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I want to incorporate a new association. A group of five or more people may authorise a person 18 years or over who resides in the A.C.T. to apply to incorporate an association. The application must be made using an Application to Incorporate an Association and be accompanied by the prescribed fee .
The application must be signed by the authorised person and must indicate:
the proposed name of the association;
the name and address of the applicant;
the name and address of the inaugural public officer;
the names and addresses of all inaugural committee members;
the address and opening hours of the association’s registered office if any;
the association's intended objects and purposes;
whether the name has been previously reserved;
whether or not the model rules are to apply to the association, otherwise a copy of the rules must be attached to the application; and,
whether any deeds or trusts apply to the association, in which case a copy of the deed or other instrument must be attached to the application.
If any of the above information is missing from an application the Office of Regulatory Services will refuse to incorporate the association and return the application for completion.
Why incorporate a new association? There is no requirement for an organisation or association to incorporate. An association incorporated under the Act is a body corporate with perpetual succession that is capable of performing all the functions of a body corporate. It has powers to acquire, hold and dispose of real and personal property and is capable of suing and being sued in its own name.
Incorporation creates a legal entity that is separate and distinct from that of the individual members. This is important because incorporation distinguishes the liability of an association from that of its members.
In effect, incorporation under the Act provides a relatively inexpensive means for a group to acquire legal status as a corporate entity.
If you are unsure about incorporation and its application to your circumstance, it is recommended that you seek independent legal advice.
What do I need to report to Government? There are a number of reporting obligations for incorporated associations:
Annual Returns - An incorporated association must lodge an Annual Return form with the Office of Regulatory Services along with the prescribed fee where applicable. The information that an association needs to lodge in the annual return is:
an audited statement of the association's accounts;
a copy of the auditor's report in relation to those accounts; and,
a completed annual return form.
Two current members of the committee and the public officer must sign the form. This certifies that the association has complied with the provisions of the Act. The committee of the association is responsible for ensuring that annual returns are lodged with the Office of Regulatory Services within six months of the end of the most recently ended financial year. Committee members may be prosecuted if they do not take all reasonable steps to ensure the association complies with the Act. If annual returns are not lodged for two consecutive years, the Office of Regulatory Services may cancel the association’s incorporation and seize the assets of the association.
Changes of Committee – Whenever any changes to the committee occur or a committee member changes their address the association must lodge a Change of Committee Particulars form with the Office of Regulatory Services along with the prescribed fee where applicable. The association must ensure a change of committee is lodged with the Office of Regulatory Services within one month of the change occurring.
Change of Public Officer – Whenever a change of public officer or their address occurs, the association must lodge a Change of Public Officer Particulars form with the Office of Regulatory Services along with the prescribed fee where applicable. The association must ensure a change of public officer is lodged with the Office of Regulatory Services within one month of the change occurring.
Change of Registered Office – Whenever an association opens a registered office, changes the address of the registered office, or changes the opening hours of the registered office, the association must lodge a Change of Registered Office Particulars form with the Office of Regulatory Services along with the prescribed fee where applicable. The association must ensure a change of registered office is lodged with the Office of Regulatory Services within seven days of the change occurring.
Changes of Objects or Rules – Whenever the association resolves by special resolution to alter the objects or rules the association must lodge a Change of Rules or Objects of Association form with the Office of Regulatory Services along with the prescribed fee where applicable. The information that an association needs to lodge along with the change of rules or objects of association is:
a written statement of the specific changes;
a fully updated copy of the association’s objects and purposes;
a fully updated copy of the association’s rules, unless the association is adopting the model rules; and,
a completed Association Constitution/Rules Checklist.
Two current members of the committee must sign the form. This certifies that the association all changes to the objects or rules have been passed by special resolution and the provisions of the Act have been complied with. The committee of the association is responsible for ensuring that changes of objects or rules are lodged with the Office of Regulatory Services within one month of the special resolution being passed. Alterations to rules or objects are of no effect until the change of rules or objects of association has been lodged and accepted by the Office of Regulatory Services.
What are the committee member's responsibilities? The committee of the association is responsible for managing the affairs of the association. Committee members are responsible for the conduct of the association and are accountable for their actions to the members. For this reason committee members are encouraged to become familiar with the Act, the Regulation, the association’s rules and the Incorporated Associations Practice Manual.
If the association, public officer or a committee member fails to meet their obligations under the Act, the Registrar-General may make an application to the A.C.T. Civil and Administrative Tribunal (ACAT) for the disqualification of the office holder. The disqualification will be for a period the ACAT considers appropriate if satisfied that the extent of non-compliance justifies disqualification.
What is required if an incorporated association holds a gaming machine licence? From 1 July 2012 if an incorporated association holds a gaming machine licence under the Gaming Machine Act 2004 it will be a condition of the licence that the association's constitution be consistent with A.C.T. gaming laws. This includes ensuring the constitution/rules contains a provision that enables the constitution/rules to be amended, without a vote by members, where the association has been directed by the A.C.T. Gambling and Racing Commission (the Commission) to address an inconsistency with A.C.T. gaming laws.
To assist associations with this requirement, the Commission has developed a model clause to this effect that can be inserted into the constitution/rules stating:
The committee/board of directors shall have the power to amend the constitution if directed to do so by the A.C.T Gambling and Racing Commission under section 148B of the Gaming Machine Act 2004 , without the formal consideration of the voting members of the association. Members must be advised of any change to the constitution/rules made under this provision within one month of the change being made.
