of the association during the
last financial year of the association (the "financial
year"); and
(b) the property and liabilities of the association at the end
of the financial year; and
page 54
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Associations Incorporation Bill 2006
Accounts and audit Part 7
Accounts Division 2
s. 104
(c) mortgages, charges or other securities of any description
affecting any property of the association at the end of
the financial year.
(4) In relation to each trust of which the association was the trustee
5 for any period during the financial year, the financial statements
must give a true and fair account of --
(a) the financial transactions of the trust during that period;
and
(b) the property and liabilities of the trust at the end of that
10 period; and
(c) all mortgages, charges or other securities of any
description affecting any property of the trust during that
period.
(5) The financial statements must give a true and fair account of
15 any matter that is prescribed for the purposes of this subsection.
104. Presentation of financial statements and solvency statement
at annual general meeting
(1) An incorporated association must present for consideration at
each annual general meeting of the association --
20 (a) the audited financial statements of the association in
relation to the last financial year of the association; and
(b) a copy of the auditor's report to the association in
relation to the financial statements for that financial
year; and
25 (c) a solvency statement in respect of the association.
(2) The solvency statement mentioned in subsection (1)(c) is a
resolution of the management committee of the association
passed not earlier than 30 days before the day of the annual
general meeting concerned --
30 (a) stating that the committee has examined the affairs of
the association; and
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Part 7 Accounts and audit
Division 2 Accounts
s. 105
(b) showing whether or not in its opinion there are
reasonable grounds to believe that the association will
be able to pay or meet its debts and liabilities as and
when they become due and payable.
5 105. Information to be provided by annual return
(1) For the purposes of this section the "annual return" of an
incorporated association is a return in the approved form
providing the information required by this section in respect of
the last financial year of the association.
10 (2) The annual return must show --
(a) the total amount of the gross receipts or gross income of
the association during the financial year; and
(b) the gross value of the property of the association at the
end of the financial year; and
15 (c) the total amount of the liabilities of the association at the
end of the financial year.
(3) For the purposes of subsection (2) --
(a) the receipts or income; and
(b) the value of the property; and
20 (c) the amount of the liabilities,
are to be determined in respect of a financial year after the
association's financial statements have been audited for that
year.
(4) The annual return of an incorporated association in respect of a
25 financial year must be accompanied by a copy of the solvency
statement mentioned in section 104(1)(c) that was presented to
the annual general meeting of the association following the
financial year to which the return relates.
(5) In the case of a tier 3 incorporated association, the annual return
30 in respect of a financial year must be accompanied by each of
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Accounts and audit Part 7
Audit Division 3
s. 106
the documents referred to in section 104(1)(a) and (b) that was
presented to the annual general meeting of the association
following the financial year to which the return relates.
(6) The annual return of an incorporated association must also
5 contain such information relating to the financial affairs of the
association as is prescribed for the purposes of this subsection.
106. Lodgment of annual return with Commissioner
(1) The annual return referred to section 105 must be lodged with
the Commissioner by the public officer of an incorporated
10 association --
(a) within 28 days after the annual general meeting of the
association following the financial year to which the
return relates; or
(b) within such longer period as the Commissioner may
15 allow.
Penalty: a fine of $1 000.
(2) An application to the Commissioner for an extension of time
under subsection (1)(b) must be made by the public officer and
must be so made in the approved form and not later than
20 14 days after the annual general meeting.
Division 3 -- Audit
Subdivision 1 -- Auditors, qualifications and eligibility
for appointment
107. Audit of tier 1 incorporated association
25 (1) A tier 1 incorporated association must ensure that its financial
statements are audited by a person who is not prohibited by
subsection (2) from auditing those statements.
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Division 3 Audit
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(2) A person cannot audit the financial statements of a tier 1
incorporated association if the person --
(a) is an officer or employee of the association; or
(b) has prepared or assisted with the preparation of the
5 financial statements; or
(c) is the spouse or de facto partner of a person who comes
within paragraph (a) or (b).
108. Report of auditor of tier 1 incorporated association
(1) The auditor of a tier 1 incorporated association must report to
10 the association whether the financial statements of the
association are in the auditor's opinion properly drawn up so as
to give a true and fair view of matters required by section 103 to
be dealt with in the financial statements.
(2) If an auditor is of the opinion that the financial statements do
15 not comply with subsection (1), the auditor's report must set out
the reasons for that opinion.
109. Audit of tier 2 incorporated association
(1) This section applies to an incorporated association (a "tier 2
incorporated association") in respect of a financial year of the
20 association if it is not a tier 3 incorporated association in respect
of that financial year and --
(a) in relation to that financial year it had gross receipts or
gross income exceeding the amount prescribed for the
purposes of this paragraph; or
25 (b) it had property, at the end of the financial year, the gross
value of which exceeded the amount prescribed for the
purposes of this paragraph; or
(c) it is an incorporated association that is prescribed to be a
tier 2 incorporated association or a member of a class of
30 incorporated associations that is so prescribed.
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Audit Division 3
s. 110
(2) The incorporated association must ensure that its financial
statements are audited by a person who comes within one of the
following descriptions and is not prohibited by section 111 from
auditing those financial statements --
5 (a) a member of CPA Australia or of the Institute of
Chartered Accountants in Australia;
(b) a member of the National Institute of Accountants, other
than an associate, who has satisfactorily completed an
auditing component of a course of study in accountancy
10 of at least 3 years duration at a tertiary level conducted
by --
(i) a prescribed university; or
(ii) other prescribed institution,
under the Corporations Act 2001 of the Commonwealth
15 section 1280(2A)(a);
(c) a person who the Commissioner considers has
appropriate qualifications or experience and approves
for the purposes of this section.
110. Audit of tier 3 incorporated association
20 (1) This section applies to an incorporated association (a "tier 3
incorporated association") in respect of a financial year of the
association if --
(a) in relation to the financial year it had gross receipts or
gross income exceeding the amount prescribed for the
25 purposes of this paragraph; or
(b) it had property, at the end of the financial year, the gross
value of which exceeded the amount prescribed for the
purposes of this paragraph.
(2) The incorporated association must ensure that its financial
30 statements are audited by a person --
(a) who is registered as an auditor under the Corporations
Act 2001 of the Commonwealth; or
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Part 7 Accounts and audit
Division 3 Audit
s. 111
(b) who the Commissioner considers has appropriate
qualifications or experience and approves for the
purposes of this section,
and who is not prohibited by section 111 from auditing those
5 financial statements.
111. Restrictions on persons who may audit certain financial
statements
A person cannot audit the financial statements of a tier 2
incorporated association or a tier 3 incorporated association if
10 the person --
(a) is a member or employee of the association; or
(b) is the spouse, de facto partner, employer or employee of
a member of the association; or
(c) is a partner in a partnership in which a member of the
15 association is also a partner; or
(d) has prepared or assisted with the preparation of the
financial statements.
Subdivision 2 -- Provisions relating to auditors of all
incorporated associations
20 112. Access to records
An auditor of an incorporated association has a right of access at
all reasonable times to the accounting records and other records
of the association.
113. Entitlement to information
25 An auditor of an incorporated association is entitled to require
from an officer of the association any information or
explanation that the auditor wishes to have for the purpose of
auditing the association's financial statements.
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Accounts and audit Part 7
Audit Division 3
s. 114
114. Breaches of Act and rules to be noted in report
If an auditor of an incorporated association, in the course of the
performance of the auditor's duties, is satisfied that there has
been a failure to comply with this Act or with a rule of the
5 association, the auditor must note the matter in the auditor's
report to the association in relation to its financial statements.
Penalty: a fine of $10 000.
115. Offences in relation to auditor
An officer of an incorporated association must not, without
10 lawful excuse --
(a) fail or refuse to allow an auditor of the association
access, for the purpose of auditing the financial
statements of the association, to any accounting or other
records of the association in or under the officer's
15 custody or control; or
(b) fail or refuse to give the auditor, within a reasonable
time, any information or explanation required by the
auditor that is within the knowledge of the officer; or
(c) otherwise hinder, obstruct or delay an auditor in the
20 exercise or performance of the auditor's powers or
duties as auditor of the association.
Penalty: a fine of $5 000.
116. Protection of auditor
(1) An auditor of an incorporated association is not, in the absence
25 of malice on the auditor's part, liable to any action for
defamation in respect of any statement that the auditor makes,
orally or in writing, in the course of the exercise or performance
of powers or duties as auditor of the association.
(2) Subsection (1) does not limit or affect any right, privilege or
30 immunity that an auditor has, apart from that subsection, as a
defendant in an action for defamation.
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Part 7 Accounts and audit
Division 3 Audit
s. 117
Subdivision 3 -- Powers and duties of auditors of tier 2 and
tier 3 incorporated associations
117. Terms used in this Subdivision
In this Subdivision --
5 "auditor" means the auditor of a tier 2 incorporated association
or of a tier 3 incorporated association;
"Australian Accounting Standards" means the accounting
standards and other requirements issued by the Australian
Accounting Standards Board continued in existence by the
10 Australian Securities and Investments Commission
Act 2001 of the Commonwealth;
"report" means a report under section 118.
118. Auditor to report on financial statements etc.
(1) An auditor must report to the incorporated association
15 concerned on --
(a) the financial statements required to be laid before the
association at the annual general meeting; and
(b) the association's accounting records and other records
relating to those statements.
20 (2) An auditor's report --
(a) must be attached to or endorsed on the financial
statements; and
(b) must, if a member so requires, be read out at the annual
general meeting of the incorporated association; and
25 (c) is open to inspection by a member at any reasonable
time.
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Accounts and audit Part 7
Audit Division 3
s. 119
119. Report to state whether statements properly drawn up
(1) An auditor's report must state whether the financial statements
are in the auditor's opinion properly drawn up --
(a) so as to give a true and fair view of matters required by
5 section 103 to be dealt with in the financial statements;
and
(b) in accordance with the provisions of this Act and the
Australian Accounting Standards.
(2) If an auditor is of the opinion that the financial statements do
10 not comply with subsection (1), the auditor's report must set out
the reasons for that opinion.
120. Position where Australian Accounting Standards not
complied with
(1) If in an auditor's opinion the financial statements have not been
15 drawn up in accordance with the Australian Accounting
Standards, the auditor's report must state --
(a) whether, in the auditor's opinion, the financial
statements would, if drawn up in accordance with those
Standards, have given a true and fair view of the matters
20 required by section 103 to be dealt with in the
statements; and
(b) if, in the auditor's opinion, the financial statements
would not, if so drawn up, have given a true and fair
view of those matters, the auditor's reasons for being of
25 that opinion.
(2) If the auditor's report states that the financial statements would,
if drawn up in accordance with the Australian Accounting
Standards, have given a true and fair view of the matters
referred to in subsection (1)(a), the report must also include the
30 auditor's opinion as to the quantified financial effect on the
statements of the failure to comply with the Australian
Accounting Standards.
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Part 7 Accounts and audit
Division 3 Audit
s. 121
121. Report to identify material defects and omissions
An auditor's report must specify --
(a) any defect or irregularity in the financial statements; and
(b) any omission from those statements,
5 not otherwise referred to in this Subdivision, that in the opinion
of the auditor is relevant to the obtaining of a true and fair view
of the matters dealt with by the statements.
122. Report to cover adequacy of information and record
keeping
10 An auditor must form an opinion as to --
(a) whether the auditor has obtained all the information and
explanations that the auditor required; and
(b) whether proper accounting records and other records
have been kept by the incorporated association
15 concerned as required by this Act,
and must state in the auditor's report particulars of any
deficiency or failure in respect of any such matter.
123. Auditor may attend general meeting and be heard
(1) An auditor of an incorporated association, or an agent of the
20 auditor authorised by the auditor in writing for the purpose, is
entitled --
(a) to receive all notices of and other communications
relating to any general meeting of the association that a
member is entitled to receive; and
25 (b) to attend any general meeting of the association; and
(c) to be heard at any general meeting that the auditor
attends on any part of the business of the meeting that
concerns the auditor in the capacity of auditor.
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Accounts and audit Part 7
Audit Division 3
s. 124
(2) Subsection (1) applies despite the fact that the auditor retires at
the meeting or a resolution to remove the auditor from office is
passed at the meeting.
(3) An incorporated association must ensure that an auditor is
5 afforded the rights conferred by this section.
124. Reporting of breaches of this Act to the Commissioner
(1) If, in the course of the performance of duties as auditor of an
incorporated association, an auditor becomes aware that the
association has contravened section 84 or 104, the auditor
10 must --
(a) as soon as is practicable, inform the Commissioner in
writing of the contravention; and
(b) if financial statements have been prepared and audited,
send to the Commissioner a copy of the statements and
15 of the auditor's report on them.
(2) An auditor must also, as soon as is practicable, report to the
Commissioner in writing any other contravention of this Act or
of its rules by an incorporated association of which the auditor
has become aware in the course of the performance of duties as
20 auditor, but only if the auditor considers that the circumstances
are such that the matter has not been or will not be adequately
dealt with --
(a) by comment in the auditor's report on the financial
statements; or
25 (b) by bringing the matter to the notice of the management
committee of the incorporated association.
125. Removal of auditor to be reported
If an auditor is removed or dismissed, the auditor must as soon
as is practicable notify the Commissioner in writing of the
30 removal or dismissal and the circumstances in which it
occurred.
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Part 7 Accounts and audit
Division 3 Audit
s. 126
126. Payment of auditor
The reasonable fees and expenses of an auditor are payable by
the incorporated association concerned.
Subdivision 4 -- Special audits of financial affairs of
5 incorporated association
127. Commissioner may require special audit to be carried out
(1) The Commissioner may exercise the power in subsection (2) in
respect of an incorporated association if the Commissioner is of
the opinion that it is desirable to do so because the financial
10 affairs of the association are not being properly managed.
(2) The Commissioner --
(a) may, in writing given to the incorporated association,
direct that a special audit of the financial affairs of the
association is to be carried out; and
15 (b) may, for that purpose, appoint the auditor and specify --
(i) the kind of information that the auditor is to
furnish to the Commissioner; and
(ii) the period to which the audit is to relate; and
(iii) the time within which the auditor is to report to
20 the Commissioner.
