South Australia: 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 provide financial support to the association in a manner that is directly related to the objects of the association; or (iii) consist in the charging of admission fees to functions organised for the promotion of the objects of the association; or (c) that the association is established for the protection of a trade, business, industry or calling in which the members are engaged or interested, if the association itself does not engage or take part in any such activity; or (d) that the members of the association compete for trophies or prizes in contests directly related to the objects of the association. (7) An approval of the Minister or the Commission under this section may be given on such conditions as the Minister or the Commission thinks fit. 19—Manner in which application for incorporation is to be made (1) An application for the incorporation of an association must be made to the Commission in the prescribed manner and form by a person duly authorised by the association to apply for incorporation. (2) The application must be accompanied by— (a) a copy of the rules of the association; and (c) a copy of any instrument creating or establishing a trust— (i) which is referred to in the rules of the association; or (ii) upon which any rule of the association relies for its operation; and (ca) a copy of the settled draft of any instrument prepared for the creation or establishment of a trust of which the association is intended to be the trustee— (i) where the contemplated trust is referred to in the rules of the association; or (ii) where any rule of the association relies on the contemplated trust for its operation; and (d) the prescribed fee. 20—Incorporation of association (1) If, on an application for incorporation duly made under this Part, the Commission is satisfied— (a) that the association is eligible to be incorporated under this Act; and (b) that the rules of the association conform with the requirements of this Act; and (c) that the name of the association— (i) is not such as to be misleading as to the nature, objects or purposes of the association; and (ii) is not such as is likely to be confused with the name of any other body corporate or any registered business name; and (iii) is not undesirable as a name for an incorporated association; and (iv) conforms with any direction of the Minister relating to the names of incorporated associations, the Commission must, subject to subsection (2), register the rules of the association and issue to the association a certificate of incorporation. (2) The Commission may— (a) decline to incorporate an association under this Act if, in its opinion, it would be more appropriate for its activities to be carried on by a body corporate incorporated under some other Act; or (b) with the consent of the Minister, decline to incorporate an association under this Act if, in its opinion, the incorporation of the association under this Act would not be in the public interest. (3) Upon incorporation under this section— (a) the association becomes a body corporate— (i) with perpetual succession and a common seal; and (ii) with a corporate name as set out in the certificate of incorporation (in which the word "Incorporated" must appear as part, and at the end, of the name); and (b) all real and personal property held by any person for or on behalf of the association is vested in and held by the incorporated association (subject to any trusts that may affect that property); and (c) all rights and liabilities (whether certain or contingent) of the association immediately before the incorporation of the association become rights and liabilities of the incorporated association. (4) The Registrar-General must— (a) on the application of an incorporated association in which any estate or interest in land has vested by virtue of this section; and (b) on production of such documents as the Registrar-General may require, register the vesting of that estate or interest in land in the association. 21—Rights and liabilities of members (1) Membership of an incorporated association does not confer on a member, except as may be provided by the rules of the association, any right, title or interest in any real or personal property of the association. (2) Except as may be provided by the rules of the association, a member of an association is not liable to contribute towards the payment of the debts and liabilities of the association or the costs, charges and expenses of a winding up of the association. (3) Subsection (2) does not apply in respect of debts or liabilities incurred by or on behalf of the association prior to incorporation. Division 2—Amalgamation 22—Amalgamation (1) Any two or more incorporated associations— (a) may, by special resolution passed by each association, resolve to amalgamate; and (b) may apply to the Commission for amalgamation as a single incorporated association. (2) An application under subsection (1)— (a) must be made in the prescribed form; and (b) must be accompanied by a copy of the special resolution passed by each of the incorporated associations supporting the amalgamation; and (c) must be accompanied by a copy of the rules of the association proposed to be formed by the amalgamation; and (d) must be accompanied by a copy of any instrument creating or establishing a trust— (i) which is referred to in the rules of the association proposed to be formed by the amalgamation; or (ii) on which any rule of the association proposed to be formed by the amalgamation relies for its operation; and (da) must be accompanied by a copy of the settled draft of any instrument prepared for the creation or establishment of a trust of which the association proposed to be formed by the amalgamation is intended to be the trustee— (i) where the contemplated trust is referred to in the rules of the association proposed to be formed by the amalgamation; or (ii) where any rule of the association proposed to be formed by the amalgamation relies on the contemplated trust for its operation; and (e) must be accompanied by such certificates and other documents as may be prescribed; and (f) must be accompanied by the prescribed fee. (3) A party to an application under this section must, at the request of the Commission, supply it with such further documents or information as the