Associations Incorporation Act 2009 No 7

An Act to provide for the registration of clubs, societies and other non-profit associations; to provide for the regulation of those associations after registration; and for other purposes.

Part 1 Preliminary

1 Name of Act

This Act is the Associations Incorporation Act 2009.

2 Commencement

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

3 Objects of Act

The objects of this Act are:

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

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

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

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

4 Definitions

(1)  In this Act:

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

ASIC means the Australian Securities and Investments Commission.

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

association means an association registered under this Act.

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

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

authorised officer means:

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

(b)  an investigator within the meaning of the Fair Trading Act 1987.

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

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

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

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

corresponding law means:

(a)  the Co-operatives National Law (NSW), or

(b)  the Corporations Act 2001 of the Commonwealth,

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

court includes tribunal.

Department means the Department of Finance, Services and Innovation.

exercise a function includes perform a duty.

financial year, in relation to an association, means:

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

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

function includes a power, authority or duty.

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

model constitution means the model constitution prescribed by the regulations.

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

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

pecuniary gain—see section 5.

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

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

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

registrable corporation means:

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

(b)  a company registered under the Corporations Act 2001 of the Commonwealth,

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

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

Secretary means:

(a)  the Commissioner for Fair Trading, Department of Finance, Services and Innovation, or

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

special resolution—see section 39.

unacceptable name—see section 18.

Note—

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

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

(3)  Notes included in this Act do not form part of this Act.

s 4: Am 2013 No 111, Sch 3.1; 2014 No 33, Sch 1.3 [1] [2]; 2016 No 1, Sch 1 [1].

5 Definition of “pecuniary gain”

(1)  An organisation provides pecuniary gain for its members if:

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

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

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

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

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

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

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

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

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

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

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

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

Part 2 Registration of associations

Division 1 Registration

6 Application for registration

(1)  An application for registration of an association may be made to the Secretary on behalf of:

(a)  5 or more individuals, or

(b)  an unincorporated body having 5 or more members, or

(c)  a registrable corporation having 5 or more members or shareholders, or

(d)  2 or more existing associations together having 5 or more members.

(2)  Such an application must be authorised:

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

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

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

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

(3)  An application:

(a)  must be in the approved form, and

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

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

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

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

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

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

(h)  must include any information required by the regulations, and

(i)  must be accompanied by the fee prescribed by the regulations.

(4)  An association’s proposed official address must be an address within New South Wales:

(a)  at which the person who is to be the association’s first public officer can generally be found, and

(b)  at which documents can be served on the association by post.

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

(6)    (Repealed)

s 6: Am 2016 No 1, Sch 1 [2]–[4].

7 Decision on application

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

(2)  An application for registration may be refused if:

(a)  the application does not comply with section 6, or

(b)  the name of the association is unacceptable, or

Note—

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

(c)  the Secretary is satisfied that, having regard to the objects of this Act, the association should not be registered:

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

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

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

(iv)  for any other reason that appears sufficient to the Secretary.

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

(4)  On registering an association, the Secretary:

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

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

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

s 7: Am 2016 No 1, Sch 1 [5].

8 Incorporation of associations other than former registrable corporations

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

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

9 Continuity of incorporation of former registrable corporations

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

(2)  Without limiting subsection (1):

(a)  the assets, rights and liabilities of the registrable corporation become the assets, rights and liabilities of the association, and

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

Division 2 Changing association’s name, objects, constitution or official address

10 Application for change of particulars

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

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

(3)  An application:

(a)  must be in the approved form, and

(b)  must include details of the proposed change, and

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

(d)  must be accompanied by the fee prescribed by the regulations.

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

Note—

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

11 Change of association’s name at direction of, or by, Secretary

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

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

Note—

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

(3)  A direction:

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

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

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

Note—

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

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

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

(6)  Any notice to be given to an association under subsection (5) must be sent:

(a)  by post addressed to the association at the association’s official address, or

(b)  if the Secretary suspects that the association’s official address is no longer in use:

(i)  by post addressed to the association at another address that appears to the Secretary to be an address that is used by the association, or

(ii)  by email addressed to the association at an email address that appears to the Secretary to be an email address that is used by the association.

s 11: Am 2016 No 1, Sch 1 [6] [7].

12 Decision on application

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

(2)  An application for registration of a change of name, objects or constitution may be refused if:

(a)  the application does not comply with section 10, or

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

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

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

s 12: Am 2016 No 1, Sch 1 [5].

13 Notification of change of official address

(1)  Within 28 days after an association’s official address becomes obsolete or unusable, the association’s public officer must notify the Secretary, in the approved form, of the association’s new address.

Maximum penalty: 5 penalty units.

(2)  Without limiting subsection (1), an association’s public officer may at any time notify the Secretary, in the approved form, of a change in the association’s official address.

(3)  The new address must be an address within New South Wales:

(a)  at which the public officer can generally be found, and

(b)  at which documents can be served on the association by post.

(4)  On receiving a notification under this section, the Secretary must register the new address as the association’s official address.

Note—

A change of official address does not take effect until it is registered: see section 14.

s 13: Am 2016 No 1, Sch 1 [8].

14 Effect of registration of change of name, objects, constitution or official address

(1)  A change of name, objects, constitution or official address that is registered under this Division takes effect when it is registered.

(2)  Section 53 of the Interpretation Act 1987 applies to an association in respect of which a change of name, objects or constitution has been registered under this Division in the same way as it would apply to the association had the change been made by an Act or statutory rule.

Division 3 Reservation of names

15 Application for reservation of name

(1)  An application for reservation of a name may be made to the Secretary by an association or by an applicant for registration as an association.

(2)  An application for reservation of a name:

(a)  must be in the approved form, and

(b)  must specify the name to be reserved, and

(c)  must be accompanied by the fee prescribed by the regulations.

(3)  The application may nominate alternative names (not exceeding the maximum number prescribed by the regulations) and indicate the order in which they are to be considered.

16 Decision on application

(1)  The Secretary may determine an application for reservation of a name by reserving the name or by refusing the application.

(2)  An application for reservation of a name may be refused:

(a)  if each of the nominated names is unacceptable, or

(b)  if the Secretary is satisfied that the application has been made for an improper purpose.

(3)  Unless each of the nominated names is unacceptable, the reserved name is to be the first of the nominated names that is not unacceptable.

17 Duration of reservation of name

Reservation of a name expires at the end of the period of 3 months after the name is reserved or, if an application for registration of an association or for a change in an association’s name is made within that period, when the application is determined.

18 Unacceptable names

(1)  For the purposes of this Act, a name is unacceptable if:

(a)  it does not include, at the end of the name, the word “Incorporated” or the abbreviation “Inc”, or

(b)  it contains foreign language characters, or

(c)  it includes the word “police” or “sheriff”, unless its use is the subject of a consent in force under section 204B of the Police Act 1990 or section 12 of the Sheriff Act 2005, or

(d)  the Secretary is of the opinion:

(i)  that it is identical to, or closely resembles, some other name that is registered, that is reserved or that is the subject of an earlier application for reservation, and

(ii)  that the public would be likely to be misled if associations operated under both names, or

(e)  the Secretary is of the opinion that it suggests a connection with the Crown or the State, or

(f)  the Secretary is of the opinion that it is offensive or undesirable, or

(g)  it is declared by the regulations to be unacceptable.

(2)  A name is not unacceptable on a ground referred to in subsection (1) (e), (f) or (g) if, in a particular case, the Minister directs that the name is acceptable.

s 18: Am 2010 No 59, Sch 1.6 [1].

Part 3 Basic features of associations

Division 1 Association powers

19 Legal capacity and powers (cf Corporations Act 2001 of the Commonwealth, section 124)

(1)  An association has the legal capacity and powers of an individual both in and outside New South Wales.

(2)  An association’s legal capacity to do something is not affected by the fact that the association’s interests are not, or would not be, served by doing it.

20 Constitution may limit powers (cf Corporations Act 2001 of the Commonwealth, section 125)

(1)  An association’s constitution may contain an express restriction on, or a prohibition of, the association’s exercise of any of its powers, but the exercise of a power by the association is not invalid merely because it is contrary to such a restriction or prohibition.

(2)  An act of an association is not invalid merely because it is contrary to or beyond the association’s objects.

21 Agent exercising association’s power to make contracts (cf Corporations Act 2001 of the Commonwealth, section 126)

(1)  An association’s power to make, vary, ratify or discharge a contract may be exercised by an individual acting with the association’s express or implied authority and on behalf of the association.

(2)  This section does not affect the operation of a law that requires a particular procedure to be complied with in relation to the contract.

21A Association not required to have seal

Despite section 50 (1) (b) of the Interpretation Act 1987, an association is not required to have a seal.

s 21A: Ins 2018 No 65, Sch 10.2 [1]

22 Execution of documents (including deeds) by an association (cf Corporations Act 2001 of the Commonwealth, section 127)

(1)  An association may execute a document without using a common seal if the document is signed by 2 of its authorised signatories.

(2)  An association with a common seal may execute a document if the seal is fixed to the document and the fixing of the seal is witnessed by 2 of its authorised signatories.

(3)  An association may execute a document as a deed if the document is expressed to be executed as a deed and is executed in accordance with subsection (1) or (2).

(4)  This section does not limit the ways in which an association may execute a document (including a deed).

(5)  This section does not authorise an association to execute a document contrary to the provisions of its constitution.

Division 2 Assumptions people dealing with associations are entitled to make

23 Entitlement to make assumptions (cf Corporations Act 2001 of the Commonwealth, section 128)

(1)  A person is entitled to make the assumptions in section 24 in relation to dealings with an association, and the association is not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect.

(2)  A person is entitled to make the assumptions in section 24 in relation to dealings with another person who has, or purports to have, directly or indirectly acquired property from an association, and the association and the other person are not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect.

(3)  The assumptions may be made even if anyone purporting to act on behalf of the association acts fraudulently, or forges a document, in connection with the dealings.

(4)  A person is not entitled to make an assumption in section 24 if at the time of the dealings they knew or suspected that the assumption was incorrect.

24 Assumptions that may be made (cf Corporations Act 2001 of the Commonwealth, section 129)

(1)  A person may assume that the association’s constitution has been complied with.