(3) An auditor appointed under this section in respect of an
incorporated association is to be a person who is qualified as
mentioned in section 110(2)(a) or (b) and is not prohibited by
section 111 from auditing the financial statements of the
25 association.
(4) Where a direction is given under subsection (2) to an
incorporated association, the association must do all things that
are necessary to be done on its part to enable the audit to be
properly completed.
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Accounts and audit Part 7
Audit Division 3
s. 127
(5) Sections 112, 113, 115 and 116 apply to and in relation to an
auditor appointed under this section in respect of an
incorporated association as if the auditor were the auditor of the
financial statements of the association.
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Associations Incorporation Bill 2006
Part 8 Amalgamation of incorporated associations
s. 128
Part 8 -- Amalgamation of incorporated associations
128. Meaning of "new body"
In this Part --
"new body" has the meaning given by section 129.
5 129. Application for incorporation of body formed by
amalgamation
(1) An application may be made to the Commissioner in the
approved form for the incorporation of an association (the "new
body") that is an amalgamation of 2 or more existing
10 incorporated associations.
(2) The application must be made by a person duly authorised to do
so by each of the existing associations.
(3) An application cannot be made if the proposed amalgamation is
inconsistent with the rules of either of the existing associations.
15 (4) An application cannot be made unless --
(a) the terms of amalgamation; and
(b) the name and the objects or purposes of the new body;
and
(c) the rules of the new body,
20 have been approved by a special resolution of each of the
existing incorporated associations concerned.
130. What is to be included in the application
(1) An application under section 129 must contain --
(a) evidence that the special resolutions referred to in
25 section 129(4) have been passed; and
(b) the same information in relation to the new body as is
required to be provided in relation to an association
under sections 11(2) and (3), 12(1), 13 and 14; and
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Associations Incorporation Bill 2006
Amalgamation of incorporated associations Part 8
s. 131
(c) a copy of the rules of the new body and a certificate
given by the applicant that the rules comply with
section 57; and
(d) such other information as may be prescribed for the
5 purposes of this paragraph.
(2) The objects or purposes of the new body must comply with
section 12(2).
(3) The applicant must also provide the Commissioner with such
further information and documents as the Commissioner may in
10 writing request.
131. Incorporation of the new body
(1) If on application duly made the Commissioner is satisfied that
the requirements set out in subsection (2) have been met, the
Commissioner must, subject to subsection (4), incorporate the
15 new body by the issue to it of a certificate of incorporation in
the approved form.
(2) The requirements referred to are that --
(a) the special resolutions mentioned in section 129(4) have
been passed; and
20 (b) the new body is eligible to be incorporated under this
Act; and
(c) the objects or purposes of the new body comply with
section 12(2); and
(d) the name of the new body is appropriate having regard
25 to section 32 and regulations made for the purposes of
section 33; and
(e) the rules of the new body comply with section 57; and
(f) the considerations mentioned in section 20(1)(a) and (b)
do not apply; and
30 (g) the applicant has complied with any request under
section 130(3).
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Associations Incorporation Bill 2006
Part 8 Amalgamation of incorporated associations
s. 132
(3) The issue of a certificate of incorporation to the new body
automatically cancels the incorporation of an incorporated
association that is a party to the amalgamation.
(4) The Commissioner must not issue a certificate of incorporation
5 to the new body unless --
(a) each certificate of incorporation of an incorporated
association that is a party to the amalgamation has been
returned to the Commissioner; or
(b) the Commissioner is satisfied that the certificate has
10 been lost or destroyed.
132. Review of decision to refuse application
(1) If the Commissioner refuses an application under section 129
the applicant may apply to the State Administrative Tribunal for
a review of the decision of the Commissioner.
15 (2) An application under subsection (1) must be made within --
(a) 28 days; or
(b) such other period as is prescribed,
after the applicant receives notice of the refusal.
133. Vesting of property and liabilities in new body
20 Schedule 2 has effect in relation to the new body on its
incorporation.
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Associations Incorporation Bill 2006
Winding up and cancellation of incorporation Part 9
Preliminary Division 1
s. 134
Part 9 -- Winding up and cancellation
of incorporation
Division 1 -- Preliminary
134. Terms used in this Part
5 In this Part --
"distribution plan" means a statement showing --
(a) the intended recipients of surplus property of the
incorporated association concerned; and
(b) an estimate of the amount or value of the property
10 that each is to receive;
"surplus property", in relation to an incorporated association,
means property remaining after satisfaction of --
(a) the debts and liabilities of the association; and
(b) the costs, charges and expenses of winding up the
15 association.
135. Object of this Part
The object of this Part is to make provision --
(a) in Division 2, for the voluntary winding up of an
incorporated association that has surplus property to be
20 distributed on the winding up and for the cancellation of
its incorporation; and
(b) in Division 3, for the cancellation of the incorporation of
an association where the debts and liabilities of the
association have been satisfied and there is no surplus
25 property to be distributed; and
(c) in Division 4, for the winding up of an incorporated
association by the Supreme Court on certain grounds
and for the cancellation of its incorporation.
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Associations Incorporation Bill 2006
Part 9 Winding up and cancellation of incorporation
Division 2 Voluntary winding up of incorporated association that has
property to be distributed
s. 136
136. Modifications of applied text of Corporations Act
The modifications set out in Schedule 4 to the text of Parts 5.4
to 5.8 of the Corporations Act 2001 of the Commonwealth
apply for the purposes of Divisions 2 and 4.
5 Division 2 -- Voluntary winding up of incorporated association
that has property to be distributed
Subdivision 1 -- Requirements for voluntary winding up
137. When voluntary winding up may occur
(1) This Subdivision applies to the voluntary winding up of an
10 incorporated association that has surplus property to be
distributed on the winding up.
(2) Before the incorporated association may be wound up
voluntarily --
(a) the management committee of the association must
15 examine the affairs of the association and by resolution
declare that in its opinion the association is able to pay
or meet its debts and liabilities; and
(b) the association must then pass special resolutions --
(i) that it be wound up voluntarily; and
20 (ii) approving a distribution plan that complies with
Subdivision 2;
and
(c) a distribution plan must be approved or determined by
the Commissioner under that Subdivision 2.
25 138. Notice to be given to the Commissioner
(1) If an incorporated association has passed the special resolutions
referred to in section 137(2)(b), the public officer of the
association must lodge a notice in the approved form with the
Commissioner.
30 Penalty: a fine of $1 000.
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Winding up and cancellation of incorporation Part 9
Voluntary winding up of incorporated association that has Division 2
property to be distributed
s. 139
(2) The notice must --
(a) set out the terms of --
(i) the special resolutions; and
(ii) the resolution referred to in section 137(2)(a);
5 and
(b) be accompanied by a copy of the distribution plan
approved by the incorporated association; and
(c) contain a statement signed by 2 members of the
management committee of the association that the
10 special resolutions were passed in accordance with
this Act.
(3) The notice must be lodged within 28 days after the passing of
the special resolutions or within such longer period as the
Commissioner may allow.
15 139. Cancellation of incorporation
(1) If in respect of an incorporated association --
(a) the Commissioner is satisfied that the requirements of
this Subdivision have been complied with; and
(b) the association has lodged with the Commissioner the
20 certificate referred to in section 149(3)(b),
the Commissioner must, by instrument in writing, cancel the
incorporation of the association with effect on and from a day
that the Commissioner considers appropriate and specifies in the
instrument.
25 (2) The Commissioner may cause an instrument under
subsection (1) to be published in the Gazette if the
Commissioner considers that public notification of the
cancellation is desirable.
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Associations Incorporation Bill 2006
Part 9 Winding up and cancellation of incorporation
Division 2 Voluntary winding up of incorporated association that has
property to be distributed
s. 140
140. Corporations Act may be applied by the regulations
The regulations may declare the winding up of an incorporated
association under this Division to be an applied Corporations
legislation matter for the purposes of Part 3 of the Corporations
5 (Ancillary Provisions) Act 2001 in relation to one or more of
Parts 5.4 to 5.8 (winding up) of the Corporations Act 2001 of
the Commonwealth, with any modifications that are specified in
the declaration.
Subdivision 2 -- Distribution of surplus property on
10 voluntary winding up
141. Application of this Subdivision
This Subdivision applies to an incorporated association that has
passed the special resolutions referred to in section 137(2)(b).
142. Duty of association
15 An incorporated association to which this Subdivision applies
must ensure that --
(a) its surplus property is properly distributed in accordance
with a distribution plan that is approved or determined
under this Subdivision; and
20 (b) the distribution is completed within the period required
under section 147.
143. Content and operation of distribution plan
(1) A distribution plan in respect of an incorporated association
must provide for the distribution of the surplus property in
25 accordance with the rules of the association, being rules that --
(a) make provision of the kind mentioned in Schedule 3
Division 1 item 17; and
(b) are consistent with the provision implied by section 58.
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Winding up and cancellation of incorporation Part 9
Voluntary winding up of incorporated association that has Division 2
property to be distributed
s. 144
(2) Surplus property distributed under a distribution plan is subject
to any trust affecting the property or any part of it.
144. Position where conditions attached to grant
(1) In this section --
5 "body" includes a government department or public authority
of the State or the Commonwealth;
"relevant contract" means a contract as to the manner in which
property referred to in subsection (2), or any part of the
property, is to be dealt with if an incorporated association is
10 wound up.
(2) Where property has been provided to an incorporated
association by any body, a distribution plan in respect of the
association must give effect to any relevant contract that has
been made between the association and the body.
15 (3) Subsection (2) --
(a) applies only if, and to the extent that, the contract is
binding on the association; and
(b) does not apply if, or to the extent that, the body
concerned agrees otherwise.
20 145. Approval of distribution plan
(1) A distribution plan lodged under section 138(2) does not have
effect unless it is approved by the Commissioner.
(2) The Commissioner may --
(a) approve a distribution plan so lodged; or
25 (b) approve it with any amendment that the Commissioner
determines to be a minor amendment; or
(c) specify any amendment that is required and approve the
distribution plan in an amended form.
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Associations Incorporation Bill 2006
Part 9 Winding up and cancellation of incorporation
Division 2 Voluntary winding up of incorporated association that has
property to be distributed
s. 146
(3) An amendment under subsection (2)(c) must be approved by or
on behalf of the incorporated association concerned in such
manner as the Commissioner may determine in a particular
case.
5 146. If necessary Commissioner may determine contents of plan
The Commissioner may determine the contents of a distribution
plan if --
(a) an amendment to the plan has been required under
section 145(2)(c); but
10 (b) within a period that the Commissioner considers
reasonable and notifies to the association concerned, the
Commissioner is not satisfied that an amended
distribution plan that complies with this Subdivision has
been approved by or on behalf of the association in
15 accordance with a determination under section 145(3).
147. Time limit for implementation of plan
The Commissioner must, when approving or determining a
distribution plan under this Subdivision, fix a period within
which the implementation of the plan is to be completed, and
20 may from time to time extend the period so fixed.
148. Review of Commissioner's decision
(1) A person who is dissatisfied with --
(a) a decision of the Commissioner to refuse the approval of
a distribution plan or to request that it be amended by
25 the incorporated association; or
(b) any provision of a distribution plan determined under
section 146,
may apply to the State Administrative Tribunal for a review of
the Commissioner's decision or of the plan so determined.
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Winding up and cancellation of incorporation Part 9
Voluntary winding up of incorporated association that has Division 2
property to be distributed
s. 149
(2) An application under subsection (1) must be made within --
(a) 28 days; or
(b) such other period as is prescribed,
after the person receives notice of the refusal, request or
5 determination.
149. Reporting to Commissioner
(1) The incorporated association concerned must --
(a) in the approved form, prepare such reports for the
Commissioner on the implementation of a distribution
10 plan as the Commissioner may in writing require; and
(b) as soon as is practicable after the implementation of a
distribution plan has been completed, prepare a
certificate in the approved form that the surplus property
of the association has been distributed in accordance
15 with the plan.
(2) An incorporated association prepares a report or certificate
under subsection (1) when the association, or the management
committee of the association, determines by resolution content
of the report or certificate.
20 (3) The incorporated association must lodge with the
Commissioner --
(a) a report under subsection (1)(a); and
(b) a certificate under subsection (1)(b),
as soon as is practicable after the report or certificate is
25 prepared.
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Associations Incorporation Bill 2006
Part 9 Winding up and cancellation of incorporation
Division 2 Voluntary winding up of incorporated association that has
property to be distributed
s. 150
Subdivision 3 -- Powers of Commissioner on default
under Subdivision 2
150. Grounds on which Commissioner may act
Section 151 applies if in the opinion of the Commissioner an
5 incorporated association has failed --
(a) to properly implement a distribution plan; or
(b) to prepare a report or certificate,
as required under Subdivision 2.
151. Commissioner may require association to show cause
10 (1) The Commissioner may give to the incorporated association
concerned a notice --
(a) stating that the Commissioner proposes to make a
declaration under section 154 in respect of the
association; and
15 (b) specifying the ground or grounds on which it is
proposed to do so; and
(c) informing the association that, if it does not show cause
within the allowed period, the declaration will be made.
(2) The allowed period under subsection (1)(c) is 28 days after the
20 day on which the notice is given.
152. How association may show cause
Where notice has been given to an incorporated association
under section 151, the association shows cause for the purposes
of this Subdivision if it satisfies the Commissioner that --
25 (a) the incorporated association has not failed to do the
things specified in the notice; or
(b) there is otherwise sufficient reason for not making the
proposed declaration.
page 78
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Winding up and cancellation of incorporation Part 9
Voluntary winding up of incorporated association that has Division 2
property to be distributed
s. 153
153. Review of Commissioner's proposal
(1) An incorporated association to which a notice has been given
under section 151 may, not later than the end of the allowed
period, apply to the State Administrative Tribunal for a review
5 of the Commissioner's proposal.
(2) If an application is so made, the Commissioner cannot make a
declaration that section 155 applies to an incorporated
association unless --
(a) the application results in the Commissioner's proposal
10 being confirmed; or
(b) the application is dismissed or struck out.