Commission may require. (4) Where the Commission is satisfied— (a) that the association proposed to be formed by the amalgamation is eligible to be incorporated under this Act; and (b) that the rules of that association conform with the requirements of this Act; and (c) that the name of that association— (i) is not such as to be misleading as to the nature, objects or purposes of the association; and (ii) is not such as is likely to be confused with the name of any other body corporate or any registered business name; and (iii) is not undesirable as a name for an incorporated association; and (iv) conforms with any direction of the Minister relating to the names of incorporated associations, the Commission must, subject to subsection (5), register the rules of the association and issue to the association a certificate of incorporation. (5) The Commission may— (a) decline to incorporate an association under subsection (4) if, in its opinion, it would be more appropriate for its activities to be carried on by a body corporate incorporated under some other Act; or (b) with the consent of the Minister, decline to incorporate an association under subsection (4) if, in its opinion, the incorporation of the association under this Act would not be in the public interest. (6) Upon incorporation of an association under subsection (4)— (a) the association becomes a body corporate— (i) with perpetual succession and a common seal; and (ii) with a corporate name as set out in the certificate of incorporation (in which the word "Incorporated" must appear as part, and at the end, of the name); and (b) any incorporated association that was a party to the application for amalgamation is dissolved; and (c) the property of the associations that were parties to the application for amalgamation becomes the property of the incorporated association formed by the amalgamation (subject to any trusts that may affect that property); and (d) the rights and liabilities (whether certain or contingent) of the associations that were parties of the application for amalgamation become rights and liabilities of the incorporated association formed by the amalgamation. (7) The Registrar-General must— (a) on the application of an incorporated association in which any estate or interest in land has vested by virtue of this section; and (b) on production of such documents as the Registrar-General may require, register the vesting of that estate or interest in land in the association. (8) A reference in a will or other instrument to an association that is a party to an amalgamation under this section is, after the amalgamation, to be construed (subject to any provision in the will or other instrument to the contrary) as a reference to the association formed by the amalgamation. (9) Where property vests by virtue of this section in an association, the vesting of the property, and any instrument evidencing or giving effect to that vesting, are exempt from stamp duty. Division 3—Rules 23—Rules binding on association and its members (1) The rules of an incorporated association bind the association and all members of the association. (2) The reference in this section to the rules of an association extends to rules, by-laws or ordinances of the association relating to any matter. 23A—Contents of rules of an incorporated association (1) The rules of an incorporated association— (a) must state the name of the association and set out its objects; and (b) must not contain any provision that is contrary to or inconsistent with this Act; and (c) must contain provisions that, in the opinion of the Commission, deal with the following matters with sufficient particularity and certainty having regard to the nature and objects of the association: (i) membership in the case of an association that has members; (ii) the powers, duties and manner of appointment of the committee of the association; (iii) the appointment of an auditor in the case of an association that is a prescribed association; (v) the calling of and procedure at general meetings; (vi) who has the management and control of the funds and other property of the association; (vii) the powers of the association and by whom and in what manner they may be exercised; (viii) the manner in which the rules of the association may be altered; (ix) any other matter prescribed by regulation. (2) This section applies only to rules, or an alteration to rules, submitted to the Commission for registration after the commencement of this section. 24—Alteration of rules (1) An alteration to a rule of an incorporated association may be made by a special resolution of the association unless other provision is made in the rules of the association. (2) An incorporated association must, within one month after making an alteration to a rule, register the alteration with the Commission. Maximum penalty: $1 250. (3) An application for registration of a proposed alteration of the rules of an incorporated association— (a) must be made in the prescribed form; and (c) must be accompanied by the prescribed fee. (4) Subject to subsection (5), where the Commission is satisfied that the proposed alteration conforms with the requirements of this Act, the Commission must register the alteration. (5) Where an alteration to the rules of an incorporated association consists of or includes an alteration to the name of the association— (a) the Commission must not register the alteration unless it is satisfied that the name— (i) is not such as to be misleading as to the nature, objects or purposes of the association; and (ii) is not such as is likely to be confused with the name of any other body corporate or any registered business name; and (iii) is not undesirable as a name for an incorporated association; and (iv) conforms with any directions of the Minister as to the names of incorporated associations; and (b) the Commission must, if it registers the alteration, issue to the association a new certificate of incorporation and make an appropriate notation on the register of incorporated associations. (6) Subject to any provision in the rules of the association or a resolution to the contrary, an alteration to the rules of an incorporated association comes into force at the time that the alteration is passed. (7) Notwithstanding subsection (6), an alteration to the name of an incorporated association does not come into force until the alteration is registered by the Commission in accordance with this section. 