Untitled document
Associations Incorporation Amendment Act 2010
No. 46 of 2010
table of provisions
Section Page
Part 1—Preliminary
1Purpose
2Commencement
3Principal Act
Part 2—Amendments to Associations Incorporation Act 1981
4Definitions
5Authority to apply for incorporation
6Application for incorporation
7Rules of association
8Application to bring companies etc. under this Act
9Enforceability of rules and purposes
10New section 14AB inserted
14ABDisciplinary action
11Grievance procedures
12Rights and liabilities of members
13Powers of incorporated association
14New section 19A inserted
19AExecution of contract or other document by signature
15Purposes and rules
16Alteration of rules
17First secretary
18Secretary
19New section 27 substituted
27Removal from and vacation of office
20Address of secretary
21New section 29AA inserted
29AAUse of technology at committee meetings
22New section 29A substituted
29AImproper use of information or position
23New sections 29AB to 29AD inserted
29ABDuty of care and diligence
29ACDuty of good faith and proper purpose
29ADReliance on information or advice
24Disclosure of interest
25Voting on contract in which committee member has interest
26New section 29E inserted
29EIndemnity of committee members
27New section 30AA inserted
30AAUse of technology at general meetings
28Annual general meeting
29New section 30AB inserted
30ABTier one, tier two and tier three associations
30Accounts of prescribed associations
31New sections 30BA and 30BB inserted
30BAAccounts of tier two associations
30BBAdditional audits and checks required by members of tier one or tier two associations
32Amalgamation of incorporated associations
33Effect of appointment of statutory manager
34Repeal of Part VIIAC
35Voluntary winding up
36Winding up by the court
37Winding up on certificate of Registrar
38Repeal of section 36C
39Repeal of Division 4 of Part VIII
40Cancellation of incorporation by the Registrar
41New Part VIIIAA inserted
Part VIIIAA—Declaration of Applied Corporations Legislation
Division 1—General
37AACommon modifications
Division 2—Civil penalty provisions
37ABCivil penalties applying to office holders
Division 3—Receivership, administration and winding up
of incorporated association37ACReceivers and other controllers of property of incorporated association
37ADVoluntary administration
37AEVoluntary winding up
37AFWinding up by the court
37AGWinding up generally
37AH Insolvency
37AIGeneral
Division 4—Offences under applied Corporations Act provisions
37AJOffence under applied provisions
37AKCommonwealth Criminal Code does not apply
42Register
43New section 43 substituted
43Records and documents in a language other than
English
44Evidentiary provisions
45Incorporated association not to trade etc.
46Incorporated association excluded from Corporations
legislation47Qualified privilege of auditor, statutory manager and administrator
48Regulations
49New section 57 inserted
57Transitional provisions—Associations Incorporation Amendment Act 2010
50New Schedules 1 to 3 substituted
SCHEDULES
SCHEDULE 1—Matters to be Provided for in the Rules of
an Incorporated AssociationSCHEDULE 2—Modification of Applied Offence Provisions
of Corporations ActSCHEDULE 3—Penalties for Offences under Applied
Provisions of Corporations Act
Part 3—Amendments to Associations Incorporation Amendment Act 2009
51Amendment of Part 3
52Repeal of Part 4
Part 4—Repeal of Amending Act
53Repeal of amending Act
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Endnotes
Associations Incorporation Amendment Act 2010
No. 46 of 2010
[Assented to 24 August 2010]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purpose
The main purpose of this Act is to amend the Associations Incorporation Act 1981—
(a)to make further provision relating to the prohibition under that Act against the distribution of the profits of an incorporated association to its members;
(b)to enhance governance arrangements for incorporated associations;
(c)to revise annual reporting requirements and audit thresholds;
(d)to repeal the limitations on trading by an incorporated association;
(e)to improve grievance and dispute resolution procedures for incorporated associations;
(f)to introduce a number of miscellaneous administrative amendments.
2Commencement
(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.
(2)If a provision of this Act does not come into operation before 1 December 2011, it comes into operation on that day.
3Principal Act
In this Act, the Associations Incorporation Act 1981 is called the Principal Act.
__________________
Part 2—Amendments to Associations Incorporation Act 1981
4Definitions
(1)In section 3(1) of the Principal Act—
(a)insert the following definitions—
"general meeting, of an incorporated association, means a meeting of the members of the incorporated association convened in accordance with its rules and includes a special general meeting and an annual general meeting;
office holder, of an incorporated association, means—
(a)a member of the committee;
(b)the secretary;
(c)an employee of the incorporated association who makes, or participates in making, decisions that affect the whole, or a substantial part, of the operations of the incorporated association;
tier one association has the meaning given in section 30AB(2);
tier three association has the meaning given in section 30AB(4);
tier two association has the meaning given in section 30AB(3);";
(b)the definition of prescribed association is repealed.
(2)In section 3(2) of the Principal Act—
(a)omit "trade or to";
(b)omit "trading or".
(3)Section 3(2)(b) and (c) of the Principal Act is repealed.
5Authority to apply for incorporation
(1)In section 4(1)(a) of the Principal Act—
(a)for "the State" substitute "Australia";
(b)for "this Act;" substitute "this Act; and".
(2)Section 4(1)(b) of the Principal Act is repealed.
6Application for incorporation
(1)For section 5(a)(ii) of the Principal Act substitute—
"(ii)the proposed registered address of the proposed incorporated association;".
(2)In section 5(a)(iii) of the Principal Act omit "in Victoria".
(3)Section 5(b) of the Principal Act is repealed.
7Rules of association
In section 6(a)(i) of the Principal Act for "the Schedule" substitute "Schedule 1".
8Application to bring companies etc. under this Act
(1)In section 10(3)(a)(iii) of the Principal Act—
(a)omit "in Victoria";
(b)for "the State" substitute "Australia".
(2)Section 10(3)(b)(ii) of the Principal Act is repealed.
(3)In sections 10(4A)(a) and (6) of the Principal Act omit "trading or".