154. Making of declaration by the Commissioner
(1) Subject to section 153, the Commissioner may make a
declaration in writing that section 155 applies to an incorporated
15 association if the association does not show cause within the
allowed period.
(2) The Commissioner must give notice in writing of the making of
a declaration under subsection (1) to the incorporated
association concerned.
20 155. Effect of declaration
(1) In this section --
"surplus property" means property remaining after the
satisfaction of --
(a) the debts and liabilities of the association; and
25 (b) the costs, charges and expenses incurred in giving
effect to this section.
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Associations Incorporation Bill 2006
Part 9 Winding up and cancellation of incorporation
Division 2 Voluntary winding up of incorporated association that has
property to be distributed
s. 156
(2) On the making of a declaration under section 154 in respect of
an incorporated association --
(a) the property held by the association immediately before
the making of the declaration vests in the
5 Commissioner; and
(b) the Commissioner has power to realise such property,
pay the debts and liabilities of the association, distribute
its surplus property and wind up its affairs.
(3) The Commissioner may for the purposes of this section or any
10 incidental purpose --
(a) do all such other acts and things as are reasonably
necessary or expedient; and
(b) appoint a person to investigate the affairs of the
association and exercise any power on behalf of the
15 Commissioner; and
(c) give such directions as the Commissioner thinks; and
(d) do or omit any act or thing, or take any step, that is
prescribed.
(4) The reasonable costs, charges and expenses of the
20 Commissioner and a person appointed under subsection (3)(b)
relating to the exercise and performance of the powers and
functions conferred by or under this section in respect of an
incorporated association are to be paid out of the property of the
association.
25 156. Distribution of surplus property under this Subdivision
(1) Any surplus property of an incorporated association to which
section 155 applies must be distributed by the Commissioner in
accordance with a distribution plan determined by the
Commissioner in conformity with sections 143 and 144.
30 (2) A person who is dissatisfied with the determination of a
distribution plan under subsection (1) may apply to the State
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Associations Incorporation Bill 2006
Winding up and cancellation of incorporation Part 9
Cancellation of incorporation on application by association that Division 3
has no debts or surplus property
s. 157
Administrative Tribunal for a review of the plan or any
provision of it.
(3) An application under subsection (2) must be made within --
(a) 28 days; or
5 (b) such other period as is prescribed,
after the person receives notice of the determination.
157. Cancellation of incorporation
(1) When the Commissioner is satisfied that --
(a) all surplus property of an incorporated association to
10 which section 155 applies has been distributed; and
(b) the affairs of the incorporated association have been
otherwise wound up,
the Commissioner must, by instrument in writing, cancel the
incorporation of the association with effect on and from a day
15 that the Commissioner considers appropriate and specifies in the
instrument.
(2) The Commissioner may cause an instrument under
subsection (1) to be published in the Gazette if the
Commissioner considers that public notification of the
20 cancellation is desirable.
Division 3 -- Cancellation of incorporation on application
by association that has no debts or surplus property
158. Application for cancellation
(1) An incorporated association may apply to the Commissioner in
25 the approved form to have the incorporation of the association
cancelled.
(2) An application cannot be made under subsection (1) by an
incorporated association unless --
(a) the management committee of the association has
30 examined the affairs of the association and by resolution
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Associations Incorporation Bill 2006
Part 9 Winding up and cancellation of incorporation
Division 3 Cancellation of incorporation on application by association that
has no debts or surplus property
s. 159
declared that in its opinion the debts and liabilities of the
association have been satisfied and there is no surplus
property to be distributed; and
(b) the making of the application has been approved by a
5 special resolution of the incorporated association.
159. Content of application
(1) An application by an incorporated association for cancellation
of its incorporation must contain --
(a) copies of each of the resolutions referred to in
10 section 158(2); and
(b) a statement signed by 2 members of the management
committee of the association that the special resolution
referred to in section 158(2)(b) was passed in
accordance with this Act.
15 (2) The incorporated association must also provide the
Commissioner with such further information and documents as
the Commissioner may in writing request.
160. Commissioner may grant application
(1) On application duly made under section 159, the Commissioner
20 may, by instrument in writing, cancel the incorporation of the
association concerned if the Commissioner is satisfied that --
(a) the special resolution referred to in section 158(2) was
passed in accordance with this Act; and
(b) the debts and liabilities of the association have been
25 satisfied and there is no surplus property remaining; and
(c) all of the requirements of this Act in respect of the
association have been met.
(2) An instrument under subsection (1) has effect on and from a day
that the Commissioner considers appropriate and specifies in the
30 instrument.
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Associations Incorporation Bill 2006
Winding up and cancellation of incorporation Part 9
Winding up by the Supreme Court Division 4
s. 161
(3) The Commissioner may cause an instrument under
subsection (1) to be published in the Gazette if the
Commissioner considers that public notification of the
cancellation is desirable.
5 161. Review of decision to refuse application
(1) If the Commissioner refuses an application by an incorporated
association to cancel its incorporation, the association may
apply to the State Administrative Tribunal for a review of the
Commissioner's decision.
10 (2) An application under subsection (1) must be made within --
(a) 28 days; or
(b) such other period as is prescribed,
after the incorporated association receives notice of the refusal.
162. Liabilities not affected
15 Any liability of an officer or member of an association --
(a) is not affected by the cancellation of the incorporation of
the association under section 160; and
(b) may be enforced as if the incorporation of the
association had not been cancelled.
20 Division 4 -- Winding up by the Supreme Court
163. Grounds on which winding up may be ordered
An incorporated association may be wound up by the Supreme
Court on any ground specified in Schedule 5.
164. By whom application may be made
25 An application to the Supreme Court for the winding up of an
incorporated association must be made by petition presented
by --
(a) the incorporated association; or
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Associations Incorporation Bill 2006
Part 9 Winding up and cancellation of incorporation
Division 4 Winding up by the Supreme Court
s. 165
(b) a member of the incorporated association; or
(c) the Commissioner; or
(d) the Minister; or
(e) a creditor, in the case of a petition based on the ground
5 specified in Schedule 5 item 5.
165. Application of Corporations Act
The winding up of an incorporated association (other than by a
voluntary winding up) by the Supreme Court is declared to be
an applied Corporations legislation matter for the purposes of
10 Part 3 of the Corporations (Ancillary Provisions) Act 2001 in
relation to Part 5.7 (Winding up bodies other than companies) of
the Corporations Act 2001 of the Commonwealth, subject to the
following modifications --
(a) the modifications specified in Schedule 4; and
15 (b) the provisions of the Part are to be read as if it extended
to the winding up of the affairs of an incorporated
association in the State; and
(c) such other modifications (within the meaning of Part 3
of the Corporations (Ancillary Provisions) Act 2001) as
20 may be prescribed for the purposes of this paragraph.
166. Cancellation of incorporation
(1) When the Commissioner is satisfied that the winding up of an
incorporated association under this Division has been completed
the Commissioner must, by instrument in writing, cancel the
25 incorporation of the association with effect on and from a day
that the Commissioner considers appropriate and specifies in the
instrument.
(2) The Commissioner may cause an instrument under
subsection (1) to be published in the Gazette if the
30 Commissioner considers that public notification of the
cancellation is desirable.
page 84
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Certain remedial measures available to the Commissioner Part 10
Cancellation of incorporation by the Commissioner on certain Division 1
grounds
s. 167
Part 10 -- Certain remedial measures available to
the Commissioner
Division 1 -- Cancellation of incorporation by the
Commissioner on certain grounds
5 167. Grounds on which Commissioner may act
(1) Section 168 applies if the Commissioner has reasonable cause to
believe that an incorporated association --
(a) was not at the time of incorporation eligible for
incorporation under this Act; or
10 (b) has suspended its operations, or has in effect been
dormant, for a whole year; or
(c) has fewer than 6 members who under its rules have the
right to vote at its general meetings either in person or
by proxy or postal vote; or
15 (d) has no property and the members have resolved to
discontinue the activities of the association; or
(e) has resolved to wind up but no person is prepared to act
as liquidator; or
(f) has failed to comply with a direction of the
20 Commissioner under section 50 or 173; or
(g) has refused or failed to remedy a contravention of this
Act within 60 days after notice of the contravention has
been given to the association by the Commissioner.
(2) Section 168 also applies if --
25 (a) the public officer of an incorporated association has
contravened a provision of this Act; and
(b) the Commissioner has, by notice in writing given to the
public officer, required the public officer to remedy the
contravention within 60 days after the notice was given;
30 but
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[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 10 Certain remedial measures available to the Commissioner
Division 1 Cancellation of incorporation by the Commissioner on certain
grounds
s. 168
(c) the public officer has failed or refused to do so.
168. Commissioner may require association to show cause
(1) Where this section applies, the Commissioner may give to the
incorporated association a notice --
5 (a) stating that the Commissioner proposes to cancel the
incorporation of the association; and
(b) specifying the ground or grounds on which it is
proposed to do so; and
(c) informing the association that, if it does not show cause
10 within the allowed period, the incorporation of the
association will be cancelled.
(2) The Commissioner may also have the notice published in a
newspaper circulating generally in the State.
(3) The allowed period for the purposes of subsection (1)(c) is --
15 (a) 60 days after the day on which the notice is given; or
(b) if subsection (2) applies, 60 days after the day on which
the notice has been both given and published.
169. How association may show cause
Where a notice has been given to an incorporated association
20 under section 168, the association shows cause for the purposes
of this Division if it satisfies the Commissioner that the ground
or grounds stated in the notice does or do not apply to the
incorporated association.
170. Cancellation of incorporation
25 (1) The Commissioner may, by instrument in writing, cancel the
incorporation of the association if the incorporated association
does not show cause within the allowed period.
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Associations Incorporation Bill 2006
Certain remedial measures available to the Commissioner Part 10
Cancellation of incorporation by the Commissioner on certain Division 1
grounds
s. 171
(2) Where the Commissioner makes an instrument under
subsection (1), the Commissioner must --
(a) serve a copy of the instrument on the incorporated
association; and
5 (b) publish the instrument in the Gazette.
(3) A cancellation does not take effect until --
(a) the day of publication of the instrument; or
(b) if another day is specified in the instrument, that day.
171. Powers of Commissioner in respect of property
10 On the cancellation of the incorporation of an association under
section 170 --
(a) the property held by the association immediately before
the cancellation vests in the Commissioner; and
(b) despite the cancellation --
15 (i) the Commissioner has the functions and powers
set out in sections 155 and 156; and
(ii) those sections apply with any necessary
modification,
as if the association were one to which section 154
20 applies.
172. Review of Commissioner's proposal to cancel incorporation
(1) An incorporated association to which notice is given under
section 168 may, not later than the end of the allowed period
under that section, apply to the State Administrative Tribunal
25 for a review of the Commissioner's proposal to cancel the
incorporation of the association.
(2) If an application is so made, the Commissioner cannot make an
instrument under section 170 unless --
(a) the application results in the Commissioner's proposal
30 being confirmed; or
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[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 10 Certain remedial measures available to the Commissioner
Division 2 Direction by Commissioner to transfer undertaking
s. 173
(b) the application is dismissed or struck out.
Division 2 -- Direction by Commissioner to transfer
undertaking
173. Commissioner may direct an incorporated association to
5 transfer its undertaking to another body corporate
(1) In this section --
"another body corporate" means a body corporate, other than
the incorporated association concerned, being --
(a) another incorporated association; or
10 (b) a body incorporated under some other written law of
the State or a written law of the Commonwealth.
(2) This section applies if the Commissioner is satisfied that the
continued incorporation of an association under this Act is
inappropriate because in the opinion of the Commissioner --
15 (a) it has ceased to be eligible to be incorporated under this
Act; or
(b) the undertaking or operations of the association is or are
being carried on by another body corporate; or
(c) that undertaking or those operations would more
20 appropriately be carried on by another body corporate.
(3) The Commissioner may in writing direct the incorporated
association --
(a) to transfer its undertaking to another body corporate
specified in the direction; and
25 (b) to do all things that are reasonably necessary to give
effect to the transfer.
(4) A direction under subsection (3) --
(a) must specify the period within which the transfer is to be
completed; and
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Associations Incorporation Bill 2006
Certain remedial measures available to the Commissioner Part 10
Direction by Commissioner to transfer undertaking Division 2
s. 174
(b) may specify any terms and conditions that are to be
observed in effecting the transfer.
(5) The Commissioner may, by notice in writing to the incorporated
association --
5 (a) from time to time extend the period referred to in
subsection (4)(a); or
(b) revoke or amend a direction given under subsection (3).
174. Commissioner to give notice of intention
(1) Before the Commissioner gives a direction to an incorporated
10 association under section 173(3) or notice of an amendment
under section 173(5)(b), the Commissioner must give notice in
writing to the association stating --
(a) the Commissioner's intention to give the direction or
make the amendment; and
15 (b) the grounds on which the Commissioner is proposing to
act; and
(c) that written submissions on the proposed direction or
amendment may be made to the Commissioner within a
specified period.
20 (2) The period specified under subsection (1)(c) is not to be less
than 28 days after the notice is given.
(3) Before the Commissioner gives or amends a direction to an
incorporated association under section 173 the Commissioner
must have regard to any submission made by the association in
25 accordance with the notice.
175. Review of proposed direction or amendment
(1) An incorporated association to which a notice is given under
section 174 may, not later than the end of the period specified
under section 174(1)(c), apply to the State Administrative
30 Tribunal for a review of the proposed direction or amendment.
page 89
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Associations Incorporation Bill 2006
Part 10 Certain remedial measures available to the Commissioner
Division 2 Direction by Commissioner to transfer undertaking
s. 176
(2) If an application is so made, the Commissioner cannot give the
direction or make the amendment unless --
(a) the application results in the Commissioner's proposed
action being confirmed; or
5 (b) the application is dismissed or struck out.
176. Association to comply with direction
(1) Subject to section 175, an incorporated association must comply
with a direction given to the association under section 173(3) or
a direction as amended under section 173(5)(b).
10 (2) A contract to which an incorporated association is a party is not
illegal, void or unenforceable by reason only of a failure by the
association to comply with a direction under section 173.