24A—Court may order variation of rules (1) The rules of an incorporated association may be varied, on the application of the association, by the Supreme Court. (2) Where the rules of the incorporated association provide for the membership of the association, a meeting of the members must be held, before an application is made under this section, to explain the purposes of the proposed application and seek the views of the members in relation to the proposed application. (3) Notice of an application under this section must be given as the Supreme Court directs. (4) The Supreme Court may, on application under this section, order that the rules of an incorporated association be varied in a manner the Court thinks fit, if it is satisfied that— (a) the rules unduly limit the conduct of the association's affairs; and (b) the variation of the rules— (i) is consistent with the objects of the association; and (ii) will not prejudice any member of the association; and (iii) is justified in the circumstances of the particular case. (5) Before making an order under this section the Supreme Court must have regard to any views expressed by members of the association in relation to the proposed variation at a meeting held in accordance with subsection (2). (6) The Commission is entitled to appear and be heard in relation to an application under this section. Division 4—Powers 25—Powers of an incorporated association For the purpose of carrying out its objects, an incorporated association may, subject to this Act and its rules— (a) acquire, hold, deal with, and dispose of, any real or personal property; and (b) administer any property on trust; and (c) open and operate ADI accounts; and (d) invest its moneys— (i) in any security in which trust moneys may, by Act of Parliament, be invested; or (ii) in any other manner authorised by the rules of the association; and (e) borrow money upon such terms and conditions as the association thinks fit; and (f) give such security for the discharge of liabilities incurred by the association as the association thinks fit; and (g) appoint agents to transact any business of the association on its behalf; and (h) enter into any other contract it considers necessary or desirable. Division 5—Transactions 26—Manner in which contracts may be made (1) Contracts may be made by or on behalf of an incorporated association as follows: (a) a contract which, if made between private persons, would be required to be in writing under seal may be made by the incorporated association under its common seal; (b) a contract which, if made between private persons, would be required to be in writing signed by the parties to be charged may be made on behalf of the association in writing by any person acting under its authority, express or implied; (c) a contract which, if made between private persons, would be valid although made by parol only may be made by parol on behalf of the association by any person acting under its authority, express or implied. (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. 27—Limitation of doctrine of ultra vires (1) A contract made with an incorporated association is not invalid by reason of any deficiency in the capacity of the association to enter into, or carry out, the contract unless the person contracting with the association has actual notice of the deficiency. (2) An incorporated association that enters into a contract that would, but for the provisions of subsection (1), be invalid is empowered to carry out the contract. (3) This section does not prejudice an action by a member of an incorporated association to restrain the association from entering into or carrying out a transaction that lies beyond the powers conferred on the association by this Act or its rules. 28—Abolition of doctrine of constructive notice in relation to incorporated association It is not to be presumed that a person dealing with an incorporated association, or an agent of an incorporated association, has notice of the rules of the association, or of any other document registered by, or lodged with, the Commission in relation to the association. Part 4—Management of internal affairs Division 1—The committee 29—Management of incorporated associations (1) Subject to this Act, the persons who have under the rules of an incorporated association power to administer the affairs of the association constitute, for the purposes of this Act, the committee of the association. (2) No person is to be precluded from being appointed as a member of the committee of an incorporated association by reason only of the fact that he or she is a member of a class of persons for whose benefit the association is established. (3) Subject to the rules of the association, no employee of an incorporated association is to be precluded by reason of that employment from being appointed as a member of the committee of the association. 30—Certain persons not to be members of the committee (1) A person who is an insolvent under administration must not, without leave of the Commission, be a member of the committee of an incorporated association, or be in any way (whether directly or indirectly) concerned in or take part in the management of an incorporated association. Maximum penalty: $5 000. (2) A person who has been convicted within or outside the State— (a) on an indictment of an offence in connection with the promotion, formation or management of a body corporate; or (b) of an offence involving fraud or dishonesty punishable on conviction by imprisonment for a period of not less than three months; or (c) of an indictable offence; or (d) of— (i) an offence against section 39A; or (ii) an offence against a provision applied by section 41B; or (iii) an offence against section 60, must not, within a period of five years after his or her conviction or, if he or she was sentenced to imprisonment, after his or her release from prison, without leave of the Commission, be a member of the committee of an incorporated association, or be in any way (whether directly or indirectly) concerned in or take part in the management of an incorporated association. Maximum penalty: $5 000. (3) When granting leave under this section, the Commission may impose such conditions or limitations as it thinks fit and any person contravening or failing to comply with any such condition or limitation that is applicable to him or her is guilty of an offence. Maximum penalty: $5 000. (4) The Commission may, at any time, revoke leave granted by it under this section. 