Western Australia: Associations Incorporation Act 2015 (WA)

Western Australia Associations Incorporation Act 2015 Western Australia Associations Incorporation Act 2015 Contents Part 1 — Preliminary 1. Short title 1 2. Commencement 1 3. Terms used 1 Part 2 — Incorporation of association Division 1 — Eligibility 4. Associations eligible for incorporation 4 5. Associations not eligible for incorporation 5 6. Regulations may declare associations to be ineligible 7 Division 2 — Requirements for application for incorporation 7. Application to Commissioner 7 8. Commissioner may require public notice of application for incorporation 8 9. Request for refusal of incorporation 8 Division 3 — Incorporation 10. Incorporation of association 9 11. Refusal of incorporation 10 12. Restrictions as to names of associations 10 13. Effect of incorporation 11 14. Powers of incorporated association 11 15. Manner in which contract may be made 12 16. When contract affected by deficiency in association's legal capacity 13 17. Requirements of section 4 continue after incorporation 13 18. Certain property vests in incorporated association 14 19. Liability of members of management committee, trustees and members 14 20. Issue of replacement certificate 15 Part 3 — Rules Division 1 — Rules of incorporated association 21. Effect of rules 16 22. General requirements for content of rules 16 23. Commissioner may exempt from requirement of section 22 17 24. Restriction on distribution of surplus property 18 25. Commissioner may approve variation of provision implied by section 24 19 26. Model rules 20 27. Rules of associations existing at the commencement of section 185 21 28. Rules of an incorporated association 21 29. Adoption of model rules 22 Division 2 — Alteration of rules 30. Alteration of rules 23 31. Change of name by alteration of rules 24 32. Corporate identity and other matters not affected by change of name 25 33. Certain other rule alterations to be approved by Commissioner 25 34. Request for refusal of change of name or other rule alterations 25 Division 3 — Provision of rules to members 35. Rules to be available to members 26 36. When member to receive copy of rules 26 37. Further provision as to obligations under sections 35 and 36 27 Part 4 — Management Division 1 — Management committee 38. Management committee 28 39. Persons who are not to be members of management committee 28 40. Limitation of period for which section 39 applies to certain persons 29 41. Handing over of documents and records when membership of management committee ceases 29 Division 2 — Matters of material personal interest 42. Disclosure of material personal interest 30 43. Voting on contract in which management committee member has a material personal interest 31 Division 3 — Duties of officers 44. Duty of care and diligence 32 45. Duty of good faith and proper purpose 33 46. Use of position 33 47. Use of information 34 48. Interaction of sections 44 to 47 with other laws 34 49. Reliance on information or advice 34 Division 4 — Annual general meeting and special resolutions 50. Annual general meeting 35 51. Requirements for special resolution 36 52. Evidence of passing of resolution 36 Division 5 — Register of members 53. Register to be maintained 37 54. Inspection of register by member 38 55. Commissioner may request copy of register 38 56. Member may request copy of register 38 57. Improper use of information in register 39 Division 6 — Record of office holders 58. Record of office holders 40 59. Commissioner may ask apparent office holders to provide information 41 Division 7 — Direction by Commissioner to convene general meeting 60. Commissioner may direct that general meeting be convened 42 61. Rights of Commissioner or a delegate at meeting 43 Part 5 — Financial records, reporting and accountability Division 1 — Preliminary 62. Terms used 44 63. Financial reports of tier 2 and tier 3 associations 45 64. Tier 1, tier 2 and tier 3 associations 46 65. Commissioner may declare association to be tier 1 or tier 2 association 47 Division 2 — Financial records 66. Obligation to keep financial records 47 67. Retention of financial records 47 Division 3 — Financial statements and reports Subdivision 1 — Tier 1 associations 68. Obligation to prepare annual financial statements 48 69. Review or audit of financial statements 48 70. Financial reporting to annual general meeting and Commissioner 49 Subdivision 2 — Tier 2 associations 71. Obligation to prepare annual financial report 50 72. Review or audit of financial reports 50 73. Financial reporting to annual general meeting and Commissioner 51 Subdivision 3 — Tier 3 associations 74. Obligation to prepare annual financial report 51 75. Audit of financial report 52 76. Financial reporting to annual general meeting 52 Division 4 — Special audit 77. Commissioner may require special audit to be carried out 52 Division 5 — Reviews and audits 78. Review or audit to be conducted in accordance with auditing standards 53 79. Working papers to be retained for 7 years 53 80. Reviewer's or auditor's independence declaration 53 81. Reviewer's report on financial statements or financial report 54 82. Auditor's opinion and report on financial statements or financial report 55 83. Reporting breaches of Act to Commissioner 56 Division 6 — Provisions relating to reviewers and auditors generally 84. Fees and expenses 58 85. Information and assistance 58 86. Right to attend general meeting and be heard 58 Division 7 — Appointment and removal of reviewers and auditors 87. Appointment of reviewer or auditor 59 88. Qualifications for appointment 60 89. Removal of reviewer or auditor by resolution 60 90. Reviewer or auditor may make representations 61 91. Exemption from section 90(2) requirements 62 Part 6 — Transfer of incorporation 92. Term used: prescribed body corporate 63 93. Incorporated association may apply for approval of registration or incorporation under another law 63 94. Approval of Commissioner 64 95. Commissioner may direct incorporated association to apply for other registration or incorporation 65 96. Commissioner must give notice of intention to give direction 66 97. SAT review of proposed direction or amendment 67 98. Association must comply with section 95 direction 67 99. Cancellation of incorporation under this Act 67 100. Transition to incorporation under another law 68 Part 7 — Amalgamation 101. Term used: new body 70 102. Application for incorporation of body formed by amalgamation 70 103. What must be included in application 70 104. Commissioner may require public notice of application 71 105. Request for refusal of incorporation of new body 71 106. Incorporation of new body 72 107. Time to be allowed for operation of section 105 72 108. Vesting of property and liabilities in new body 73 Part 8 — Statutory management of incorporated association 109. Application by Commissioner to appoint statutory manager 74 110. State Administrative Tribunal may appoint statutory manager 74 111. Effect of appointment of statutory manager 75 112. Variation and revocation of order 75 113. Duration of appointment 76 114. Prerequisites of revocation of appointment 76 115. Statutory manager to report to Commissioner 77 116. Expenses of statutory management 78 117. Protection from liability 79 118. Additional powers of Commissioner 79 119. Proceedings against association stayed 80 Part 9 — Administration and winding up Division 1 — Voluntary administration and winding up 120. Administration under Corporations Act 82 121. Voluntary winding up under Corporations Act 82 122. Further application of Corporations Act 83 Division 2 — Winding up by Supreme Court 123. Grounds on which winding up may be ordered 83 124. By whom application may be made 83 125. Application of Corporations Act 83 126. Cancellation of incorporation upon winding up by Supreme Court 84 Division 3 — Offence related to incurring of debt 127. Duties of management committee members with