What are the changes to the Associations Incorporation Act?
The main changes implemented by the Act are:
Public officer
The role of the 'public officer' and the 'secretary' will be merged, and replaced simply with 'Secretary'. As this change requires changes to the rules of an incorporated association, existing groups are not required to make this change until a later date (yet to be determined).
Unless an earlier date is specified, this change will come into operation on 1 July 2012.
Meeting minutes
The rules of an incorporated association will now be required to cover a number of new matters in relation to the keeping of, and access to, minutes of meetings. All incorporated associations will need to have rules which:
- require that accurate minutes of all general and committee meetings must be prepared and kept;
- provide members with access to the minutes of the general meetings of the incorporated association (including accounting records and financial statements); and
- clarify whether or not members can have access to the minutes of meetings of the committee of management of the incorporated association (and, if so, the terms and conditions on which such minutes are to be made available).
As this change requires changes to the rules of an incorporated association, existing groups are not required to make this change until a later date (yet to be determined). Unless an earlier date is specified, this change will come into operation on 1 July 2012.
Requirement to return documents of an incorporated association
All office-holders, former office-holders or members of an incorporated association are now required to return any documents belonging to an incorporated association within 28 days if they cease to hold office or be members of the organisation.
A failure to return documents within the 28 day timeframe allows the assocaition to apply to the Magistrates' Court to ensure performance.
This amendment is now in force.
Special resolutions
A notice of a proposed special resolution will have to set out the full details of the proposed special resolution and must be provided to members at least 21 days in advance. The notice will also have to make it clear that the resolution is being proposed as a special resolution.
This amendment is now in force.
Documents provided to Registrar
The Registrar of Incorporated Associations at Consumer Affairs Victoria ('the Registrar') now has the power to refuse to receive any document submitted by an incorporated association if the Registrar believes the document is not a valid document of the incorporated association. The Registrar can make inquires to determine whether a document is legally valid.
Also, if an incorporated association submits a special resolution for alteration of its rules to the Registrar (under the section 22 of the Act), the Registrar now has the power to accept some, but not all, of the proposed alterations.
These amendments are now in force.
Statutory management
The Registrar can investigate the affairs of an incorporated association, including its functioning and financial condition. Where, following such an investigation, the Registrar considers it in the interests of the incorporated association's members, creditors or the public, the Registrar can apply to the Victorian Magistrates' Court for the appointment of a 'statutory manager' to conduct the affairs of an incorporated association.
If a statutory manager is appointed, all members of the committee of management (or governing body) of the incorporated association will immediately cease to hold office. A statutory manager will have a range of powers to deal with the affairs of the incorporated association.
These amendments are now in force.
Magistrates' Court actions
There are a number of new actions that can be taken to the Magistrates' Court of Victoria in relation to incorporated associations, including:
- the Registrar can apply to the Magistrates' Court for an order restraining the incorporated association from doing an act that is outside the association's statement of purposes, if the Registrar is satisfied it is in the 'public interest' to do so;
- a member (or, in more limited cases, a former member) of an incorporated association can apply directly to the Magistrates' Court for an order preventing an incorporated association from engaging in oppressive conduct. 'Oppressive conduct' is defined as conduct that is unfairly prejudicial to, or unfairly discriminatory against, a member of an incorporated association or is contrary to the interests of the members of the incorporated association as a whole.
The Victorian Magistrates' Court now has a new power to refer matters involving incorporated associations, which raise certain questions of law, to the Victorian Supreme Court for determination.
These amendments are now in force.
Voluntary cancellation of registration and voluntary administration
Small incorporated associations which have less than $10,000 assets (and meet other requirements) will now be allowed to apply to the Registrar for voluntary cancellation of the registration of the association.
The voluntary administration provisions of the Commonwealth Corporations Act 2001 (Cth) will now apply to Victorian incorporated associations.
These amendments are now in force.
Auditor removal
An auditor of an incorporated association can now be removed from office by a resolution of members at a general meeting. Notice of the proposed resolution must be given to members at least 2 months in advance of the meeting and copies must be provided to both the auditor and the Registrar as soon as possible.
This amendment is now in force.
Surplus assets on winding up
A new provision now prevents the surplus assets of an incorporated association from being distributed to members on voluntary winding up, unless the 'member' is a body corporate (like an association or a trust) which itself cannot distribute assets to its members.
If an existing incorporated associations currently has a rule which permits distribution to members on voluntary winding up, this rule will continue to be valid so long as it was made before 7 April 2009.
Other
There are also a number of minor and consequential changes to existing provisions in the Act. Please contact PilchConnect if you wish to discuss these changes in greater detail.
What do the changes mean for our community organisation ?
The changes will only affect Victorian community organisations that are incorporated associations. The changes that are listed above as being immediately in force will mean that you organisation will now have to adhere to the new procedures.
Those amendments that require changes to an organisation's rules will not come into force until a later date (yet to be determined), which will probably be 1 July 2012.
Consumer Affairs Victoria (CAV) will publish a new set of 'model rules' which will include:
- new rules to provide for:
- the preparation and retention of accurate minutes;
- member access to the minutes of general meetings of the incorporated association; and
- whether or not members can access the minutes of committee of management meetings (and the conditions on which such access is to be provided); and
- changes to rules that refer to 'public officer' so that they refer to the 'secretary'; and
- other consequential changes to the rules.
Once CAV change the model rules, the Associations Incorporation Act provides that incorporated associations are deemed (automatically) to have any new model rules, as part of their association's rules. However, some incorporated associations may need to or want to alter their rules as a result of the proposed changes.
PilchConnect will produce further legal information fact sheets on these requirements prior to the changes coming into force.