Associations Incorporation Act 1985 (SA)

South Australia Associations Incorporation Act 1985 An Act to make provision for the incorporation, administration and control of associations; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation 3A Exclusion of operation of Corporations Act 4 Act binds Crown Part 2—Administration Division 1—The Commission 5 Administration by the Commission 6 Inspection of documents 7 Power of Commission to refuse to register or reject document etc 9 Annual report Division 2—Power of inspection etc 10 Power of Commission to require production of books 11 Power of Commission to carry out investigations in relation to books 12 Protection from liability 13 Privileged communications 14 Offences 15 Self-incrimination 16 Liens on books 17 Secrecy Part 3—Incorporation of associations Division 1—Incorporation 18 Eligibility for incorporation 19 Manner in which application for incorporation is to be made 20 Incorporation of association 21 Rights and liabilities of members Division 2—Amalgamation 22 Amalgamation Division 3—Rules 23 Rules binding on association and its members 23A Contents of rules of an incorporated association 24 Alteration of rules 24A Court may order variation of rules Division 4—Powers 25 Powers of an incorporated association Division 5—Transactions 26 Manner in which contracts may be made 27 Limitation of doctrine of ultra vires 28 Abolition of doctrine of constructive notice in relation to incorporated association Part 4—Management of internal affairs Division 1—The committee 29 Management of incorporated associations 30 Certain persons not to be members of the committee 31 Disclosure of interest 32 Voting on a contract in which a committee member has an interest Division 2—Accounts and audit of prescribed associations 33 Preliminary 34 Application of Division to relevant prescribed associations 34A Disclosure of information relating to relevant prescribed associations 34B Commission may provide information to Commonwealth Commissioner 35 Accounts to be kept 36 Lodgment of periodic returns 37 Provisions relating to auditors acting under this Division 37A Payment of auditor 38 Power of exemption Division 3—Annual general meeting 39 Annual general meeting Division 3A—Duties of officers etc 39A Duties of officers etc 39AB Reliance on information or advice provided by others 39B Provisions indemnifying officers or auditors Division 3B—Records 39C Keeping of records 39D Inspection of records Division 4—Disputes 40 Rules of natural justice to be applied in relation to adjudication of dispute Part 5—Compromise, winding up, transfer of activities and dissolution Division 1—General 40A Power to compromise with creditors 40B Power to enter into voluntary administration 41 Winding up of incorporated associations 41A Appeals from decisions of receivers, liquidators, managers etc 41B Reports to be submitted to liquidator 41C Declaration of solvency 41D Disclosure to creditors on voluntary winding up 41E Penalty for contravention of applied provisions 42 Power of Commission to require transfer of activities 43 Distribution of assets upon winding up 43A Application for deregistration 44 Defunct associations 44A Commission to act as representative of defunct association in certain events 45 Outstanding property of former association 46 Disposal of outstanding property 47 Liability of Commission and Crown as to property vested in Commission 48 Accounts 49 Removal of name from register Division 2—Offences 49AA Interpretation and application 49AB Non-disclosure 49AC Failure to keep proper records 49AD Incurring debts not likely to be paid 49AE Powers of court 49AF Frauds by officers Part 6—Miscellaneous 49A General power of exemption of the Commission 50 Reviews 51 Minutes 53 Investing or depositing money with association 53A Reservation of name 54 Name of association to be printed etc on documents 55 Prohibition against securing profits for members 56 Public officer 57 Penalty for non-compliance with Act or a condition imposed under Act 58 Falsification of books 58A General defence 59 Variation or revocation of trusts 60 Misrepresentation as to incorporation under this Act 61 Oppressive or unreasonable acts 62 Examination of persons concerned with associations 62A Orders against persons concerned with associations 62B Civil proceedings not to be stayed 62C Form and evidentiary value of books 62D Continuing offences 62E Proceedings for offences 63 Evidentiary provision 64 Service 65 Use of abbreviation "Inc." 66 Fees in respect of lodging documents 67 Regulations Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Associations Incorporation Act 1985. 