Associations Incorporation Act 2009 (NSW)

Associations Incorporation Act 2009 No 7 An Act to provide for the registration of clubs, societies and other non-profit associations; to provide for the regulation of those associations after registration; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Associations Incorporation Act 2009. 2 Commencement This Act commences on a day to be appointed by proclamation. 3 Objects of Act The objects of this Act are— (a) to establish a scheme for the registration of associations that are constituted for the purpose of engaging in small-scale, non-profit and non-commercial activities, including— (i) associations that are currently unincorporated (which become bodies corporate when they are registered), and (ii) associations that are currently incorporated under other legislation (which retain their corporate status following registration), and (b) to make provision with respect to the corporate governance and financial accountability of associations registered under that scheme. 4 Definitions (1) In this Act— approved, in relation to a form, means approved by the Secretary. ASIC means the Australian Securities and Investments Commission. assets means any legal or equitable estate or interest (whether present or future, whether vested or contingent and whether personal or assignable) in real or personal property of any description (including money), and includes securities, choses in action and documents. association means an association registered under this Act. Australian Accounting Standards means the standards issued by the Australian Accounting Standards Board, as in force for the time being, and including any modifications prescribed by the regulations. Australian Auditing Standards means the standards issued by the Auditing and Assurance Standards Board, as in force for the time being, and including any modifications prescribed by the regulations. authorised officer means— (a) a person who is appointed as an authorised officer under section 102, or (b) an investigator within the meaning of the Fair Trading Act 1987. authorised signatory, in relation to an association, means a person who is appointed under section 36 as an authorised signatory for the association, and includes the association's public officer. committee, in relation to an association, means the governing body of the association, however described. committee member, in relation to an association, means a person who is elected or appointed under the association's constitution as a committee member of the association. constitution, in relation to an association, means the constitution that is recorded in the Register of Incorporated Associations in relation to the association. corresponding law means— (a) the Co-operatives National Law (NSW), or (b) the Corporations Act 2001 of the Commonwealth, and includes any law of this or another State or Territory, or any law of the Commonwealth, that is declared by the regulations to be a corresponding law for the purposes of this Act. court includes tribunal. Department means the Department of Customer Service. exercise a function includes perform a duty. financial year, in relation to an association, means— (a) a period of 12 months, or such other period (whether longer or shorter than 12 months) not exceeding 18 months as the association resolves, commencing on the date of incorporation of the association, and (b) each period of 12 months, or such other period (whether longer or shorter than 12 months) not exceeding 18 months as the association resolves, commencing at the expiration of the previous financial year of the association. function includes a power, authority or duty. liabilities means any liabilities, debts or obligations (whether present or future, whether vested or contingent and whether personal or assignable). model constitution means the model constitution prescribed by the regulations. objects, in relation to an association, means the objects that are recorded in the Register of Incorporated Associations in relation to the association. official address, in relation to an association, means the address that is recorded in the Register of Incorporated Associations as the association's official address. pecuniary gain—see section 5. public officer, in relation to an association, means the person who is appointed as the association's public officer, and, until he or she is replaced by a person so appointed, includes the person who is nominated as the association's public officer in the association's application for registration. register of committee members, in relation to an association, means the register of committee members kept by the association for the purposes of section 29. Register of Incorporated Associations means the Register of Incorporated Associations kept by the Secretary for the purposes of section 98. registrable corporation means— (a) a co-operative (within the meaning of the Co-operatives National Law (NSW)), or (b) a company registered under the Corporations Act 2001 of the Commonwealth, and includes any other entity that is constituted as a body corporate pursuant to registration under a corresponding law. rights means any rights, powers, privileges or immunities (whether present or future, whether vested or contingent and whether personal or assignable). Secretary means— (a) the Commissioner for Fair Trading, Department of Customer Service, or (b) if there is no such position in the Department, the Secretary of the Department. special resolution—see section 39. unacceptable name—see section 18. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) In this Act, a reference to the Corporations Act 2001 of the Commonwealth (or to a provision of that Act) as applying under this Act is a reference to that Act (or provision) to the extent to which it is declared to apply to a matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001. (3) Notes included in this Act do not form part of this Act. 5 Definition of "pecuniary gain" (1) An organisation provides pecuniary gain for its members if— (a) it carries on any activity for the purpose of securing pecuniary gain for its members, or (b) it has capital that is divided into shares or stock held by the organisation's members, or (c) it holds property in which the organisation's members have a disposable interest (whether directly, or in the form of shares or stock in the capital of the organisation or otherwise), or (d) it is an organisation that is, or is included in a class of organisations that is, prescribed by the regulations for the purposes of this subsection. (2) For the purposes of subsection (1) (a), an organisation does not provide pecuniary gain for its members merely because of any of the following— (a) the organisation itself makes a pecuniary gain, unless that gain or any part of it is divided among or received by the organisation's members or any of them, (b) the organisation is established for the protection of a trade, business, industry or calling in which the organisation's members are engaged or interested, but the organisation itself does not engage or take part in, or in any part or branch of, any such trade, business, industry or calling, (c) members of the organisation derive pecuniary gain through the enjoyment of facilities or services provided by the organisation for social, recreational, educational or other like purposes, (d) members of the organisation derive pecuniary gain from the organisation by way of bona fide payment of remuneration, (e) members of the organisation derive pecuniary gain from the organisation of a kind which they could also derive if they were not members of the organisation, (f) members of the organisation compete for trophies or prizes in contests directly related to the objects of the organisation, (g) the organisation provides pecuniary gain of a class prescribed by the regulations for the purposes of this section. Part 2 Registration of associations Division 1 Registration 6 Application for registration (1) An application for registration of an association may be made to the Secretary on behalf of— (a) 5 or more individuals, or (b) an unincorporated body having 5 or more members, or (c) a registrable corporation having 5 or more members or shareholders, or (d) 2 or more existing associations together having 5 or more members. (2) Such an application must be authorised— (a) in the case of an application made on behalf of 5 or more individuals, by each of the individuals, and (b) in the case of an application made on behalf of an unincorporated body, by a special resolution passed by the members of the body, and (c) in the case of an application made on behalf of a registrable corporation, by a special resolution passed by the members of the corporation, and (d) in the case of an application made on behalf of 2 or more associations proposing to amalgamate, by special resolutions passed by the members of each association. (3) An application— (a) must be in the approved form, and (b) must specify the association's proposed name and the address that is to be the association's first official address, and (c) must include a statement of the association's objects, and (d) must annex a copy of the association's proposed constitution (or a statement that the association's proposed constitution adopts all the provisions of the model constitution without modification), and (e) must identify the person who is to be the association's first public officer, and (f) must include copies of any special resolution referred to in subsection (2) (b), (c) or (d), and (g) in the case of an application made on behalf of a registrable corporation, must annex a document (issued by the relevant regulatory authority under the law under which it is currently incorporated) declaring that the requirements of that law in relation to the transfer of its registration under that law to registration under some other law have been complied with, and (h) must include any information required by the regulations, and (i) must be accompanied by the fee prescribed by the regulations. (4) An association's proposed official address must be an address within New South Wales, other than a post office box, at which documents can be served on the association by post. (5) An association's proposed constitution must address each of the matters referred to in Schedule 1. (6) (Repealed) 7 Decision on application (1) The Secretary may determine an application for registration of an association by registering the association or by refusing the application. (2) An application for registration may be refused if— (a) the application does not comply with section 6, or (b) the name of the association is unacceptable, or Note— Changing circumstances may mean that a name that was acceptable when it was reserved has since become unacceptable. (c) the Secretary is satisfied that, having regard to the objects of this Act, the association should not be registered— (i) because some provision of the association's constitution is contrary to law, or (ii) because of the association's objects or the Secretary's assessment of the likely nature or extent of the association's proposed activities, or (iii) because of the likely nature or extent of the association's dealings with the public, or (iv) for any other reason that appears sufficient to the Secretary. (3) The Secretary registers an association by recording its name, objects, constitution and official address in the Register of Incorporated Associations. (4) On registering an association, the Secretary— (a) must cause a certificate of registration for the association to be given to the applicant, and (b) if the applicant is a registrable corporation, must cause notice of its registration to be given to the relevant regulatory authority under the law under which it was formerly registered. (5) In the case of 2 or more associations that become a single association, the registration of each of the former associations is to be cancelled when the amalgamated association is registered. 