177. Power of Commissioner if association fails to comply with
direction
15 (1) If an incorporated association has failed or refused to transfer its
undertaking to another body corporate in accordance with a
direction under section 173 the Commissioner may, by order
published in the Gazette --
(a) transfer the undertaking of the association in accordance
20 with the terms of the direction; and
(b) make such other incidental or transitional provisions as
the Commissioner considers necessary or desirable.
(2) Before the Commissioner makes an order under subsection (1),
the Commissioner must give notice in writing to the
25 incorporated association stating that the Commissioner proposes
to make the order after the expiration of 28 days from the day
on which the notice is given.
(3) An incorporated association to which a notice is given under
subsection (2) may, not later than the end of the period specified
30 under that subsection, apply to the State Administrative
Tribunal for a review of the Commissioner's proposal.
page 90
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Associations Incorporation Bill 2006
Certain remedial measures available to the Commissioner Part 10
Direction by Commissioner to transfer undertaking Division 2
s. 178
(4) If an application is so made, the Commissioner cannot make the
order unless --
(a) the application results in the Commissioner's proposal
being confirmed; or
5 (b) the application is dismissed or struck out.
178. Effect of order
(1) On the publication of an order under section 177(1) in respect of
an incorporated association --
(a) the property of the association vests, by virtue of this
10 subsection, in the body corporate specified in the order
("the transferee"); and
(b) the rights and liabilities of the association become, by
virtue of this subsection, the rights and liabilities of the
transferee; and
15 (c) proceedings by or against the association subsisting
immediately before the publication may be continued by
or against the transferee; and
(d) proceedings that might have been brought by or against
the association immediately before the publication may
20 be commenced by or against the transferee; and
(e) any act, matter or thing done or omitted to be done
before the publication by, to or in respect of the
association is, to the extent to which the act, matter or
thing has any force or effect, taken to have been done or
25 omitted by, to or in respect of the transferee; and
(f) a reference in an agreement or instrument to the
association is, unless the context otherwise requires, to
be read as, or as including, a reference to the transferee.
(2) Any property vested in the transferee by operation of this
30 section is vested subject to any trust, restriction or obligation to
which the property was subject immediately before it became so
vested.
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Associations Incorporation Bill 2006
Part 10 Certain remedial measures available to the Commissioner
Division 2 Direction by Commissioner to transfer undertaking
s. 179
(3) On --
(a) the application of a transferee in which any estate or
interest in land has been vested by operation of this
section; and
5 (b) the production of such duplicate instruments of title and
other documents as the Registrar of Titles or the
Registrar of Deeds may require,
the Registrar of Titles or the Registrar of Deeds is to record and
register the vesting in the appropriate manner.
10 (4) This section has effect in relation to a matter concerning a
transferee that is registered as a company under the
Corporations Act 2001 of the Commonwealth only to the extent
that the matter is not dealt with by that Act.
179. Cancellation of incorporation under this Act
15 (1) Where an incorporated association has transferred its
undertaking in accordance with a direction under section 173,
the association must notify the Commissioner in writing of the
transfer within 14 days after it occurs.
Penalty: a fine of $5 000.
20 (2) If --
(a) the Commissioner is satisfied that an incorporated
association has transferred its undertaking in accordance
with a direction under section 173; or
(b) the Commissioner has made an order under section 177,
25 the Commissioner must, by instrument in writing, cancel the
incorporation of the association with effect on and from a day
that the Commissioner considers appropriate and specifies in the
instrument.
(3) The Commissioner may cause an instrument under
30 subsection (1) to be published in the Gazette if the
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[Draft Bill for public comment]
Associations Incorporation Bill 2006
Certain remedial measures available to the Commissioner Part 10
Direction by Commissioner to convene general meeting Division 3
s. 180
Commissioner considers that public notification of the
cancellation is desirable.
Division 3 -- Direction by Commissioner to convene
general meeting
5 180. Commissioner may direct that general meeting be convened
(1) In this section --
"relevant office holder" means any person who under the rules
of an incorporated association has power to convene a
general meeting of the association;
10 "specified" means specified in a direction given under
subsection (3).
(2) This section applies if the Commissioner is of the opinion
that --
(a) there is any dispute or matter affecting the proper
15 conduct of the affairs of an incorporated association; and
(b) the giving of a direction under this section may assist in
or towards the resolution of the dispute or matter.
(3) The Commissioner may in writing given to a relevant office
holder of the incorporated association direct the office holder to
20 take such steps as are required under the rules of the association
to convene a general meeting of the association at a specified
time or within a specified period.
(4) A direction under subsection (3) may also require the office
holder to take such steps as are reasonably required to enable
25 any specified matter to be discussed and determined at the
meeting, including the putting of any specified motion for
consideration at the meeting.
(5) The Commissioner may in writing given to a relevant office
holder revoke or amend a direction given to that person under
30 subsection (3).
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Associations Incorporation Bill 2006
Part 10 Certain remedial measures available to the Commissioner
Division 3 Direction by Commissioner to convene general meeting
s. 181
(6) Subject to section 181, a relevant office holder to whom a
direction is given under subsection (3) shall not without
reasonable excuse fail to comply with the direction.
Penalty: a fine of $5 000.
5 181. Review of direction
(1) A person to whom a direction is given under section 180(3) may
apply to the State Administrative Tribunal for a review of the
direction or of an amendment to the direction made under
section 180(5).
10 (2) An application under subsection (1) must be made within --
(a) 28 days; or
(b) such other period as is prescribed,
after the person is given the direction or notice of the
amendment.
15 182. Rights of Commissioner or a delegate at meeting convened
under this Division
(1) In this section --
"authorised officer" means the Commissioner or an officer of
the Department authorised in writing by the Commissioner
20 to attend a meeting as the representative of the
Commissioner;
"meeting" means a meeting convened pursuant to a direction
under section 180.
(2) An authorised officer may attend a meeting and take part in the
25 consideration and discussion of the dispute or matter in relation
to which the direction under section 180 was given and of any
incidental matter.
(3) An authorised officer cannot vote at a meeting and is not to be
counted for the purpose of determining the existence of a
30 quorum.
page 94
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Associations Incorporation Bill 2006
Certain remedial measures available to the Commissioner Part 10
Appointment of statutory manager Division 4
s. 183
Division 4 -- Appointment of statutory manager
183. Commissioner may appoint statutory manager
(1) The Commissioner may, subject to subsection (2), appoint a
statutory manager to administer the affairs of an incorporated
5 association if --
(a) the Commissioner is of the opinion that the association
has refused or failed to remedy a contravention of this
Act within 60 days after notice of the contravention has
been given to the association by the Commissioner; or
10 (b) the Commissioner is of the opinion that the appointment
is necessary because of the financial or administrative
position of the association; or
(c) the association has by special resolution requested that a
statutory manager be appointed for the association.
15 (2) The Commissioner is not to appoint a statutory manager unless
the Commissioner is of the opinion that --
(a) the incorporated association concerned is, at the time of
the appointment, able to pay or meet its debts and
liabilities as and when they become due and payable;
20 and
(b) the appointment is in the public interest; and
(c) the issues that have arisen are not likely to be effectively
resolved by the exercise of any other power under
this Act.
25 (3) An appointment is to be made by instrument in writing given to
the incorporated association.
184. Statutory manager has functions of management committee
(1) On the appointment of a statutory manager of an incorporated
association --
30 (a) the members of the management committee of the
association cease to hold office; and
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Associations Incorporation Bill 2006
Part 10 Certain remedial measures available to the Commissioner
Division 4 Appointment of statutory manager
s. 185
(b) the statutory manager has the functions of the
management committee, including the committee's
powers of delegation.
(2) Except as provided by section 186(1), an officer of an
5 incorporated association cannot be appointed or elected so long
as a statutory manager is in office in respect of the association.
185. Duration of appointment
(1) An appointment of a statutory manager continues in force until
it is revoked --
10 (a) by the Commissioner by instrument in writing given to
the statutory manager; or
(b) by operation of subsection (2).
(2) If --
(a) a statutory manager is administering the affairs of an
15 incorporated association; and
(b) a liquidator is appointed to carry out the winding up of
the association,
the appointment of the statutory manager is automatically
revoked.
20 186. Prerequisites to revocation of appointment
(1) Before revoking the appointment of a statutory manager of an
incorporated association, the Commissioner must --
(a) appoint another statutory manager of the association; or
(b) ensure that members of the management committee of
25 the association have been elected in accordance with the
rules of the association at a meeting convened by the
statutory manager in accordance with those rules; or
(c) appoint members to the management committee of the
association.
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Associations Incorporation Bill 2006
Certain remedial measures available to the Commissioner Part 10
Appointment of statutory manager Division 4
s. 187
(2) Elected members of the management committee or members of
the management committee appointed under subsection (1) --
(a) take office on the revocation of the statutory manager's
appointment; and
5 (b) in the case of members appointed under
subsection (1)(c), hold office, subject to section 190,
until the next annual general meeting of the association
after the revocation of that appointment.
187. Statutory manager to report to the Commissioner
10 (1) A statutory manager of an incorporated association --
(a) must report to the Commissioner on the affairs of the
association as directed by the Commissioner; and
(b) may at any time on the statutory manager's own
initiative report to the Commissioner on those affairs.
15 (2) After the revocation of a statutory manager's appointment, the
person who held the office --
(a) must, as soon as is practicable, make a final report to the
Commissioner on the affairs of the association; and
(b) has access to the records and documents of the
20 incorporated association concerned for that purpose.
(3) The Commissioner may, after considering a report under
subsection (2), refer any matter back to the person for further
consideration and report to the Commissioner, and the person
has access to the records and documents of the incorporated
25 association concerned for that purpose.
(4) The person must report to the Commissioner as required under
subsection (3).
Penalty applicable to subsections (1)(a), (2)(a) and (4): a fine
of $10 000.
page 97
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Associations Incorporation Bill 2006
Part 10 Certain remedial measures available to the Commissioner
Division 4 Appointment of statutory manager
s. 188
188. Remuneration and expenses of statutory manager
(1) In this section --
"expenses" includes --
(a) if the statutory manager is an employee within the
5 meaning of the Public Sector Management Act 1994,
the amount that the Commissioner determines is to be
paid to the State in repayment of the statutory
manager's remuneration; or
(b) if paragraph (a) does not apply, remuneration of the
10 statutory manager at a rate determined by the
Commissioner.
(2) The Commissioner may make moneys available for the purpose
of meeting the expenses of and incidental to the conduct of the
affairs of an incorporated association by a statutory manager,
15 and the Treasurer may advance moneys to the Commissioner for
that purpose on such terms and conditions as the Treasurer
thinks fit.
(3) The Commissioner may determine that the expenses referred to
in subsection (2) are to be recovered from the incorporated
20 association concerned, or that a part of those expenses is to be
so recovered.
(4) A member of the incorporated association concerned may apply
to the State Administrative Tribunal for a review of a
determination of the Commissioner --
25 (a) under paragraph (a) or (b) of the definition in
subsection (1); or
(b) under subsection (3).
(5) An application under subsection (4) must be made within --
(a) 28 days; or
30 (b) such other period as is prescribed,
after the member receives notice of the determination.
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[Draft Bill for public comment]
Associations Incorporation Bill 2006
Certain remedial measures available to the Commissioner Part 10
Appointment of statutory manager Division 4
s. 189
(6) An amount payable pursuant to a determination under
subsection (3) is recoverable from the incorporated association
by the Commissioner in a court of competent jurisdiction as a
debt due to the State.
5 (7) The Commissioner has, in relation to an amount mentioned in
subsection (6), the same priority on the winding up of an
incorporated association as a liquidator of the association.
189. Liability of statutory manager
(1) Except as provided in subsection (3), a statutory manager is not
10 liable for any loss incurred by the incorporated association in
respect of the period of the statutory manager's appointment.
(2) Subsection (1) does not affect the duty of a statutory manager to
provide information to the Commissioner in respect of any loss
in a report under section 187.
15 (3) A statutory manager is liable for a loss incurred by the
incorporated association in respect of the period of the statutory
manager's appointment because of --
(a) fraud or dishonesty; or
(b) negligence; or
20 (c) a wilful failure to comply with this Act or the rules of
the association,
on the part of the statutory manager.
190. Additional powers of Commissioner
(1) If the Commissioner appoints members of the management
25 committee of an incorporated association under
section 186(1)(c), the Commissioner may, by notice in writing
given to the association, specify --
(a) a period during which this section is to apply in relation
to the association; and
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[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 10 Certain remedial measures available to the Commissioner
Division 4 Appointment of statutory manager
s. 191
(b) the terms and conditions on which all or any of the
members of the management committee hold office; and
(c) the rules that are to be the rules of the association.
(2) While this section applies to an incorporated association, the
5 Commissioner may --
(a) from time to time remove or appoint members of the
management committee;
(b) from time to time revoke or replace, in whole or in part,
or add to or vary the terms and conditions or the rules
10 specified under subsection (1).
(3) The Commissioner may, by notice in writing given to an
incorporated association, extend the period during which this
section is to apply to the association.
(4) Rules specified by the Commissioner under this section for an
15 incorporated association --
(a) are not to be amended or revoked except under this
section; and
(b) if they are inconsistent with any other rule of the
association, prevail over that other rule.
20 (5) Section 198(2)(d) applies to a copy of rules specified by the
Commissioner under subsection (1) as if they had been lodged
with the Commissioner.
191. Proceedings against association stayed
(1) After a statutory manager has been appointed to administer the
25 affairs of an incorporated association, a person cannot begin or
continue a proceeding in a court against the association until the
appointment of the statutory manager is revoked except --
(a) with the leave of the Supreme Court; and
(b) if that Court grants leave, in accordance with the terms
30 and conditions that it imposes.
page 100
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Certain remedial measures available to the Commissioner Part 10
Appointment of statutory manager Division 4
s. 191
(2) A person intending to apply for leave of the Supreme Court
under subsection (1) must give the Commissioner not less than
10 days' notice of that intention.