9Enforceability of rules and purposes
(1)For section 14A(1A)(c) of the Principal Act substitute—
"(c)do any act that is outside the scope of the purposes of the incorporated association provided in its rules.".
(2)In section 14A(2)(ab) of the Principal Act for "its statement of purposes" substitute
"the purposes of the incorporated association provided in its rules".
10New section 14AB inserted
After section 14A of the Principal Act insert—
"14AB Disciplinary action
(1)This section applies if an incorporated association proposes to take disciplinary action against a member in respect of that member's status as a member of the incorporated association.
(2)Subject to subsections (3) and (4), the procedure (disciplinary procedure) under which disciplinary action is taken must be in accordance with the procedure (if any) provided by the rules of the incorporated association.
(3)In applying the disciplinary procedure, the incorporated association must ensure that—
(a)the member who is the subject of the disciplinary procedure—
(i)is informed of the grounds upon which the disciplinary action against the member is proposed to be taken; and
(ii)has been given an opportunity to be heard in relation to the matter; and
(b)the outcome of the disciplinary procedure is determined by an unbiased decision-maker; and
(c)to the extent that doing so is compatible with paragraphs (a) and (b), the disciplinary procedure is completed as soon as is reasonably practicable.
(4)A member of an incorporated association who is the subject of a disciplinary procedure must not initiate a grievance procedure in relation to the matter which is the subject of the disciplinary procedure until the disciplinary procedure has been completed.".
11Grievance procedures
For section 14B(3) of the Principal Act substitute—
"(3)In applying the grievance procedure, the incorporated association must ensure that—
(a)each party to the dispute has been given an opportunity to be heard on the matter which is the subject of the dispute; and
(b)the outcome of the dispute is determined by an unbiased decision-maker.".
12Rights and liabilities of members
After section 15(2) of the Principal Act insert—
"(3)If requested to do so by a member of the incorporated association, the incorporated association must permit the member at a reasonable time to inspect—
(a)the rules of the incorporated association;
(b)minutes of general meetings of the incorporated association.
(4)The incorporated association must give a member of the incorporated association a copy of anything referred to in subsection (3) within 7 days if—
(a)the member asks for the copy; and
(b)pays the prescribed fee (if any).
(5)An incorporated association must not hold a general meeting of the incorporated association unless each member of the incorporated association whose membership entitles the member to vote at general meetings—
(a)has been notified of the date, time and place of the general meeting in the manner provided by the rules of the incorporated association; and
(b)if the rules of the incorporated association require that voting by proxy must be done using a standard form, has been given that form.
(6)An incorporated association does not contravene subsection (5) if a failure to give notice or send a proxy form to a member is accidental or inadvertent.
(7)At any general meeting of an incorporated association, the incorporated association must not prevent—
(a)any member of the association from attending the meeting; or
(b)any member of the incorporated association whose membership entitles the member to vote at general meetings from voting at the meeting.
(8)Subsection (7) does not apply in relation to a member of an incorporated association whose rights as a member have been suspended under the rules of the incorporated association.".
13Powers of incorporated association
(1)In section 16(1) and (2) of the Principal Act omit "statement of purposes or".
(2)In section 16(3) of the Principal Act omit "the statement of purposes or".
14New section 19A inserted
After section 19 of the Principal Act insert—
"19A Execution of contract or other document by signature
(1)An incorporated association may execute a contract or other document, including a document referred to in section 19(7), if the contract or document is signed by—
(a)2 members of the committee; or
(b)if the secretary of the incorporated association is not a member of the committee, by a member of the committee and the secretary.
(2)To avoid doubt, subsection (1) applies whether or not an incorporated association has a common seal.".
15Purposes and rules
For section 21(1) of the Principal Act substitute—
"(1)The purposes of an incorporated association are the purposes provided in the rules of the incorporated association.".
16Alteration of rules
(1)In section 22(1) of the Principal Act omit "its statement of purposes or".
(2)In section 22(2) of the Principal Act omit "the statement of purposes or".
17First secretary
In section 24(2)(c) of the Principal Act for "the State" substitute "Australia".
18Secretary
(1)For section 25(1) of the Principal Act substitute—
"(1)Subject to subsection (1A), if the office of the secretary of an incorporated association becomes vacant, the incorporated association must, within 14 days after the vacancy arises, fill the vacancy in accordance with the rules of the incorporated association.
(1A)If—
(a)under the rules of the incorporated association, the secretary is elected or appointed otherwise than by the committee of the incorporated association; and
(b)it is impractical for that election or appointment to occur within 14 days after the office of the secretary becoming vacant—
the committee of the incorporated association must, within 14 days after the vacancy arising, appoint a person to fill the vacancy until a person is elected or appointed to the office in accordance with the rules of the association.".
(2)In section 25(2)(b) of the Principal Act for "the State" substitute "Australia".
19New section 27 substituted
For section 27 of the Principal Act substitute—
"27 Removal from and vacation of office
(1)A member of the committee of an incorporated association must retire, and may be removed from office, as provided by the rules of the incorporated association.
(2)A member of the committee vacates office in the circumstances (if any) provided in the rules of the incorporated association and in any of the following circumstances—
(a)the member of the committee resigns his or her office by written notice addressed to the committee;
(b)the member of the committee is removed from office by special resolution at a general meeting of the incorporated association;
(c)the member of the committee—
(i)dies; or
(ii)becomes bankrupt or applies to take or takes advantage of any law relating to bankrupt or insolvent debtors or compounds with his or creditors or makes an assignment of his or her estate for their benefit; or
(iii)becomes a represented person within the meaning of the Guardianship and Administration Act 1986;
(d)in the case of the secretary of an incorporated association, the secretary ceases to reside in Australia;
(e)a statutory manager is appointed under section 31D to conduct the affairs of the incorporated association.
(3)In this section, committee member includes the secretary of the incorporated association.".
20Address of secretary
In section 28(1) of the Principal Act omit "in Victoria".