(2)  A person may assume that anyone who appears, from information provided by the association that is available to the public from the Register of Incorporated Associations, to be the association’s public officer:

(a)  has been duly appointed, and

(b)  has authority to exercise the functions customarily exercised by the public officer of a similar association.

(3)  A person may assume that anyone who appears, from information provided by the association, to be a committee member of the association:

(a)  has been duly appointed, and

(b)  has authority to exercise the functions customarily exercised by a committee member of a similar association.

(4)  A person may assume that anyone who is held out by the association to be an agent of the association:

(a)  has been duly appointed, and

(b)  has authority to exercise the functions customarily exercised or performed by an agent of a similar association.

(5)  A person may assume that persons acting on behalf of the association properly perform their duties to the association.

(6)  A person may assume that a document has been duly executed by the association if the document appears to have been signed in accordance with section 22 (1).

(7)  A person may assume that a document has been duly executed by the association if:

(a)  the association’s common seal appears to have been fixed to the document in accordance with section 22 (2), and

(b)  the fixing of the common seal appears to have been witnessed in accordance with that subsection.

(8)  A person may assume that anyone who has, or may be assumed to have, the authority to issue a document or a certified copy of a document on behalf of the association also has authority to warrant that the document is genuine or is a true copy.

(9)  Without limiting the generality of this section, the assumptions that may be made under this section apply for the purposes of this section.

Division 3 General

25 Provisions of model constitution apply if adopted or if matter not addressed

(1)  If an association’s constitution adopts all the provisions of the model constitution without modification (either by reference or by reproducing the provisions), the provisions are taken to be the association’s constitution.

(2)  If an association’s constitution fails to address a matter referred to in Schedule 1, the provisions of the model constitution with respect to the matter are taken to be part of the association’s constitution.

(3)  The provisions that are taken to be, or that are taken to be part of, an association’s constitution under this section apply as in force for the time being.

(4)  Accordingly, an amendment to those provisions changes the association’s constitution without:

(a)  any special resolution by the association to change its constitution or any application to the Secretary under section 10, or

(b)  any registration of the change by the Secretary under section 12, or

(c)  any other action by or on behalf of the association or its members or by or on behalf of the Secretary.

(5)  To avoid doubt, this section does not limit the way in which an association’s constitution may address a matter referred to in Schedule 1.

(6)  A provision of an association’s constitution is of no effect to the extent to which it is contrary to this or any other Act or law.

s 25: Subst 2016 No 1, Sch 1 [9].

26 Nature of association

(1)  Subject to this Act, an association’s constitution binds the association and its members to the same extent as if it were a contract between them under which they each agree to observe its provisions.

(2)  Subject to this Act, a member of an association (including a committee member and the public officer) is not, merely because of being such a member, liable in relation to:

(a)  any of the association’s liabilities, or

(b)  the costs, charges and expenses of the winding up of the association.

(3)  Subject to this Act, membership of an association does not confer on a member any right, title or interest, whether legal or equitable, in the association’s assets.

s 26: Am 2016 No 1, Sch 1 [10].

27 Pre-registration contracts

(1)  Contracts entered into before an association is registered under this Act are declared to be an applied Corporations legislation matter, for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001, in relation to Part 2B.3 of the Corporations Act 2001 of the Commonwealth.

(2)  In subsection (1), the reference to an association does not include a reference to an association arising from the registration of an unincorporated body, the amalgamation of 2 or more associations or the registration of a registrable corporation.

Note—

Contracts entered into by an association arising from the registration of an unincorporated body or the amalgamation of 2 or more associations are unaffected by registration (see section 8 and Schedule 2) as are those of an association arising from the registration of a registrable corporation (see section 9).

Part 4 Management of associations

Division 1 Committee members—general

pt 4, div 1, hdg: Subst 2016 No 1, Sch 1 [11].

28 Committee to be established

(1)  An association must establish a committee to manage its affairs.

Note—

An association’s registration is liable to be cancelled if it does not comply with this subsection.

(2)  The committee must include 3 or more members, each of whom is aged 18 years or more and at least 3 of whom are ordinarily resident in Australia.

Note—

An association’s registration is liable to be cancelled if its committee does not comply with this subsection.

(3)  The committee may exercise such of the association’s powers as are not required by this Act or its constitution to be exercised by the association in general meeting.

(4)  A committee member’s acts are valid despite any defect in his or her appointment.

(5)  Within 14 days after vacating office, a former committee member of an association must ensure that all documents in his or her possession that belong to the association are delivered to the public officer for delivery to his or her successor.

Maximum penalty: 1 penalty unit.

29 Register of committee members

(1)  An association must keep a register of committee members in accordance with this section.

Maximum penalty: 1 penalty unit.

(2)  The register must contain the following particulars in relation to each committee member:

(a)  the committee member’s name, date of birth and residential address,

(b)  the date on which the committee member takes office,

(c)  the date on which the committee member vacates office,

(d)  such other particulars as may be prescribed by the regulations.

(3)  The register must be kept in New South Wales:

(a)  at the main premises of the association, or

(b)  if the association has no premises, at the association’s official address.

(4)  Any change in the committee’s membership must be recorded in the register within one month after the change occurs.

(5)  The register must, at all reasonable hours, be kept available for inspection, free of charge, by any person.

30 Committee meetings

(1)  An association’s committee meetings may be held as and when the association’s constitution requires.

(2)  If the association’s constitution so provides, a committee meeting may be held at 2 or more venues using any technology that gives each of the committee members a reasonable opportunity to participate.

(3)  In any legal proceedings, a committee meeting held in accordance with subsection (2), or part of such a meeting, is not to be declared invalid on the ground that one or more committee members did not have a reasonable opportunity to participate unless the court is satisfied that:

(a)  substantial injustice has been, or may be, caused, and

(b)  the injustice cannot be remedied by any other order available to the court.

30A Duty of committee members

It is the duty of each committee member to carry out his or her functions for the benefit, so far as practicable, of the association and with due care and diligence.

s 30A: Ins 2016 No 1, Sch 1 [12].

30B Personal liability of committee members

A matter or thing done or omitted to be done by a committee member, or by a person acting under the direction of a committee member, does not, if the matter or thing was done or omitted to be done in good faith for the purpose of exercising the committee member’s functions under this Act, subject the committee member or person so acting personally to any action, liability, claim or demand.

s 30B: Ins 2016 No 1, Sch 1 [12].

Division 1A Committee members—offences

pt 4, div 1A, hdg: Ins 2016 No 1, Sch 1 [13].

Note—

A committee member may commit offences under this Act apart from the offences in this Division.

If an association incurs a debt while insolvent (or that causes it to become insolvent), a committee member who had reasonable grounds to suspect that the association was insolvent (or would, by incurring the debt, become insolvent) commits an offence under section 68 (1).

If a committee member knowingly authorises or permits an association to contravene a provision of this Act or the regulations, the committee member is also taken to have contravened the provision: see section 91.

pt 4, div 1A, note: Ins 2016 No 1, Sch 1 [13].

31 Disclosure of interests

(1)  If:

(a)  a committee member has a direct or indirect interest in a matter being considered or about to be considered at a committee meeting, and

(b)  the interest appears to raise a conflict with the proper performance of the committee member’s duties in relation to the consideration of the matter,

the committee member must, as soon as possible after the relevant facts have come to the committee member’s knowledge, disclose the nature of the interest at a committee meeting.

Maximum penalty: 60 penalty units.

(2)  A disclosure by a committee member at a committee meeting that the committee member:

(a)  is a member, or is in the employment, of a specified company or other body, or

(b)  is a partner, or is in the employment, of a specified person, or

(c)  has some other specified interest relating to a specified company or other body or to a specified person,

is a sufficient disclosure of the nature of the interest in any matter relating to that company or other body or to that person that may arise after the date of the disclosure and that is required to be disclosed under subsection (1).

(3)  Particulars of any disclosure made under this section must be recorded by the committee in a book kept for that purpose and that book must be open at all reasonable hours to inspection by any member of the association on payment of the fee determined by the committee (but not exceeding the maximum fee prescribed by the regulations).

(4)  The book must be kept at the same address as the register of committee members.

(5)  After a committee member has disclosed the nature of an interest in any matter, the committee member must not, unless the committee otherwise determines:

(a)  be present during any deliberation of the committee with respect to the matter, or

(b)  take part in any decision of the committee with respect to the matter.

(6)  For the purposes of the making of a determination by the committee under subsection (5), a committee member who has a direct or indirect interest in a matter to which the disclosure relates must not:

(a)  be present during any deliberation of the committee for the purpose of making the determination, or

(b)  take part in the making by the committee of the determination.

(7)  A contravention of this section does not invalidate any decision of the committee.

32 Dishonest use of information

A committee member or former committee member of an association who uses information obtained as a committee member dishonestly with the intention directly or indirectly of:

(a)  gaining an advantage for himself or herself or for any other person, or

(b)  causing detriment to the association,

is guilty of an offence.

Maximum penalty: 240 penalty units or imprisonment for 2 years, or both.

33 Dishonest use of position

A committee member of an association who uses his or her position as a committee member dishonestly with the intention of directly or indirectly:

(a)  gaining an advantage for himself or herself or for any other person, or

(b)  causing detriment to the association,

is guilty of an offence.

Maximum penalty: 240 penalty units or imprisonment for 2 years, or both.

Division 2 Public officer and authorised signatories

34 Public officer

(1)  An association’s committee must appoint a public officer.

Maximum penalty: 1 penalty unit.

(2)  The public officer must be a person who is aged 18 years or more and is ordinarily resident in New South Wales.

Note—

An association’s registration is liable to be cancelled if its public officer does not comply with this subsection.

(3)  The position of public officer may, but need not be, held by a committee member.

(4)  The public officer’s acts are valid despite any defect in his or her appointment.

(5)  The first public officer of an association is the person nominated as public officer in the application for registration of the association.

(6)  Within 28 days after taking office as an association’s public officer (other than its first public officer), a person must notify the Secretary, in the approved form, of:

(a)  the person’s full name and date of birth, and

(b)  an address within New South Wales:

(i)  at which the person can generally be found, and

(ii)  at which documents can be served on the association by post, and

(c)  the fact that the person has taken office as public officer.