8 Incorporation of associations other than former registrable corporations (1) An association that arises otherwise than from the registration of a registrable corporation becomes a body corporate when it is registered under this Act. (2) Schedule 2 contains provisions relating to an association that arises from the registration of an unincorporated body or from the amalgamation of 2 or more associations. 9 Continuity of incorporation of former registrable corporations (1) An association that arises from the registration of a registrable corporation is a continuation of, and the same legal entity as, the registrable corporation. (2) Without limiting subsection (1)— (a) the assets, rights and liabilities of the registrable corporation become the assets, rights and liabilities of the association, and (b) proceedings that have been commenced by or against the registrable corporation may be continued by or against the association in its own name or in the name of the registrable corporation. Division 2 Changing association's name, objects, constitution or official address 10 Application for change of particulars (1) An association may apply to the Secretary for registration of a change in the association's name, objects or constitution. (2) An application may only be made pursuant to a special resolution passed by the association. (3) An application— (a) must be in the approved form, and (b) must include details of the proposed change, and (c) must include a copy of the special resolution by which the association has approved the change, and (d) must be accompanied by the fee prescribed by the regulations. (4) An association's constitution, as proposed to be changed, must address each of the matters referred to in Schedule 1. Note— A change in an association's name, objects or constitution does not take effect until it is registered: see section 14. 11 Change of association's name at direction of, or by, Secretary (1) The Secretary may, by order in writing served on an association that has an unacceptable name, direct the association to adopt a new name. (2) Such a direction may be given whether or not the association's name was acceptable when the association was registered. Note— Changing circumstances may mean that a name that was acceptable when the association was registered has since become unacceptable. (3) A direction— (a) must specify the grounds on which the association's current name is unacceptable, and (b) must specify a date by which an application for registration of a change of name must be made (being a date no less than 2 months after the date on which the direction is given), and (c) must state that, if the application is not made on or before that date, the association's name may be changed to its registration number, or the association's registration may be cancelled, by the Secretary. Note— See subsection (4) for the Secretary's power to change an association's name to its registration number, and section 76 (1) (i) for the Secretary's power to cancel an association's registration, for failure to comply with a direction under this section. (4) The Secretary may change an association's name to its registration number if satisfied that the association has failed to comply with a direction under this section for the change of its name. (5) After changing an association's name to its registration number under this section, the Secretary must cause notice of that fact to be given to the association. (6) (Repealed) 12 Decision on application (1) The Secretary may determine an application for registration of a change of name, objects or constitution by registering the change or by refusing the application. (2) An application for registration of a change of name, objects or constitution may be refused if— (a) the application does not comply with section 10, or (b) the special resolution was approved by the association more than 28 days before the application was made, or (c) in the case of an application for a change of name, the new name is unacceptable. (3) On registering an association's change of name, the Secretary is to cause a replacement certificate of registration, bearing the association's new name, to be given to the applicant. 13 Notification of change of official address (1) Within 28 days after an association's official address becomes obsolete or unusable, the association's public officer must notify the Secretary, in the approved form, of the association's new address. Maximum penalty—5 penalty units. (2) Without limiting subsection (1), an association's public officer may at any time notify the Secretary, in the approved form, of a change in the association's official address. (3) The new address must be an address within New South Wales, other than a post office box, at which documents can be served on the association by post. (4) On receiving a notification under this section, the Secretary must register the new address as the association's official address. Note— A change of official address does not take effect until it is registered: see section 14. 14 Effect of registration of change of name, objects, constitution or official address (1) A change of name, objects, constitution or official address that is registered under this Division takes effect when it is registered. (2) Section 53 of the Interpretation Act 1987 applies to an association in respect of which a change of name, objects or constitution has been registered under this Division in the same way as it would apply to the association had the change been made by an Act or statutory rule. Division 3 Reservation of names 15 Application for reservation of name (1) An application for reservation of a name may be made to the Secretary by an association or by an applicant for registration as an association. (2) An application for reservation of a name— (a) must be in the approved form, and (b) must specify the name to be reserved, and (c) must be accompanied by the fee prescribed by the regulations. (3) The application may nominate alternative names (not exceeding the maximum number prescribed by the regulations) and indicate the order in which they are to be considered. 