(3) On the hearing of an application under subsection (1), the
5 Commissioner may be represented and may oppose the granting
of the application.
page 101
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 11 Administration
Division 1 General
s. 192
Part 11 -- Administration
Division 1 -- General
192. Commissioner
(1) In this section --
5 "executive officer" has the meaning given by the Public Sector
Management Act 1994 section 3(1).
(2) The Minister is required, by notice published in the Gazette, to
designate a person who is an executive officer of the
Department as the Commissioner for the purposes of this Act.
10 (3) The Commissioner may be referred to by a title specified by the
Minister by notice published in the Gazette.
193. Delegation by Commissioner
(1) The Commissioner may delegate to any other person employed
in the Department any power or duty of the Commissioner
15 under another provision of this Act.
(2) The delegation must be in writing signed by the Commissioner.
(3) A person to whom a power or duty is delegated under this
section cannot delegate that power or duty.
(4) A person exercising or performing a power or duty that has been
20 delegated to the person under this section is to be taken to do so
in accordance with the terms of the delegation unless the
contrary is shown.
(5) Nothing in this section limits the ability of the Commissioner to
perform a function through an official or an agent.
page 102
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Administration Part 11
General Division 1
s. 194
194. Regulations for the obtaining of information by the
Commissioner
(1) The regulations may make provision for an incorporated
association to provide the Commissioner with prescribed
5 information that is relevant to the operation of this Act,
including prescribed information by way of periodical returns at
prescribed times.
(2) Regulations made for the purposes of subsection (1) may
provide that the prescribed information is to be included in an
10 annual return under section 106.
195. Information officially obtained to be confidential
(1) In this section --
"information" means information concerning the affairs of a
person.
15 (2) A person who misuses information obtained by reason of any
function that person has, or at any time had, in the
administration of this Act or a repealed Act commits an offence.
Penalty: a fine of $20 000.
(3) A person misuses information if it is directly or indirectly
20 recorded, used, or disclosed to another person other than --
(a) in the course of duty; or
(b) under this Act; or
(c) for the purposes of the investigation of any suspected
offence or the conduct of proceedings against any
25 person for an offence; or
(d) in a manner that could not reasonably be expected to
lead to the identification of any person to whom the
information refers; or
(e) with the consent of the person to whom the information
30 relates, or each of them if there is more than one.
page 103
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 11 Administration
Division 1 General
s. 196
196. Protection from liability for wrongdoing
(1) A person is not liable for anything that the person has, in good
faith, done in the performance or purported performance of a
function under this Act or a repealed Act.
5 (2) The State is also relieved of any liability that it might otherwise
have had for another person having done anything described in
subsection (1).
(3) The protection given by this section applies even though the
thing done as described in subsection (1) may have been
10 capable of being done whether or not this Act had been enacted.
(4) In this section, a reference to the doing of anything includes a
reference to an omission to do anything.
197. Judicial notice
All courts, judges and persons acting judicially are to take
15 judicial notice of --
(a) the official signature of every person who is for the time
being, and every person who has at any time been, the
Commissioner; and
(b) the fact that such person holds or has held such office.
20 198. Evidentiary provisions
(1) In subsection (2) --
"specified" means specified in the Commissioner's certificate.
(2) A certificate of the Commissioner to the effect of any of the
following is evidence of the matter or matters set out in the
25 certificate --
(a) that on a specified day a specified association was or
was not an incorporated association;
(b) that on a specified day no incorporated association was
incorporated under this Act by a specified name;
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Associations Incorporation Bill 2006
Administration Part 11
Lodgment of documents with Commissioner Division 2
s. 199
(c) that a specified requirement of this Act --
(i) had or had not been complied with as at a
specified day or within a specified period; or
(ii) had been complied with as at a specified day but
5 not before that day;
(d) that a copy of the rules of a specified incorporated
association is a true copy of those rules as lodged with
the Commissioner as at a specified day.
(3) A certificate of incorporation of an association issued under this
10 Act is conclusive evidence of the incorporation of the
association under this Act on the day specified in the certificate
as the day of incorporation.
Division 2 -- Lodgment of documents with Commissioner
199. Keeping of documents by Commissioner
15 (1) The Commissioner is to keep a copy of --
(a) the rules of each incorporated association, except where
model rules under section 59 apply without amendment;
and
(b) any amendment to the rules of an incorporated
20 association; and
(c) the other documents required by this Act to be lodged
with the Commissioner.
(2) The documents referred to in subsection (1) may be kept in such
manner as the Commissioner thinks fit.
25 (3) An incorporated association must, if required to do so by the
Commissioner by notice in writing given to the association,
produce to the Commissioner a copy of the rules of the
association as in force at the time when the notice is given or at
some other time specified in the notice.
page 105
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 11 Administration
Division 2 Lodgment of documents with Commissioner
s. 200
200. Destruction of documents by Commissioner
(1) The Commissioner may destroy or dispose of --
(a) any document; and
(b) any copy or transparency of a document,
5 lodged in respect of an incorporated association if not less than
15 years have elapsed since the association was dissolved or its
incorporation was cancelled.
(2) Subsection (1) only applies if in the Commissioner's opinion it
is no longer necessary or desirable to retain the document, copy
10 or transparency.
201. Inspection etc. of documents
(1) A person may, on payment of the prescribed fee --
(a) inspect any document lodged with the Commissioner for
the purposes of this Act, not being a document that has
15 been destroyed or otherwise disposed of; or
(b) obtain from the Commissioner a certified copy of, or
extract from, any document lodged with the
Commissioner for the purposes of this Act.
(2) If a reproduction or transparency of a document is produced for
20 inspection, a person is not entitled under subsection (1) to
require the production of the original.
202. Commissioner's certification of document
A copy of or extract from a document lodged with the
Commissioner for the purposes of this Act that is certified by
25 the Commissioner to be a true copy or extract is in any
proceedings admissible in evidence as of equal validity with the
original document.
page 106
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Administration Part 11
Powers of investigation Division 3
s. 203
203. No constructive notice of contents of documents
A person is not taken to have knowledge of --
(a) the statement of the objects or purposes of an
incorporated association; or
5 (b) the rules of an incorporated association; or
(c) any of the contents of the statement of objects or
purposes or of the rules of an incorporated association;
or
(d) any other document or its contents; or
10 (e) any particulars,
by reason only that the statement of objects or purposes, the
rules, the document or the particulars --
(f) is or are lodged with the Commissioner for the purposes
of this Act; or
15 (g) is or are referred to in any other document that is so
lodged.
Division 3 -- Powers of investigation
204. Terms used in this Division
In this Division, unless the contrary intention appears --
20 "authorised officer" means a person designated as an
authorised officer under section 205;
"incorporated association" includes --
(a) an incorporated association that is in the course of
being wound up; and
25 (b) an association that has ceased to be incorporated
under this Act;
"record" includes --
(a) any document, register or other record of
information; and
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Associations Incorporation Bill 2006
Part 11 Administration
Division 3 Powers of investigation
s. 205
(b) any accounting record within the meaning in
section 99,
however compiled, recorded or stored, and whether or not the
information in the record is available only after the record is
5 subjected to an electronic or other process.
205. Authorised officers
(1) The chief executive officer of the Department may --
(a) designate any officer of the Department as an authorised
officer for the purposes of this Division; and
10 (b) at any time cancel a designation.
(2) The chief executive officer of the Department is to issue a
certificate of authorisation to each person who is designated as
an authorised officer under subsection (1).
(3) An authorised officer must produce the certificate whenever
15 required to do so by a person in respect of whom the officer has
exercised, or is about to exercise, any power under this
Division.
(4) Production of a certificate referred to in subsection (2) in
respect of a person is evidence in any court of the person's
20 designation under subsection (1).
206. Commissioner may require certain persons to appear,
answer questions and produce records
(1) In this section --
"relevant person", in relation to an incorporated association,
25 means a person who --
(a) is or has been an officer or employee of the
association; or
(b) is or has been an agent, banker, legal practitioner,
accountant, auditor for the association or other person
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Associations Incorporation Bill 2006
Administration Part 11
Powers of investigation Division 3
s. 206
acting in any capacity for or on behalf of the
association; or
(c) has possession or control of any record relating to the
association; or
5 (d) was a party to the creation of any record relating to
the association; or
(e) the Commissioner reasonably believes is able to
provide relevant information;
"specified", in subsection (3), means specified in a notice
10 referred to in subsection (4).
(2) The Commissioner may only exercise a power conferred by this
section for the purpose of ascertaining whether --
(a) a contravention of this Act has occurred; or
(b) an offence has been committed in relation to an
15 incorporated association that --
(i) involves fraud or dishonesty; or
(ii) concerns the management of the affairs of the
association.
(3) The Commissioner may --
20 (a) require that any specified record relating to an
incorporated association be produced to an authorised
officer by --
(i) the incorporated association; or
(ii) a relevant person,
25 at a specified time and place; and
(b) require that a relevant person --
(i) attend before an authorised officer at a specified
time and place; and
(ii) answer questions put to the person by the
30 authorised officer relating to the incorporated
association or its affairs;
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Associations Incorporation Bill 2006
Part 11 Administration
Division 3 Powers of investigation
s. 207
and
(c) require that a relevant person --
(i) give written answers to specified questions
relating to the incorporated association or its
5 affairs; and
(ii) send or deliver the document containing the
answers to the Commissioner within a specified
period.
(4) A requirement under subsection (3) is to be made by notice in
10 writing given to the incorporated association or the relevant
person, as the case may be, and may be revoked or amended in
the same way.
(5) A person is not subject to any liability by reason of complying
with a requirement made or purportedly made under this
15 section.
207. Powers of entry, search and seizure
(1) An authorised officer has power to enter a place for the
purposes of this Act only --
(a) with the consent of the occupier of the place; or
20 (b) under the authority of a search warrant.
(2) If an authorised officer has power to enter a place for the
purposes of this Act, the officer may take any action described
in subsections (3), (4) and (5).
(3) The authorised officer may search the place for any record or
25 thing that the officer believes on reasonable grounds to be
connected with --
(a) a contravention of this Act; or
(b) a contravention of some other written law that involves
fraud or dishonesty in relation to, or concerns the
30 management of the affairs of, an incorporated
association.
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Associations Incorporation Bill 2006
Administration Part 11
Powers of investigation Division 3
s. 208
(4) The authorised officer may seize any record or thing referred to
in subsection (3) that is found in the place.
(5) For the purposes of the exercise of the powers conferred by
subsection (3) or (4), the authorised officer may, require any
5 person who is at the place to --
(a) answer any question put to the person by the authorised
officer; or
(b) produce any record, or give reasonable assistance to, the
officer.
10 (6) If an authorised officer enters a place under the authority of a
search warrant, references in subsections (3) and (4) to "any
record or thing" are, subject to section 209(5), references to
any record or thing named or described in the warrant under
section 208(4).
15 208. Issue of search warrant
(1) An authorised officer may apply to a justice for a search warrant
in respect of a particular place.
(2) The application must be in writing and must be made by the
authorised officer in person.
20 (3) The justice may issue a search warrant to the authorised officer
if the justice is satisfied by evidence on oath that there are
reasonable grounds to suspect that there is at the place
concerned any record or thing that may be connected with --
(a) a contravention of this Act; or
25 (b) a contravention of some other written law that involves
fraud or dishonesty in relation to, or concerns the
management of the affairs of, an incorporated
association.
(4) Any record or thing as to which the justice is satisfied for the
30 purposes of subsection (3) must be named or described in the
search warrant.
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Associations Incorporation Bill 2006
Part 11 Administration
Division 3 Powers of investigation
s. 209
(5) The justice is to cause a record to be made (on the search
warrant or otherwise) of the matters of fact on which the justice
has relied to justify the issue of the warrant.
209. Execution of search warrant
5 (1) A search warrant remains in force for 28 days from the day of
its issue.
(2) A search warrant may be executed by the authorised officer to
whom it was issued or by any other authorised officer.
(3) A search warrant permits an authorised officer --
10 (a) to enter the place specified in the warrant using any
force that is reasonably necessary to do so; and
(b) to exercise in that place the powers provided for by
section 207.
(4) An authorised officer executing a search warrant must produce
15 the warrant for inspection by a person occupying the place
concerned if requested by the person to do so.
(5) If, in the course of executing a search warrant, an authorised
officer --
(a) finds a record or thing that the officer believes on
20 reasonable grounds to be connected with a contravention
referred to in section 208(3), although not a record or
thing named or described in the warrant; and
(b) believes, on reasonable grounds, that it is necessary to
seize that record or thing in order to prevent its
25 concealment, loss or destruction,
the warrant is to be taken to authorise the officer to seize the
record or thing.
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Associations Incorporation Bill 2006
Administration Part 11
Powers of investigation Division 3
s. 210
210. Powers of authorised officers concerning records
An authorised officer may --
(a) examine any record found or produced, and make copies
of and take extracts from any record seized or produced,
5 under this Division; and
(b) in the case of a record kept otherwise than in a readily
intelligible format, require a person having the ability to
do so to produce the record in a legible form; and
(c) take possession of and retain any record seized or
10 produced for such reasonable period as may be
necessary for the purposes of this Act.
211. Failure to comply with a requirement and related provisions
(1) A person must not, without lawful excuse, refuse or fail to
comply with a requirement of the Commissioner or an
15 authorised officer under this Division.
(2) A person must not give information or produce a record to an
authorised officer or a person referred to in section 214 --
(a) that the person knows to be; or
(b) with reckless disregard as to whether the information or
20 record is,
false or misleading in a material particular.
(3) A person must not without lawful excuse obstruct or hinder an
authorised officer or a person referred to in section 214 in the
performance of a function under this Division.
25 Penalty applicable to subsections (1), (2) and (3): a fine
of $10 000.
212. Legal professional privilege
The existence of legal professional privilege is a lawful excuse
for the purposes of section 211(1).
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Associations Incorporation Bill 2006
Part 11 Administration
Division 4 Infringement notices
s. 213
213. Self incrimination
(1) It is not a lawful excuse for the purposes of section 211(1) for a
person to refuse to answer a question or produce a record on the
ground that the answer or record might tend to incriminate the
5 person or make the person liable to a penalty.