respect to incurring of debt 85 Part 10 — Cancellation of incorporation Division 1 — Voluntary cancellation where there is property to be distributed 128. Term used: distribution plan 87 129. Initiation of cancellation of incorporation under this Division 87 130. Application for approval of distribution plan and cancellation 88 131. Commissioner may require public notice of application 88 132. Request for refusal to approve or cancel 89 133. Content and operation of distribution plan 89 134. Position where conditions attached to grant 89 135. Approval of distribution plan 90 136. Refusal to approve distribution plan 91 137. Time limit for implementation of plan 92 138. Duty of association 92 139. Reporting to Commissioner 92 140. Cancellation of incorporation under this Division 93 Division 2 — Voluntary cancellation where there are no debts or surplus property 141. Application for cancellation under this Division 93 142. Content of application 94 143. Commissioner may grant application 94 Division 3 — Cancellation of incorporation by Commissioner on certain grounds 144. Grounds on which Commissioner may act 95 145. Commissioner may require association to show cause 95 146. How association may show cause 96 147. Cancellation of incorporation where cause not shown 96 148. Powers in respect of property 97 149. Property vested in the State 98 Division 4 — General 150. Liabilities not affected by cancellation of incorporation 98 151. Reinstatement of incorporation 98 Part 11 — Exclusion from Corporations legislation 152. Excluded matters for Corporations Act section 5F 100 Part 12 — Administration Division 1 — General 153. Commissioner 102 154. General functions of Commissioner 102 155. Delegation by Commissioner 103 156. Regulations for the provision of information to the Commissioner 103 157. Commissioner may require documents relating to financial affairs to be produced 104 158. Application of Fair Trading Act 2010 sections 61, 112 and 113 104 159. Protection from liability 105 160. Evidentiary provisions 105 Division 2 — Information and documents kept by Commissioner 161. Commissioner must keep register of incorporated associations and other documents 106 162. Inspection of register or documents 106 163. Certification of document 107 164. Destruction of documents by Commissioner 107 165. Lodgment of documents 108 166. Documents may be lodged by facsimile or electronic transmission 108 167. Commissioner may refuse lodgment of document 108 168. No constructive notice of contents of documents 109 Part 13 — Review 169. Reviewable decisions of Commissioner 111 170. Review by SAT of reviewable decisions 113 Part 14 — Investigation and enforcement 171. Term used: authorised person 114 172. Application of Fair Trading Act 2010 Part 6 114 173. Infringement notices and the Criminal Procedure Act 2004 115 Part 15 — Miscellaneous 174. Lodging notice of address for service 116 175. Change of address 116 176. Service on incorporated association 116 177. False or misleading statements in documents: offence 117 178. Commissioner may require statutory declaration 117 179. Use of "Incorporated" restricted 117 180. Time limit for commencing proceedings 118 181. Commissioner or authorised person may commence prosecution 118 182. Jurisdiction of SAT in respect of disputes 118 183. Regulations 119 184. Review of Act 119 Part 16 — Repeal of Associations Incorporation Act 1987 and transitional provisions Division 1 — Repeal 185. Associations Incorporation Act 1987 repealed 121 Division 2 — Transitional provisions Subdivision 1 — Preliminary 186. Terms used 121 187. Saving 121 Subdivision 2 — Existing incorporated associations 188. Incorporation continued 121 189. Committee of existing incorporated association 122 Subdivision 3 — Continuation of certain matters in progress 190. Existing applications for incorporation 122 191. Rule alteration in progress 122 192. Applications under repealed section 18 or 19 in progress 123 193. Applications for extension of time under repealed section 23(1) 123 194. Certain applications for review made but not determined 123 195. Voluntary winding up in progress 124 196. Notice given under repealed section 34(1) 124 197. Notice given under repealed section 35 125 Subdivision 4 — Alteration of rules by existing incorporated associations and section 190 incorporated associations 198. Alteration of rules 125 199. Rules of existing incorporated associations to which repealed Schedule 2 clause 4 applied 126 200. Rule alterations may be made by management committee 126 201. Model rules apply if rules are not made compliant 127 202. Act modifications pending alteration of rules 128 Subdivision 5 — Other things to be done by existing incorporated associations and section 190 incorporated associations 203. Notification of addresses 128 Subdivision 6 — Other provisions 204. New section 50 applies where time is already running under section 23 of repealed Act 129 205. When accounting and financial reporting provisions start to apply to existing incorporated associations 129 206. Auditor's appointments 129 207. Property vested under section 36 of repealed Act 130 208. Constructive notice under section 168 of this Act 130 209. Time limit under section 180 of this Act 130 210. References in written laws 130 Subdivision 7 — Further provision may be made 211. Regulations 130 Part 17 — Consequential amendments 212. Child Care Services Act 2007 amended 132 213. Cremation Act 1929 amended 132 214. Criminal Procedure Act 2004 amended 132 215. Education Service Providers (Full Fee Overseas Students) Registration Act 1991 amended 133 216. Electricity Corporations Act 2005 amended 133 217. Gaming and Wagering Commission Act 1987 amended 133 218. Hale School Act 1876 amended 134 219. Insurance Commission of Western Australia Act 1986 amended 134 220. Law Society Public Purposes Trust Act 1985 amended 134 221. Legal Aid Commission Act 1976 amended 135 222. Liquor Control Act 1988 amended 135 223. Local Government Act 1995 amended 135 224. Members of Parliament (Financial Interests) Act 1992 amended 136 225. Pharmacy Act 2010 amended 136 226. Planning and Development Act 2005 amended 136 227. Racing and Wagering Western Australia Act 2003 amended 137 228. School Education Act 1999 amended 137 229. Taxation Administration Act 2003 amended 138 230. Volunteers and Food and Other Donors (Protection from Liability) Act 2002 amended 138 231. Water Corporations Act 1995 amended 139 232. References to "1987" amended to "2015" in various Acts 139 Schedule 1 — Matters to be provided for in rules of an incorporated association Division 1 — Matters to be addressed Division 2 — Particular requirements for certain rules 1. Payment to members of management committee 143 2. Entitlement of members in respect of general meetings 143 3. Number of members who may call a general meeting 143 4. Financial year of associations incorporated under this Act 143 5. Transitional provisions as to financial year of associations incorporated under the repealed Act 144 Schedule 2 — Vesting of property and liabilities on amalgamation 1. Terms used 146 2. Transfer of property and liabilities and related provisions 146 3. Trusts etc. not affected 147 4. Notation of registers 147 Schedule 3 — Modifications to text of Corporations Act Schedule 4 — Grounds for winding up by Supreme Court Notes Compilation table 151 Defined terms Western Australia Associations Incorporation Act 2015 No. 30 of 2015 An Act to — • establish a scheme for the incorporation of associations; • make provision for corporate governance, financial accountability and matters relating to the rules and membership of incorporated associations; • repeal the Associations Incorporation Act 1987; • make provision for related matters. The Parliament of Western Australia enacts as follows: Part 1 — Preliminary 1. Short title This is the Associations Incorporation Act 2015. 