The Commission must be consulted on any proposed changes (including the insertion of the above clause) to the association's constitution/rules for the purpose of consistency with A.C.T. gaming laws. Once approved by the Commission, the association must hold a special resolution to accept the proposed amendments. Please refer to the Associations Practice Manual for requirements concerning special resolutions.
Once the amendments have been passed, the association must notify the Office of Regulatory Services using the Change of Rules or Objects of Association form. Please also note that changes to a constitution/rules have no effect until they have been accepted for lodgment by the Office of Regulatory Services.
We want to cancel our incorporated association. An incorporated association may, by special resolution, voluntarily wind up. The Office of Regulatory Services in unable to provide advice on procedures to wind up an incorporated association’s affairs, however it may be more appropriate for the association’s incorporation to be cancelled.
The Registrar-General may cancel an association’s incorporation where there are grounds for believing that the association:
is no longer in operation;
has fewer that five members;
was incorporated as a result of fraud or mistake;
has not within the last three years convened an annual general meeting; or,
has not within the last two years lodged an annual return.
Incorporated associations that wish to cancel the incorporation, and are in one of the categories above, should contact the Office of Regulatory Services for further information. Where the incorporation is cancelled all association assets are taken to vest in the Registrar-General.
I have a complaint about an association. The Office of Regulatory Services has the power to investigate the affairs of an incorporated association if there are reasonable grounds for believing that an offence under the Act has been committed. However, this power does not extend to internal disputes within an association or breaches of its rules. Please note that, in practice, a set of an association's rules are often called the association's 'constitution'.
Most common offences that are investigated include:
the association not making its register of members available to members (section 67 of the Act);
members taking office when disqualified (section 63 of the Act);
failure of a committee member to disclose any interest in regard to a contract the association may be considering or has signed (section 65 of the Act);
failure to conduct an annual general meeting within five months of the end of the association's financial year (section 69 of the Act);
failure to ensure proper accounting records are kept (section 71 of the Act);
failure to submit financial statements to its members at an annual general meeting (section 73 of the Act);
failure to lodge annual returns with the Registrar-General (section 79 of the Act);
failure to notify the Registrar-General of a change in public officer or committee member (sections 59 &62 of the Act); and,
failure to appoint a new public officer within 14 days of the previous one retiring from office (section 64 of the Act).
The Office of Regulatory Services will consider whether an investigation should occur, and the manner the investigation will take, on a case by case basis. The response by the Office of Regulatory Services may be as simple as writing to the association or involve a more complex investigation.
A complaint made to the Office of Regulatory Services should be provided in writing and include any evidence that you have to support your allegations.
Complaints will generally not be investigated where the Office of Regulatory Services forms a view that:
the complaint is frivolous or vexatious;
insufficient information was provided;
the matter would be more appropriately investiagetd by another body such as the Police; or,
there is no evidence to support the allegation of a breach of the Act.
The Office of Regulatory Services will inform you if your complaint is not going to be investigated. Should the Office of Regulatory Services begin an investigation, you may contact the office to ask about the progress of your complaint.
I want to complain about my committee. The Act does not give the Office of Regulatory services any powers in the resolution of internal disputes with the committee. Members should attempt to resolve disputes internally, or by either calling a special or general meeting or ultimately through the court system. Prior to taking up matters throught the court system, it is recommended that the members seek legal advice.
Another option is to contact an independent third party alternative dispute resolution specialist. Services such as the Conflict Resolution Service, the Intstitute of Arbitrators and Mediators Australia (IAMA) and Lawyers Engaged in Alternative Dispute Resolution (LEADR) can be invaluable in finding solutions and may prevent the need to take costly court action. Other private mediators may also be found in the Yellow Pages. Please be aware that a fee is usually charged for arbitration and mediation services.
I do not believe that the committee treated me fairly, what should I do? The Act requires that principles of natural justice be applied by an association when adjudicating a dispute among its members or between itself and members.
Usually the association's constitution includes clauses relating to dispute resolution which incorporate principles of natural justice, such as the right to a fair hearing. If you consider your right to natural justice has been denied you should write to the committee outlining your grievance. If the committee still refuses to consider your complaint, the next step is to seek legal advice with a view to commencing an action through the court system.
What do I do if my association is not following its rules as set down in the constitution? The Office of Regulatory Services does not take part in associations' constitutional matters. If you believe your association is in breach of its rules you will need to raise this at a meeting. The Act confers power to the committee and establishes processes for the courts to oversee the application and management of the association's constitution.
I believe the association is acting fraudulently, can the Registrar-General become involved? Matters of fraud and other criminal acts should be reffered to the Australian Federal Police. Neither the Registrar-General nor the Office of Regulatory Services will become involved in the resolution of such issues.
I want to change the association's name, amalgamate two or more associations, or transfer the incorporation. You should contact the Office of Regulatory Services for further information regarding these matters.
What happens if I don't do what the legislation says? Proceedings for offences against the Act may be commenced by the Registrar-General. Offences against the Act may be punishable on summary conviction and attract fines or imprisonment.
I want to find out about a particular association.
If you would like to obtain access to information about a current or historic association, there are a few options available:
Searches and copies of association records attract a fee and include:
current association extract;
historic association extract; and,
copies of documents lodged on the public register such as annual returns, changes of committee etc.
Some information held on the Register is private and can not be released to the general public.
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