3—Interpretation (1) In this Act, unless the contrary intention appears— accounting records includes invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry, and books and records which record such entries, and also includes such working papers and other documents as are necessary to explain the methods and calculations by which accounts are made up; accounts of an incorporated association means— (a) a combination of— (i) an account of receipts and payments recording the total receipts and payments based on the cash method of accounting; and (ii) a statement of assets and liabilities; or (b) a combination of— (i) an account of income and expenditure recording the total income and expenditure based on the accrual method of accounting; and (ii) a balance sheet, together with such statements, reports and notes, other than auditors' reports, as are attached to and intended to be read with the account, statement or balance sheet, as the case may be; association includes society, club, institution or body; authorised person means a person appointed by the Commission by instrument in writing to be an authorised person for the purposes of this Act; beneficiary includes an object under a discretionary trust; body corporate includes a body corporate within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth; books includes any register or other record of information and any accounts or accounting records, however compiled, recorded or stored, and also includes any document; the Commission means the Corporate Affairs Commission; domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not; financial year, in relation to an incorporated association, means— (a) in the case of an association whose rules fix a period ending on a specified day as the association's financial year— (i) if such a period is fixed or varied at incorporation or during the first financial year of the association—the period not exceeding 18 months commencing on the date of incorporation and ending on the day specified; (ii) if such a period is fixed or varied during any subsequent financial year—the period not exceeding 12 months commencing at the end of the last preceding financial year and ending on the day specified; (iii) each succeeding period of 12 months ending on the day specified; (b) in the case of an association whose rules do not fix a period as the association's financial year— (i) the period commencing on the date of incorporation and ending on the next succeeding 30 June; (ii) each succeeding period of 12 months ending on 30 June; gross receipts of an incorporated association means the total amount of the receipts of the association including any grant or subsidy paid to or on behalf of the association by the Government of the State or the Commonwealth, local government or an agency of the Crown in right of the State or the Commonwealth, but not including any money received by the association— (a) by way of a membership fee, subscription, levy or other fee, if any, paid by a member; or (b) as a devise or bequest; or (c) from the sale of any of the association's assets that had not been originally purchased by the association for the purpose of resale; incorporated association means an association incorporated under this Act; insolvent under administration means a person who— (a) under the Bankruptcy Act 1966 of the Commonwealth is a bankrupt in respect of a bankruptcy from which he or she has not been discharged; or (b) under the law of a country other than Australia has the status of an undischarged bankrupt, and includes— (c) a person who has executed a deed of arrangement under Part 10 of the Bankruptcy Act 1966 of the Commonwealth or the corresponding provisions of the law of a country other than Australia where the terms of the deed have not been fully complied with; and (d) a person whose creditors have accepted a composition under Part 10 of the Bankruptcy Act 1966 of the Commonwealth or the corresponding provisions of the law of a country other than Australia where a final payment has not been made under that composition; member of an incorporated association means— (a) a person who is under the rules of the association a member of the association; or (b) a body that is under the rules of the association a member of the association; officer of an incorporated association means— (a) any person who— (i) occupies or acts in a position of— (A) a member of the committee of the association; or (B) the secretary, treasurer or public officer of the association; or (ii) is concerned, or takes part, in the management of the affairs of the association, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position; or (b) the holder of any other office established by the rules of the association (except a patron or the holder of some other honorary office that confers no right to participate in the management of the affairs of the association); or (c) any person in accordance with whose directions or instructions the committee of the association is accustomed to act; prescribed association means an incorporated association— (a) that had gross receipts in that association's previous financial year in excess of— (i) $200 000; or (ii) such greater amount as is prescribed by regulation; or (b) that is prescribed or of a class prescribed by regulation; the repealed Act means the Associations Incorporation Act 1956 repealed by this Act; special resolution of an incorporated association means— (a) where the rules of the association provide for the membership of the association—a resolution passed at a duly convened meeting of the members of the association if— (i) at least 21 days written notice specifying the intention to propose the resolution as a special resolution has been given to all members of the association; and (ii) it is passed at a meeting referred to in this paragraph by a majority of not less than three-quarters of such members of the association as, being entitled to do so, vote in person or, where proxies are allowed, by proxy, at that meeting; (b) where the rules of the