2. Commencement This Act comes into operation as follows — (a) sections 1 and 2 — on the day on which this Act receives the Royal Assent; (b) the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions. 3. Terms used In this Act, unless the contrary intention appears — alter, in relation to the rules of an incorporated association, includes to add to, replace or rescind; approved form means a form approved by the Commissioner for the purposes of the provision in which the term is used; a repealed Act means — (a) the Associations Incorporation Act 1987 repealed by section 185; (b) the Associations Incorporation Act 1895 repealed by section 47 of the Act mentioned in paragraph (a); association includes society, club, institution or body; books includes the following — (a) a register; (b) financial records, financial statements or financial reports, as each of those terms is defined in section 62, however compiled, recorded or stored; (c) a document; (d) any other record of information; Commissioner means the person for the time being designated as the Commissioner under section 153; Corporations Act means the Corporations Act 2001 (Commonwealth); Department means the department of the Public Service principally assisting in the administration of this Act; financial year means the period provided for under Schedule 1 Division 2 clause 4 or 5; full voting rights, in relation to an association, means the right to vote at its general meetings; incorporated association means an association that is, or is taken to be, incorporated under this Act; liability means any liability, duty or obligation whether actual, contingent or prospective, liquidated or unliquidated, and whether owed alone or jointly or jointly and severally with any other person; management committee, in relation to an incorporated association, has the meaning given in section 38; model rules means the model rules prescribed under section 26; officer, of an incorporated association, means any of the following — (a) a member of the management committee of the association; (b) a person, including an employee of the association, who makes, or participates in making, decisions that affect the whole, or a substantial part, of the operations of the association; (c) a person who has the capacity to significantly affect the association's financial standing; (d) a person in accordance with whose instructions or wishes the management committee of the association is accustomed to act (but excluding a person who gives advice to the association in the proper performance of functions attaching to the person's professional capacity or to the person's business relationship with members of the management committee or with the association); property means any legal or equitable estate or interest in, or claim to, real or personal property of any description, whether present or future and whether vested or contingent, and includes — (a) a thing in action; and (b) money; special resolution means a resolution of an incorporated association passed in accordance with section 51; surplus property, in relation to an incorporated association, means property remaining after satisfaction of — (a) the debts and liabilities of the association; and (b) the costs, charges and expenses of winding up or cancelling the incorporation of the association, but does not include books pertaining to the management of the association; the repealed Act means the Associations Incorporation Act 1987 repealed by section 185. Part 2 — Incorporation of association Division 1 — Eligibility 4. Associations eligible for incorporation Without limiting section 11(1), an association is eligible to be incorporated under this Act if — (a) it is formed and carried on for one or more of the following purposes — (i) a religious, educational, charitable or benevolent purpose; (ii) the purpose of promoting or encouraging literature, science or the arts; (iii) 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 condition; (iv) the purpose of sport, recreation or amusement; (v) 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; (vi) the purpose of conserving resources or preserving any part of the environmental, historical or cultural heritage of the State; (vii) the purpose of promoting the interests of students or staff of an educational institution; (viii) a political purpose; (ix) the purpose of promoting the common interests of persons who are engaged in, or interested in, a particular business, trade or industry; (x) any purpose approved by the Commissioner; and (b) it has at least 6 members who under its rules have full voting rights; and (c) it is not excluded by section 5 or under regulations made for the purposes of section 6. 5. Associations not eligible for incorporation (1) Despite section 4, an association is not eligible to be incorporated under this Act if it is formed or carried on for the purpose of securing pecuniary profit for its members from its transactions. (2) An association secures pecuniary profit for its members if — (a) it carries on any activity for the purpose of securing pecuniary profit for its members; or (b) it has capital that is divided into shares or stock held by its members; or (c) it holds property in which its members have a disposable interest, whether directly or in the form of shares or stock in the capital of the association or otherwise; or (d) it is an association that — (i) is prescribed for the purposes of this subsection; or (ii) belongs to a class of associations that is so prescribed. (3) An association is not ineligible under subsection (1) by reason only of any one or more of the following circumstances — (a) that the association itself is empowered to make a pecuniary profit, unless that profit or some part of it is divided among or received by its members or some of them; (b) that the association is established for the protection or regulation of some trade, business, industry or calling in which the members are engaged or interested (the activity), if the association itself does not engage or take part in the activity, or any part or branch of the activity; (c) that any member of the association derives pecuniary profit from the association by way of salary paid in good faith as an employee or member of the management committee of the association; (d) that any member of the association derives pecuniary profit from the association by way of remuneration paid in good faith; (e) that any member of the association derives from the association a pecuniary profit to which the member would be equally entitled if the member were not a member of the association; (f) that the members of the association compete with each other for trophies or prizes in contests directly related to the purposes of the association; (g) that the association itself may or does make a profit from subscriptions, donations, sponsorship or the sale of any broadcasting rights; (h) that the members of the association derive pecuniary profit through the enjoyment of facilities or services provided by the association for social, recreational, educational or other like purposes; (i) that the association charges admission fees to displays, exhibitions, contests, sporting fixtures or other occasions organised for the promotion of the objects or purposes of the association; (j) that the association provides pecuniary profit of a kind that is prescribed for the purposes of this subsection. (4) For the purposes of subsection (1), a pecuniary profit that by reason of a person's membership of the association is received by any other person is taken to be a pecuniary profit for the member by reason of the person's membership of that association. 