31—Disclosure of interest (1) A member of the committee of an incorporated association who has any direct or indirect pecuniary interest in a contract, or proposed contract, with the association— (a) must, as soon as he or she becomes aware of his or her interest, disclose the nature and extent of his or her interest to the committee; and (b) must disclose the nature and extent of his or her interest in the contract at the next annual general meeting of the association (if an annual general meeting is required to be held by the association). Maximum penalty: $5 000. (2) Subsection (1) does not apply in respect of a pecuniary interest that exists only by virtue of the fact— (a) that the member of the committee is an employee of the association; or (b) that the member of the committee is a member of a class of persons for whose benefit the association is established; or (c) that the member of the committee has the pecuniary interest in common with all or a substantial proportion of the members of the association. (3) Where a member of the committee of an incorporated association discloses a pecuniary interest in a contract, or proposed contract, in accordance with this section, or his or her interest is not such as need be disclosed under this section— (a) the contract is not liable to be avoided by the association on any ground arising from the fiduciary relationship between the member and the association; and (b) the member is not liable to account for profits derived from the contract. 32—Voting on a contract in which a committee member has an interest (1) A member of the committee of an incorporated association who has any direct or indirect pecuniary interest in a contract, or proposed contract, with the association must not take part in any decision of the committee with respect to that contract (but may, subject to complying with the provisions of this Division, take part in any deliberations with respect to that contract). Maximum penalty: $5 000. (2) Subsection (1) does not apply in respect of a pecuniary interest— (a) that exists only by virtue of the fact that the member of the committee is a member of a class of persons for whose benefit the association is established; or (b) that the member of the committee has in common with all or a substantial proportion of the members of the association. Division 2—Accounts and audit of prescribed associations 33—Preliminary In this Division— Commonwealth Act means the Australian Charities and Not‑for‑profits Commission Act 2012 of the Commonwealth; Commonwealth Commissioner means the Commissioner of the Australian Charities and Not‑for‑profits Commission established under the Commonwealth Act; Commonwealth registered entity means an entity registered under the Commonwealth Act; relevant prescribed association means a prescribed association that is a Commonwealth registered entity. 34—Application of Division to relevant prescribed associations (1) Subject to this section, if a relevant prescribed association has, in respect of a particular period— (a) submitted to the Commonwealth Commissioner an information statement that the association is required to prepare under the Commonwealth Act and, if relevant, a financial report together with any auditor's report or reviewer's report that the association is required to obtain under that Act; and (b) submitted to the Commission any other information relevant to the affairs of the association required by the Commission, the association is exempt from this Division in relation to that period. (2) Despite subsection (1), a relevant prescribed association must cause— (a) the information statement and any reports referred to in subsection (1)(a); and (b) a report of a committee of the association prepared in accordance with section 35(5) (as modified by subsection (3)), to be laid before the members of the association at the annual general meeting of the association or, if an annual general meeting is not to be held, within 6 months of the end of the financial year to which the reports relate. (3) Despite subsection (1), section 35(5) applies to the committee of a relevant prescribed association as if a reference to the financial year to which the accounts relate were a reference to the financial year to which the information statement that the association is required to prepare under the Commonwealth Act relates. (4) A document or information required to be provided to the Commission under this section must be provided in accordance with any requirements specified by the Commission (including requirements as to the form and verification of the document or information, or the time or manner in which it is to be provided). (5) If a relevant prescribed association contravenes or fails to comply with this section, the association is guilty of an offence. Maximum penalty: $5 000. 34A—Disclosure of information relating to relevant prescribed associations The Commission may enter into an agreement with the Commonwealth Commissioner in relation to— (a) the manner in which relevant prescribed associations may provide information for the purposes of this Act; and (b) the provision of information obtained under the Commonwealth Act to the Commission for the purposes of this Act. 34B—Commission may provide information to Commonwealth Commissioner Despite any other Act or law, the Commission is authorised to provide to the Commonwealth Commissioner (whether at the request of the Commonwealth Commissioner or otherwise) such documents and other information in the possession or control of the Commission that may be reasonably required by the Commonwealth Commissioner in connection with the performance or exercise of its functions or powers under the Commonwealth Act. 35—Accounts to be kept (1) A prescribed association must keep its accounting records in such a manner as will enable— (a) the preparation from time to time of accounts that present fairly the results of the operations of the association; and (b) the accounts of the association to be conveniently and properly audited in accordance with this Division. Maximum penalty: $5 000. (2) A prescribed association