21New section 29AA inserted
After section 29 of the Principal Act insert—
"29AA Use of technology at committee meetings
(1)The committee may hold meetings, or permit members of the committee to participate in its meetings, by using any technology that allows members to clearly and simultaneously communicate with each other participating member.
(2)A member of the committee who participates in a meeting in a manner permitted under subsection (1) is taken to be present at the meeting.".
22New section 29A substituted
For section 29A of the Principal Act substitute—
"29A Improper use of information or position
(1)An office holder or former office holder of an incorporated association must not make improper use of information acquired by virtue of holding that office—
(a)to gain an advantage for himself or herself or any other person; or
(b)to cause detriment to the incorporated association.
Note
Under section 37AB, subsection (1) is declared to be an applied Corporations matter in relation to the provisions of Part 9.4B (Civil consequences of contravening civil penalty provisions) of the Corporations Act. The effect of that application is that subsection (1) is a civil penalty provision and a person who contravenes this provision may be ordered to pay a pecuniary penalty of up to $20 000.
(2)An office holder of an incorporated association must not make improper use of that office—
(a)to gain an advantage for himself or herself or any other person; or
(b)to cause detriment to the incorporated association.
Note
Under section 37AB, subsection (2) is declared to be an applied Corporations matter in relation to the provisions of Part 9.4B (Civil consequences of contravening civil penalty provisions) of the Corporations Act. The effect of that application is that subsection (2) is a civil penalty provision and a person who contravenes this provision may be ordered to pay a pecuniary penalty of up to $20 000.
(3)An office holder or former office holder of an incorporated association must not knowingly or recklessly make improper use of information in the manner described in subsection (1).
Penalty:60 penalty units.
(4)An office holder of an incorporated association must not knowingly or recklessly make improper use of that office in the manner described in subsection (2).
Penalty:60 penalty units.
(5)If a person is found guilty of an offence against subsection (3) or (4), the court, in addition to imposing any penalty, may order the person to pay a sum specified by the court to the incorporated association as compensation.
(6)This section—
(a)has effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of a person because of their office or employment in relation to an incorporated association; and
(b)does not prevent the commencement of civil proceedings for a contravention of a duty or in respect of a liability referred to in paragraph (a).
Note
Under section 1317M of the Corporations Act which is applied by section 37AB, civil proceedings under Part 9.4B (Civil consequences of contravening civil penalty provisions) of the Corporations Act may not be instituted against a person in respect of conduct for which the person has been convicted of an offence.".
23New sections 29AB to 29AD inserted
After section 29A of the Principal Act insert—
"29AB Duty of care and diligence
(1)An office holder 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 if that person—
(a)were an office holder of the incorporated association in the circumstances applying at the time of the exercise of the power or the discharge of the duty; and
(b)occupied the office held by, and had the same responsibilities within the incorporated association as, the office holder.
Note
Under section 37AB, subsection (1) is declared to be an applied Corporations matter in relation to the provisions of Part 9.4B (Civil consequences of contravening civil penalty provisions) of the Corporations Act. The effect of that application is that subsection (1) is a civil penalty provision and a person who contravenes this provision may be ordered to pay a pecuniary penalty of up to $20 000.
(2)An office holder 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 business judgment if the office holder—
(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 that he or she reasonably believes to be appropriate; and
(d)rationally believes that the judgment is in the best interests of the incorporated association.
(3)For the purposes of subsection (2)—
(a)a business judgment means any decision to take or not take action in respect of a matter relevant to the operations of the incorporated association;
(b)an office holder's belief that a business judgment is in the best interests of the incorporated association is a rational belief unless the belief is one that no reasonable person in the position of the office holder would hold.
(4)This section—
(a)has effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of a person because of their office or employment in relation to an incorporated association; and
(b)does not prevent the commencement of civil proceedings for a contravention of a duty or in respect of a liability referred to in paragraph (a).
(5)Subsection (4) does not apply to subsections (2) and (3) to the extent to which they operate on the duties at common law and in equity that are equivalent to the requirements under subsection (1).
29ACDuty of good faith and proper purpose
(1)An office holder 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 incorporated association; and
(b)for a proper purpose.
Note
Under section 37AB, subsection (1) is declared to be an applied Corporations matter in relation to the provisions of Part 9.4B (Civil consequences of contravening civil penalty provisions) of the Corporations Act. The effect of that application is that subsection (1) is a civil penalty provision and a person who contravenes this provision may be ordered to pay a pecuniary penalty of up to $20 000.
(2)This section—
(a)has effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of a person because of their office or employment in relation to an incorporated association; and
(b)does not prevent the commencement of civil proceedings for a contravention of a duty or in respect of a liability referred to in paragraph (a).
Note
Under section 37AH, an incorporated association that is insolvent is declared to be an applied Corporations matter in relation to the provisions of Part 5.7B (Recovering property or compensation for the benefit of creditors of insolvent company) of the Corporations Act. Under section 588G of Part 5.7B, the contravention of the duty to avoid insolvent trading is an offence. Also, section 588G is a civil penalty provision for the purposes of Part 9.4B (Civil consequences of contravening civil penalty provisions) of the Corporations Act.
29ADReliance on information or advice
(1)This section applies if the reasonableness of an office holder's reliance on information or advice given to the office holder arises in a proceeding brought to determine whether the office holder has performed a duty under this Act or an equivalent common law duty.
(2)Unless the contrary is proved, the office holder'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 office holder 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 office holder reasonably believed to be within that person's professional or expert competence; or
(iii)another office holder in relation to matters within the other office holder's authority; or
(iv)a committee of the incorporated association of which the office holder was not a member in relation to matters within the committee's authority; and
(b)the reliance was made—
(i)in good faith; and
(ii)after making an independent assessment of the information and advice, having regard to the office holder's knowledge of the incorporated association and the complexity and structure of the incorporated association.".
24Disclosure of interest
(1)In section 29B(1) of the Principal Act for "any direct or indirect pecuniary interest in a contract, or proposed contract, with the incorporated association" substitute "a material personal interest in a matter that is being considered at a committee meeting".