6. Regulations may declare associations to be ineligible An association is not eligible to be incorporated under this Act if, according to a determination of the Commissioner, it is an association that — (a) is prescribed for the purposes of this section; or (b) belongs to a class of associations that is so prescribed. Division 2 — Requirements for application for incorporation 7. Application to Commissioner (1) An application for the incorporation of an association must be lodged with the Commissioner in the approved form by a person duly authorised by the association to apply for incorporation. (2) An application must — (a) state the name and address of the association; and (b) include a certificate given by the applicant that the applicant is authorised by the association to apply for incorporation; and (c) comply with any other requirements prescribed for the purposes of this subsection. (3) An application for the incorporation of an association must be accompanied by — (a) if an association's proposed rules on incorporation will be its own rules — a copy of the proposed rules certified by the applicant as a true copy; or (b) if the association has approved the adoption of the model rules — (i) a statement to that effect; and (ii) the information referred to in subsection (4). (4) The following information is to be provided for the purposes of subsection (3)(b)(ii) — (a) the name of the association; (b) the objects or purposes of the association; (c) the quorum for a general meeting of members of the association; (d) the quorum for a meeting of the management committee of the association; (e) the period of the first financial year of the association. (5) The applicant must provide the Commissioner with such other information and documents as the Commissioner may in writing request. 8. Commissioner may require public notice of application for incorporation (1) The Commissioner may in writing require an applicant under section 7 to give public notice of the application in some way that the Commissioner thinks appropriate. (2) For the purposes of section 9, the applicant must include in the public notice a statement in wording approved by the Commissioner showing — (a) that a written request, including the reasons for the request, may be given to the Commissioner by any person under that section; and (b) the period within which any request must be received by the Commissioner. 9. Request for refusal of incorporation (1) Where public notice is given under section 8 in respect of an association, any person may, in accordance with the terms of the notice, request the Commissioner to decline to incorporate the association under this Act. (2) A request under subsection (1) must include the reasons for the request. Division 3 — Incorporation 10. Incorporation of association (1) Unless section 11 applies, the Commissioner must incorporate an association by the issue to the association of a certificate of incorporation if — (a) an application for the incorporation of an association is made under Division 2; and (b) the Commissioner is of the opinion that — (i) the association is eligible to be incorporated under this Act; and (ii) the rules of the association lodged with the Commissioner conform to the requirements of this Act; and (iii) the name of the association is appropriate having regard to section 12. (2) The Commissioner must not incorporate the association until — (a) the time during which any request might be made under section 9 has expired; and (b) any request made under that section has been finally refused. (3) For the purposes of subsection (2), a request under section 9 has been finally refused if the request is refused by the Commissioner and either — (a) the time for making an application for review under section 170 has expired without such an application being made; or (b) any application for review made under section 170 — (i) has resulted in the Commissioner's refusal being confirmed; or (ii) has been dismissed or struck out. 11. Refusal of incorporation (1) The Commissioner must not incorporate an association under this Act if in the opinion of the Commissioner — (a) it is more appropriate for the activities of the association to be carried on by a body corporate incorporated under some other law; or (b) the incorporation of the association is against the public interest. (2) The grounds on which the Commissioner may form the opinion that subsection (1)(a) or (b) applies include the following — (a) the likely scale or nature of the activities of the association; (b) the likely value or nature of the property of the association; (c) the extent or nature of the dealings the association is likely to have with the public; (d) any other matter the Commissioner considers relevant. (3) The Commissioner must not incorporate an association if, in the Commissioner's opinion, any ground for refusal of incorporation prescribed by the regulations applies to the association. 12. Restrictions as to names of associations The Commissioner must not incorporate an association under this Act by a name that in the opinion of the Commissioner is — (a) offensive or undesirable; or (b) likely to mislead the public as to the object or purpose of the association; or (c) identical to the name by which an association in existence is, or is taken to be, incorporated under this Act or which resembles any such name in a manner likely to mislead the public; or (d) identical to, or likely to be confused with, the name of any other body corporate or a business name registered to another body under the Business Names Registration Act 2011 (Commonwealth); or (e) prescribed for the purposes of this section; or (f) of a kind that is so prescribed. 13. Effect of incorporation (1) Upon incorporation of an association under this Act — (a) the association becomes a body corporate with perpetual succession and may have a common seal; and (b) the corporate name of the association is the name of the association as stated in the certificate of incorporation, concluding with the word "Incorporated" or the abbreviation "Inc."; and (c) except as provided in subsection (2), all rights and liabilities exercisable against members or members of the management committee of the association in their capacity as such immediately before the incorporation of the association become rights and liabilities of and exercisable against the incorporated association; and (d) the association may sue or be sued in its corporate name. (2) Subsection (1)(c) is not to be construed so as to relieve or release any person in respect of liabilities incurred by or on behalf of the association prior to incorporation. 14. Powers of incorporated association (1) Subject to this Act and to its rules, an incorporated association may do all things necessary or convenient for carrying out its objects and purposes, and in particular, may — (a) acquire, hold, deal with, and dispose of any real or personal property; and (b) open and operate bank accounts; and (c) invest its money — (i) as trust funds may be invested under the Trustees Act 1962 Part III; or (ii) in any other manner authorised by the rules of the association; and (d) borrow money upon such terms and conditions as the association thinks fit; and (e) give such security for the discharge of liabilities incurred by the association as the association thinks fit; and (f) appoint agents to transact any business of the association on its behalf; and (g) enter into any other contract it considers necessary or desirable. (2) An incorporated association may, unless its rules otherwise provide, act as trustee and accept and hold real and personal property upon trust, but an incorporated association does not have power to do any act or thing as a trustee that, if done otherwise than as a trustee, would contravene this Act or the rules of the association. 15. Manner in which contract 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 natural 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 natural persons, would be required to be in writing signed by the parties may be made on behalf of the association in writing by any person acting under its express or implied authority; (c) a contract which, if made between natural persons, would be valid although not in writing signed by the parties may be made orally on behalf of the association by any person acting under its express or implied authority. (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. 