Maximum penalty: 1 penalty unit.

(7)  If there is any change in the address of the public officer of an association, the public officer must notify the Secretary, in the approved form, of the new address within 28 days after the change occurs.

Maximum penalty: 1 penalty unit.

s 34: Am 2009 No 106, Sch 1.1; 2016 No 1, Sch 1 [14].

35 Vacation of office of public officer

(1)  An association’s public officer vacates office in the following circumstances:

(a)  if he or she dies,

(b)  if he or she resigns the office in writing addressed to the association’s committee,

(c)  if he or she is removed from office by resolution of a general meeting of the association,

(d)  if he or she becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit,

(e)  if he or she becomes a mentally incapacitated person,

(f)  if he or she ceases to ordinarily reside in New South Wales,

(g)  in such other circumstances as the constitution of the association may provide.

(2)  Within 14 days after vacating office, a former public officer of an association must ensure that all documents in his or her possession that belong to the association are delivered to a committee member of the association.

Maximum penalty: 1 penalty unit.

(3)  An association’s committee must fill any vacancy in the office of public officer within 28 days after the vacancy arises.

Maximum penalty: 1 penalty unit.

36 Authorised signatories

(1)  An association’s public officer is, by virtue of that office, an authorised signatory for the association.

(2)  An association’s committee may from time to time appoint additional authorised signatories from among such of its members as are ordinarily resident in Australia, and may at any time revoke any such appointment.

(3)  A person (other than the association’s public officer) vacates office as an association’s authorised signatory if:

(a)  his or her appointment as an authorised signatory is revoked, or

(b)  he or she ceases to be a committee member, or

(c)  he or she ceases to be ordinarily resident in Australia.

Division 3 General

37 General meetings

(1)  An association’s committee must ensure that the association’s first annual general meeting is held within 18 months after its registration under this Act.

Maximum penalty: 1 penalty unit.

(2)  An association’s committee must ensure that annual general meetings are held:

(a)  within 6 months after the close of the association’s financial year, or

(b)  within such further time as may be allowed by the Secretary or prescribed by the regulations.

Maximum penalty: 1 penalty unit.

(3)  If the association’s constitution so provides, a general meeting may be held at 2 or more venues using any technology that gives each of the association’s members a reasonable opportunity to participate.

(4)  In any legal proceedings, a general meeting held in accordance with subsection (3), or part of such a meeting, is not to be declared invalid on the ground that one or more of the association’s members did not have a reasonable opportunity to participate unless the court is satisfied that:

(a)  substantial injustice has been, or may be, caused, and

(b)  the injustice cannot be remedied by any other order available to the court.

38 Voting generally

(1)  A resolution is passed by an association as an ordinary resolution:

(a)  at a general meeting of the association, or

(b)  in a postal or electronic ballot conducted by the association,

if it is supported by more than half of the votes cast by members of the association who, under the association’s constitution, are entitled to vote on the proposed resolution.

(2)  A postal or electronic ballot referred to in subsection (1) (b) may only be conducted in relation to resolutions of a kind that the association’s constitution permits to be voted on by means of a postal or electronic ballot and, if conducted, must be conducted in accordance with the regulations.

s 38: Am 2016 No 1, Sch 1 [15].

39 Voting on special resolutions

(1)  A resolution is passed by an association as a special resolution:

(a)  at a meeting of the association of which notice has been given to its members no later than 21 days before the date on which the meeting is held, or

(b)  in a postal or electronic ballot conducted by the association, or

(c)  in such other manner as the Secretary may direct,

if it is supported by at least three-quarters of the votes cast by members of the association who, under the association’s constitution, are entitled to vote on the proposed resolution.

(2)  A notice referred to in subsection (1) (a) must include the terms of the resolution and a statement to the effect that the resolution is intended to be passed as a special resolution.

(3)  A postal or electronic ballot referred to in subsection (1) (b) may only be conducted in relation to resolutions of a kind that the association’s constitution permits to be voted on by means of a postal or electronic ballot and, if conducted, must be conducted in accordance with the regulations.

(4)  A direction under subsection (1) (c) may not be given unless the Secretary is satisfied that, in the circumstances, it is impracticable to require votes to be cast in the manner provided by subsection (1) (a) or (b).

s 39: Am 2016 No 1, Sch 1 [15].

40 Association not to provide pecuniary gain for its members

(1)  An association must not conduct its affairs (including its affairs as trustee of any trust) so as to provide pecuniary gain for its members.

Maximum penalty: 60 penalty units.

(2)  Subsection (1) does not affect the association’s civil liability to any person as a result of it having provided pecuniary gain for its members.

41 Where name must appear

(1)  An association must not issue any letter, statement, invoice, notice, publication, order for goods or services or receipt in connection with its activities unless the association’s name appears in legible characters on the document.

Maximum penalty: 1 penalty unit.

(2)    (Repealed)

s 41: Am 2011 No 44, Sch 3.1.

Part 5 Financial reporting

Division 1 Tier 1 associations

42 Application of Division

(1)  This Division applies to any association:

(a)  whose gross receipts (as calculated in accordance with the regulations) for the financial year last ended, or

(b)  whose current assets (as calculated in accordance with the regulations),

exceed such amount as may be prescribed by the regulations (a Tier 1 association).

(2)  Despite subsection (1), this Division does not apply to any association that the Secretary declares not to be a Tier 1 association.

(3)  Such a declaration may be made in respect of an association whose gross receipts for the financial year last ended were negligible, but whose current assets are such that it would (but for the declaration) be a Tier 1 association, and not otherwise.

43 Financial statements

(1)  As soon as practicable after the end of each financial year, the committee of a Tier 1 association:

(a)  must cause financial statements for that year to be prepared in relation to the association’s financial affairs (including its affairs as trustee of any trust), and

(b)  must cause the financial statements to be audited in time for them to be submitted to the association’s next annual general meeting.

Maximum penalty: 5 penalty units.

(2)  The financial statements must be prepared in accordance with the Australian Accounting Standards and must deal with such matters as are prescribed by the regulations.

(3)  The auditor’s report:

(a)  must be prepared in accordance with the Australian Auditing Standards, and

(b)  must state whether the association has kept such financial records as are necessary to enable financial statements to be prepared in accordance with the Australian Accounting Standards.

44 Submission of reports and statements to AGM

At each annual general meeting of a Tier 1 association, the association’s committee must cause:

(a)  the association’s financial statements for the previous financial year, and

(b)  the auditor’s report for those statements,

to be submitted to the meeting.

Maximum penalty: 5 penalty units.

45 Lodgment of documents with Secretary

(1)  A Tier 1 association must lodge the following documents with the Secretary in accordance with this section:

(a)  a summary, in the approved form, of the association’s financial affairs for the previous financial year,

(b)  the association’s financial statements for that year,

(c)  the auditor’s report for those statements,

(d)  a document setting out the terms of any resolution passed at the association’s annual general meeting in connection with the documents referred to in paragraphs (b) and (c).

Maximum penalty: 5 penalty units.

(2)  The documents referred to in subsection (1):

(a)  must be lodged within:

(i)  one month after the annual general meeting for the current financial year, or

(ii)  7 months after the end of the previous financial year,

whichever is the earlier, or within such further time as the Secretary may allow, and

(b)  must be accompanied by the fee prescribed by the regulations.

(3)  For the avoidance of doubt, the documents referred to in subsection (1) are taken not to have been lodged if the relevant fee has not been paid.

s 45: Am 2011 No 27, Sch 1.2 [1].

Division 2 Tier 2 associations

46 Application of Division

This Division applies to any association to which Division 1 does not apply (a Tier 2 association).

47 Financial statements

(1)  As soon as practicable after the end of each financial year, the committee of a Tier 2 association must cause financial statements for that year to be prepared, in accordance with this section, in relation to the association’s financial affairs (including its affairs as trustee of any trust).

Maximum penalty: 5 penalty units.

(2)  The financial statements must give a true and fair view of the association’s affairs and must deal with such matters as are prescribed by the regulations.

48 Submission of financial statements to AGM

At each annual general meeting of a Tier 2 association, the association’s committee must cause the association’s financial statements for the previous financial year to be submitted to the meeting.

Maximum penalty: 5 penalty units.

49 Lodgment of summary with Secretary

(1)  A Tier 2 association must lodge with the Secretary, in accordance with this section, a summary, in the approved form, of the association’s financial affairs for the previous financial year.

Maximum penalty: 5 penalty units.

(2)  The summary:

(a)  must be lodged within:

(i)  one month after the annual general meeting for the current financial year, or

(ii)  7 months after the end of the previous financial year,

whichever is the earlier, or within such further time as the Secretary may allow, and

(b)  must be accompanied by the fee prescribed by the regulations.

(3)  For the avoidance of doubt, the summary is taken not to have been lodged if the relevant fee has not been paid.

s 49: Am 2011 No 27, Sch 1.2 [2].

Division 3 General

50 Keeping of accounts and minutes of proceedings

(1)  An association:

(a)  must keep records that correctly record and explain its financial transactions and financial position, and

(b)  must keep minutes of the proceedings of its committee meetings and general meetings.

Maximum penalty: 5 penalty units.

(2)  In the case of a Tier 1 association within the meaning of Division 1, the records referred to in subsection (1) (a) must be sufficient to enable financial statements to be prepared in accordance with the Australian Accounting Standards.

(3)  If any document required to be kept under this section is, either in whole or in part, in a language other than the English language, a copy of the document wholly in the English language must be kept with the document.

(4)  The regulations may make provision for or in respect of the keeping and inspection of records and minutes under this section.

51 Audit at the Secretary’s direction

(1)  The Secretary may direct an association to cause the whole or any specified part of an association’s financial records to be audited, and an auditor’s report lodged with the Secretary, within a specified time.

(2)  Such a direction may be given regardless of whether the financial records have previously been audited.

(3)  An association to which such a direction is given must ensure that the direction is complied with.

Maximum penalty: 5 penalty units.