(2) However, if the person answers the question or produces the
record the following are not admissible against the person in
criminal proceedings --
(a) the answer to the question;
10 (b) the record produced;
(c) the fact of the production of the record by the person.
(3) The immunity provided by subsection (2) does not apply to
proceedings for an offence against section 211(2).
214. Persons assisting an authorised officer
15 (1) An authorised officer who is performing any function under this
Division, including the execution of a search warrant, may be
accompanied or assisted by any other person whose assistance
the officer considers to be necessary or expedient.
(2) A person referred to in subsection (1) may do such things as are
20 necessary or expedient to assist in the performance by the
authorised officer of a function under this Division.
(3) Anything done under subsection (2) is taken to have been done
by the authorised officer.
Division 4 -- Infringement notices
25 215. Terms used in this Division
In this Division --
"authorised officer" means an officer designated under
section 225 to be an authorised officer for the purposes of
the section in which the term is used;
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Associations Incorporation Bill 2006
Administration Part 11
Infringement notices Division 4
s. 216
"prescribed offence" means an offence prescribed under
section 216.
216. Prescribed offences
The regulations may prescribe offences against this Act for
5 which an infringement notice may be given under section 218.
217. Modified penalties
(1) For each prescribed offence the regulations are to prescribe --
(a) a modified penalty; or
(b) a different modified penalty according to the
10 circumstances of the offence.
(2) The modified penalty for an offence cannot exceed 20% of the
maximum penalty that could be imposed for that offence by a
court.
218. Giving of notice
15 (1) An authorised officer who has reason to believe that a person
has committed a prescribed offence may give an infringement
notice to the alleged offender.
(2) The notice is to be given within 6 months after the alleged
offence is believed to have been committed.
20 219. Contents of notice
(1) An infringement notice is to be in the prescribed form.
(2) An infringement notice is to --
(a) contain a description of the alleged offence; and
(b) specify the amount of the modified penalty for the
25 offence; and
(c) advise the person concerned that, if the person does not
wish to be prosecuted for the alleged offence in a court,
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Part 11 Administration
Division 4 Infringement notices
s. 220
that amount may be paid to an authorised officer within
28 days after the giving of the notice.
(3) The amount referred to in subsection (2)(b) is to be the amount
that was the prescribed modified penalty at the time when the
5 alleged offence is believed to have been committed.
220. Extension of time
(1) An authorised officer may, in a particular case, extend the
period of 28 days within which the modified penalty may be
paid.
10 (2) An extension may be granted under subsection (1) either before
or after the period of 28 days has elapsed.
221. Withdrawal of notice
(1) An authorised officer may, within 60 days after the day on
which an infringement notice was given, withdraw the notice by
15 sending to the alleged offender a notice in the prescribed form
stating that the infringement notice has been withdrawn.
(2) Subsection (1) applies even if the modified penalty has been
paid.
(3) If an infringement notice is withdrawn after the modified
20 penalty has been paid, the amount is to be refunded.
222. Benefit of paying modified penalty
(1) This section applies if --
(a) the modified penalty specified in an infringement notice
has been paid within 28 days or such further time as is
25 allowed; and
(b) the notice has not been withdrawn.
(2) The payment prevents --
(a) the bringing of proceedings; and
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Administration Part 11
Infringement notices Division 4
s. 223
(b) the imposition of penalties,
to the same extent that they would be prevented if the alleged
offender had been convicted by a court of, and punished for, the
alleged offence.
5 223. No admission implied by payment
Payment of a modified penalty is not to be regarded as an
admission for the purposes of any proceedings, whether civil or
criminal.
224. Application of penalties collected
10 An amount paid as a modified penalty is to be dealt with as if it
were imposed by a court as a penalty for an offence, unless
section 221(3) requires that the amount be refunded.
225. Designation of authorised officers
(1) In this section --
15 "chief executive officer" means the chief executive officer of
the Department.
(2) The chief executive officer may in writing designate officers of
the Department as authorised officers for the purposes of
section 218, 219, 220 or 221, or for the purposes of 2 or more of
20 those sections, but an officer who is authorised to give
infringement notices under section 218 is not eligible to be an
authorised officer for the purposes of any of the other sections.
(3) The chief executive officer may at any time cancel a designation
under subsection (2).
25 (4) The chief executive officer is to issue a certificate of
authorisation to each person who is designated as an authorised
officer under subsection (2).
(5) An authorised officer is to produce the certificate whenever
required to do so by a person in respect of whom the officer has
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Associations Incorporation Bill 2006
Part 11 Administration
Division 4 Infringement notices
s. 225
exercised, or is about to exercise, any power under this
Division.
(6) Production of a certificate referred to in subsection (4) in
respect of a person is evidence in any court of the person's
5 designation under subsection (2).
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Associations Incorporation Bill 2006
Miscellaneous Part 12
s. 226
Part 12 -- Miscellaneous
226. Jurisdiction of State Administrative Tribunal in respect of
disputes
(1) If a dispute cannot be resolved under the procedure mentioned
5 in Schedule 3 Division 1 item 16 --
(a) the incorporated association concerned; or
(b) a member of the association involved in the dispute,
may make an application to the State Administrative Tribunal to
have the dispute determined by that Tribunal.
10 (2) In a proceeding under subsection (1), the State Administrative
Tribunal may make orders giving such relief as the Tribunal
considers appropriate, including one or more of the following
orders --
(a) an order giving directions for the observance of the rules
15 of the incorporated association by any person who has
an obligation to observe those rules;
(b) an order declaring and enforcing the rights and
obligations of members of the incorporated association
between themselves;
20 (c) an order declaring and enforcing the rights and
obligations between the incorporated association and
any member or members of the association.
227. False or misleading statements in documents
(1) This section applies to a document that is --
25 (a) required by or for the purposes of this Act; or
(b) lodged with or submitted to the Commissioner; or
(c) submitted to a meeting of the management committee,
or of the members, of an incorporated association.
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[Draft Bill for public comment]
Associations Incorporation Bill 2006
Part 12 Miscellaneous
s. 228
(2) A person must not in a document to which this section
applies --
(a) make or authorise the making of a statement that to the
person's knowledge is false or misleading in a material
5 particular; or
(b) omit, or authorise the omission of, any matter or thing
without which the document is to the person's
knowledge misleading in a material respect.
Penalty: a fine of $10 000.
10 228. Time limit for prosecutions
Proceedings for an offence against this Act may be commenced
within the period of 3 years after the offence was committed,
but not after the expiry of that period.
229. Payment of fees on lodging documents
15 Where a fee is payable to the Commissioner in respect of the
lodging of a document with the Commissioner and the
document is submitted for lodging without payment of the fee,
the document is not to be treated as having been lodged until the
fee is paid.
20 230. Regulations
(1) The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed, or are
necessary or convenient to be prescribed, for giving effect to the
purposes of this Act.
25 (2) Without limiting subsection (1), regulations may be made
providing for fees to be paid and prescribing the amount of such
fees.
231. Repeal
(1) The Associations Incorporation Act 1987 is repealed.
page 120
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Miscellaneous Part 12
s. 232
(2) Schedule 6 has effect to make transitional provisions.
232. Consequential amendments
The Acts mentioned in Schedule 7 are amended as set out in
that Schedule.
page 121
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Schedule 1 Some circumstances that do not make an association ineligible
for incorporation
Schedule 1 -- Some circumstances that do not make an
association ineligible for incorporation
[s. 9(3)]
An association is not ineligible under section 9(1) by reason only of
5 any one or more of the following circumstances --
(a) that the association itself is empowered to make a pecuniary
profit, unless that profit or some part of it is divided among or
received by the members or some of them;
(b) that the association is established for the protection or
10 regulation of some trade, business, industry or calling in
which the members are engaged or interested (the
"activity"), if the association itself does not engage or take
part in the activity or any part or branch of the activity;
(c) that any member of the association derives pecuniary profit
15 from the association by way of salary as an employee or
officer of the association;
(d) that any member of the association derives from the
association any pecuniary profit to which the person would be
equally entitled if the person were not a member of the
20 association;
(e) that the members of the association compete with each other
for trophies or prizes other than money prizes;
(f) that the association itself may or does make a profit from
subscriptions, donations, sponsorship or the sale of any
25 broadcasting rights;
(g) that the association provides facilities or services for its
members;
(h) that the association trades or may trade with its members or
with the public, so long as --
30 (i) the trading is ancillary to the principal purpose of the
association; and
(ii) any trading with the public is not substantial in
volume in relation to the other activities of the
association;
page 122
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Some circumstances that do not make an association ineligible Schedule 1
for incorporation
(i) that the association charges admission fees to displays,
exhibitions, contests, sporting fixtures or other occasions
organised for the promotion of the objects or purposes of the
association.
page 123
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Schedule 2 Vesting of property and liabilities on incorporation
cl. 1
Schedule 2 -- Vesting of property and liabilities
on incorporation
[s. 25(2) and 133]
1. Terms used in this Schedule
5 In this Schedule, unless the contrary intention appears --
"former association" means --
(a) the association that is incorporated to form an
incorporated association under section 18; or
(b) an incorporated association that is a party to an
10 amalgamation under Part 8,
as the case may be;
"incorporated association" means --
(a) an incorporated association under section 18; or
(b) a new body that is incorporated under section 131,
15 as the case may be.
2. Transfer of assets and liabilities and related provisions
(1) On the incorporation of an association under section 18 or 131 --
(a) the property of a former association vests, by virtue of this
subclause, in the incorporated association; and
20 (b) the rights and liabilities of a former association become, by
virtue of this subclause, the rights and liabilities of the
incorporated association; and
(c) proceedings by or against a former association subsisting
immediately before the incorporation may be continued by or
25 against the incorporated association; and
(d) proceedings that might have been brought by or against a
former association immediately before the incorporation may
be commenced by or against the incorporated association;
and
30 (e) any act, matter or thing done or omitted to be done before the
incorporation by, to or in respect of a former association is, to
the extent to which the act, matter or thing has any force or
page 124
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Vesting of property and liabilities on incorporation Schedule 2
cl. 3
effect, taken to have been done or omitted by, to or in respect
of the incorporated association; and
(f) a reference in an agreement or instrument to a former
association is unless --
5 (i) the context otherwise requires; or
(ii) the regulations otherwise provide,
to be read as, or as including, a reference to the incorporated
association.
(2) On the incorporation of an association under section 18 any property
10 held by a person for or on behalf of the former association vests, by
virtue of this subclause, in the incorporated association.
(3) The operation of a provision of this clause does not have effect to
relieve or release a person from any liability incurred by or on behalf
of a former association before its incorporation under section 18.
15 3. Trusts etc. not affected
Any property vested in an incorporated association by clause 2 is
vested subject to any trust, restriction or obligation to which the
property was subject immediately before it became so vested.
4. Notation of registers
20 On --
(a) the application of an incorporated association in which any
estate or interest in land has been vested by clause 2; and
(b) the production of such duplicate instruments of title and other
documents as the Registrar of Titles or the Registrar of Deeds
25 may require,
the Registrar of Titles or the Registrar of Deeds is to record and
register the vesting in the appropriate manner.
page 125
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Schedule 3 Content of rules of an incorporated association
Division 1 Matters to be provided for in rules
Schedule 3 -- Content of rules of an
incorporated association
[s. 57]
Division 1 -- Matters to be provided for in rules
5 1. The qualifications (if any) for membership of the incorporated
association.
2. The register of members of the incorporated association, but subject
to regulations made for the purposes of section 89.
3. The voting rights of members or classes of members at general
10 meetings of the incorporated association.
4. The entrance fees, subscriptions and other amounts (if any) to be paid
by members of the incorporated association.
5. The name, constitution, membership and powers of the management
committee of the incorporated association ("the committee") and
15 provision for --
(a) the election or appointment of members of the committee;
and
(b) the terms of office of members of the committee; and
(c) the grounds on which, or reasons for which, the office of a
20 member of the committee is to become vacant; and
(d) the filling of casual vacancies occurring on the committee;
and
(e) the quorum and procedure at meetings of the committee.
6. The quorum and procedure at general meetings of members of the
25 incorporated association.
7. The time within which, and manner in which, notices of general
meetings and notices of motion are to be given, published or
circulated.
8. Subject to Division 2 item 1, the number of members, expressed as a
30 percentage of membership, who may at any time require that a general
meeting of the incorporated association be convened.
page 126
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Content of rules of an incorporated association Schedule 3
Matters to be provided for in rules Division 1
9. The manner in which the funds of the incorporated association are to
be controlled.
10. Subject to Division 2 items 2 and 3, the day in each year on which the
financial year of the incorporated association commences.
5 11. The intervals between general meetings of members of the
incorporated association and the manner of calling general meetings.
12. Subject to Part 5 Division 4 and Schedule 6 clause 14, the manner of
amending and revoking the rules of the incorporated association.
13. Provisions for the custody and use of the common seal of the
10 incorporated association.
14. The custody of records, books, documents and securities of the
incorporated association.
15. Subject to Part 5 Division 5 and Part 6 Divisions 6 and 7, the
inspection by members of the incorporated association of records and
15 documents of the incorporated association.
16. A procedure for dealing with any dispute under or relating to the
rules --
(a) between members; or
(b) between members and the incorporated association.
20 17. Subject to section 58, the manner in which surplus property of the
incorporated association is to be distributed or dealt with if the
association is wound up or its incorporation is cancelled.
18. The provisions that are to apply to removal from office of the public
officer of the incorporated association, including the procedure to be
25 followed.
page 127
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Schedule 3 Content of rules of an incorporated association
Division 2 Particular requirements for certain rules
cl. 1
Division 2 -- Particular requirements for certain rules
1. Number of members who may call a general meeting
The rules referred to in Division 1 item 8 cannot specify greater than
the prescribed percentage of members as the number of members who
5 may at any time require that a general meeting be convened in
accordance with the rules of the incorporated association.
2. Financial year of associations incorporated under this Act
(1) In this clause --
"rules" means rules made for the purposes of Division 1 item 10.
10 (2) This clause applies to an association incorporated after the
commencement of this Act other than an association to which
Schedule 6 clause 4(3) applies.