16. When contract affected by deficiency in association's legal capacity (1) A contract made with an incorporated association is not invalid by reason of any deficiency in the legal capacity of the association to enter into, or carry out, the contract unless the 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 a transaction that is beyond the powers of the association. 17. Requirements of section 4 continue after incorporation (1) After its incorporation an association — (a) must continue to be carried on for one or more purposes mentioned in section 4(a); and (b) must at all times have at least 6 members who under its rules have full voting rights; and (c) must not, itself or as a trustee secure pecuniary profit for its members. (2) The application of subsection (1) extends to an association that is, or is deemed to be, an incorporated association immediately before the commencement of this section. 18. Certain property vests in incorporated association (1) On the incorporation of an association under section 10 all real and personal property held by any person for or on behalf of the association vests, by virtue of this subsection, in the incorporated association. (2) Any property vested in an incorporated association by subsection (1) is vested subject to any trust, restriction or obligation to which that property was subject immediately before it became so vested. (3) On — (a) the application of an incorporated association in which any estate or interest in land has been vested by subsection (1); and (b) the production of such duplicate instruments of title and other documents as the Registrar of Titles or the Registrar of Deeds and Transfers may require, the Registrar of Titles or the Registrar of Deeds and Transfers must record and register the vesting of that estate or interest in land in the association. 19. Liability of members of management committee, trustees and members (1) A member of the management committee, trustee or a member of an incorporated association is not by reason only of being such a member of the management committee, trustee or member liable in respect of the liabilities of the association. (2) Subsection (1) does not apply in respect of liabilities incurred by or on behalf of the association prior to incorporation. 20. Issue of replacement certificate The Commissioner must issue a replacement certificate of incorporation of an association if — (a) the incorporated association satisfies the Commissioner that the certificate has been lost or destroyed; and (b) the fee prescribed by the regulations is paid by the incorporated association. Part 3 — Rules Division 1 — Rules of incorporated association 21. Effect of rules (1) The rules of an incorporated association bind the association and the members of the association as if — (a) they contained an agreement on the part of each member to be bound by and observe all the provisions of the rules; and (b) that agreement were duly executed by each member. (2) Subsection (1) has effect only so far as the rules are consistent with this Act. (3) The application of this section extends to an association that is, or is deemed to be, an incorporated association immediately before the commencement of this section. 22. General requirements for content of rules (1) The rules of an incorporated association must specify the following — (a) the name of the association; (b) the objects or purposes of the association; (c) the quorum for a general meeting of members of the incorporated association; (d) the quorum for a meeting of the management committee of the incorporated association. (2) The rules of an incorporated association must include a provision in, or substantially in, the following terms — The property and income of the association must be applied solely towards the promotion of the objects or purposes of the association and no part of that property or income may be paid or otherwise distributed, directly or indirectly, to any member of the association, except in good faith in the promotion of those objects or purposes. (3) Subject to section 23, the rules of an incorporated association must at all times — (a) address each of the matters set out in Schedule 1 Division 1; and (b) comply with any applicable requirement under Schedule 1 Division 2; and (c) be otherwise consistent with this Act. (4) The rules of an incorporated association must include a reference to any exemption or approval under section 23(1) or 25(1) and the effect of the exemption or approval. (5) An incorporated association is taken to have met the requirements of subsection (3) if the association — (a) adopts the model rules without modification as its rules; and (b) provides to the Commissioner the information referred to in section 7(3)(b)(ii) or 29(5), as the case requires. (6) The rules of an incorporated association that adopts the model rules are taken to include the information provided by the association under section 7(3)(b)(ii) or 29(5). (7) The application of this section extends to an association that is, or is deemed to be, an incorporated association immediately before the commencement of this section. 23. Commissioner may exempt from requirement of section 22 (1) A provision in Schedule 1 does not apply to an incorporated association to the extent that the Commissioner in writing exempts it from that provision. (2) The Commissioner may at any time revoke or amend an exemption. (3) An exemption has effect subject to compliance with any condition that the Commissioner attaches to it. (4) An application for an exemption may be lodged — (a) on behalf of an association as part of an application under section 7; or (b) by an incorporated association. (5) The Commissioner is only to grant an exemption in respect of a provision if satisfied — (a) that the special circumstances of the association justify the exemption; and (b) that the exemption will not affect the objects or purposes of the association; and (c) that the application of the provision to the association would cause undue hardship to its members; and (d) as to any other prescribed matter. (6) The Commissioner must give written notice of a decision under this section to the association, and allow the association a reasonable time to comply with the provision concerned as affected by the decision. 24. Restriction on distribution of surplus property (1) There is implied in the rules of every incorporated association a provision that, on the cancellation of the incorporation or the winding up of the association, its surplus property can only be distributed to one or more of the following — (a) an incorporated association; (b) a company limited by guarantee that is registered as mentioned in the Corporations Act section 150; (c) a company holding a licence that continues in force under the Corporations Act section 151; (d) a body corporate that at the time of the distribution is the holder of a licence under the Charitable Collections Act 1946; (e) a body corporate that — (i) is a member or former member of the incorporated association; and (ii) at the time of the distribution of surplus property, has rules that prevent the distribution of property to its members; (f) a trustee for a body corporate referred to in paragraph (e); (g) a co‑operative registered under the Co‑operatives Act 2009 that, at the time of the distribution of surplus property, is a non‑distributing co‑operative as defined in that Act. (2) The provision described in subsection (1) has effect — (a) subject to section 134; and (b) despite any inconsistent provision in the rules of an incorporated association. (3) The application of this section extends to an association that is, or is deemed to be, an incorporated association immediately before the commencement of this section. 