(2)In section 29B(1)(b) of the Principal Act for "contract" substitute "matter".
(3)In section 29B(2) and (3) of the Principal Act for "pecuniary interest" (wherever occurring) substitute "material personal interest".
25Voting on contract in which committee member has interest
(1)Insert the following heading to section 29C of the Principal Act—
"Matter in which committee member has interest".
(2)For section 29C(1) of the Principal Act substitute—
"(1)A member of the committee of an incorporated association who has a material personal interest in a matter that is being considered at a committee meeting must not—
(a)be present while the matter is being considered at the meeting; or
(b)vote on the matter.
Penalty:10 penalty units.".
(3)In section 29C(2) of the Principal Act for "pecuniary interest" substitute "material personal interest".
(4)After section 29C(2) of the Principal Act insert—
"(3)If there are not enough committee members to form a quorum to consider a matter because of subsection (1), one or more committee members (including those who have a material personal interest in the matter) may call a general meeting and the general meeting may pass a resolution to deal with the matter.".
26New section 29E inserted
After section 29D of the Principal Act insert—
"29E Indemnity of committee members
(1)An incorporated association must indemnify each member of the committee against any liability incurred in good faith by the member of the committee on behalf of the incorporated association in the course of performing his or her duties as a member.
(2)For the purposes of subsection (1), a member of the committee includes the secretary of the incorporated association whether or not the secretary is a member of the committee.".
27New section 30AA inserted
After the heading to Part VI of the Principal Act insert—
"30AA Use of technology at general meetings
(1)An incorporated association may hold its general meetings, or permit members to take part in its general meetings, by using any technology that allows members to clearly and simultaneously communicate with each other participating member.
(2)A member of the incorporated association who participates in a general meeting in a manner permitted under subsection (1) is taken to be present at the meeting and, if the person votes at the meeting, is taken to have voted in person.".
28Annual general meeting
(1)In section 30(3) of the Principal Act for "the incorporated association shall submit to its members" substitute "the committee must submit to the members".
(2)For section 30(3A)(b) of the Principal Act substitute—
"(b)have attached a certificate in the prescribed form signed by the Treasurer and one other member of the committee of the incorporated association certifying that that is the case; and
(c)in the case of a tier two association, be accompanied by the report of the review of its accounts provided in accordance with section 30BA(2)(b); and
(d)in the case of a tier three association, be accompanied by the accounts audited in accordance with section 30B.".
(3)After section 30(3B) of the Principal Act insert—
"(3C)The committee must ensure that the minutes of the annual general meeting include a copy of the statements submitted to the members under subsection (3).".
(4)In section 30(4)(aa) of the Principal Act for "prescribed association" substitute "tier three association".
(5)After section 30(4)(aa) of the Principal Act insert—
"(ab)in the case of a tier two association, accompanied by a copy of the accounts and a copy of the report of the review of its accounts provided in accordance with section 30BA(2)(b); and".
29New section 30AB inserted
After section 30A of the Principal Act insert—
"30AB Tier one, tier two and tier three associations
(1)For the purposes of the requirements under this Act relating to accounting records for a financial year, an incorporated association falls within one of three tiers as specified in subsections (2), (3) and (4).
(2)A tier one association is an incorporated association—
(a)that has a total revenue of less than the prescribed amount or, if no amount is prescribed, less than $250 000; or
(b)that the Registrar has declared under subsection (5) to be a tier one association.
(3)A tier two association is an incorporated association—
(a)to which neither subsection (2) or (4) applies; or
(b)that the Registrar has declared under subsection (5) to be a tier two association.
(4)A tier three association is an incorporated association that has a total revenue of more than the prescribed amount or, if no amount is prescribed, more than $1 000 000.
(5)On application by an incorporated association, the Registrar may, for the purposes of a financial year, declare the incorporated association to be—
(a)a tier one association; or
(b)a tier two association.
(6)The Registrar may make a declaration under subsection (5) only if the Registrar is satisfied that unusual and non-recurring circumstances have occurred that warrant doing so.
(7)An application by an incorporated association to the Registrar for a declaration under subsection (5) must be made within 3 months after the end of the financial year.
(8)In this section, total revenue, of an incorporated association, means the total income of the incorporated association during the last financial year from all the activities of the incorporated association before any expenses, including the cost to the incorporated association of goods sold by it, are deducted but excluding any income received as capital.".
30Accounts of prescribed associations
(1)Insert the following heading to section 30B of the Principal Act—
"Accounts of tier three associations".
(2)In section 30B(1) of the Principal Act for "prescribed association" substitute "tier three association".
(3)For section 30B(1)(c) of the Principal Act substitute—
"(c)a person who is a member of, and holds a current practising certificate from—
(i)CPA Australia; or
(ii)the Institute of Chartered Accountants in Australia; or
(iii)the National Institute of Accountants; or".
(4)In section 30B(1A) of the Principal Act for "prescribed association" substitute "tier three association".
(5)In section 30B(2A) of the Principal Act for "prescribed association or a class of prescribed associations" substitute "tier three association or a class of tier three associations".
(6)In section 30B(3) of the Principal Act for "prescribed association" substitute "tier three association".
31New sections 30BA and 30BB inserted
After section 30B of the Principal Act insert—
"30BA Accounts of tier two associations
(1)A tier two association must, after the end of each financial year of the incorporated association, have its accounts reviewed by—
(a)a person who is a member of, and holds a current practising certificate from—
(i)CPA Australia; or
(ii)the Institute of Chartered Accountants in Australia; or
(iii)the National Institute of Accountants; or
(b)any other person who is approved by the Registrar to provide such a statement.
Penalty:10 penalty units.
(2)If a person conducts a review of an incorporated association for the purposes of subsection (1)—
(a)the review must be conducted in accordance with the Australian Accounting Standards issued by the Auditing and Assurance Standards Board as in force from time to time; and
(b)the person who conducts the review must provide the incorporated association with a written report of the review.