association do not provide for the membership of the association—a resolution passed at a duly convened meeting of the members of the committee of the association if— (i) at least 21 days written notice specifying the intention to propose the resolution as a special resolution has been given to all members of the committee; and (ii) it is passed at a meeting referred to in this paragraph by a majority of not less than three-quarters of such members of the committee as, being entitled to do so, vote in person or, where alternates are allowed, by alternates, at that meeting; spouse—a person is the spouse of another if they are legally married; total receipts and payments means the amount arrived at by aggregating receipts and payments in connection with all activities of the association in that association's financial year; transparency, in relation to a document, means— (a) a developed negative or positive photograph of that document (in this definition referred to as an original photograph) made, on a transparent base, by means of light reflected from, or transmitted through, the document; or (b) a copy of an original photograph made by the use of photosensitive material (being photosensitive material on a transparent base) placed in surface contact with the original photograph; or (c) any one of a series of copies of an original photograph, the first of the series being made by the use of photosensitive material (being photosensitive material on a transparent base) placed in surface contact with a copy referred to in paragraph (b), and each succeeding copy in the series being made, in the same manner, from any preceding copy in the series; Tribunal means the South Australian Civil and Administrative Tribunal established under the South Australian Civil and Administrative Tribunal Act 2013. (2) Except as otherwise provided, a reference in this Act to the rules of an association is a reference to the rules relating to the constitution, powers, management and administration of the association, and the rights and liabilities of its members, but does not extend to rules, by-laws or ordinances relating to or affecting personal dress or behaviour, practices, procedures or other matters that are of a religious, ceremonial or doctrinal nature, or any other prescribed matter. (3) Where under the rules of an incorporated association provision is made for confirmation or approval of a resolution of the association by some other person or body, such a resolution is not to be regarded as having been duly passed until it has been confirmed or approved as required by the rules. (4) A provision in the rules of an association requiring confirmation or approval of a resolution or decision of the association by some other person or body is not to be regarded as oppressive or unreasonable. (6) For the purposes of this Act, a person is an associate of another person if— (a) they are partners; or (b) one is a spouse, domestic partner, parent or child of the other; or (c) they are both trustees or beneficiaries of the same trust, or one is a trustee and the other is a beneficiary of the same trust; or (d) one is a corporation and the other is a director of the corporation; or (e) one is a corporation and the other is a person who has a legal or equitable interest in five per cent or more of the share capital of the corporation; or (f) they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth; or (g) a chain of relationships can be traced between them under any one or more of the above paragraphs. 3A—Exclusion of operation of Corporations Act (1) An incorporated association is declared to be an excluded matter for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to the whole of the Corporations legislation to which Part 1.1A of that Act applies. (2) Subsection (1) does not exclude the application of provisions of the Corporations Act 2001 of the Commonwealth to incorporated associations to the extent that they relate to any matter that the regulations provide is not to be excluded from the operation of that Act. 4—Act binds Crown This Act binds the Crown. Part 2—Administration Division 1—The Commission 5—Administration by the Commission (1) Subject to subsection (2), the Commission is responsible for the administration of this Act. (2) The Commission is, in relation to the administration of this Act, subject to the control and direction of the Minister. 6—Inspection of documents (1) For the purposes of this Act, the Commission must keep, in such form as it thinks fit— (a) a register of incorporated associations; and (b) such other registers as the Commission thinks fit. (2) Subject to subsection (2a) a person may, on payment of the prescribed fee— (a) inspect a register kept by the Commission under this Act; or (b) inspect any document registered or held by the Commission under this Act (not being a document that has been destroyed or otherwise disposed of); or (c) obtain from the Commission— (i) a certified copy of, or extract from, an entry in a register kept under this Act or the repealed Act; or (ii) a certified copy of a certificate of incorporation issued under this Act or the repealed Act; or (iii) a certified copy of, or extract from, any document registered or held by the Commission under this Act, or registered or held under the repealed Act. (2a) The Commission may, at the