25. Commissioner may approve variation of provision implied by section 24 (1) The Commissioner may, for the rules of a particular incorporated association, approve in writing a variation of the provision implied by section 24 so that it includes a reference to — (a) a particular body corporate; or (b) a particular body corporate that is to apply property for a particular charitable purpose approved by the Commissioner. (2) An approval has effect subject to compliance with any condition that the Commissioner attaches to it. (3) An application for an approval under subsection (1) may be made — (a) on behalf of an association as part of an application for incorporation under section 7; or (b) by an incorporated association. (4) An application for an approval under subsection (1) must include the written consent of the body corporate concerned to the application being made. (5) The Commissioner may revoke or amend an approval given under subsection (1). 26. Model rules (1) Regulations are to be made prescribing model rules for incorporated associations. (2) The model rules must — (a) address each of the matters set out in Schedule 1 Division 1 other than specifying the following — (i) the name of the incorporated association; (ii) the objects or purposes of the incorporated association; (iii) the quorum for a general meeting of members of the incorporated association; (iv) the quorum for a meeting of the management committee of the incorporated association; and (b) comply with the requirements under Schedule 1 Division 2 other than fixing the period of the first financial year of an incorporated association. (3) The model rules may deal with any other matter. 27. Rules of associations existing at the commencement of section 185 (1) This section applies to an association that was incorporated under a repealed Act and whose incorporation has effect immediately before the commencement of section 185. (2) The rules of an association as in force immediately before the commencement of section 185 continue to have effect but without limiting — (a) the ability of the association, or of the management committee of the association, to alter the rules of the association in accordance with Division 2 or section 200; or (b) the operation of section 22 as qualified by Part 16 Division 2 Subdivision 4. 28. Rules of an incorporated association (1) On the registration of an incorporated association under this Act, the rules of the association are — (a) the rules that accompanied the application for the registration of the association; or (b) if the application was accompanied by a statement that the model rules have been approved as the rules of the proposed incorporated association — the model rules including the information provided under section 7(3)(b)(ii) or 29(5). (2) The model rules apply as the rules of an association on its incorporation — (a) if the association does not have its own rules; or (b) if the association has its own rules, to the extent that they do not — (i) address a matter referred to in Schedule 1 Division 1; or (ii) comply with any applicable requirement under Schedule 1 Division 2. 29. Adoption of model rules (1) An incorporated association may, by special resolution, approve the adoption of the model rules as the rules of the association at any time after its incorporation under this Act. (2) If an incorporated association approves the adoption of the model rules as its rules, it is taken to have adopted any subsequent amendment to the model rules as an alteration of its rules. (3) An alteration of the rules of an incorporated association referred to in subsection (2) — (a) takes effect on the day the relevant amendment to the model rules comes into operation; and (b) takes effect without the requirement of a special resolution of the association; and (c) does not require the approval of the Commissioner. (4) If an incorporated association that has approved the adoption of the model rules as its own rules alters those rules under section 30, other than an alteration to its name, objects, purposes or quorums, the association is taken to have adopted its own rules and subsections (2) and (3) do not apply to those rules. (5) An incorporated association that approves the adoption of the model rules as its own rules under subsection (1) must notify the Commissioner and include in the notification the following information — (a) the name of the association; (b) the objects or purposes of the association; (c) the quorum for a general meeting of members of the association; (d) the quorum for a meeting of the management committee of the association; (e) if relevant, the period of the first financial year of the association. Division 2 — Alteration of rules 30. Alteration of rules (1) Subject to sections 31 and 33, an incorporated association may alter its rules by special resolution but not otherwise. (2) In this section, a reference to rules includes a reference to information provided under section 7(3)(b)(ii) or 29(5). (3) Within one month after the passing of a special resolution altering its rules, or such further time as the Commissioner may in a particular case allow, an incorporated association must lodge the required documents with the Commissioner. Penalty: a fine of $1 000. (4) The required documents are — (a) a notice of the special resolution setting out particulars of the alterations; and (b) a certificate in the approved form that the resolution was duly passed as a special resolution; and (c) except where only the model rules will apply, a consolidated copy of the rules of the incorporated association, including all alterations to which the special resolution relates. (5) The certificate under subsection (4)(b) must be signed by a member of the management committee of the incorporated association. (6) An alteration of the rules of an incorporated association does not take effect until subsection (3) is complied with. (7) The regulations may make provision for the circumstances and manner in which notice of any alteration of an incorporated association's rules must be given to members of the association. 31. Change of name by alteration of rules (1) An alteration of the rules of an incorporated association having effect to change the name of the association does not take effect until section 30 is complied with and the approval of the Commissioner is given to the change of name. (2) The Commissioner may direct that notice of a proposed change of name of an incorporated association be published in accordance with the Commissioner's directions as a prerequisite to approval of the change. (3) The Commissioner must not approve a name under this section unless the Commissioner is of the opinion that the proposed name is an appropriate name under which an association might be incorporated under this Act. (4) The Commissioner must issue a new certificate of incorporation in the approved form showing the new name of the incorporated association if — (a) the Commissioner approves a change of name; and (b) subsection (5) is complied with; and (c) any fee prescribed for the purposes of this subsection has been paid. (5) A new certificate of incorporation under subsection (4) must not be issued unless — (a) the certificate of incorporation previously issued has been returned to the Commissioner; or (b) the Commissioner is satisfied that the certificate has been lost or destroyed. 