must, after the end of a financial year of the association— (a) cause accounts in respect of the financial year to be prepared; and (b) cause the accounts to be audited by a registered company auditor, a firm of registered company auditors, a person who is a member of the Australian Society of Certified Practising Accountants or The Institute of Chartered Accountants in Australia or such other person who may be approved by the Commission as an auditor of the accounts of the association for the purposes of this Division; and (c) cause to be attached to the accounts, before the auditor reports on the accounts, a statement made in accordance with a resolution of the committee of the association and signed by two or more members of the committee— (i) stating whether or not— (A) the accounts present fairly the results of the operations of the association for the financial year and the state of affairs of the association as at the end of the financial year; and (B) the committee has reasonable grounds to believe that the association will be able to pay its debts as and when they fall due; and (ii) giving particulars— (A) of any body corporate that is a subsidiary of the association within the meaning of section 46 of the Corporations Act 2001 of the Commonwealth; and (B) of any trust of which the association is a trustee. Maximum penalty: $5 000. (3) A prescribed association will not be taken to have complied with subsection (2) unless the accounts prepared for a financial year are submitted to the auditor in sufficient time to enable the auditor to audit the accounts and furnish a report in respect of the accounts in accordance with section 37(3). (4) A person who is— (a) an officer; or (b) a partner, employer or employee of an officer; or (ba) an employee; or (c) a partner or employee of an employee, of a prescribed association, may not be appointed as auditor of the accounts of the association for the purposes of this section. (5) The committee of a prescribed association must cause a report of the committee to be made in accordance with a resolution of the committee and signed by two or more members of the committee, stating in relation to each officer of the association— (a) whether or not, during the financial year to which the accounts relate— (i) the officer; or (ii) a firm of which the officer is a member; or (iii) a body corporate in which the officer has a substantial financial interest, has received or become entitled to receive a benefit as a result of a contract between the officer, firm or body corporate and the association, and if so the general nature of the benefit; (b) whether or not, during the financial year to which the accounts relate, the officer has received directly or indirectly from the association any payment or other benefit of a pecuniary value, and if so the general nature and extent of that benefit. (6) The committee of a prescribed association that has members must cause— (a) the audited accounts including the statement prepared in accordance with subsection (2)(c); and (b) the auditor's report on those accounts; and (c) the report of the committee prepared in accordance with subsection (5), to be laid before the members of the association at the annual general meeting of the association or, if an annual general meeting is not to be held, within five months of the end of the financial year to which the accounts relate. (7) A member of the committee of an association who fails to take all reasonable steps to comply with or secure compliance with this section is guilty of an offence. Maximum penalty: (a) if the offence is committed with intent to deceive or defraud the association, creditors of the association or creditors of any other person or for any fraudulent purpose—$20 000 or imprisonment for four years; or (b) in any other case—$5 000. 36—Lodgment of periodic returns (1) A prescribed association must lodge with the Commission such periodic returns, containing accounts and other information relevant to the affairs of the association, as the regulations may require. (2) The requirements of the regulations in relation to periodic returns and the accounts and other information to be contained in them may vary according to the various classes of associations to which the regulations are expressed to apply but no such regulation may require the disclosure of the identity of members of the association. (3) If a prescribed association fails to comply with subsection (1), the association is guilty of an offence. Maximum penalty: $5 000. 37—Provisions relating to auditors acting under this Division (1) An auditor of a prescribed association has a right of access at all reasonable times to the accounting records and other records of the association and is entitled to require from any officer of the association such information and explanations as he or she desires for the purposes of an audit. (2) An officer of a prescribed association must not, without lawful excuse— (a) refuse or fail to allow an auditor of the association access, for the purposes of this Division, to any accounting records and other records of the association in his or her custody or control; or (b) refuse or fail to give any information or explanation as and when required by the auditor; or (c) otherwise hinder, obstruct or delay an auditor in the performance of his or her duties or the exercise of his or her powers as auditor. Maximum penalty: $1 250. (3) The auditor of a prescribed association must furnish to the committee of the association, in sufficient time to enable the committee to comply with section 35(6), a report that states— (a) in respect of accounts consisting of an account of income and expenditure and a balance sheet, whether or not the auditor is satisfied that these accounts are drawn up so as to present fairly— (i) the results of the association's activities for the association's financial year; and (ii) the financial state of the association at the end of the association's financial year; and (b) in respect of accounts consisting of an account of receipts and payments and a statement of assets and liabilities, whether or not the auditor is satisfied that these accounts present fairly— (i) the results of the association's activities for the association's financial year; and (ii) the financial state of the association at the end of the association's financial yea