(4)  An auditor’s report under this section must state whether the association’s financial records:

(a)  have been properly kept, and

(b)  give a true and fair view of the association’s affairs.

52 Auditor to be qualified and independent

(1)  Subject to subsection (2), an audit under this Part must be carried out by:

(a)  a registered company auditor within the meaning of the Corporations Act 2001 of the Commonwealth, or

(b)  a person approved by the Secretary for the purposes of this Part, either generally or in relation to a specified association or class of associations, or a person who belongs to a class of persons so approved.

(2)  Except with the written approval of the Secretary, an audit under this Part may not be carried out by any person who is, or who has at any time within the last 2 years been:

(a)  a member of the association, or

(b)  an employee of, or provider of professional services (other than audit services) to, the association or to a committee member or public officer of the association.

53 Exemptions

(1)  The Secretary may, by notice in writing to the association concerned, exempt an association from any of the requirements of this Part.

(2)  Any such exemption:

(a)  may be given subject to conditions, and

(b)  may be limited as to time, and

(c)  may be varied, suspended or revoked by the Secretary by further notice in writing to the association concerned.

(3)  The regulations may exempt any association or class of associations from any of the requirements of this Part.

s 53: Subst 2018 No 65, Sch 11.1 [1].

Part 6 External administration and winding up

Division 1 External administration on grounds of insolvency

54 Appointment of administrator—Corporations legislation (cf Co-operatives Act 1992 , sections 332 and 332A)

(1)  An 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 the provisions of Part 5.3A and Division 3 of Part 5.9 of the Corporations Act 2001 of the Commonwealth, subject to the following modifications:

(a)  those provisions are to be read as if an association and its committee were, respectively, a company and its board,

(b)  those provisions are to be read as including the provisions of subsections (2) and (3),

(c)  a reference in those provisions to sections 128 and 129 of the Corporations Act 2001 of the Commonwealth is to be read as a reference to sections 23 and 24 of this Act,

(d)  a reference in those provisions to an administrator appointed under a provision of Part 5.3A is to be read as including a reference to an administrator appointed by the Secretary under this section,

(e)  a reference in those provisions to ASIC is to be read as a reference to the Secretary,

(f)  such other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001) as may be prescribed by the regulations.

(2)  Without limiting subsection (1), the Secretary may appoint a person as an administrator for the purposes of the provisions of Part 5.3A of the Corporations Act 2001 of the Commonwealth (as applying under this section) if of the opinion that the association is, or is likely to become, insolvent.

(3)  A person appointed under subsection (2) may, but need not, be a registered liquidator within the meaning of the Corporations Act 2001 of the Commonwealth.

Division 2 External administration on grounds other than insolvency

55 Appointment of administrator by Secretary

The Secretary may appoint an administrator to administer an association’s affairs if:

(a)  the association has persistently failed to comply with the requirements of this Act or the regulations, and

(b)  having regard to those circumstances, the Secretary is satisfied that it is in the interests of the association’s members or creditors for an administrator to be appointed.

56 Effect of appointment of administrator (cf Co-operatives Act 1992 , section 334)

(1)  On the appointment of an administrator for an association:

(a)  the committee members and the public officer cease to hold office, and

(b)  the administrator may terminate any contract of employment with the association or any contract for the provision of secretarial, administrative or other services to the association.

(2)  An administrator for an association has the functions of the association’s committee and the functions of the association’s public officer.

57 Revocation of appointment (cf Co-operatives Act 1992 , section 335)

(1)  An administrator holds office until the administrator’s appointment is revoked or the administrator dies.

(2)  When a liquidator of an association is appointed, the appointment of any administrator of the association is automatically revoked.

(3)  Immediately on the revocation of an administrator’s appointment, the administrator must prepare and submit a report to the Secretary showing how the administration was carried out, and for that purpose an administrator has access to the association’s records and documents.

(4)  On providing the report and accounting fully in relation to the administration of the association to the satisfaction of the Secretary, the administrator is released from any further duty to account in relation to the administration of the association otherwise than on account of fraud, dishonesty, negligence or wilful failure to comply with this Act or the regulations.

(5)  Before revoking the appointment of an administrator of an association, the Secretary:

(a)  must appoint another administrator, or

(b)  must ensure that committee members and the public officer have been elected in accordance with the association’s constitution at a meeting convened by the administrator in accordance with the constitution, or

(c)  must appoint committee members and a public officer for the association.

(6)  Committee members elected or appointed under subsection (5):

(a)  take office on revocation of the administrator’s appointment, and

(b)  if appointed, hold office until the next annual general meeting of the association after the revocation of that appointment.

(7)  The public officer of an association appointed under subsection (5) (c) takes office on revocation of the administrator’s appointment.

58 Expenses of administration (cf Co-operatives Act 1992 , section 336)

(1)  The expenses of and incidental to the conduct of an association’s affairs by an administrator are payable from the association’s funds.

(2)  The expenses of conducting an association’s affairs include:

(a)  if the administrator is a public servant, such amount as the Secretary may certify as being the Crown’s costs in relation to the administrator’s remuneration, or

(b)  if the administrator is not a public servant, such amount as the Secretary may approve in relation to the administrator’s remuneration.

(3)  An amount certified under subsection (2) (a) may be recovered in a court of competent jurisdiction as a debt due to the Crown.

(4)  An administrator has, in relation to the expenses specified in subsection (1), the same priority on the winding up of an association as the liquidator of the association has.

59 Liabilities arising from administration (cf Co-operatives Act 1992 , section 337)

(1)  An administrator is liable for any loss incurred by the association because of any fraud, dishonesty, negligence or wilful failure by the administrator to comply with this Act, the regulations or the association’s constitution.

(2)  An administrator is not liable for any other loss, but must account for the loss in a report given under section 57.

60 Stay of proceedings (cf Co-operatives Act 1992 , section 337B)

(1)  If the Secretary appoints an administrator to conduct an association’s affairs, a person must not begin or continue any legal proceedings against the association until the administrator’s appointment is revoked except with the leave of the Supreme Court and, if the Court grants leave, in accordance with any terms and conditions that the Court imposes.

(2)  A person intending to apply for the leave of the Supreme Court under subsection (1) must give the Secretary not less than 10 days’ notice of intention to apply.

(3)  On the hearing of an application under subsection (1), the Secretary may be represented and may oppose the granting of the application.

61 Administrator to report to Secretary (cf Co-operatives Act 1992 , section 337C)

On the receipt of a request from the Secretary, the administrator for an association must, without delay, prepare and give to the Secretary a report showing how the administration is being carried out.

Division 3 Winding up

61A Winding up on Secretary’s certificate (cf Co-operatives National Law (NSW) , section 443)

(1)  An association may be wound up on a certificate of the Secretary if:

(a)  the association ceases operations, or

(b)  the association ceases to have 5 or more members, or

(c)  the association’s committee has not been able to form a quorum for 2 months, or

(d)  the Secretary is satisfied that there is a significant public interest in winding up the association or that not winding up the association may place public funds at risk.

(2)  Before giving a certificate, the Secretary:

(a)  must give notice of the proposed certificate to be given to the association stating the ground or grounds referred to in subsection (1) that the Secretary believes exist, and

(b)  must give the association and its members at least 28 days within which to make submissions to the Secretary with respect to the proposed certificate, and

(c)  must give due consideration to any submissions that are made within that period.

(3)  A notice to be given to an association under subsection (2) must be sent:

(a)  by post addressed to the association at the association’s official address, or

(b)  if the Secretary suspects that the association’s official address is no longer in use:

(i)  by post addressed to the association at another address that appears to the Secretary to be an address that is used by the association, or

(ii)  by email addressed to the association at an email address that appears to the Secretary to be an email address that is used by the association.

(4)  A winding up on a certificate of the Secretary starts when the certificate is given.

(5)  On the giving of a certificate, the Secretary may appoint a person to be the liquidator of the association.

(6)  The liquidator must, within 10 days after appointment, give notice of his or her appointment in the manner prescribed by the regulations (if any).

(7)  A vacancy occurring in the office of liquidator is to be filled by a person appointed by the Secretary.

(8)  The Secretary may fix:

(a)  the security to be given by a liquidator, and

(b)  the fees payable to a liquidator.

s 61A: Ins 2016 No 1, Sch 1 [16].

62 Voluntary winding up

An association may be wound up voluntarily if the association so resolves by special resolution.

63 Winding up by Supreme Court

(1)  The Supreme Court may order the winding up of an association if:

(a)  the association has by special resolution resolved that it be wound up by the Court, or

(b)  the association does not commence its operations within one year after the date of its registration under this Act or suspends its operations for a whole year, or

(c)  the association is insolvent, or

(d)  the association has conducted its affairs (including its affairs as trustee of any trust) so as to provide pecuniary gain for its members, or

(e)  the association has engaged in activities inconsistent with its objects, or

(f)  the committee of the association has acted in affairs of the association in the interests of the committee or the committee members rather than in accordance with its objects, or in any other manner whatever that appears to the Court to be unfair or unjust to the association’s members, or

(g)  the association would, if not registered under this Act, not be eligible to be so registered, or

(h)  the Secretary has, pursuant to section 73, directed the association to apply for cancellation of its registration and the association has failed to do so within the time fixed by the direction, or

(i)  the Court is of the opinion that it is just and equitable that the association be wound up.

(2)  An application to the Supreme Court for the winding up of an association may be made by the association, by a member or creditor of the association or by the Secretary.

64 Modifications to text of applied Corporations Act 2001 of the Commonwealth

(1)  The winding up of an 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 Parts 5.5 and 5.6 of the Corporations Act 2001 of the Commonwealth, subject to:

(a)  the modifications referred to in subsection (2), and

(b)  such other modifications (within the meaning of Part 3 of the Corporations (Ancillary Provisions) Act 2001) as may be prescribed by the regulations.

(2)  The following modifications to the text of the Corporations Act 2001 of the Commonwealth apply for the purposes of subsection (1):

(a)  a reference to a company or body is to be read as a reference to an association,

(b)  a reference to the directors of a company is to be read as a reference to the committee members of an association,

(c)  a reference to ASIC is to be read as a reference to the Secretary,

(d)  a reference to a company’s principal place of business is to be read as a reference to an association’s official address,

(e)  the reference to 5 years in section 1316 of that Act is taken to be a reference to 3 years,

(f)  for the purposes of the application of the provisions to a winding up on the certificate of the Secretary, the winding up is to be considered to be a voluntary winding up (but section 490 of the Corporations Act 2001 of the Commonwealth does not apply).

s 64: Am 2016 No 1, Sch 1 [17].