32. Corporate identity and other matters not affected by change of name (1) A change of name of an incorporated association does not affect — (a) the corporate identity of the incorporated association; or (b) its rights and obligations; or (c) any legal proceeding by or against it. (2) A legal proceeding that might have been commenced or continued by or against the incorporated association in its former name may be commenced or continued by or against it in its new name. 33. Certain other rule alterations to be approved by Commissioner (1) This section applies to an alteration of the rules of an incorporated association having effect to alter — (a) the objects or purposes of the association; or (b) the manner in which surplus property of the association must be distributed or dealt with if the association is wound up or its incorporation is cancelled. (2) The alteration does not take effect until section 30 is complied with and the approval of the Commissioner is given to it. (3) The Commissioner may direct that notice of the proposed alteration be published in accordance with the Commissioner's directions as a prerequisite to it being approved. 34. Request for refusal of change of name or other rule alterations (1) Any person may, in accordance with the terms of a public notice given under — (a) section 31(2) in respect of a change of name; or (b) section 33(3) in respect of a rule alteration to which section 33 applies, request the Commissioner to decline to approve the change or alteration. (2) A request under subsection (1) must include the reasons for the request. Division 3 — Provision of rules to members 35. Rules to be available to members (1) An incorporated association must keep and maintain in an up‑to‑date condition a copy of the rules of the association. Penalty: a fine of $2 750. (2) At the request of a member of an incorporated association, the association must make the copy of the rules available for inspection by the member. Penalty: a fine of $2 750. (3) The member may make a copy of or take an extract from the copy of the rules but does not have the right to remove the rules for that purpose. 36. When member to receive copy of rules (1) Without limiting section 35, an incorporated association must — (a) at the request of a member of the association, give to the member a copy of the association's rules, or of any particular part of those rules to which the request relates, as in force at the time of the request; and (b) give to each person who becomes a member of the association a copy of the association's rules as in force when the membership commences. Penalty: a fine of $2 750. (2) An incorporated association must not make a charge for taking any action that it is required to take under this section. (3) The regulations may make provision for the manner in which a copy of an incorporated association's rules or of any part of those rules may be, or must be, given under this section. 37. Further provision as to obligations under sections 35 and 36 The obligations under sections 35 and 36 in respect of the rules of an association include reference to — (a) model rules if those rules are the rules of the association; and (b) the association's own rules. Part 4 — Management Division 1 — Management committee 38. Management committee The persons who under the rules of the incorporated association have the power to manage the affairs of the association constitute the management committee of the association for the purposes of this Act. 39. Persons who are not to be members of management committee (1) Subject to section 40, this section applies to the following persons — (a) a person who is, according to the Interpretation Act 1984 section 13D, a bankrupt or person whose affairs are under insolvency laws; (b) a person who has been convicted, within or outside the State, of — (i) an indictable offence in relation to the promotion, formation or management of a body corporate; or (ii) an offence involving fraud or dishonesty punishable by imprisonment for a period of not less than 3 months; or (iii) an offence under Division 3 or section 127. (2) A person to whom this section applies must not, without leave of the Commissioner, accept an appointment or act as a member of a management committee of an incorporated association. Penalty: a fine of $10 000. 40. Limitation of period for which section 39 applies to certain persons Section 39 applies to a person referred to in subsection (1)(b) of that section, in relation to the person's conviction of an offence, only for the period of 5 years — (a) from the time of the person's conviction; or (b) if the conviction results in a term of imprisonment, from the time of the person's release from custody. 41. Handing over of documents and records when membership of management committee ceases (1) In this section — relevant documents and records means documents and records pertaining to the management of the affairs of an incorporated association that — (a) if subsection (2)(a) applies, were in the possession of the member of the management committee immediately before the member's death; or (b) if subsection (2)(b) applies, are in the possession of the person who has ceased to be a member of the management committee. (2) This section applies where a member of the management committee of an incorporated association — (a) dies; or (b) otherwise ceases to be a member of the management committee. (3) As soon as is practicable after a person has ceased to be a member of the management committee of an incorporated association — (a) the person; or (b) if subsection (2)(a) applies, the personal representative of the person, must deliver to a member of the management committee of the association all relevant documents and records or, in the case of relevant documents or records that are stored on a computer, a copy of all such documents and records. Penalty: a fine of $10 000. Division 2 — Matters of material personal interest 42. Disclosure of material personal interest (1) A member of the management committee of an incorporated association who has a material personal interest in a matter being considered at a management committee meeting must, as soon as the member becomes aware of the interest, disclose the nature and extent of the interest to the management committee. Penalty: a fine of $10 000. (2) A member of the management committee of an incorporated association who has a material personal interest in a matter being considered at a management committee meeting must disclose the nature and extent of the interest at the next general meeting of the association. Penalty: a fine of $10 000. (3) Subsections (1) and (2) do not apply in respect of a material personal interest — (a) that exists only because the member — (i) is an employee of the incorporated association; or (ii) is a member of a class of persons for whose benefit the association is established; or (b) that the member has in common with all, or a substantial proportion of, the members of the association. (4) If a member of the management committee of an incorporated association discloses a material personal interest in a contract or proposed contract in accordance with this section, and the member has complied with section 43(1) or the member's interest is not required to be disclosed because of subsection (3) — (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. (5) A disclosure of a material personal interest required by subsection (1) or (2) must give details of — (a) the nature and extent of the interest; and (b) the relation of the interest to the activities of the incorporated association. (6) The details referred to in subsection (5) must be recorded in the minutes of the meeting of the management committee at which the disclosure is made. 43. Voting on contract in which management committee member has a material personal interest (1) A member of the management committee of an incorporated association who has a material personal interest in a matter being considered at a meeting of the management committee must not — (a) be present while the matter is being considered at the meeting; or (b) vote on the matter. Penalty: a fine of $10 000. (2) Subsection (1) does not apply in respect of a material personal interest — (a) that exists only because the member belongs to a class of person for whose benefit the association is established; or (b) that the member has in common with all, or a substantial proportion of, the members of the association. (3) If there are not enough management