(3)A person must not review the accounts of an incorporated association for the purposes of subsection (1) if the person is—
(a)a member of the committee of the incorporated association; or
(b)an employer or employee of a member of the committee; or
(c)a member of the same partnership as a member of the committee; or
(d)an employee of the incorporated association.
(4)A tier two association must keep all accounting records of the incorporated association for a period of 7 years after the completion of the transactions to which they relate.
Penalty:5 penalty units.
(5)An incorporated association may apply in writing to the Registrar for an exemption from the requirement under subsection (1).
(6)The Registrar may grant the exemption subject to any conditions the Registrar thinks fit.
(7)The Registrar may at any time, by notice in writing, vary or revoke an exemption under this section.
30BBAdditional audits and checks required by members of tier one or tier two associations
(1)A tier one association must have its accounts reviewed by an independent accountant if—
(a)at a general meeting of the incorporated association, a majority of the members present at the meeting vote to do so; or
(b)the incorporated association is directed by the Registrar in writing to do so.
Penalty:10 penalty units.
(2)A tier one or tier two association must have its accounts audited by an independent accountant if—
(a)at a general meeting of the incorporated association, a majority of the members present at the meeting vote to do so; or
(b)the incorporated association is directed by the Registrar in writing to do so.
Penalty:10 penalty units.
(3)For the purposes of this section an accountant is not independent if the accountant is—
(a)a member of the committee of the incorporated association; or
(b)an employer or employee of a member of the committee; or
(c)a member of the same partnership as a member of the committee; or
(d)an employee of the incorporated association.".
32Amalgamation of incorporated associations
(1)In section 31(2) of the Principal Act omit "and the statement of purposes".
(2)Section 31(3)(a) of the Principal Act is repealed.
(3)In section 31(3)(d)(ia) of the Principal Act—
(a)omit "in Victoria";
(b)for "the State" substitute "Australia".
(4)In section 31(4) of the Principal Act omit "the proposed statement of purposes and".
(5)For section 31(5) of the Principal Act substitute—
"(5)On the grant of a certificate of incorporation under this section—
(a)the bodies corporate previously constituted by the amalgamating incorporated associations are taken to be subsumed in the body corporate constituted by the new incorporated association; and
(b)the property of each amalgamating incorporated association vests in the incorporated association formed by the amalgamation on and from the amalgamation and, by force of this subsection, without the necessity for any conveyance, transfer or assignment; and
(c)the incorporated association formed by the amalgamation is, by force of this subsection, substituted as a party to any arrangement or contract entered into by or on behalf of any of the amalgamating incorporated associations as a party and in force immediately before the date on which the certificate is granted.".
(6)After section 31(7) of the Principal Act insert—
"(8)A reference in a will to an incorporated association that was a party to an amalgamation under this section must, unless the will otherwise provides, be construed as a reference to the incorporated association formed by the amalgamation.".
33Effect of appointment of statutory manager
(1)In section 31E(1) of the Principal Act after "committee members" insert "and the secretary".
(2)In section 31E(2) of the Principal Act after "committee member" insert "or the secretary".
34Repeal of Part VIIAC
Part VIIAC of the Principal Act is repealed.
Note
Section 31M (the sole provision of Part VIIAC) has been replaced by section 37AD of new Part VIIIAA which consolidates the various provisions relating to the declaration of applied Corporations legislation matters.
35Voluntary winding up
At the foot of section 33 of the Principal Act insert—
"Note
Under sections 37AE and 37AG, the voluntary winding up of an incorporated association is declared to be an applied Corporations matter in relation to, respectively, the provisions of Part 5.5 (Voluntary winding up) and Part 5.6 (Winding up generally) of the Corporations Act. As such, the voluntary winding up of an incorporated association is subject to any requirements under those provisions.".
36Winding up by the court
(1)Section 34(1)(c) of the Principal Act is repealed.
(2)In section 34(1)(d) and (e) of the Principal Act omit "traded (except in accordance with section 51) or".
37Winding up on certificate of Registrar
In section 35(2)(c) and (d) of the Principal Act omit "traded (except in accordance with section 51) or".
38Repeal of section 36C
Section 36C of the Principal Act is repealed.
39Repeal of Division 4 of Part VIII
Division 4 of Part VIII of the Principal Act is repealed.
Note
Section 36D (the sole provision of Division 4 of Part VIII) has been replaced by sections 37AE and 37AG of new Part VIIIAA which consolidates the various provisions relating to the declaration of applied Corporations legislation matters.
40Cancellation of incorporation by the Registrar
In section 36EC(3) of the Principal Act for "of the validity of the information provided in the declaration under section 36EA" substitute
"that the circumstances set out in section 36EA exist in respect of the incorporated association".
41New Part VIIIAA inserted
After Part VIII of the Principal Act insert—
'Part VIIIAA—Declaration of Applied Corporations Legislation
Note
Part 3 of the Corporations (Ancillary Provisions) Act 2001 provides for the application of provisions of the Corporations Act and Part 3 of the ASIC Act as laws of the State in respect of any matter declared by a law of the State (whether with or without modification) to be an applied Corporations legislation matter for the purposes of that Part in relation to those Commonwealth provisions.