65 Distribution of surplus property

(1)  In this section, a reference to the surplus property of an association is a reference to that property of the association remaining after satisfaction of the debts and liabilities of the association and the costs, charges and expenses of the winding up of the association.

(2)  In a winding up of an association, the surplus property of the association is to be distributed in accordance with a special resolution of the association.

(3)  Any such distribution of surplus property:

(a)  must be approved by the Secretary, and

(b)  is not to be made to or for the benefit of:

(i)  any member or former member of the association, or

(ii)  any person to be held on trust for any member or former member of the association,

unless the member or former member is an association (whether incorporated or unincorporated) whose constitution, at the time of the distribution, prohibits the distribution of property to its members, and

(c)  is subject to any trust affecting that property or any part of it.

(4)  Surplus property or any part of it that consists of property supplied by a government department or public authority, including any unexpended portion of a grant, must be returned to the department or authority that supplied it or to a body nominated by the department or authority.

(5)  A person aggrieved by the operation of this section in relation to an association’s surplus property may apply to the Supreme Court for an order as to its disposal.

(6)  The Supreme Court may deal with such an application by making such orders as it thinks fit with respect to the disposal of the association’s surplus property.

66 Appeal

(1)  A person aggrieved by any act, omission or decision of an association’s liquidator or provisional liquidator may appeal to the Supreme Court in respect of the act, omission or decision.

(2)  The Supreme Court may deal with such an appeal by confirming, reversing or modifying the act or decision, or remedying the omission, as the case may be, and by making such other orders as it thinks fit.

Division 4 Offences relating to incurring of debts or fraudulent conduct

67 Definitions

(1)  This Division applies to an association:

(a)  that is insolvent, or

(b)  that is being, or has been, wound up, or

(c)  whose registration has been cancelled under Division 1 or 2 of Part 7.

(2)  In this Division, appropriate officer means:

(a)  in relation to an association that has been or is being wound up, the liquidator, or

(b)  in relation to an association whose registration has been cancelled by the Secretary or that is insolvent, the Secretary.

(3)  For the purposes of this section, an association is taken to be insolvent if, and only if, execution or other process issued on a judgment, decree or order of any court in favour of a creditor of the association is returned unsatisfied in whole or in part.

68 Incurring of debts in respect of association to which this Division applies

(1)  If an association incurs a debt and:

(a)  immediately before the debt is incurred:

(i)  there are reasonable grounds for believing that the association is or will become insolvent, or

(ii)  there are reasonable grounds to expect that, if the association incurs the debt, the association will become insolvent, and

(b)  the association is or becomes an association to which this Division applies,

any person who was a committee member of the association at the time the debt was incurred is guilty of an offence.

Maximum penalty: 50 penalty units or imprisonment for 1 year, or both.

(2)  The association and any person who was a committee member of the association at the time the debt was incurred are jointly and severally liable for the payment of the debt.

(3)  In any proceedings against a person under subsection (1), it is a defence if the defendant proves:

(a)  that the debt was incurred without the defendant’s express or implied authority or consent, or

(b)  that, at the time the debt was incurred, the defendant did not have reasonable grounds:

(i)  to believe that the association was insolvent, or

(ii)  to expect that, if the association incurred that debt, it would become insolvent.

(4)  If subsection (2) renders a person or persons liable to pay a debt incurred by an association, the payment by that person or either or any of those persons of the whole or any part of the debt does not render the association liable to the person or persons concerned in respect of the amount so paid.

69 Fraudulent conduct in respect of association to which this Division applies

If:

(a)  an association does any act (including the entering into of a contract or transaction) with intent to defraud any person or for any other fraudulent purpose, and

(b)  the association is or becomes an association to which this Division applies,

any person who was knowingly concerned in the doing of the act with that intent or for that purpose is guilty of an offence.

Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.

70 Powers of Supreme Court

(1)  If a person (the offender) is convicted of an offence under section 68 (1) in respect of the incurring of a debt, the Supreme Court, on the application of:

(a)  the Secretary, or

(b)  the person to whom the debt is payable (the creditor),

may declare that the offender is personally responsible, without any limitation of liability, for payment to the creditor of the amount of the debt or such part of it as the Court thinks fit.

(2)  If a person (the offender) is convicted of an offence under section 69, the Supreme Court, on the application of:

(a)  the Secretary, or

(b)  the appropriate officer, or

(c)  a member or creditor of the association authorised by the Secretary to make such an application,

may declare that the offender is personally responsible, without any limitation of liability, for payment to the association of the amount required to satisfy so much of the debts of the association as the Court thinks fit.

(3)  If the Supreme Court makes a declaration under subsection (1), it may make such further orders as it thinks fit for the purpose of giving effect to that declaration.

(4)  In particular, the Supreme Court may order that the offender’s liability is a charge on:

(a)  a debt or obligation due from the association to the creditor, or

(b)  a right or interest under a charge on any property of the association held by or vested in the offender or a person on behalf of the offender, or a person claiming as assignee from or through the offender or a person acting on behalf of the offender.

(5)  The Supreme Court may, from time to time, make such further order as it thinks fit for the purpose of enforcing a charge imposed under subsection (4).

(6)  For the purpose of subsection (4) (b), assignee includes a person to whom or in whose favour, by the direction of the offender:

(a)  the debt, obligation or charge was created, issued or transferred, or

(b)  the interest was created,

but does not include an assignee for valuable consideration given in good faith and without actual knowledge of any of the matters on which the conviction or declaration was made.

71 Certain rights not affected

Nothing in this Division affects any rights of a person to indemnity, subrogation or contribution.

Part 7 Cancellation and transfer of registration

Division 1 Voluntary cancellation

72 Application for cancellation

(1)  An association may apply to the Secretary for cancellation of its registration.

(2)  The application must be in the approved form.

(3)  Without limiting the form that may be approved under subsection (2), the approved form may be an electronic form accessible on a publicly available website.

(4)  A person who provides the Secretary with a statutory declaration setting out particulars required by the approved form is taken to have done so in the approved form.

s 72: Am 2016 No 1, Sch 1 [18]; 2017 No 25, Sch 2.1.

73 Secretary may direct association to apply for cancellation

(1)  The Secretary may, by order in writing served on an association, direct the association to apply for cancellation of its registration within such time (being not less than 3 months) as is fixed by the direction.

(2)  The Secretary may not give such a direction unless he or she is satisfied that, having regard to the objects of this Act, the association should no longer be registered:

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

(b)  because of the Secretary’s assessment of the nature or extent of the association’s activities, or

(c)  because of the Secretary’s assessment of the nature or extent of the association’s dealings with the public, or

(d)  for any other reason that appears sufficient to the Secretary.

74 Decision on application for voluntary cancellation

(1)  The Secretary may determine an application for cancellation of an association’s registration by cancelling the registration or by refusing the application.

(2)  An application for cancellation of an association’s registration must be refused if the Secretary suspects:

(a)  that the association has outstanding obligations under this Act, or

(b)  that the association has outstanding liabilities, or

(c)  that the proposed distribution of assets does not comply with section 75.

(3)  On cancelling an association’s registration, the Secretary is to cause notice of that fact to be published in the Gazette and to be given to the association.

(4)  Any notice to be given to an association under subsection (3) must be sent:

(a)  by post addressed to the association at the association’s official address, or

(b)  if the Secretary suspects that the association’s official address is no longer in use:

(i)  by post addressed to the association at another address that appears to the Secretary to be an address that is used by the association, or

(ii)  by email addressed to the association at an email address that appears to the Secretary to be an email address that is used by the association.

s 74: Am 2013 No 111, Sch 1.1 [1]; 2016 No 1, Sch 1 [19].

75 Distribution of assets

(1)  On the cancellation of its registration under this Division, an association’s assets are to be distributed in accordance with a special resolution of the association.

(2)  Any such distribution of assets:

(a)  must be approved by the Secretary, and

(b)  is not to be made to or for the benefit of:

(i)  any member or former member of the association, or

(ii)  any person to be held on trust for any member or former member of the association,

unless the member or former member is an association (whether incorporated or unincorporated) whose constitution, at the time of the distribution, prohibits the distribution of property to its members, and

(c)  is subject to any trust affecting those assets or any part of them.

(3)  Any asset that has been supplied by a government department or public authority (including any unexpended portion of a grant) must be returned to the department or authority that supplied it or delivered to such person or body as that department or authority may direct.

(4)  A person aggrieved by the operation of this section in relation to an association’s assets may apply to the Supreme Court for an order as to their disposal.

(5)  The Supreme Court may deal with such an application by making such orders as it thinks fit with respect to the disposal of the association’s assets.

Division 2 Involuntary cancellation

76 Registration may be cancelled

(1)  The Secretary may cancel an association’s registration if satisfied that:

(a)  the association is not in operation, whether or not it has been wound up, or

(b)  the association has fewer than 5 members, or

(c)  the association has failed to establish and maintain a committee in accordance with section 28, or

(d)  the association’s committee does not include 3 or more members of whom each is aged 18 years or more and of whom at least 3 are ordinarily resident in Australia, or

(e)  the association’s committee has not appointed a public officer or has appointed a public officer who is not aged 18 years or more or not ordinarily resident in New South Wales, or

(f)  the association is, or has been, conducting its affairs (including its affairs as trustee of any trust) so as to provide pecuniary gain for its members, or

(g)  during the last 3 financial years, the association has not held an annual general meeting, or

(h)  during the last 3 financial years, none of the documents required to have been lodged for the association under section 45 (if the association is a Tier 1 association) or section 49 (if the association is a Tier 2 association) has been lodged, or

(i)  the association has failed to comply with a direction under section 11 for the change of its name, or

(j)  the association has become registered under this Act because of fraud or mistake, or

(k)  it is in the public interest to cancel the association’s registration.