committee members to form a quorum to consider a matter because of subsection (1) — (a) one or more committee members (including those who have a material personal interest in the matter) may call a general meeting; and (b) the general meeting may pass a resolution to deal with the matter. Division 3 — Duties of officers 44. Duty of care and diligence (1) An officer of an incorporated association must exercise his or her powers and discharge his or her duties with the degree of care and diligence that a reasonable person would exercise if that person — (a) were an officer of the association in the association's circumstances; and (b) occupied the office held by, and had the same responsibilities within the association as, the officer. Penalty: a fine of $10 000. (2) An officer of an incorporated association who makes a business judgment is taken to meet the requirements of subsection (1), and his or her equivalent duties at common law and in equity, in respect of the judgment if the officer — (a) makes the judgment in good faith for a proper purpose; and (b) does not have a material personal interest in the subject matter of the judgment; and (c) informs himself or herself about the subject matter of the judgment to the extent the officer reasonably believes to be appropriate; and (d) rationally believes that the judgment is in the best interests of the association. (3) For the purposes of subsection (2) — business judgment means any decision to take or not take action in respect of a matter relevant to the operations of the incorporated association. (4) The officer's belief that the judgment is in the best interests of the incorporated association is a rational one unless the belief is one that no reasonable person in the position of the officer would hold. 45. Duty of good faith and proper purpose An officer of an incorporated association must exercise his or her powers and discharge his or her duties — (a) in good faith in the best interests of the association; and (b) for a proper purpose. Penalty: a fine of $10 000. 46. Use of position An officer of an incorporated association must not improperly use his or her position to — (a) gain an advantage for the officer or another person; or (b) cause detriment to the association. Penalty: a fine of $10 000. 47. Use of information A person who obtains information because the person is, or has been, an officer of an incorporated association must not improperly use the information to — (a) gain an advantage for the person or another person; or (b) cause detriment to the association. Penalty: a fine of $10 000. 48. Interaction of sections 44 to 47 with other laws (1) Sections 44 to 47 — (a) have effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of a person because of his or her office in relation to an incorporated association; and (b) do not prevent the commencement of civil proceedings for a breach of a duty or in respect of a liability referred to in paragraph (a). (2) This section does not apply to section 44(2), (3) and (4) to the extent to which those provisions operate on the duties at common law and in equity that are equivalent to the requirements of section 44(1). 49. Reliance on information or advice (1) This section applies if the reasonableness of the reliance of an officer of an incorporated association on information or advice given to the officer arises in a proceeding brought to determine whether the officer has performed a duty under this Act or an equivalent duty at common law or in equity. (2) Unless the contrary is proved, the officer's reliance on the information or advice is taken to be reasonable if — (a) the information or advice was given or prepared by — (i) an employee of the incorporated association whom the officer reasonably believed to be reliable and competent in relation to the matters concerned; or (ii) a professional advisor or expert in relation to the matters that the officer reasonably believed to be within that person's professional or expert competence; or (iii) another officer of the incorporated association in relation to matters within the other officer's authority; or (iv) a sub‑committee of the incorporated association of which the officer was not a member in relation to matters within the sub‑committee's authority; and (b) the reliance was made — (i) in good faith; and (ii) after making an independent assessment of the information or advice, having regard to the officer's knowledge of the incorporated association and the complexity of the structure of the incorporated association. Division 4 — Annual general meeting and special resolutions 50. Annual general meeting (1) Except as allowed under subsection (2), an incorporated association must in each calendar year hold an annual general meeting. Penalty: a fine of $5 000. (2) An incorporated association may hold its first annual general meeting at any time within 18 months after incorporation. (3) Except as allowed under subsection (2), an incorporated association must hold its annual general meeting — (a) within 6 months after the end of the association's financial year; or (b) within such longer period as may in a particular case be allowed by the Commissioner. Penalty: a fine of $2 750. 51. Requirements for special resolution (1) For the purposes of this Act, a resolution is a special resolution if it is passed — (a) at a general meeting of an incorporated association; and (b) by the votes of not less than three‑fourths of the members of the association who cast a vote at the meeting. (2) A person is taken to cast a vote at a general meeting as mentioned in subsection (1) if the person has a right under the rules of the association to vote on the resolution and — (a) votes in person at the meeting; or (b) where proxies or postal votes are allowed by the rules of the association, votes on the resolution by proxy or postal vote. (3) Before the general meeting, written notice of — (a) the proposed special resolution; and (b) the time and place of the general meeting at which it is proposed to move the resolution, must be given, as required under the rules of the incorporated association, to each member of the association. (4) The notice must set out the wording of the proposed special resolution. (5) If notice is not given in accordance with subsections (3) and (4) the special resolution has no effect. 52. Evidence of passing of resolution (1) At a general meeting of an incorporated association at which a resolution proposed as a special resolution is submitted, a declaration by the person presiding that the resolution has been passed as a special resolution is evidence of the fact. (2) Subsection (1) does not apply if, during the meeting at which the resolution is submitted, a poll is demanded — (a) in accordance with the rules of the incorporated association; or (b) if the rules do not make provision as to the manner in which a poll may be demanded, by at least 3 members of the association present in person or, where proxies are allowed, by proxy. (3) If a poll is taken under subsection (2), a declaration by the person presiding as to the result of a poll is evidence of the matter so declared. Division 5 — Register of members 53. Register to be maintained (1) An incorporated association must — (a) maintain a register of its members in accordance with the regulations and the requirements of this section; and (b) record in the register any change in the membership of the association within 28 days after the change occurs. Penalty: a fine of $2 750. (2) The register of members must include each member's name and — (a) residential address; or (b) postal address; or (c) email address; or (d) information, by means of which contact can be made with the member, that is prescribed for the purposes of this paragraph. 54. Inspection of register by member (1) An incorporated association must, at the request of a member, make the register of members available for inspection by the member. Penalty: a