Division 1—General
37AACommon modifications
(1)For the purposes of any matter declared under this Part to be an applied Corporations legislation matter, the following modifications to the text of the Corporations Act apply—
(a)a reference to a company or body is to be read as a reference to an incorporated association;
(b)a reference to the incorporation of a body is to be read as the incorporation of an association under this Act;
(c)a reference to the deregistration of a company is to be read as a reference to the cancellation of incorporation of an association under Division 5 of Part VIII under this Act;
(d)a reference to the directors of a company is to be read as a reference to the members of the committee of an incorporated association;
(e)a reference to the board of a body corporate is to be read as a reference to the committee of an incorporated association;
(f)a reference to the secretary of a company is to be read as a reference to the secretary of an incorporated association;
(g)a reference to the principal place of business of a company is to be read as a reference to the registered address of an incorporated association;
(h)a reference to a company carrying on business or having a place of business is to be read as a reference to an incorporated association pursuing its purposes;
(i)a reference to ASIC is to be read as a reference to the Registrar;
(j)a reference to a document in the prescribed form is to be read as a reference to a document in the corresponding form prescribed under the Corporations Act with all necessary modifications;
(k)a reference to the Court is to be read as a reference to the Supreme Court;
(l)a reference to the lodgement of a document is to be read as a reference to lodgement of a document with the Registrar;
(m)a reference to a company's constitution is to be read as a reference to an incorporated association's rules;
(n)a reference to a special resolution is to be read as a reference to a special resolution within the meaning of this Act;
(o)a reference to an officer of a company is to be read as a reference to an office holder of an incorporated association and, where applicable, a reference to a past officer is a reference to a past office holder of the committee of an incorporated association;
(p)a reference to a contributory of a company is to be read as a reference to a member of an incorporated association;
(q)a reference to a registered liquidator is to be read as a reference to a person registered as a liquidator under section 1282(2) of the Corporations Act;
(r)a reference to a registered company auditor is to be read as a reference to a person permitted to audit the accounts of an incorporated association under this Act.
(2)For the purposes of any matter declared under this Part to be an applied Corporations legislation matter, a reference in a provision of the Corporations Act to "this Act" is to be read as a reference to—
(a)the provisions of the Corporations Act declared to apply to the matter, with the modifications to which the declaration is made subject; and
(b)the provisions of the Corporations Act that are taken to apply to the matter by virtue of section 19(1) of the Corporations (Ancillary Provisions) Act 2001.
Division 2—Civil penalty provisions
37ABCivil penalties applying to office holders
(1)This section applies to the following provisions—
(a)section 29A(1) (improper use of information);
(b)section 29A(2) (improper use of position);
(c)section 29AB(1) (breach of duty of care and diligence);
(d)section 29AC (breach of duty of good faith and proper purpose).
(2)The provisions referred to in subsection (1) are declared to be an applied Corporations matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to the provisions of Part 9.4B (Civil consequences of contravening civil penalty provisions) of the Corporations Act subject to the following modifications—
(a)the modifications referred to in section 37AA, other than section 37AA(1)(i);
(b)a reference to the provisions specified in section 1317E(1) of the Corporations Act is to be read as a reference to the provisions referred to in subsection (1);
(c)a reference to a pecuniary penalty in section 1317G(1) of the Corporations Act is to be read as a reference to $20 000;
(d)a reference to ASIC is to be read as a reference to the Director of Consumer Affairs Victoria;
(e)any other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001) that are prescribed by the regulations.
Division 3—Receivership, administration and winding up of incorporated association
37ACReceivers and other controllers of property of incorporated association
The entering into possession or assumption of control of any property of an incorporated association by a receiver or any other controller is declared to be an applied Corporations matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to the provisions of Part 5.2 (Receivers, and other controllers, of property of corporations) of the Corporations Act subject to the following modifications—
(a)the modifications referred to in section 37AA;
(b)any applicable modifications referred to in section 37AJ;
(c)any other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001) prescribed by the regulations.
37ADVoluntary administration
The voluntary administration of an incorporated association is declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to Part 5.3A (Administration of a company's affairs with a view to executing a deed of company arrangement) of the Corporations Act, subject to the following modifications—
(a)the modifications referred to in section 37AA;
(b)any applicable modifications referred to in section 37AJ;
(c)any other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001) prescribed by the regulations.
37AEVoluntary winding up
The winding up of an incorporated association under Division 1 of Part VIII is declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to the provisions of Part 5.5 (Voluntary winding up) of the Corporations Act, subject to the following modifications—
(a)the modifications referred to in section 37AA;
(b)any applicable modifications referred to in section 37AJ;
(c)any other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001) prescribed by the regulations.
37AFWinding up by the court
The winding up of an incorporated association by the court under Division 2 of Part VIII is declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to the provisions of Parts 5.4 (Winding up in insolvency) and 5.4B (Winding up in insolvency or by the court) of the Corporations Act, subject to the following modifications—
(a)the modifications referred to in section 37AA;
(b)any applicable modifications referred to in section 37AJ;
(c)any other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001) prescribed by the regulations.
37AGWinding up generally
The winding up of an incorporated association under Part VIII is declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to the provisions of Part 5.6 (Winding up generally) of the Corporations Act, subject to the following modifications—
(a)the modifications referred to in section 37AA;
(b)any applicable modifications referred to in section 37AJ;
(c)any other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001) prescribed by the regulations.
37AHInsolvency
(1)An incorporated association that is insolvent is declared to be an applied Corporations matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to the provisions of Part 5.7B (Recovering property or compensation for the benefit of creditors of insolvent company) of the Corporations Act subject to the following modifications—
(a)the modifications referred to in section 37AA;
(b)the text of section 588E of the Corporations Act is modified as follows—
(i)a reference to financial records is to be read as reference to accounting records;
(ii)a reference to keep is to be read as reference to maintain;
(iii)a reference to subsection 286(1) is to be read as a reference to section 30A of this Act;
(iv)a reference to subsection 286(2) is to be read as a reference to section 30B(3) of this Act;
(c)a reference in section 588FJ(1) of the Corporations Act to a company being wound up in insolvency is to be read as an incorporated association being wound up under sections 459A and 459P of the Corporations Act as applied by section 37AF of this Act;
(d)section 588Z of the Corporations Act is omitted;
(e)any applicable modifications referred to in section 37AJ;
(f)any other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001) that are prescribed by the regulations.