16 Decision on application (1) The Secretary may determine an application for reservation of a name by reserving the name or by refusing the application. (2) An application for reservation of a name may be refused— (a) if each of the nominated names is unacceptable, or (b) if the Secretary is satisfied that the application has been made for an improper purpose. (3) Unless each of the nominated names is unacceptable, the reserved name is to be the first of the nominated names that is not unacceptable. 17 Duration of reservation of name Reservation of a name expires at the end of the period of 3 months after the name is reserved or, if an application for registration of an association or for a change in an association's name is made within that period, when the application is determined. 18 Unacceptable names (1) For the purposes of this Act, a name is unacceptable if— (a) it does not include, at the end of the name, the word "Incorporated" or the abbreviation "Inc", or (b) it contains foreign language characters, or (c) it includes the word "police" or "sheriff", unless its use is the subject of a consent in force under section 204B of the Police Act 1990 or section 12 of the Sheriff Act 2005, or (d) the Secretary is of the opinion— (i) that it is identical to, or closely resembles, some other name that is registered, that is reserved or that is the subject of an earlier application for reservation, and (ii) that the public would be likely to be misled if associations operated under both names, or (e) the Secretary is of the opinion that it suggests a connection with the Crown or the State, or (f) the Secretary is of the opinion that it is offensive or undesirable, or (g) it is declared by the regulations to be unacceptable. (2) A name is not unacceptable on a ground referred to in subsection (1) (e), (f) or (g) if, in a particular case, the Minister directs that the name is acceptable. Part 3 Basic features of associations Division 1 Association powers 19 Legal capacity and powers (cf Corporations Act 2001 of the Commonwealth, section 124) (1) An association has the legal capacity and powers of an individual both in and outside New South Wales. (2) An association's legal capacity to do something is not affected by the fact that the association's interests are not, or would not be, served by doing it. 20 Constitution may limit powers (cf Corporations Act 2001 of the Commonwealth, section 125) (1) An association's constitution may contain an express restriction on, or a prohibition of, the association's exercise of any of its powers, but the exercise of a power by the association is not invalid merely because it is contrary to such a restriction or prohibition. (2) An act of an association is not invalid merely because it is contrary to or beyond the association's objects. 21 Agent exercising association's power to make contracts (cf Corporations Act 2001 of the Commonwealth, section 126) (1) An association's power to make, vary, ratify or discharge a contract may be exercised by an individual acting with the association's express or implied authority and on behalf of the association. (2) This section does not affect the operation of a law that requires a particular procedure to be complied with in relation to the contract. 21A Association not required to have seal Despite section 50 (1) (b) of the Interpretation Act 1987, an association is not required to have a seal. 22 Execution of documents (including deeds) by an association (cf Corporations Act 2001 of the Commonwealth, section 127) (1) An association may execute a document without using a common seal if the document is signed by 2 of its authorised signatories. (2) An association with a common seal may execute a document if the seal is fixed to the document and the fixing of the seal is witnessed by 2 of its authorised signatories. (3) An association may execute a document as a deed if the document is expressed to be executed as a deed and is executed in accordance with subsection (1) or (2). (4) This section does not limit the ways in which an association may execute a document (including a deed). (5) This section does not authorise an association to execute a document contrary to the provisions of its constitution. Division 2 Assumptions people dealing with associations are entitled to make 23 Entitlement to make assumptions (cf Corporations Act 2001 of the Commonwealth, section 128) (1) A person is entitled to make the assumptions in section 24 in relation to dealings with an association, and the association is not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect. (2) A person is entitled to make the assumptions in section 24 in relation to dealings with another person who has, or purports to have, directly or indirectly acquired property from an association, and the association and the other person are not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect. (3) The assumptions may be made even if anyone purporting to act on behalf of the association acts fraudulently, or forges a document, in connection with the dealings. (4) A person is not entitled to make an assumption in section 24 if at the time of the dealings they knew or suspected that the assumption was incorrect. 