request of a person whose residential address appears in a register or document that is available for inspection under this section, take any steps necessary to ensure that the person's address is not publicly disclosed under this section. (3) If a reproduction or transparency of a document is produced for inspection, a person is not entitled pursuant to subsection (2) to require the production of the original of that document. (4) The reference in subsection (2)(c) to a certificate or document includes, where a reproduction or transparency of that certificate or document has been incorporated with a register kept by the Commission, a reference to that reproduction or transparency and, where such a reproduction or transparency has been so incorporated, a person is not entitled pursuant to that subsection to a copy of, or extract from, the original of that certificate or document. 7—Power of Commission to refuse to register or reject document etc (1) If the Commission is of the opinion that a document submitted to the Commission— (a) contains matter contrary to law; or (b) contains matter that, in a material particular, is false or misleading in the form or context in which it is included; or (c) by reason of an omission or misdescription, has not been duly completed; or (d) does not comply with the requirements of this Act; or (e) contains an error, alteration or erasure, the Commission may refuse to register or may reject the document and may request— (f) that the document be appropriately amended or completed and resubmitted; or (g) that a fresh document be submitted in its place; or (h) where the document has not been duly completed, that a supplementary document in the prescribed form be submitted. (2) The Commission may request a person who submits a document to the Commission to produce to the Commission such other document, or to furnish to the Commission such information, as the Commission thinks necessary in order to form an opinion whether it should refuse to register or should reject the document. (3) If a person fails to comply with a request of the Commission made pursuant to subsection (1) or (2) within 14 days after the service on the person of the request, a court of summary jurisdiction may, on an application of the Commission, order the person to comply with the Commission's request within the time specified in the order. (4) An order made under subsection (3) may provide that all costs of, and incidental to, the application are to be borne by the person responsible for the non-compliance. (5) A person who contravenes or fails to comply with an order made under subsection (3) is guilty of an offence. Maximum penalty: (a) if the offence is committed in respect of a prescribed association—$5 000; or (b) in any other case—$1 250. 9—Annual report (1) The Commission must, on or before 31 December in each year, deliver to the Minister a report on the administration of this Act during the period of 12 months that ended on the preceding 30 June. (2) The Minister must cause a copy of the report to be laid before each House of Parliament. Division 2—Power of inspection etc 10—Power of Commission to require production of books For the purpose of ascertaining whether the provisions of this Act have been or are being complied with, an authorised person may, by notice in writing, require— (a) any incorporated association to produce to the authorised person immediately or, if a time and place at which the books are to be produced are specified in the notice, at that time and place such books relating to affairs of the association as are specified by the authorised person; or (b) any person who is or has been an officer or employee of, or an agent, banker, solicitor, auditor or other person acting in any capacity for, or on behalf of, an incorporated association (including an association that is in the course of being wound up or has been dissolved) to produce to the authorised person immediately such books relating to affairs of the association as are specified by the authorised person; or (c) any person to produce to the authorised person immediately any books relating to affairs of an incorporated association (including an association that is in the course of being wound up or has been dissolved) that are in the custody or under the control of that person. 11—Power of Commission to carry out investigations in relation to books (1) Subject to this Division, where an authorised person exercises a power under this Division to require another person to produce books— (a) if the books are produced, the authorised person— (i) may take possession of the books and may make copies of, or take extracts from, the books; and (ii) may require the other person, or any person who was party to the compilation of the books, to make a statement providing any explanation that the person concerned is able to provide as to any matter relating to the compilation of the books or as to any matter to which the books relate; and (iii) may retain possession of the books for such period as is necessary to enable the books to be inspected, and copies of, or extracts from, the books to be made or taken, by or on behalf of the Commission; and (iv) during that period must permit a person who would be entitled to inspect any one or more of the books if they were not in the possession of the