(2)  An association’s registration is not to be cancelled under this section if:

(a)  the association is being wound up, or

(b)  the Civil and Administrative Tribunal has ordered the Secretary not to cancel the association’s registration.

(3)  Before cancelling an association’s registration under this section, the Secretary:

(a)  must cause notice of the proposed cancellation to be given to the association stating the ground or grounds referred to in subsection (1) that the Secretary believes exist, and

(b)  must give the association and its members at least 28 days within which to make submissions to the Secretary with respect to the proposed cancellation, and

(c)  must give due consideration to any submissions that are made within that period.

(4)  After cancelling an association’s registration under this section, the Secretary must cause notice of that fact to be published in the Gazette and to be given to the association.

(5)  Any notice to be given to an association under this section must be sent:

(a)  by post addressed to the association at the association’s official address, or

(b)  if the Secretary suspects that the association’s official address is no longer in use:

(i)  by post addressed to the association at another address that appears to the Secretary to be an address that is used by the association, or

(ii)  by email addressed to the association at an email address that appears to the Secretary to be an email address that is used by the association.

s 76: Am 2010 No 59, Sch 1.6 [2]; 2013 No 95, Sch 2.11 [1]; 2013 No 111, Sch 1.1 [2]–[4]; 2014 No 33, Sch 1.3 [3] [4]; 2016 No 1, Sch 1 [20]–[23].

77 Distribution of assets

(1)  On the cancellation of an association’s registration under this Division, the association’s property vests in the Secretary.

(2)  The Secretary:

(a)  may give such directions as the Secretary considers just for or with respect to the payment of the association’s debts and liabilities, the distribution of its property and the winding up of its affairs, and

(b)  may appoint a person for the purpose of investigating the affairs of the association with a view to the realisation of its property, payment of its debts, discharge of its liabilities, distribution of its property and winding up of its affairs, and

(c)  may do all such other acts and things as are reasonably necessary to be done for the purpose of the exercise of the Secretary’s powers under this section.

(3)  The Secretary is entitled to be paid out of an association’s property any costs reasonably incurred in the exercise of the Secretary’s powers under this section in relation to the association.

(4)  Section 65 applies to and in respect of the distribution of any property remaining after satisfaction of the association’s debts and liabilities under subsection (2) and the payment of the Secretary’s costs under subsection (3) in the same way as it applies to and in respect of the distribution of surplus property under that section.

Division 3 Transfer of registration

78 Application for transfer of registration declaration

(1)  An association may apply to the Secretary for a transfer of registration declaration in relation to its proposed registration under a corresponding law.

(2)  Such an application must be authorised by a special resolution passed by the association.

(3)  An application:

(a)  must be in the approved form, and

(b)  must identify the corresponding law under which the association proposes to seek registration, and

(c)  must include a copy of the special resolution referred to in subsection (2), and

(d)  must include any information required by the regulations, and

(e)  must be accompanied by the fee prescribed by the regulations.

79 Decision on application

(1)  The Secretary may determine an association’s application for a transfer of registration declaration:

(a)  by making the transfer of registration declaration in terms:

(i)  that identify the corresponding law under which the association proposes to seek registration, and

(ii)  that indicate that the Secretary has no objection to the association becoming registered under that law, or

(b)  by refusing the application.

(2)  An application for a transfer of registration declaration may be refused if the application does not comply with section 78.

(3)  On making a transfer of registration declaration, the Secretary is to cause a certificate as to the terms of the declaration to be given to the applicant.

80 Effect of transfer of registration declaration

(1)  A transfer of registration declaration authorises the association to which it relates to transfer its incorporation to the corresponding law identified in the declaration.

(2)  If the association becomes registered under the corresponding law, the Secretary must cancel its registration under this Act.

(3)  On cancelling an association’s registration, the Secretary is to cause notice of that fact to be published in the Gazette and to be given to the association.

(4)  Any notice to be given to an association under subsection (3) must be sent:

(a)  by post addressed to the association at the association’s official address, or

(b)  if the Secretary suspects that the association’s official address is no longer in use:

(i)  by post addressed to the association at another address that appears to the Secretary to be an address that is used by the association, or

(ii)  by email addressed to the association at an email address that appears to the Secretary to be an email address that is used by the association.

s 80: Am 2013 No 111, Sch 1.1 [5]; 2016 No 1, Sch 1 [24].

Division 4 General

81 Loss of corporate status

(1)  Subject to any other Act or law, an association ceases to be a body corporate when its registration is cancelled.

(2)  This Act (except for this Division and Division 4 of Part 6) does not apply to an association whose registration is cancelled.

82 (Repealed)

s 82: Rep 2013 No 111, Sch 1.1 [6].

83 Certain liabilities not affected by cancellation

The cancellation of an association’s registration does not affect any liability of any former public officer or former committee member, and any such liability may be enforced as if the association’s registration had not been cancelled.

84 Reinstatement of registration

(1)  If the Secretary is satisfied that an association’s registration should not have been cancelled under this Part, and the association has not become incorporated under any other Act or law, the Secretary may reinstate its registration under this section.

(2)  If an association’s registration is reinstated under this section, the body corporate previously established by this Act in relation to the association is, as from the time of reinstatement, taken to have continued in existence as if the association’s registration had not been cancelled.

(3)  The regulations may make provision of a savings or transitional nature consequent on the reinstatement of an association’s registration and incorporation under this section.

Part 8 Enforcement provisions

Division 1 Power to require information and documents

85 Power to require information and documents

(1)  The Secretary may, by notice in writing served on any person, require the person to do either or both of the following within such time as is specified in the notice:

(a)  to furnish the Secretary with such information as the person possesses in connection with the affairs of an association,

(b)  to produce to the Secretary such documents as the person possesses in connection with the affairs of an association.

(2)  A person must not fail to comply with a requirement under this section.

Maximum penalty: 60 penalty units.

Note—

The furnishing of false or misleading information and the production of false or misleading documents are offences under Part 5A of the Crimes Act 1900.

(3)  A person is not excused from furnishing information or producing a document pursuant to a requirement under this section on the ground that to do so may tend to incriminate the person, but any information so furnished or document so produced is not admissible in evidence against the person in any criminal proceedings other than proceedings for an offence under Part 5A of the Crimes Act 1900.

s 85: Am 2015 No 15, Sch 2.2.

86 Power to enter premises

(1)  An authorised officer:

(a)  may enter any premises at which an association carries on any activity, and

(b)  may inspect, and take copies of or extracts from, any document that relates to the carrying on of business at or from the premises,

for the purpose of ascertaining whether the provisions of this Act are being complied with.

(2)  The power of entry conferred by subsection (1) may not be exercised:

(a)  in relation to any part of premises that is used for residential purposes, or

(b)  outside the hours during which business is being carried on at or from the premises,

except with the consent of the occupier of the premises.

87 Search warrants

(1)  An authorised officer under this Act may apply to an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 for the issue of a search warrant if the authorised officer under this Act believes on reasonable grounds that a provision of this Act or the regulations is being or has been contravened at any premises.

(2)  An authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising a named authorised officer under this Act to enter the premises and to exercise any of the authorised officer’s functions under this Part.

(3)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.

88 Manner in which power of entry to be exercised

(1)  The powers conferred on an authorised officer by this Division may not be exercised in relation to any premises unless:

(a)  the officer is in possession of a certificate of authority, issued in accordance with the regulations, that evidences his or her authority to exercise those powers, and

(b)  the occupier of the premises has been given at least 24 hours’ notice that those powers are to be exercised or the Secretary has given prior authority for the exercise of those powers without the need for such notice.

(2)  Authority under subsection (1) (b) may only be given if the Secretary is satisfied, in the circumstances of the case, that the giving of 24 hours’ notice would frustrate the purpose for which the powers are to be exercised.

(3)  Reasonable force may be used for the purpose of effecting entry under this Division.

89 Damage to be minimised

(1)  In exercising the powers conferred by this Division, an authorised officer must do as little damage as possible.

(2)  The Secretary must compensate all interested parties for any damage caused by an authorised officer as a consequence of the exercise of the powers conferred by this Division.

(3)  Subsection (2) does not apply to the extent to which the occupier of the premises has obstructed or hindered the authorised officer in the exercise of the powers conferred by this Division.

Division 2 Offences

90 Offence of using certain names

(1)  Any person or body (other than an association) that calls itself by a name that includes the word “Incorporated” or “Inc” is guilty of an offence.

Maximum penalty: 2 penalty units.

(2)  Subsection (1) does not apply to a body that is incorporated, whether in New South Wales or elsewhere, under a name that includes either of those words.

91 Offences by committee members

(1)  If an association contravenes, whether by act or omission, any provision of this Act or the regulations, each committee member of the association is taken to have contravened the same provision if he or she knowingly authorised or permitted the contravention.

(2)  A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the association has been proceeded against or convicted under that provision.

(3)  In the case of a contravention of section 40, each person who, pursuant to subsection (1), is taken to have contravened that section is, together with the association, jointly and severally liable for all debts incurred by the association as a consequence of that contravention.

(4)  Nothing in this section affects any liability imposed on an association for an offence committed by the association under this Act.

(5)  For the purposes of this section, an association’s public officer (not otherwise being a committee member) is taken to be a committee member.

92 Obstruction of authorised officers

A person must not obstruct or hinder an authorised officer in the exercise of the officer’s functions under this Act.

Maximum penalty: 60 penalty units.

93 Penalty notices

(1)  An authorised officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.

(2)  A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.

(3)  The Fines Act 1996 applies to a penalty notice issued under this section.

Note—

The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.

(4)  The amount payable under a penalty notice issued under this section is the amount prescribed for the alleged offence by the regulations (not exceeding the maximum amount of penalty that could be imposed for the offence by a court).

(5)  This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.

s 93: Subst 2017 No 22, Sch 3.2.

94 Proceedings for offences

(1)  Proceedings for an offence against this Act or the regulations may be dealt with summarily before the Local Court.

(2)  Proceedings for an offence under section 31 (1), 32, 33, 40 (1), 68 (1) or 69 may be commenced not later than 3 years from when the offence was alleged to have been committed.

