Associations Incorporation Act 2009

This Act is the Associations Incorporation Act 2009.

This Act commences on a day to be appointed by proclamation.

The objects of this Act are—

to establish a scheme for the registration of associations that are constituted for the purpose of engaging in small-scale, non-profit and non-commercial activities, including—

associations that are currently unincorporated (which become bodies corporate when they are registered), and

associations that are currently incorporated under other legislation (which retain their corporate status following registration), and

to make provision with respect to the corporate governance and financial accountability of associations registered under that scheme.

In this Act—

ACNC registered entity means a registered entity under the Australian Charities and Not-for-profits Commission Act 2012 of the Commonwealth.

approved, in relation to a form, means approved by the Secretary.

ASIC means the Australian Securities and Investments Commission.

assets means any legal or equitable estate or interest (whether present or future, whether vested or contingent and whether personal or assignable) in real or personal property of any description (including money), and includes securities, choses in action and documents.

association means an association registered under this Act.

Australian Accounting Standards means the standards issued by the Australian Accounting Standards Board, as in force for the time being, and including any modifications prescribed by the regulations.

Australian Auditing Standards means the standards issued by the Auditing and Assurance Standards Board, as in force for the time being, and including any modifications prescribed by the regulations.

authorised officer means—

a person who is appointed as an authorised officer under section 102, or

an investigator within the meaning of the Fair Trading Act 1987.

authorised signatory, in relation to an association, means a person who is appointed under section 36 as an authorised signatory for the association, and includes the association’s public officer.

committee, in relation to an association, means the governing body of the association, however described.

committee member, in relation to an association, means a person who is elected or appointed under the association’s constitution as a committee member of the association.

constitution, in relation to an association, means the constitution that is recorded in the Register of Incorporated Associations in relation to the association.

corresponding law means—

the Co-operatives National Law (NSW), or

the Corporations Act 2001 of the Commonwealth,

and includes any law of this or another State or Territory, or any law of the Commonwealth, that is declared by the regulations to be a corresponding law for the purposes of this Act.

court includes tribunal.

Department means the Department of Customer Service.

exercise a function includes perform a duty.

financial year, in relation to an association, means—

a period of 12 months, or such other period (whether longer or shorter than 12 months) not exceeding 18 months as the association resolves, commencing on the date of incorporation of the association, and

each period of 12 months, or such other period (whether longer or shorter than 12 months) not exceeding 18 months as the association resolves, commencing at the expiration of the previous financial year of the association.

function includes a power, authority or duty.

liabilities means any liabilities, debts or obligations (whether present or future, whether vested or contingent and whether personal or assignable).

model constitution means the model constitution prescribed by the regulations.

objects, in relation to an association, means the objects that are recorded in the Register of Incorporated Associations in relation to the association.

official address, in relation to an association, means the address that is recorded in the Register of Incorporated Associations as the association’s official address.

pecuniary gain—see section 5.

public officer, in relation to an association, means the person who is appointed as the association’s public officer, and, until he or she is replaced by a person so appointed, includes the person who is nominated as the association’s public officer in the association’s application for registration.

register of committee members, in relation to an association, means the register of committee members kept by the association for the purposes of section 29.

Register of Incorporated Associations means the Register of Incorporated Associations kept by the Secretary for the purposes of section 98.

registrable corporation means—

a co-operative (within the meaning of the Co-operatives National Law (NSW)), or

a company registered under the Corporations Act 2001 of the Commonwealth,

and includes any other entity that is constituted as a body corporate pursuant to registration under a corresponding law.

rights means any rights, powers, privileges or immunities (whether present or future, whether vested or contingent and whether personal or assignable).

Secretary means—

the Commissioner for Fair Trading, Department of Customer Service, or

if there is no such position in the Department, the Secretary of the Department.

special resolution—see section 39.

unacceptable name—see section 18.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

In this Act, a reference to the Corporations Act 2001 of the Commonwealth (or to a provision of that Act) as applying under this Act is a reference to that Act (or provision) to the extent to which it is declared to apply to a matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001.

Notes included in this Act do not form part of this Act.

An organisation provides pecuniary gain for its members if—

it carries on any activity for the purpose of securing pecuniary gain for its members, or

it has capital that is divided into shares or stock held by the organisation’s members, or

it holds property in which the organisation’s members have a disposable interest (whether directly, or in the form of shares or stock in the capital of the organisation or otherwise), or

it is an organisation that is, or is included in a class of organisations that is, prescribed by the regulations for the purposes of this subsection.

For the purposes of subsection (1) (a), an organisation does not provide pecuniary gain for its members merely because of any of the following—

the organisation itself makes a pecuniary gain, unless that gain or any part of it is divided among or received by the organisation’s members or any of them,

the organisation is established for the protection of a trade, business, industry or calling in which the organisation’s members are engaged or interested, but the organisation itself does not engage or take part in, or in any part or branch of, any such trade, business, industry or calling,

members of the organisation derive pecuniary gain through the enjoyment of facilities or services provided by the organisation for social, recreational, educational or other like purposes,

members of the organisation derive pecuniary gain from the organisation by way of bona fide payment of remuneration,

members of the organisation derive pecuniary gain from the organisation of a kind which they could also derive if they were not members of the organisation,

members of the organisation compete for trophies or prizes in contests directly related to the objects of the organisation,

the organisation provides pecuniary gain of a class prescribed by the regulations for the purposes of this section.