authorised person to inspect that book or those books at any reasonable time; or (b) if the books are not produced, the authorised person may require the other person— (i) to state, to the best of his or her knowledge and belief, where the books may be found; and (ii) to identify the person who, to the best of his or her knowledge and belief, last had custody of the books and to state, to the best of his knowledge and belief, where that person may be found. (2) Where an authorised person exercises a power under this Division to require another person to produce books that are recorded, kept and reproduced by electronic means, the other person may comply with the requirement to produce those books by providing a printed reproduction of the information contained in the books. (3) Where this Division confers a power on an authorised person to require a person to produce books relating to affairs of an incorporated association, the authorised person also has power to require that person (whether or not he or she requires that person to produce books and whether or not any books are produced pursuant to such a requirement), so far as the other person is able to do so, to identify property of the association and explain the manner in which the association has kept account of that property. 12—Protection from liability A person is not subject to any liability by reason of compliance with a direction or requirement given or made under this Division. 13—Privileged communications (1) Where— (a) an authorised person makes a requirement under this Division of a duly qualified legal practitioner in respect of a book; and (b) the book contains a privileged communication made by or on behalf of the legal practitioner, or to the legal practitioner, in his or her capacity as such, the legal practitioner is entitled to refuse to comply with the requirement unless the person to whom, or by or on behalf of whom, the communication was made agrees to the legal practitioner complying with the requirement but, where the legal practitioner so refuses to comply with a requirement, he or she must immediately furnish, in writing, to the authorised person— (c) if he or she knows the name and address of the person to whom, or by or on behalf of whom, the communication was made—that name and address; and (d) sufficient particulars to identify the book, or the part of the book, containing the communication. Maximum penalty: $5 000. (2) Where— (a) an authorised person, acting in pursuance of this Division, requires a duly qualified legal practitioner to make a statement providing an explanation as to any matter relating to the compilation of books or as to any matter to which any books relate; and (b) the legal practitioner is not able to make that statement without disclosing a privileged communication made by or on behalf of the legal practitioner, or to the legal practitioner, in his or her capacity as such, the legal practitioner is entitled to refuse to comply with the requirement, except to the extent that he or she is able to comply with the requirement without disclosing any privileged communication referred to in paragraph (b), unless the person to whom, or by or on behalf of whom, the communication was made agrees to the legal practitioner complying with the requirement but, where the legal practitioner so refuses to comply with a requirement, he or she must immediately furnish, in writing, to the authorised person— (c) if he or she knows the name and address of the person to whom, or by or on behalf of whom, the communication was made—that name and address; and (d) if the communication was made in writing—sufficient particulars to identify the document containing the communication. Maximum penalty: $5 000. 14—Offences (1) A person must not, without reasonable excuse, refuse or fail to comply with a requirement made under this Division. Maximum penalty: (a) if the offence is committed in respect of a prescribed association—$5 000; or (b) in any other case—$2 500. (2) A person must not, in purported compliance with a requirement made under this Division, furnish information or make a statement that is false or misleading in a material particular. Maximum penalty: (a) if the offence is committed in respect of a prescribed association—$5 000; or (b) in any other case—$2 500. (3) It is a defence to a prosecution for an offence against this section if the defendant proves that he or she believed on reasonable grounds that the information or statement was true and was not misleading. (4) A person must not, without reasonable excuse, obstruct or hinder the Commission or another person in the exercise of any power under this Division. Maximum penalty: (a) if the offence is committed in respect of a prescribed association—$5 000; or (b) in any other case—$2 500. 15—Self-incrimination (1) A person is not excused from making a statement providing an explanation as to any matter relating to the compilation of any books or as to any matter to which any books relate pursuant to a requirement made of him or her in accordance with this Division on the ground that the statement might tend to incriminate him or her but, where the person claims before making a statement that the statement might tend to incriminate him or her, the statement is not admissible in evidence against him or her in criminal proceedings other than proceedings under section 14. (2) Subject to subsection (1), a statement made by a person in compliance with a requirement made under this Division may be used in evidence in any criminal or civil proceedings against that person. 