Note—

Under section 179 of the Criminal Procedure Act 1986, proceedings for any other summary offence under this Act must be commenced not later than 6 months from when the offence was alleged to have been committed.

s 94: Am 2009 No 106, Sch 4.2.

Part 9 Application of Corporations legislation

95 Excluded matters

(1)  An association is declared to be an excluded matter for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to the whole of the Corporations legislation.

Note—

This section ensures that neither the Corporations Act 2001 of the Commonwealth, nor the Australian Securities and Investments Commission Act 2001 of the Commonwealth, will apply to an association other than to the extent specified in this section. Section 5F of the Corporations Act 2001 provides that if a State law declares a matter to be an excluded matter in relation to the whole of the Corporations legislation, other than to a specified extent, then that legislation will apply, except to the specified extent, in relation to that matter in the State concerned. However, other provisions of this Act provide for the application of provisions of the Corporations legislation to associations as laws of the State.

(2)  Subsection (1) does not exclude the application of the following provisions of the Corporations legislation to an association to the extent to which those provisions would otherwise be applicable to the association:

(a)  provisions relating to the role of an association in the formation of a company,

(b)  provisions relating to the registration of an association as a company under Chapter 5B of the Corporations Act 2001 of the Commonwealth,

(c)  provisions relating to substantial shareholdings, by or involving an association, in a company,

(d)  provisions conferring or imposing functions on an association as a member, or former member, of a corporation,

(e)  provisions relating to dealings by an association in financial products of a corporation,

(f)  provisions conferring or imposing functions on an association in its dealings with a corporation,

(g)  provisions relating to any of the following activities of an association:

(i)  the activity of operating, or being concerned in the operation of, a managed investment scheme,

(ii)  the activity of providing advice about, or dealing in, insurance,

(iii)  any activity regulated by or under Chapter 2L (Debentures), Part 5.7 (Winding up bodies other than companies), Chapter 6D (Fundraising) or Chapter 7 (Financial services and markets) of the Corporations Act 2001 of the Commonwealth.

(3)  To avoid doubt, it is declared that subsection (1) does not operate to exclude the operation of:

(a)  Chapter 2F, 2L, 5C, 6D or 7 or section 1324 of the Corporations Act 2001 of the Commonwealth, or

(b)  Part 1, 2 or 3 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth to the extent necessary to enforce the provisions of the Corporations legislation referred to in subsection (2) (a)–(g) and in paragraph (a) of this subsection.

(4)  In this section, the Corporations legislation means the Corporations legislation, within the meaning of the Corporations Act 2001 of the Commonwealth, to which Part 1.1A of that Act applies.

96 Applying the Corporations legislation to associations

(1)  The regulations may declare any matter relating to associations to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to any excluded Corporations legislation provision or provisions (with such modifications as may be specified in the declaration).

Note—

Part 3 of the Corporations (Ancillary Provisions) Act 2001 provides for the application of provisions of the Corporations Act 2001 of the Commonwealth and Part 3 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth as laws of New South Wales in respect of any matter declared by a law of New South Wales (whether with or without modification) to be an applied Corporations legislation matter for the purposes of that Part in relation to those Commonwealth provisions.

(2)  Without limiting subsection (1), any such regulations:

(a)  may specify modifications to the definitions and other interpretative provisions of the Corporations legislation relevant to any excluded Corporations legislation provision that is the subject of the declaration, and

(b)  may specify that a reference to ASIC in any excluded Corporations legislation provision that is the subject of the declaration is to be read as a reference to another person, and

(c)  may identify any excluded Corporations legislation provision to which the declaration relates by reference to that provision as in force at a particular time, and

(d)  may specify a New South Wales court (other than the Supreme Court) to exercise any function conferred on a court or the Supreme Court by any excluded Corporations legislation provision to which the declaration relates.

(3)  Words and expressions used in this section and also in Part 3 of the Corporations (Ancillary Provisions) Act 2001 have the same meanings as they have in that Part.

(4)  In this section, excluded Corporations legislation provision means any provision of the Corporations legislation that does not apply to associations as a law of the Commonwealth.

97 Modifications to applied provisions

(1)  If a provision of this Act declares a matter to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 (the declaratory provision) in relation to any provisions of the Corporations legislation (the applied provisions), the declaratory provision is taken to specify the following modifications:

(a)  a reference in the applied provisions to the constitution of a company is to be read as a reference to the constitution of an association,

(b)  a cross-reference in the applied provisions to another provision of the Corporations legislation is, if that cross-reference is not appropriate (because for example the provision cross-referred to is not among the applied provisions), to be read as a cross-reference to the equivalent provision of this Act,

(c)  a reference in the applied provisions to the Commonwealth is to be read as a reference to New South Wales,

(d)  any of the applied provisions that are not relevant to associations or which are incapable of application to associations are to be ignored,

(e)  modifications directed by the Secretary under subsection (2).

(2)  The Secretary may, by order published in the Gazette, give directions as to the modifications that are necessary or desirable for the effectual operation of applied provisions.

Part 10 Miscellaneous

98 Register of Incorporated Associations

(1)  The Secretary is to keep a Register of Incorporated Associations in such form, and containing such particulars, as the Secretary thinks fit.

(2)  On payment of the fee prescribed by the regulations, a person is entitled:

(a)  to inspect any document that has been lodged with the Secretary under this Act, not being a document that has been destroyed or otherwise disposed of, and

(b)  to be given a copy (including a copy certified by the Secretary) of, or an extract (including an extract certified by the Secretary) from, any such document.

99 Power of Secretary to refuse to register or reject documents

(1)  The Secretary may refuse to register or may reject a document submitted to the Secretary if the Secretary considers the document:

(a)  contains matter contrary to law, or

(b)  contains matter that is false or misleading in a material particular in the form or context in which it is included, or

(c)  because of an omission or misdescription, has not been properly completed, or

(d)  does not comply with the requirements of this Act, or

(e)  contains an error, alteration or erasure, or

(f)  has been submitted by electronic transmission in a form that is not readily or satisfactorily accessible by the Secretary.

(2)  If the Secretary refuses to register or rejects a document under subsection (1), the Secretary may ask that:

(a)  the document be appropriately altered, or

(b)  a fresh document be submitted in its place, or

(c)  if the document has not been properly completed—a supplementary document in the approved form be submitted.

100 Evidentiary certificates

A certificate issued by the Secretary to the effect that:

(a)  a specified association was or was not, on a specified date or during a specified period, registered under this Act, or

(b)  an association was or was not, on a specified date or during a specified period, registered under this Act by a name so specified, or

(c)  a requirement of this Act specified in the certificate had or had not been complied with by a specified date or within a specified period, or

(d)  a specified address was or was not, on a specified date or during a specified period, the official address of a specified association, or

(e)  the constitution of a specified association was or was not, on a specified date or during a specified period, in terms so specified,

is evidence of the matter or matters so certified.

101 Service of documents

(1)  A document that is authorised or required by this Act or the regulations to be served on an association may be served by any of the following methods:

(a)  by personal delivery to the address specified by the association for the service of documents of that kind,

(b)  by post to the address specified by the association for the service of documents of that kind,

(c)  by personal delivery to the association’s public officer or to each of 2 committee members of the association,

(d)  by post to the registered office or any other office of the association or by leaving it at any such office with a person apparently over the age of 16 years,

(e)  by email to an email address specified by the association for the service of documents of that kind,

(f)  by any other method authorised by the regulations for the service of documents of that kind,

(g)  in such other manner as the Secretary may in the special circumstances of the case direct.

(2)  As soon as practicable after a document addressed to an association is received by a person who is, or has at any time within the past 12 months been, the association’s public officer or a committee member of the association, the person must bring the document to the attention of the committee of the association.

Maximum penalty: 1 penalty unit.

(3)  Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on an association by any other method.

(4)  In this section, serve includes give or send.

s 101: Am 2018 No 65, Sch 7.2 [1] [2].

102 Authorised officers

The Secretary may appoint any member of staff of the Department as an authorised officer for the purposes of this Act.

103 Exclusion of personal liability

Anything done or omitted to be done:

(a)  by the Secretary, or a person acting under the direction of the Secretary, or

(b)  by an authorised officer,

does not subject the Secretary, person so acting or authorised officer personally to any action, liability, claim or demand if the thing was done, or omitted to be done, in good faith for the purpose of executing this Act.

104 Review of decisions of Secretary

(1)  An association may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of:

(a)  any decision by the Secretary under section 7, 12, 16, 74 or 79 to refuse an association’s application, or

(b)  any direction given to the association by the Secretary under section 11 or 73, or

(c)  any cancellation of the association’s registration by the Secretary under section 76, or

(d)  any decision of the Secretary to give a certificate under section 61A.

(2)  Section 53 of the Administrative Decisions Review Act 1997 does not apply to the cancellation of an association’s registration or the giving of a certificate under section 61A.

(3)  A person aggrieved by a decision made by the Secretary to appoint an administrator under section 54 or 55 may apply to the Supreme Court for a review of the decision.

s 104: Am 2013 No 95, Sch 2.11 [2] [3]; 2016 No 1, Sch 1 [25] [26].

105 Waiver, remittal and postponement of fees

The Secretary may waive, remit or postpone payment of the whole or any part of a fee payable under this Act.

106 Delegation of Secretary’s functions

(1)  The Secretary may delegate any of the Secretary’s functions under this Act, other than this power of delegation.

(2)  Subject to the terms of the delegation, a person to whom a function has been delegated under subsection (1) may authorise another person to perform the function so delegated.

106A Exchange of information

(1)  The Secretary may enter into an arrangement (an information sharing arrangement) with a relevant agency for the purposes of sharing or exchanging information held by the Secretary and the relevant agency.

(2)  The information to which an information sharing arrangement may relate is limited to information that is reasonably necessary to:

(a)  assist in the exercise of the functions of the Secretary, or

(b)  assist in the exercise of any functions of the relevant agency in connection with an association or any class of associations.

(3)  Under an information sharing arrangement, the Secretary and the relevant agency are, despite any other Act or law of the State, authorised:

(a)  to request and receive information held by the other party to the arrangement, and

(b)  to disclose information to the other party,

but only to the extent that the information is reasonably necessary to assist in the functions of the Secretary or the relevant agency concerned.