An application for registration of an association may be made to the Secretary on behalf of—

5 or more individuals, or

an unincorporated body having 5 or more members, or

a registrable corporation having 5 or more members or shareholders, or

2 or more existing associations together having 5 or more members.

Such an application must be authorised—

in the case of an application made on behalf of 5 or more individuals, by each of the individuals, and

in the case of an application made on behalf of an unincorporated body, by a special resolution passed by the members of the body, and

in the case of an application made on behalf of a registrable corporation, by a special resolution passed by the members of the corporation, and

in the case of an application made on behalf of 2 or more associations proposing to amalgamate, by special resolutions passed by the members of each association.

An application—

must be in the approved form, and

must specify the association’s proposed name and the address that is to be the association’s first official address, and

must include a statement of the association’s objects, and

must annex a copy of the association’s proposed constitution (or a statement that the association’s proposed constitution adopts all the provisions of the model constitution without modification), and

must identify the person who is to be the association’s first public officer, and

must include copies of any special resolution referred to in subsection (2) (b), (c) or (d), and

in the case of an application made on behalf of a registrable corporation, must annex a document (issued by the relevant regulatory authority under the law under which it is currently incorporated) declaring that the requirements of that law in relation to the transfer of its registration under that law to registration under some other law have been complied with, and

must include any information required by the regulations, and

must be accompanied by the fee prescribed by the regulations.

An association’s proposed official address must be an address within New South Wales, other than a post office box, at which documents can be served on the association by post.

An association’s proposed constitution must address each of the matters referred to in Schedule 1.

(Repealed)

The Secretary may determine an application for registration of an association by registering the association or by refusing the application.

An application for registration may be refused if—

the application does not comply with section 6, or

the name of the association is unacceptable, or

Note.

Changing circumstances may mean that a name that was acceptable when it was reserved has since become unacceptable.

the Secretary is satisfied that, having regard to the objects of this Act, the association should not be registered—

because some provision of the association’s constitution is contrary to law, or

because of the association’s objects or the Secretary’s assessment of the likely nature or extent of the association’s proposed activities, or

because of the likely nature or extent of the association’s dealings with the public, or

for any other reason that appears sufficient to the Secretary.

The Secretary registers an association by recording its name, objects, constitution and official address in the Register of Incorporated Associations.

On registering an association, the Secretary—

must cause a certificate of registration for the association to be given to the applicant, and

if the applicant is a registrable corporation, must cause notice of its registration to be given to the relevant regulatory authority under the law under which it was formerly registered.

In the case of 2 or more associations that become a single association, the registration of each of the former associations is to be cancelled when the amalgamated association is registered.

An association that arises otherwise than from the registration of a registrable corporation becomes a body corporate when it is registered under this Act.

Schedule 2 contains provisions relating to an association that arises from the registration of an unincorporated body or from the amalgamation of 2 or more associations.

An association that arises from the registration of a registrable corporation is a continuation of, and the same legal entity as, the registrable corporation.

Without limiting subsection (1)—

the assets, rights and liabilities of the registrable corporation become the assets, rights and liabilities of the association, and

proceedings that have been commenced by or against the registrable corporation may be continued by or against the association in its own name or in the name of the registrable corporation.

An association may apply to the Secretary for registration of a change in the association’s name, objects or constitution.

An application may only be made pursuant to a special resolution passed by the association.

An application—

must be in the approved form, and

must include details of the proposed change, and

must include a copy of the special resolution by which the association has approved the change, and

must be accompanied by the fee prescribed by the regulations.

An association’s constitution, as proposed to be changed, must address each of the matters referred to in Schedule 1.

Note.

A change in an association’s name, objects or constitution does not take effect until it is registered: see section 14.

The Secretary may, by order in writing served on an association that has an unacceptable name, direct the association to adopt a new name.

Such a direction may be given whether or not the association’s name was acceptable when the association was registered.

Note.

Changing circumstances may mean that a name that was acceptable when the association was registered has since become unacceptable.

A direction—

must specify the grounds on which the association’s current name is unacceptable, and

must specify a date by which an application for registration of a change of name must be made (being a date no less than 2 months after the date on which the direction is given), and

must state that, if the application is not made on or before that date, the association’s name may be changed to its registration number, or the association’s registration may be cancelled, by the Secretary.

Note.

See subsection (4) for the Secretary’s power to change an association’s name to its registration number, and section 76 (1) (i) for the Secretary’s power to cancel an association’s registration, for failure to comply with a direction under this section.

The Secretary may change an association’s name to its registration number if satisfied that the association has failed to comply with a direction under this section for the change of its name.

After changing an association’s name to its registration number under this section, the Secretary must cause notice of that fact to be given to the association.

(Repealed)

The Secretary may determine an application for registration of a change of name, objects or constitution by registering the change or by refusing the application.

An application for registration of a change of name, objects or constitution may be refused if—

the application does not comply with section 10, or

the special resolution was approved by the association more than 28 days before the application was made, or

in the case of an application for a change of name, the new name is unacceptable.

On registering an association’s change of name, the Secretary is to cause a replacement certificate of registration, bearing the association’s new name, to be given to the applicant.