(3) The first financial year of an incorporated association after its
incorporation is to be a period fixed by its rules, but not exceeding
15 15 months commencing on the day of incorporation.
(4) Subsequent financial years of an incorporated association are to be the
period of 12 months commencing at the termination of the first
financial year or the anniversary of that termination.
(5) Subclause (4) does not limit the power of an incorporated association
20 to amend its rules so that its financial year is some other period of
12 months and, if it does so, an initial period of more or less than
12 months may be determined to be the financial year so far as is
necessary for the transition from one period to another.
3. Transitional provisions as to financial year of associations
25 incorporated under a repealed Act
(1) In this clause --
"rules" means rules made for the purposes of Division 1 item 10.
page 128
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Content of rules of an incorporated association Schedule 3
Particular requirements for certain rules Division 2
cl. 3
(2) This clause applies to --
(a) an association that was incorporated under a repealed Act and
whose incorporation has effect immediately before the
commencement of this Act; and
5 (b) an association to which Schedule 6 clause 4(3) applies.
(3) Subject to Schedule 6 clause 12(2), the financial year of an
incorporated association to which this clause applies is to be a period
of 12 months fixed by its rules.
(4) Subclause (3) does not limit the power of an incorporated association
10 to amend the provision in its rules that fixes its financial year.
(5) If --
(a) the period fixed by an incorporated association for the
purposes of subclause (3) is different from the period
previously applicable to the association; or
15 (b) an incorporated association amends its rules as mentioned in
subclause (4),
an initial period of more or less than 12 months may be determined to
be the financial year so far as is necessary for the transition from one
period to another.
20 (6) Until an incorporated association to which this clause applies amends
its rules for the purposes of Division 1 item 10 --
(a) the financial year of the association continues to be that fixed
under the repealed Act; and
(b) the definition of "financial year" in section 3 is taken to
25 provide accordingly.
page 129
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Schedule 4 Modifications to text of Parts 5.4 to 5.8 of the Corporations Act
Schedule 4 -- Modifications to text of Parts 5.4 to 5.8 of
the Corporations Act
[s. 136]
1. A reference to a company is to be read as a reference to an
5 incorporated association.
2. A reference in Part 5.7 to a Part 5.7 body is to be read as a reference
to an incorporated association.
3. A reference to the directors of a company is to be read as a reference
to the members of the management committee of an incorporated
10 association.
4. A reference to the secretary of a company is to be read as a reference
to the public officer of an incorporated association or, if applicable,
the person referred to in Schedule 6 clause 18(5).
5. A reference to the principal place of business of a company is to be
15 read as a reference to the address of an incorporated association given
to the Commissioner under section 11(2), 17 or 130(1)(b).
6. A reference to ASIC is to be read as a reference to the Commissioner.
7. A reference to the Court is to be read as a reference to the Supreme
Court.
20 8. A reference to the deregistration of a company is to be read as a
reference to the cancellation of the incorporation of an association.
page 130
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Grounds on which an incorporated association may be wound Schedule 5
up by the Supreme Court
Schedule 5 -- Grounds on which an incorporated
association may be wound up by the Supreme Court
[s. 163]
1. The incorporated association was not at the time of incorporation
5 eligible for incorporation under this Act.
2. The incorporation of the association was obtained by fraud or
mistake.
3. The incorporated association has fewer than 6 members who under its
rules have the right to vote at its general meetings either in person or
10 by proxy or postal vote.
4. The incorporated association has suspended its operations, or has in
effect been dormant, for a whole year.
5. The incorporated association is unable to pay its debts as and when
they become due and payable.
15 6. The incorporated association has engaged in activities outside the
scope of its objects or purposes or has ceased to pursue those objects
or purposes.
7. The management committee of the incorporated association has acted
oppressively in relation to members.
20 8. The following circumstances apply --
(a) the incorporated association has contravened a provision of
this Act that applies to it or the public officer of the
incorporated association has contravened a provision of this
Act that applies to that officer; and
25 (b) the Commissioner has by notice in writing given to the
association or the public officer, as the case may be, required
the association or the public officer to remedy the
contravention within 60 days after the notice was given; but
(c) the association or the public officer has failed or refused to
30 do so.
9. The incorporated association has failed to comply with a direction of
the Commissioner under section 50 or 173.
page 131
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Schedule 5 Grounds on which an incorporated association may be wound
10. The incorporated association has itself, or as a trustee, traded or
secured pecuniary profit for the members of the association.
11. The incorporated association has by special resolution resolved that it
be wound up by the Supreme Court.
5 12. The Supreme Court is of the opinion that it is just and equitable that
the incorporated association should be wound up.
page 132
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Transitional provisions Schedule 6
Preliminary Division 1
cl. 1
Schedule 6 -- Transitional provisions
[s. 231(2)]
Division 1 -- Preliminary
1. Interpretation
5 (1) In this Schedule --
"existing incorporated association" means an association --
(a) that was incorporated under a repealed Act; and
(b) whose incorporation has effect immediately before the
commencement of this Act.
10 (2) This Schedule is in addition to the provisions of the Interpretation
Act 1984 and, unless the contrary intention appears, does not limit or
otherwise affect the operation of those provisions.
Division 2 -- Existing incorporated associations
2. Incorporation continued
15 An existing incorporated association is taken to be an association
incorporated under this Act.
3. Committee of existing association
A committee of an existing incorporated association, or other body
having the management of the affairs of an existing incorporated
20 association, is taken to be a management committee for the purposes
of section 70.
Division 3 -- Continuation of certain matters in progress
4. Existing applications for incorporation
(1) If before the commencement of this Act --
25 (a) an application for the incorporation of an association was
made under the repealed Act; but
page 133
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Associations Incorporation Bill 2006
Schedule 6 Transitional provisions
Division 3 Continuation of certain matters in progress
cl. 5
(b) the association had not been incorporated or the application
refused,
the application may be dealt with and completed under the repealed
Act as if it had not been repealed.
5 (2) If an association to which subsection (1) applies is refused
incorporation as mentioned in section 9(3) of the repealed Act, that
subsection applies as if it had not been repealed.
(3) If an association to which subsection (1) applies is incorporated --
(a) the rules of the association are, despite section 60, the rules
10 accepted for the purposes of the incorporation; and
(b) the association is taken to be an association incorporated
under this Act.
5. Rule alteration in progress
(1) This clause applies if --
15 (a) before the commencement of this Act an incorporated
association has, for the purposes of section 17 of the repealed
Act, passed a special resolution altering its rules but the
period specified or a period allowed under that section has
not expired; and
20 (b) the association complies with that section in respect of the
alteration after the commencement of this Act.
(2) The alteration to which the special resolution relates takes effect as if
section 17 of the repealed Act had not been repealed.
6. Applications under repealed section 18 or 19
25 (1) This clause applies if before the commencement of this Act --
(a) an application has been made for an approval under
section 18 or 19 of the repealed Act; but
(b) the application has not been determined by the Commissioner
or has been so determined but the time allowed for an
30 application to be made under that section for a review of the
determination has not expired.
page 134
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Transitional provisions Schedule 6
Continuation of certain matters in progress Division 3
cl. 7
(2) The application may be dealt with and completed and an application
for review may be made as if section 18 or 19 of the repealed Act, as
the case may be, had not been repealed.
7. Applications for extension of time under repealed section 23(1)
5 If at the commencement of this Act an application for an extension of
time under section 23(1) of the repealed Act has been made but has
not been determined by the Commissioner, the application may be
dealt with and completed as if that section had not been repealed.
8. Applications for review made but not determined
10 (1) In this clause --
"repealed provision" means section 4(6), 7(2), 8(2), 9(3), 18(4) or
19(3) of the repealed Act.
(2) An application to the State Administrative Tribunal for a review of a
decision of the Commissioner under a repealed provision that has
15 been made but not finally determined before the commencement of
this Act may be heard and determined as if that provision had not
been repealed.
9. Voluntary winding up in progress
(1) This clause applies if before the commencement of this Act --
20 (a) a resolution has been duly passed under section 30(1) of the
repealed Act for the voluntary winding up of an incorporated
association; but
(b) dissolution of the association has not taken effect under
section 30(3) of that Act.
25 (2) The repealed Act applies, as if it had not been repealed, to the
winding up of the incorporated association and its dissolution
including --
(a) the distribution of surplus property in accordance with
section 33; and
30 (b) the application of section 36 in the circumstances mentioned
in subsection (1) of that section.
(3) If an association is dissolved under section 30(3) of the repealed Act,
the Commissioner must, by instrument in writing, cancel the
page 135
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Schedule 6 Transitional provisions
Division 4 Amendment of rules by existing incorporated associations and
associations to which clause 4(3) applies
cl. 10
incorporation of the association with effect on and from a day that the
Commissioner considers appropriate and specifies in the instrument.
(4) The Commissioner may cause an instrument under subclause (3) to be
published in the Gazette if the Commissioner considers that public
5 notification of the cancellation is desirable.
10. Notice given under repealed section 34(1)
If before the commencement of this Act --
(a) a notice has been given to an incorporated association under
section 34(1) of the repealed Act; and
10 (b) the period of 3 months mentioned in section 34(2) of that Act
has not expired,
the incorporated association may make a request to the Commissioner
under section 34(2), and the Commissioner may make an order under
that section which is to apply as if it had not been repealed.
15 11. Notice given under repealed section 35
If before the commencement of this Act a notice has been given to an
incorporated association under section 35(1) of the repealed Act but
the Commissioner's powers under that section have not been
exercised --
20 (a) the Commissioner may exercise the powers conferred by that
section, but subject to section 35(2)(b) of the repealed Act;
and
(b) section 36 of the repealed Act has effect,
in relation to the association as if the repealed Act had not been
25 repealed.
Division 4 -- Amendment of rules by existing incorporated
associations and associations to which clause 4(3) applies
12. Amendment of rules
(1) In this clause --
30 "new requirements" means the requirements of section 57 when
read with Schedule 3 items 3, 8, 10, 16, 17 and 18.
page 136
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Transitional provisions Schedule 6
Amendment of rules by existing incorporated associations and Division 4
associations to which clause 4(3) applies
cl. 13
(2) To allow time for an existing incorporated association to ensure that
its rules comply with the new requirements, those requirements do not
apply to an existing incorporated association until the expiry of --
(a) 18 months after the commencement of this Act; or
5 (b) such longer period as the Commissioner may, on application
made by the association, from time to time allow by
instrument in writing.
(3) To allow time for an association to which clause 4(3) applies to
ensure that its rules comply with the new requirements, those
10 requirements do not apply to the association until the expiry of --
(a) 18 months after the incorporation of the association; or
(b) such longer period as the Commissioner may, on application
made by the association, from time to time allow by
instrument in writing.
15 13. Rules of existing incorporated associations to which repealed
Schedule 2 clause 4 applied
(1) In this clause --
"incorporated association to which the 1895 Act applied" means
an incorporated association which immediately before the
20 commencement of this Act had the benefit of the exemption in
Schedule 2 clause 4 of the repealed Act.
(2) To allow time for an incorporated association to which the 1895 Act
applied to ensure that its rules comply with section 57, those
requirements do not apply to the association until the expiry of --
25 (a) 18 months after the commencement of this Act; or
(b) such longer period as the Commissioner may, on application
made by the association, from time to time allow by
instrument in writing.
14. Amendments may be made by management committee
30 (1) This clause has effect despite the provisions of Part 5 Division 4.
(2) The management committee of an incorporated association may, by
resolution made not later than 18 months after the commencement of
page 137
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Associations Incorporation Bill 2006
Schedule 6 Transitional provisions
Division 4 Amendment of rules by existing incorporated associations and
associations to which clause 4(3) applies
cl. 15
this Act, make any amendment to the rules of the association that is
required to ensure that the rules comply with section 57.
(3) An amendment referred to in subclause (2) does not take effect unless
it is approved by the Commissioner.
5 (4) The public officer of the incorporated association must, within
28 days after the management committee passes a resolution under
subclause (2) to amend the rules of the association, apply to the
Commissioner in the approved form for approval of the amendment.
(5) If the Commissioner refuses to approve an amendment under this
10 clause, the incorporated association may apply to the State
Administrative Tribunal for a review of the decision of the
Commissioner.
(6) An application under subclause (5) must be made within --
(a) 28 days; or
15 (b) such other period as is prescribed,
after the incorporated association receives notice of the refusal.
(7) If the amendment is approved, the incorporated association must give
notice of the amendment to its members with notice of the next annual
general meeting of the association after the approval is given.
20 15. Liability of incorporated association if rules are not made
compliant
(1) In this clause --
"transition period" in relation to an incorporated association means
the period allowed by or under clause 12 or 13 for the
25 association to ensure that its rules comply with the new
requirements or with section 57, as the case may be.
(2) If at the end of the transition period in relation to an incorporated
association the rules of the association do not comply with section 57,
the association commits an offence and is liable to a fine of $5 000.
30 (3) Subclause (2) does not affect any liability that a member of the
management committee of an incorporated association may have
page 138
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Transitional provisions Schedule 6
Other things to be done by existing incorporated associations Division 5
and associations to which clause 4(3) applies
cl. 16
under section 71 for the failure of the association to comply with
section 57(2).
16. Act modifications pending amendment of rules
(1) This clause applies pending the amendment of the rules of an existing
5 incorporated association or an association to which clause 4(3) applies
to include the provisions required by Schedule 3 items 17 and 18.
(2) Until the provisions required by Schedule 3 item 17 are included in
the rules, section 143(1) has effect in respect of an association
referred to in subclause (1) as if paragraph (a) were omitted from that
10 subsection.
(3) Subclause (2) does not apply if the rules of an association referred to
in subclause (1) already make the provision referred to in Schedule 3
item 17.
(4) Until the provisions required by Schedule 3 item 18 are included in
15 the rules, section 79(3) has effect in respect of an association referred
to in subclause (1) as if the words "in accordance with its rules" were
omitted from that subsection.
Division 5 -- Other things to be done by existing incorporated
associations and associations to which clause 4(3) applies
20 17. Notification of address
(1) An existing incorporated association must in writing notify the
Commissioner of the address of the association not later than 90 days
after the commencement of this Act.