(2)To the extent Part 9.4B (Civil consequences of contravening civil penalty provisions) of the Corporations Act applies to a contravention of section 588G of the Corporations Act by virtue of section 19(1)(c) of the Corporations (Ancillary Provisions) Act 2001 the application of that Part is subject to the following modifications—
(a)the modifications referred to in section 37AA, other than section 37AA(1)(i);
(b)a reference to a pecuniary penalty in section 1317G(1) of the Corporations Act is to be read as a reference to $20 000;
(c)a reference to ASIC is to be read as a reference to the Director of Consumer Affairs Victoria;
(d)any other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001) that are prescribed by the regulations.
37AIGeneral
Any matter declared under this Division to be an applied Corporations legislation matter is, in addition, an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to Part 5.8 (Offences), Part 5.8A (Employee entitlements) and Part 5.9 (Miscellaneous) of the Corporations Act subject to the following modifications—
(a)the modifications referred to in section 37AA;
(b)any applicable modifications referred to in section 37AJ;
(c)any other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001) that are prescribed by the regulations.
Division 4—Offences under applied Corporations Act provisions
37AJOffence under applied provisions
(1)A provision of the Corporations Act as applied under this Part that is specified in Column 2 of Schedule 2 is subject to any modifications specified opposite in Column 3.
(2)A contravention of a provision of the Corporations Act specified in Column 2 of Schedule 3, is taken to be an offence against this Act and subject to the penalty specified opposite in Column 3.
(3)To avoid doubt—
(a)section 1311 of, and Schedule 3 to, the Corporations Act do not apply to a provision referred to in subsection (2); and
(b)the penalty referred to in subsection (2) applies despite section 20(2)(a) of the Corporations (Ancillary Provisions) Act 2001.
37AKCommonwealth Criminal Code does not apply
(1)For the purposes of any proceedings for a contravention of a provision referred to in section 37AJ(2), the Criminal Code of the Commonwealth does not apply.
(2)As a consequence of subsection (1), a note to an applied provision that refers to a provision of the Criminal Code of the Commonwealth must be disregarded.
__________________'.
42Register
(1)For section 39(1B)(n) of the Principal Act substitute—
"(n)whether, for the purposes of the last financial year, the incorporated association is a tier one association, a tier two association or a tier three association;".
(2)Section 39(1B)(o) of the Principal Act is repealed.
43New section 43 substituted
For section 43 of the Principal Act substitute—
"43 Records and documents in a language other than English
(1)The records of an incorporated association may be kept in any language.
(2)A certified English translation of any record of an incorporated association not kept in English must be made available within a reasonable time on the request of—
(a)a member of the incorporated association; or
(b)the Registrar, or anyone else who is entitled to inspect the record.
(3)If under this Act a person gives to or lodges with the Registrar a document not written in English, the person must at the same time give to or lodge with the Registrar a certified English translation of the document.
(4)In this section—
certified, in relation to a translation of a record or document, means certified by a statement in writing to be a correct translation of the record or document into English;
document means any rules, trust or other document and includes a copy of a document;
records, of an incorporated association, include—
(a)the minutes of general meetings and committee meetings of the association;
(b)the accounting records of the incorporated association.".
44Evidentiary provisions
For section 44(1)(d) of the Principal Act substitute—
"(d)that a copy of the rules of, or trusts relating to, an incorporated association is a true copy of the rules or trusts as at a date specified in the certificate—".
45Incorporated association not to trade etc.
(1)Insert the following heading to section 51 of the Principal Act—
"Incorporated association not to secure pecuniary profit for members".
(2)Section 51(1)(a) of the Principal Act is repealed.
(3)In section 51(1)(c) of the Principal Act omit "trade or".
(4)In section 51(3) of the Principal Act omit "trading or".
(5)Section 51(4), (5) and (6) of the Principal Act are repealed.
46Incorporated association excluded from Corporations legislation
(1)In section 53(2)(b) of the Principal Act for "Act." substitute "Act;".
(2)After section 53(2)(b) of the Principal Act insert—
"(c)for the purposes of Division 5 of Part 5.7B of the Corporations Act and in respect of the definition of corporation applying for the purposes of that Division.".
47Qualified privilege of auditor, statutory manager and administrator
(1)In the heading to section 53C of the Principal Act omit "of auditor, statutory manager and administrator".
(2)At the end of section 53C of the Principal Act insert—
"(2)An independent accountant who conducts a review of the accounts of an incorporated association under section 30BA or 30BB has qualified privilege in respect of a statement made by the person, whether orally or in writing, in the course of conducting that review.
(3)A person has qualified privilege in respect of publishing a document that—
(a)is prepared by an auditor for the purposes of this Act; or
(b)is required by or under this Act to be lodged, regardless of whether or not the document has been lodged.".
48Regulations
In section 54(2)(c) of the Principal Act for "the Schedule" substitute "Schedule 1".
49New section 57 inserted
After section 56 of the Principal Act insert—
"57 Transitional provisions—Associations Incorporation Amendment Act 2010
The statement of purposes of an incorporated association that, immediately before the commencement of section 6 of the Associations Incorporation Amendment Act 2010, is included in the register under section 39 as the current statement of purposes of the incorporated association, is on that commencement taken to be part of the rules of the incorporated association until such time as an alteration of those rules is approved by the Registrar."
50New Schedules 1 to 3 substituted
For the Schedule to the Principal Act substitute—
"__________________
SCHEDULES
SCHEDULE 1
Sections 6 and 54(2)(c)
Matters to be Provided for in the Rules of an Incorporated Association
The Association
1The name of the incorporated association.
2The purposes of the incorporated association.
Membership
3The qualifications (if any) for membership of the incorporated association.
4The entrance fees, subscriptions and other amounts (if any) to be paid by members of the incorporated association.
5The rights, obligations and liabilities of members.
6Provisions for the resignation of a member or cessation of membership.
7The procedure (if any) for the disciplining of members and the mechanism (if any) for appearances by members in respect of disciplinary action taken against them.
8The grievance procedures for settling disputes under the rules between the incorporated association and any of its members or between a member and any other member.