24 Assumptions that may be made (cf Corporations Act 2001 of the Commonwealth, section 129) (1) A person may assume that the association's constitution has been complied with. (2) A person may assume that anyone who appears, from information provided by the association that is available to the public from the Register of Incorporated Associations, to be the association's public officer— (a) has been duly appointed, and (b) has authority to exercise the functions customarily exercised by the public officer of a similar association. (3) A person may assume that anyone who appears, from information provided by the association, to be a committee member of the association— (a) has been duly appointed, and (b) has authority to exercise the functions customarily exercised by a committee member of a similar association. (4) A person may assume that anyone who is held out by the association to be an agent of the association— (a) has been duly appointed, and (b) has authority to exercise the functions customarily exercised or performed by an agent of a similar association. (5) A person may assume that persons acting on behalf of the association properly perform their duties to the association. (6) A person may assume that a document has been duly executed by the association if the document appears to have been signed in accordance with section 22 (1). (7) A person may assume that a document has been duly executed by the association if— (a) the association's common seal appears to have been fixed to the document in accordance with section 22 (2), and (b) the fixing of the common seal appears to have been witnessed in accordance with that subsection. (8) A person may assume that anyone who has, or may be assumed to have, the authority to issue a document or a certified copy of a document on behalf of the association also has authority to warrant that the document is genuine or is a true copy. (9) Without limiting the generality of this section, the assumptions that may be made under this section apply for the purposes of this section. Division 3 General 25 Provisions of model constitution apply if adopted or if matter not addressed (1) If an association's constitution adopts all the provisions of the model constitution without modification (either by reference or by reproducing the provisions), the provisions are taken to be the association's constitution. (2) If an association's constitution fails to address a matter referred to in Schedule 1, the provisions of the model constitution with respect to the matter are taken to be part of the association's constitution. (3) The provisions that are taken to be, or that are taken to be part of, an association's constitution under this section apply as in force for the time being. (4) Accordingly, an amendment to those provisions changes the association's constitution without— (a) any special resolution by the association to change its constitution or any application to the Secretary under section 10, or (b) any registration of the change by the Secretary under section 12, or (c) any other action by or on behalf of the association or its members or by or on behalf of the Secretary. (5) To avoid doubt, this section does not limit the way in which an association's constitution may address a matter referred to in Schedule 1. (6) A provision of an association's constitution is of no effect to the extent to which it is contrary to this or any other Act or law. 26 Nature of association (1) Subject to this Act, an association's constitution binds the association and its members to the same extent as if it were a contract between them under which they each agree to observe its provisions. (2) Subject to this Act, a member of an association (including a committee member and the public officer) is not, merely because of being such a member, liable in relation to— (a) any of the association's liabilities, or (b) the costs, charges and expenses of the winding up of the association. (3) Subject to this Act, membership of an association does not confer on a member any right, title or interest, whether legal or equitable, in the association's assets. 27 Pre-registration contracts (1) Contracts entered into before an association is registered under this Act are declared to be an applied Corporations legislation matter, for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001, in relation to Part 2B.3 of the Corporations Act 2001 of the Commonwealth. (2) In subsection (1), the reference to an association does not include a reference to an association arising from the registration of an unincorporated body, the amalgamation of 2 or more associations or the registration of a registrable corporation. Note— Contracts entered into by an association arising from the registration of an unincorporated body or the amalgamation of 2 or more associations are unaffected by registration (see section 8 and Schedule 2) as are those of an association arising from the registration of a registrable corporation (see section 9). Part 4 Management of associations Division 1 Committee members—general 28 Committee to be established (1) An association must establish a committee to manage its affairs. Note— An association's registration is liable to be cancelled if it does not comply with this subsection. (2) The committee must include 3 or more members, each of whom is aged 18 years or more and at least 3 of whom are ordinarily resident in Australia. Note— An association's registration is liable to be cancelled if its committee does not comply with this subsection. (3) The committee may exercise such of the association's powers as are not required by this Act or its constitution to be exercised by the association in general meeting. (4) A committee member's acts are valid despite any defect in his or her appointment. (5) Within 14 days after vacating office, a former committee member of an association must ensure that all documents in his or her possession that belong to the association are delivered to the public officer for delivery to his or her successor. 28A Filling of vacancies on committee to constitute quorum (1) If the number of members of a committee is less than the number of members required to constitute a quorum of the committee— (a) the committee may appoint sufficient members to constitute a quorum, and (b) for the purpose only of enabling the committee to make the appointment, the number of members required to constitute a quorum is the number of members at that time. (2) The term of office of a member appointed by the committee to fill a vacancy under this section ends at the start of the next annual general meeting of the association. 29 Register of committee members (1) An association must keep a registe