(2) An association to which clause 4(3) applies must in writing notify the
25 Commissioner of the address of the association not later than 90 days
after the association is incorporated.
(3) An address notified under subclause (1) or (2) by an incorporated
association may be the same as the residential address of the public
officer of the association.
page 139
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Schedule 6 Transitional provisions
Division 5 Other things to be done by existing incorporated associations
and associations to which clause 4(3) applies
cl. 18
18. Appointment of public officer
(1) To allow time for an existing incorporated association to comply with
section 77(1), that subsection does not apply to an existing
incorporated association until the expiry of --
5 (a) 90 days after the commencement of this Act; or
(b) such longer period as the Commissioner may, on application
made by the association, from time to time allow by
instrument in writing.
(2) To allow time for an association to which clause 4(3) applies to
10 comply with section 77(1), that subsection does not apply to the
association until the expiry of --
(a) 90 days after the incorporation of the association; or
(b) such longer period as the Commissioner may, on application
made by the association, from time to time allow by
15 instrument in writing.
(3) A public officer must, within 14 days after being appointed for the
purposes of this clause, give written notice of the appointment to the
Commissioner in the approved form.
Penalty: a fine of $1 000.
20 (4) The notice must include the person's full name and the person's
residential and postal addresses (which may be the same).
(5) Until a public officer is appointed by an existing incorporated
association, a provision of this Act that confers or imposes a function,
power or duty on a public officer is to be read as if that function,
25 power or duty were conferred or imposed on the person who is
normally entitled to preside at meetings of the management
committee of the association.
19. Keeping of register of members
(1) To allow time for an existing incorporated association to comply with
30 section 89(a), that provision does not apply to an existing
incorporated association until the expiry of --
(a) 18 months after the time when this Act and regulations made
for the purposes of section 89(a) have commenced; or
page 140
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Transitional provisions Schedule 6
Other provisions Division 6
cl. 20
(b) such longer period as the Commissioner may, on application
made by the association, from time to time allow by
instrument in writing.
(2) Until the expiry of the period allowed by or under subclause (1) it is
5 sufficient if an existing incorporated association maintains its register
of members in accordance with section 27 of the repealed Act.
Division 6 -- Other provisions
20. When accounts and audit provisions start to apply to existing
incorporated associations
10 (1) In this section --
"new accounts and audit requirements" means Part 7 Divisions 1
and 2 (except section 101) and Division 3 Subdivisions 1 and 3.
(2) If the day on which this Act commences falls after the beginning of
the current financial year of an existing incorporated association the
15 new accounts and audit requirements apply in respect of the next and
subsequent financial years of the association, and in respect of the
current financial year sections 25 and 26 of the repealed Act apply to
the association as if they had not been repealed.
(3) Except as provided in subclause (2), Part 7 applies to an existing
20 incorporated association on and after the commencement of this Act.
21. Property vested under repealed section 36
If immediately before the commencement of this Act property of an
incorporated association is vested in the Commissioner under
section 36 of the repealed Act --
25 (a) the Commissioner may perform the functions conferred by
that section in respect of the association and its property; and
(b) section 36(2) and (3) have effect,
as if that section had not been repealed.
22. Constructive notice under section 189 of this Act
30 The rights, liabilities and remedies of persons in respect of acts,
omissions, circumstances and things that occurred before the
page 141
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Schedule 6 Transitional provisions
Division 7 Further provision may be made
cl. 23
commencement of section 203 are to be determined as if that
section had not been passed.
23. Time limit under section 214 of this Act
Section 228 of this Act does not apply to an offence committed
5 against the repealed Act.
24. References in written laws
A reference in a written law to an association incorporated under this
Act includes a reference to an existing incorporated association that is
taken by clause 2 to be incorporated under this Act.
10 Division 7 -- Further provision may be made
25. Regulations
(1) The regulations may make provision for a transitional matter if there
is no sufficient provision made in this Schedule for the matter, but no
regulation may be made under this subclause after this Act has been in
15 operation for 12 months.
(2) Regulations made for the purposes of subclause (1) may provide that
a specific provision of this Act --
(a) does not apply; or
(b) applies with any specific modification,
20 to or in relation to a matter.
(3) Regulations made for the purposes of subclause (1) may provide that
a state of affairs is taken to have existed, or not to have existed, on
and from a day that is --
(a) earlier than the day on which the regulations are published in
25 the Gazette; but
(b) not earlier than the day on which this Act came into
operation.
page 142
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Transitional provisions Schedule 6
Further provision may be made Division 7
cl. 25
(4) A provision referred to in subclause (3) does not operate so as --
(a) to affect in a manner prejudicial to any person (other than the
State) the rights of that person existing before the day on
which the regulations are published in the Gazette; or
5 (b) to impose liabilities on any person (other than the State) in
respect of anything done or omitted to be done before that
day.
page 143
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Schedule 7 Consequential amendments
cl. 1
Schedule 7 -- Consequential amendments
[s. 232]
1. Children and Community Services Act 2004 amended
(1) The amendments in this clause are to the Children and Community
5 Services Act 2004*.
[*Act No. 34 of 2004.
For subsequent amendments see Western Australian Legislation
Information Tables for 2005, Table 1, and Act No. 35 of 2006.]
(2) Section 197 is amended in the definition of "managerial officer", in
10 paragraph (b), by deleting "1987 section 3, a member of the" and
inserting instead --
" 2006 section 3, a member of the management ".
2. Criminal Procedure Act 2004 amended
(1) The amendments in this clause are to the Criminal Procedure
15 Act 2004*.
[*Act No. 71 of 2004.]
(2) Schedule 2 clause 4(2)(c) is amended by deleting "1987 section 41"
and inserting instead --
" 2006 section 81 ".
20 3. Education Service Providers (Full Fee Overseas Students)
Registration Act 1991 amended
(1) The amendments in this clause are to the Education Service Providers
(Full Fee Overseas Students) Registration Act 1991*.
[*Reprint 1 as at 9 May 2003.
25 For subsequent amendments see Western Australian Legislation
Information Tables for 2005, Table 1.]
(2) Section 11(a)(ii) is amended as follows:
(a) by deleting "1987" and inserting instead --
" 2006 ";
page 144
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Consequential amendments Schedule 7
cl. 4
(b) by inserting after "members of the" --
" management ".
4. Hale School Act 1876 amended
(1) The amendments in this clause are to the Hale School Act 1876*.
5 [*Reprinted as at 17 June 2002.
For subsequent amendments see Western Australian Legislation
Information Tables for 2005, Table 1.]
(2) Each of sections 1A, in the definition of "Association", and 9 are
amended by deleting "1987" and inserting instead --
10 " 2006 ".
5. Law Society Public Purposes Trust Act 1985 amended
(1) The amendments in this clause are to the Law Society Public
Purposes Trust Act 1985*.
[*Reprint 1 as at 6 February 2004.]
15 (2) Section 2(1) is amended in the definition of "Law Society" by
deleting "established under the Associations Incorporation Act 1895"
and inserting instead --
"
incorporated under the Associations Incorporation
20 Act 2006
".
6. Liquor Licensing Act 1988 amended
(1) The amendments in this clause are to the Liquor Licensing Act 1988*.
[*Reprint 4 as at 9 June 2006.]
25 (2) Section 49(1)(a)(i) and (6) are each amended by deleting "1987" and
inserting instead --
" 2006 ".
page 145
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Schedule 7 Consequential amendments
cl. 7
(3) Schedule 2 is amended in each of Division 1 clause 1 in the definition
of "the League", and Division 2 clause 1 in the definition of "the
Association", by deleting "1987" and inserting instead --
" 2006 ".
5 7. School Education Act 1999 amended
(1) The amendments in this clause are to the School Education Act 1999*.
[*Reprint 1 as at 3 September 2004.
For subsequent amendments see Western Australian Legislation
Information Tables for 2005, Table 1, and Act No. 34 of 2004.]
10 (2) Each of sections 139(2) and 148(2)(b) are amended by deleting
"section 31 of " and inserting instead --
" Schedule 5 to ".
(3) Each provision specified in the Table to this subclause is amended by
deleting "1987" and inserting instead --
15 " 2006 ".
Table
s. 130(3)(a)(ii) s. 145(3)
s. 137(2) s. 148(2) and (3)
s. 138(1) s. 195(1)(a)
s. 139(1), (2) and (3)
(4) Section 141 is amended in the definition of "incorporated association"
by deleting "1987" and inserting instead --
" 2006 ".
20 8. Taxation Administration Act 2003 amended
(1) The amendments in this clause are to the Taxation Administration
Act 2003*.
[*Reprint 1 as at 14 October 2005.
For subsequent amendments see Act No. 38 of 2005.]
page 146
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Consequential amendments Schedule 7
cl. 9
(2) Section 67(11)(b) is amended by deleting "corporate that has been
incorporated under the Associations Incorporation Act 1987." and
inserting instead --
"
5 that is incorporated under the Associations
Incorporation Act 2006.
".
9. Volunteers (Protection from Liability) Act 2002 amended
(1) The amendments in this clause are to the Volunteers (Protection from
10 Liability) Act 2002*.
[*Act No. 32 of 2002.]
(2) Section 3(1) is amended in the definition of "community
organisation" by deleting "1987" and inserting instead --
" 2006 ".
15 (3) Section 3(1) is amended in the definition of "community work" as
follows:
(a) by inserting "or" after paragraphs (a) to (i);
(b) by deleting paragraph (j) and "or" after it.
10. References to "1895" amended to "2006" in various Acts
20 Each provision specified in the Table to this clause is amended by
deleting "1895" and inserting instead --
" 2006 ".
Table
Companies (Co-operative) s. 8(a) and 28(1)(a)(iv) and (6)(c)
Act 1943
Cremation Act 1929 s. 4(1)(b)
Legal Aid Commission s. 4(1) in the definition of "Law
Act 1976 Society"
Legal Contribution Trust s. 4(1) in the definition of "Society"
Act 1967
page 147
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Schedule 7 Consequential amendments
cl. 11
11. References to "1987" amended to "2006" in various Acts
Each provision specified in the Table to this clause is amended by
deleting "1987" and inserting instead --
" 2006 ".
5 Table
Companies (Co-operative) s. 176A(1)(b)
Act 1943
Equal Opportunity Act 1984 s. 4(1) in the definition of
"incorporated association"
Gaming and Wagering s. 38(b)
Commission Act 1987
Insurance Commission of s. 3 in the definition of
Western Australia Act 1986 "community organisation"
paragraph (a)
Local Government Act 1995 s. 5.74(1) in the definition of
"corporation" paragraph (e)
Members of Parliament s. 3(1) in the definition of
(Financial Interests) "corporation" paragraph (e)
Act 1992
Planning and Development s. 182(2)(b)
Act 2005
Western Australian Treasury Schedule 1 item 1
Corporation Act 1986
page 148
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
a repealed Act .......................................................................................................3
accounting records ..............................................................................................99
activity ..........................................................................................................Sch. 1
address ........................................................................................................... 94(1)
address of the public officer........................................................................... 81(1)
amend....................................................................................................................3
annual general meeting .........................................................................................3
annual return ................................................................................................ 105(1)
another body corporate ................................................................................ 173(1)
any record or thing ....................................................................................... 207(6)
approved ...............................................................................................................3
association.............................................................................................................3
auditor ...............................................................................................................117
Australian Accounting Standards......................................................................117
authorised officer ......................................................................... 182(1), 204, 215
body ............................................................................................................. 144(1)
body corporate ............................................................................................... 55(1)
chief executive officer.................................................................................. 225(1)
Commissioner .......................................................................................................3
Department............................................................................................................3
distribution plan ................................................................................................134
executive officer .......................................................................................... 192(1)
existing incorporated association ..................................................... Sch. 6 cl. 1(1)
expenses ....................................................................................................... 188(1)
financial statements.............................................................................................99
financial transactions ................................................................................... 103(1)
financial year............................................................................................ 3, 103(3)
former association.................................................................................Sch. 2 cl. 1
gross receipts or gross income ............................................................................99
incorporated association............................................................3, 204, Sch. 2 cl. 1
incorporated association to which the 1895 Act applied................ Sch. 6 cl. 13(1)
information................................................................................................... 195(1)
liability..................................................................................................................3
management committee ........................................................................................3
meeting ........................................................................................................ 182(1)
new accounts and audit requirements ............................................ Sch. 6 cl. 20(1)
new body.............................................................................................. 128, 129(1)
new requirements ........................................................................... Sch. 6 cl. 12(1)
officer....................................................................................................................3
page 149
[Draft Bill for public comment]
Associations Incorporation Bill 2006
Defined Terms
prescribed body corporate...................................................................................48
prescribed offence.............................................................................................215
property.................................................................................................................3
public officer.........................................................................................................3
record ................................................................................................................204
relevant contract........................................................................................... 144(1)
relevant documents and records.......................................................... 72(1), 83(1)
relevant interest...................................................................................................73
relevant office holder ................................................................................... 180(1)
relevant person ............................................................................................. 206(1)
repealed provision............................................................................ Sch. 6 cl. 8(1)
report.................................................................................................................117
rules....................................................................................Sch. 3 cl. 2(1) and 3(1)
served on ........................................................................................................ 81(1)
special resolution ..................................................................................................3
specified ..............................................................................180(1), 198(1), 206(1)
surplus property ................................................................................... 134, 155(1)
the committee................................................................................................Sch. 3
the repealed Act ....................................................................................................3
the transferee................................................................................................ 178(1)
tier 1 incorporated association ............................................................................99
tier 2 incorporated association ............................................................... 99, 109(1)
tier 3 incorporated association ............................................................... 99, 110(1)
transition period ............................................................................. Sch. 6 cl. 15(1)
page 150
[Draft Bill for public comment]
WESTERN AUSTRALIA
Associations
Incorporation
Bill 2006
DRAFT BILL FOR PUBLIC COMMENT
The Government proposes to introduce into Parliament a Bill to
provide for the incorporation and regulation of certain
associations, to repeal the Associations Incorporation
Act 1987 and for connected purposes.
This draft Bill has been prepared for public comment but it
does not necessarily represent the Government's settled
position.
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