Management and record keeping
9The name, membership and powers of the committee or other body having the management of the incorporated association (in this paragraph referred to as the committee) and—
(a)the election or appointment of members of the committee;
(b)the terms of office of members of the committee;
(c)the grounds on which, or reasons for which, the office of a member of the committee becomes vacant;
(d)the filling of casual vacancies occurring within the committee;
(e)the quorum and procedure at meetings of the committee.
10The procedures for the appointment and removal of the secretary of the incorporated association.
11The custody of records, securities and other relevant documents of the incorporated association.
12Provisions for the custody and use of the common seal (if any) of the incorporated association.
13Provision for members to have access to, and to be able to obtain copies of, the records, securities and other relevant documents of the incorporated association.
14The preparation and retention of accurate minutes of—
(a)general meetings of the incorporated association; and
(b)meetings of the committee or other body having the management of the incorporated association.
15Provision for members to have access to, and to be able to obtain copies of, minutes of general meetings of the incorporated association, including financial statements submitted at a general meeting.
16Right of access (if any) by members to minutes of meetings of the committee, including any terms and conditions subject to which access may be granted.
Meetings
17The intervals between general meetings of members of the incorporated association and the manner of calling general meetings.
18The quorum and procedure at general meetings and whether members are entitled to vote by proxy at general meetings.
19The time within which, and the manner in which, notices of general meetings and notices of motion must be given, published or circulated.
Funds
20The sources from which the funds of the incorporated association are to be or may be derived.
21The manner in which the funds of the incorporated association must be managed and, in particular, the mode of drawing and signing cheques on behalf of the incorporated association.
Alteration of rules
22The manner of altering and rescinding the rules of the incorporated association and of making additional rules.
Winding up and dissolution
23The disposition of any surplus assets on the winding up or dissolution of the incorporated association.
Note
The rules of an incorporated association may not make provision for the distribution of its surplus assets on the winding up or dissolution of the incorporated association except as may be permitted by this Act.
__________________
SCHEDULE 2
Section 37AJ(1)
Modification of Applied Offence Provisions of Corporations Act
Column 1
ItemColumn 2
Provision of Corporations Act
Column 3
Modification to applied provision1 428 Subsection (3) is deleted 2 437C Subsection (1B) is deleted 3 438B Subsection (5) is deleted 4 438C Subsection (7) is deleted 5 446C Subsection (10) is deleted 6 448B Subsection (3) is deleted 7 448C Subsection (1A) is deleted 8 450E Subsection (3) is deleted 9 471A Subsection (2B) is deleted 10 475 Subsection (10) is deleted 11 497 Subsection (7A) is deleted 12 530A Subsection (6A) is deleted 13 530B Subsection (6B) is deleted 14 532 Subsection (10) is deleted 15 541 Subsection (2) is deleted 16 588G Subsection (3B) is deleted 17 590 Subsection (2) is deleted 18 592 Subsections (1A) and (6A) are deleted 19 595 Subsection (2) is deleted 20 596 Subsection (2) is deleted __________________
SCHEDULE 3
Section 37AJ(2)
Penalties for Offences under Applied Provisions of Corporations Act
Column 1
ItemColumn 2
Provision of Corporations Act
Column 4
Penalty1 428(1) 10 penalty units 2 428(2) 10 penalty units 3 437C(1) 20 penalty units 4 437D(5) 20 penalty units 5 438B(4) 60 penalty units 6 438C(5) 60 penalty units 7 446C(4) 20 penalty units 8 448B(1) 20 penalty units 9 448C(1) 20 penalty units 10 448D 20 penalty units 11 450E(1) 10 penalty units 12 450E(2) 10 penalty units 13 471A 20 penalty units 14 475 20 penalty units 15 486A(8) 120 penalty units or imprisonment for 1 year or both 16 494 60 penalty units 17 497 10 penalty units 18 530A(6) 60 penalty units 19 530B(3) 60 penalty units 20 530B(6) 60 penalty units 21 532 10 penalty units 22 541(1) 10 penalty units 23 588G(3) 240 penalty units 24 590(1) 60 penalty units 25 590(5) 120 penalty units 26 592(1) 60 penalty units 27 592(6) 120 penalty units 28 595(1) 10 penalty units 29 596(1) 120 penalty units or imprisonment for 1 year or both 30 596AB(1) 240 penalty units or imprisonment for 2 years 31 596F(3) 60 penalty units 32 597(6) 120 penalty units or imprisonment for 1 year or both 33 597(7) 120 penalty units 34 597(10A) 120 penalty units 35 597(13) 60 penalty units 36 597A(3) 120 penalty units or imprisonment for 1 year or both ".
__________________
Part 3—Amendments to Associations Incorporation Amendment Act 2009
51Amendment of Part 3
(1)In section 32(1) of the Associations Incorporation Amendment Act 2009 omit "27," and "31M(2)(c), 36D(3)(c),".
Note
Section 32(1) of the Associations Incorporation Amendment Act 2009 amends sections 27, 31M(2)(c) and 36D(3)(c) of the Associations Incorporation Act 1981. Sections 27, 31M and 36D are substituted or repealed in Part 2 of this Act.
(2)Section 32(8) of the Associations Incorporation Amendment Act 2009 is repealed.
Note
Section 32(8) of the Associations Incorporation Amendment Act 2009 substitutes the heading of section 27 of the Associations Incorporation Act 1981. Section 27 is substituted in Part 2 of this Act.
52Repeal of Part 4
Part 4 of the Associations Incorporation Amendment Act 2009 is repealed.
Note
Part 4 of the Associations Incorporation Amendment Act 2009 inserts certain new items in the Schedule of the Associations Incorporation Act 1981. The Schedule is substituted in Part 2 of this Act.
__________________
Part 4—Repeal of Amending Act
53Repeal of amending Act
This Act is repealed on 1 December 2012.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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Endnotes
Minister's second reading speech—
Legislative Assembly: 26 May 2010
Legislative Council: 29 July 2010
The long title for the Bill for this Act was "A Bill for an Act to amend the Associations Incorporation Act 1981 in relation to regulatory requirements for incorporated associations and for other purposes."
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