16—Liens on books Where an authorised person requires the production of any books under this Division and a person has a lien on the books, the production of the books does not prejudice the lien. 17—Secrecy (1) An authorised person who, by reason of the authority granted to him or her pursuant to this Act, acquires information must not, except to the extent necessary to perform his or her official duties or to perform a function or exercise a power authorised by this Act, make a record of, or divulge or make use of in any other way, the information acquired. Maximum penalty: $10 000. (2) Notwithstanding subsection (1), a person is not guilty of an offence if he or she— (a) produces a document to a court in the course of criminal proceedings or proceedings taken under this or any other Act; or (b) divulges to a court during the course of any proceedings referred to in paragraph (a), any matter or thing coming under his or her notice in the performance of his or her official duties or in the performance of a function or exercise of a power referred to in subsection (1); or (ba) in the course of proceedings before the Tribunal, produces a document to the Tribunal or divulges to the Tribunal any matter or thing coming under his or her notice in the performance of his or her official duties or in the performance of a function or exercise of a power referred to in subsection (1); or (c) produces a document or divulges information to a person to whom, in the opinion of the Commission, it is in the public interest that the document be produced or the information be divulged; or (d) produces a document or divulges information that is required or permitted by any other Act to be produced or divulged, as the case may be. Part 3—Incorporation of associations Division 1—Incorporation 18—Eligibility for incorporation (1) An association formed— (a) for a religious, educational, charitable or benevolent purpose; or (b) for the purpose of promoting or encouraging literature, science or the arts; or (c) for the purpose of providing medical treatment or attention, or promoting the interests of persons who suffer from a particular physical, mental or intellectual disability; or (d) for the purpose of sport, recreation or amusement; or (e) for the purpose of establishing, carrying on, or improving a community centre, or promoting the interests of a local community or a particular section of a local community; or (f) for conserving resources or preserving any part of the environmental, historical or cultural heritage of the State; or (g) for the purpose of promoting the interests of students or staff of an educational institution; or (h) for political purposes; or (i) for the purpose of administering any scheme or fund for the payment of superannuation or retiring benefits to the members of any organisation or the employees of any body corporate, firm or person; or (j) for the purpose of promoting the common interests of persons who are engaged in, or interested in, a particular business, trade or industry; or (k) for any purpose approved by the Minister, is, subject to this Act, eligible to be incorporated under this Act. (2) Subject to subsection (4), an association of the kind referred to in subsection (1)(i) is not, unless the Minister otherwise approves, eligible to be incorporated under this Act. (3) Subject to subsection (4), an association which is formed for the purpose of furthering or protecting the interests of employers or employees and which is eligible for registration under the Industrial Relations Act (S.A.) 1972 is not, unless the Minister otherwise approves, eligible to be incorporated under this Act. (4) Subsections (2) and (3) do not apply to an association that was, immediately before the commencement of this Act, an association incorporated under the repealed Act. (5) Subject to subsection (6), an association of which— (a) a principal or subsidiary object is to secure a pecuniary profit for the members of the association or any of those members; or (b) a principal or subsidiary object is to engage in trade or commerce, is not, unless the Commission otherwise approves, eligible to be incorporated under this Act. (6) An association is not, for the purposes of this Act, to be regarded as having as a principal or subsidiary object the securing of a pecuniary profit for its members or any of its members or engaging in trade or commerce by reason only of any one or more of the following circumstances: (a) that the association itself makes a pecuniary profit, unless that profit or any part of it is or is to be divided among or received by the members or any of them otherwise than in accordance with section 55; or (b) that the association buys or sells or deals in or provides goods or services where those transactions are ancillary to the principal objects of the association and, in the case of transactions with non-members (other than spouses, domestic partners, children or parents of members), the transactions— (i) are not substantial in number or value in relation to the other activities of the association; or (ii) are intended to pr