(4)  This section does not:

(a)  limit the functions that may be exercised by the Secretary, or

(b)  require the Secretary to provide information to a relevant agency only in accordance with an information sharing arrangement where that information can otherwise be lawfully provided, or

(c)  limit the operation of any other Act or law under which a relevant agency is authorised or required to disclose information to another person or body.

(5)  In this section:

relevant agency means:

(a)  an agency of the State, or of the Commonwealth or another State or a Territory, that exercises functions under an enactment with respect to associations registered under this Act or a corresponding law, or

(b)  a person or body prescribed by the regulations.

s 106A: Ins 2018 No 65, Sch 11.1 [2].

107 Regulations

(1)  The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, for or with respect to the following matters:

(a)  the form and content of a model constitution,

(b)  the manner and form in which an application to the Secretary for an extension of time under section 37 (2) (b) is to be made,

(c)  any fees to be paid in connection with the administration of this Act (including fees for lodgment of documents under this Act and additional fees for late lodgment of documents or late payment of fees),

(d)  the exemption by the Secretary of any association, or class of associations, from the requirements of this Act in relation to the preparation and auditing of financial statements,

(e)  the books, documents and other records that must be kept by associations.

(2)  A model constitution must address each of the matters referred to in Schedule 1, and may deal with any other matters.

(3)  A provision of a regulation may impose a penalty not exceeding 2 penalty units for any offence against the provision.

s 107: Am 2016 No 1, Sch 1 [27].

108 (Repealed)

s 108: Rep 1987 No 15, sec 30C.

109 Review of Act

(1)  The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.

(2)  The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.

(3)  A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.

Schedule 1 Matters to be addressed in association’s constitution

(Sections 6, 10 and 107)

1 Membership qualifications

The qualifications (if any) for membership of the association.

2 Register of members

The register of the association’s members.

3 Fees, subscriptions etc

The entrance fees, subscriptions and other amounts (if any) to be paid by the association’s members.

4 Members’ liabilities

The liability (if any) of the association’s members to contribute towards the payment of the debts and liabilities of the association or the costs, charges and expenses of the winding up of the association.

5 Disciplining of members

The procedure (if any) for the disciplining of the association’s members and the mechanism (if any) for appeals by members in respect of disciplinary action taken against them.

6 Internal disputes

The mechanism for the resolution of disputes between members (in their capacity as members) and between members and the association.

7 Committee

The composition and functions of the committee, including:

(a)  the election or appointment of the committee members, and

(b)  the terms of office of the committee members, and

(b1)  the maximum number of consecutive terms of office of any office-bearers on the committee, and

(c)  the grounds on which, or reasons for which, the office of a committee member is to become vacant, and

(d)  the filling of casual vacancies occurring on the committee, and

(e)  the quorum and procedure at meetings of the committee.

8 Calling of general meetings

The intervals between general meetings of the association’s members and the manner of calling general meetings.

9 Notice of general meetings

The time within which, and the manner in which, notices of general meetings and notices of motion are to be given, published or circulated.

10 Procedure at general meetings

The quorum and procedure at general meetings of the association’s members, and whether members are entitled to vote by proxy at general meetings.

11 Postal and electronic ballots

The kinds of resolution that may be voted on by means of a postal or electronic ballot.

12 Sources of funds

The sources from which the funds of the association are to be or may be derived.

13 Management of funds

The manner in which the funds of the association are to be managed and, in particular, the mode of drawing and signing cheques on behalf of the association.

14 Custody of books etc

The custody of books, documents and securities of the association.

15 Inspection of books etc

The inspection by the association’s members of books and documents of the association.

16 Financial year

The association’s financial year.

17 Winding up

The winding up of the association.

sch 1: Am 2016 No 1, Sch 1 [28]–[31].

Schedule 2 Provisions relating to association’s assets, rights and liabilities

(Section 8)

1 Definitions

In this Schedule:

assets of a former body include assets held for or on behalf of the body or its members (in their capacity as members) and assets held for the objects of the body.

former body, in relation to an association, means:

(a)  an unincorporated body that has been incorporated as a consequence of its registration under this Act, or

(b)  each of 2 or more associations that have amalgamated to form the association.

2 Transfer of assets, rights and liabilities etc

(1)  On an association’s incorporation under this Act, the following provisions have effect:

(a)  the assets of the former body vest in the association by virtue of this clause and without the need for any conveyance, transfer, assignment or assurance,

(b)  the rights and liabilities of the former body become by virtue of this clause the rights and liabilities of the association,

(c)  all proceedings relating to the assets, rights and liabilities of the former body that were commenced by or against the former body and still pending are taken to be proceedings by or against the association,

(d)  any act, matter or thing in relation to the assets, rights and liabilities of the former body that was done or omitted to be done by, to or in respect of the former body is taken to have been done or omitted by, to or in respect of the association,

(e)  subject to the regulations, any reference in any instrument, or in any document of any kind, to the former body or a predecessor of the former body is, to the extent to which it relates to the assets, rights or liabilities of the former body, to be read as, or as including, a reference to the association.

(2)  Assets that vest in an association by operation of this clause are not to be dealt with contrary to the provisions of any trust affecting them immediately before the association’s incorporation under this Act, being provisions as to the purposes for which the assets may or must be applied.

(3)  The operation of this clause is not to be regarded:

(a)  as a breach of contract or confidence or otherwise as a civil wrong, or

(b)  as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or

(c)  as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability.

(4)  The operation of this clause is not to be regarded as an event of default under any contract or other agreement.

3 Certificate evidence

(1)  A certificate that is issued by the public officer of an association, that is in the approved form, that is verified by statutory declaration and that states that, immediately before the association’s incorporation under this Act:

(a)  specified property was vested in a specified former body, or

(b)  specified property was held by a person for or on behalf of a specified body or its members (in their capacity as members) or for its objects,

is evidence of the matters so stated.

(2)  A certificate that is issued by the Secretary and that states that a specified body is a former body in relation to a specified association is evidence of the matter so stated.

4 Attornment not necessary

No attornment to an association by any lessee of land vested in the association by operation of this Schedule is necessary.

5 Stamp duty etc

(1)  A document or an instrument executed or registered solely:

(a)  for a purpose ancillary to, or consequential on, the operation of this Schedule, or

(b)  for the purpose of giving effect to this Schedule,

is not liable to duty under the Duties Act 1997 or to any fee or charge payable under any Act for registration.

(2)  A dutiable transaction within the meaning of the Duties Act 1997 that is not in writing and that occurs solely:

(a)  for a purpose ancillary to, or consequential on, the operation of this Schedule, or

(b)  for the purpose of giving effect to this Schedule,

is not liable to duty under the Duties Act 1997.

Schedule 3 (Repealed)

sch 3: Rep 1987 No 15, sec 30C.

Schedule 4 Savings, transitional and other provisions

Part 1 Savings and transitional regulations

1 Savings and transitional regulations

(1)  The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act.

(2)  Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.

(3)  To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as:

(a)  to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

(b)  to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

Part 2 Provisions consequent on enactment of this Act

2 Definitions

In this Part:

former association means an association whose incorporation under the 1984 Act was in force immediately before the commencement of this Act.

the 1984 Act means the Associations Incorporation Act 1984, as in force immediately before its repeal by this Act.

3 Continuation of registration of existing associations

(1)  A former association is taken to have been registered under this Act.

(2)  The body corporate that arises from the registration of a former association under this Act is a continuation of, and the same legal entity as, the former association.

4 Rules of existing associations

(1)  The rules of a former association are taken to be its constitution under this Act and, until the former association changes them under this Act, are taken to comply with the requirements of this Act.

(2)  To the extent to which a former association adopted the model rules established under the 1984 Act, and until it changes its rules under this Act, those model rules continue in force in relation to that association.

5 Association members

Subject to the former association’s rules, a person who was a member of a former association, or a member of a former association’s committee, continues to be such a member.

6 Reservation of names

Any name that, immediately before the commencement of Division 3 of Part 2, was reserved under the 1984 Act is taken to have been reserved under this Act.

7 Continuation of register

The register kept under section 59 of the 1984 Act is taken to be the Register of Incorporated Associations under this Act.

8 Continuation of certain certificates

A certificate issued under section 62 of the 1984 Act has the same evidentiary effect as a certificate issued under section 100 of this Act.

9 Continuation of certain appeals

An appeal made under section 72 of the 1984 Act is to be heard and determined as if this Act had not been enacted, but the decision on the appeal is to be given effect to as if it were a decision on an application under section 104 of this Act.

10 Construction of other references

Subject to this Schedule and the regulations, in any Act or instrument:

(a)  a reference to a provision of the 1984 Act for which there is a corresponding provision in this Act extends to the corresponding provision of this Act, and

(b)  a reference to any act, matter or thing referred to in a provision of the 1984 Act for which there is a corresponding provision in this Act extends to the corresponding act, matter or thing referred to in the corresponding provision of this Act.

11 General saving

Subject to this Schedule and the regulations:

(a)  anything begun before the commencement of this Act under a provision of the 1984 Act for which there is a corresponding provision in this Act may be continued and completed under the 1984 Act as if this Act had not been enacted, and

(b)  subject to paragraph (a), anything done under a provision of the 1984 Act for which there is a corresponding provision in this Act (including anything arising under paragraph (a)) is taken to have been done under the corresponding provision of this Act.

Part 3 Provision consequent on enactment of Associations Incorporation Amendment (Review) Act 2016

12 Associations’ constitutions

Section 25, as substituted by the Associations Incorporation Amendment (Review) Act 2016, extends to the constitution of an association registered before the commencement of that substitution.

Part 4 Provision consequent on enactment of Fair Trading Legislation Amendment (Reform) Act 2018

13 Exemptions from Part 5 granted by order of Secretary

An order made under section 53, as in force immediately before the substitution of that section by the Fair Trading Legislation Amendment (Reform) Act 2018, continues to have effect until it expires or is revoked by the Secretary by order published on the NSW legislation website.

sch 4: Am 2016 No 1, Sch 1 [32] [33]; 2018 No 65, Sch 11.1 [3].