1Associations Incorporation Regulations 2023

South Australia Associations Incorporation Regulations 2023 under the Associations Incorporation Act 1985

Contents 1 Short title 2 Commencement 3 Interpretation 4 Definition of prescribed association 5 Forms 6 Accounting records 7 Periodic returns (section 36) 8 Modifications of Commonwealth Act for purposes of Part 5 and section 61 of Act 9 Prescribed particulars for application for deregistration (section 43A) 10 Prescribed commission (section 46) 11 Exception to requirement that name of association be printed etc on documents (section 54) 12 Commission may destroy documents (section 67(2)(d)) 13 Copy of court order to be lodged with Commission 14 Offence to make false or misleading statement Schedule 1—Forms Schedule 2—Repeal of Associations Incorporation Regulations 2008 Legislative history

1—Short title These regulations may be cited as the Associations Incorporation Regulations 2023. 2—Commencement These regulations come into operation on 1 September 2023. 3—Interpretation In these regulations— Act means the Associations Incorporation Act 1985. 4—Definition of prescribed association For the purposes of paragraph (a)(ii) of the definition of prescribed association in section 3(1) of the Act, the amount prescribed is $500 000. 5—Forms (1) The forms set out in Schedule 1 must— (a) be used for the purposes specified in the Schedule; and (b) contain the information required by and be presented and completed in accordance with the instructions contained in the forms. (2) If the space provided in a form is insufficient to contain all the required information— (a) the information must be set out in an annexure to the form; and (b) the annexure must have a distinguishing mark such as a letter or numeral; and (c) the space in the form must contain the statement "See Annexure" together with the distinguishing mark for the annexure, or words to similar effect. 6—Accounting records An association must retain the accounting records kept by it under section 35 or 39C of the Act (as the case requires) for 7 years after the completion of the transactions to which they relate. Maximum penalty: $1 250. 7—Periodic returns (section 36) (1) For the purposes of section 36 of the Act, a prescribed association must lodge with the Commission a periodic return (in the form set out in Schedule 1) within 6 months after the end of each of its financial years. (2) A periodic return must be signed and dated by the public officer of the association. 8—Modifications of Commonwealth Act for purposes of Part 5 and section 61 of Act (1) The provisions of the Corporations Act 2001 of the Commonwealth applied by Part 5 or section 61 of the Act apply with the following modifications, additions and exclusions (in addition to those contained in the Act): (a) a reference to ASIC or the Commission is to be read as a reference to the Corporate Affairs Commission; (b) a reference to the Court is to be read as a reference to the Supreme Court of South Australia; (c) a reference to the Gazette is to be read as a reference to the South Australian Government Gazette; (d) a reference to lodge is to be read as a reference to lodge with the Corporate Affairs Commission; (e) in relation to an incorporated association— (i) a reference to a constitution is to be read as a reference to the rules of the incorporated association; (ii) a reference to a board of directors is to be read as a reference to the committee of the incorporated association; (iii) a reference to a director is to be read as a reference to— (A) a person who occupies or acts in a position of a member of the committee of the incorporated association, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position; or (B) a person in accordance with whose directions or instructions the committee of the incorporated association is accustomed to act; (iv) a reference to an officer is to be read as including a reference to an officer within the meaning of the Act (in addition to the meaning given by paragraphs (c), (d), (e), (f) and (g) of the definition of officer of a corporation in section 9 of the Corporations Act 2001 of the Commonwealth); (v) a reference to a registered office is to be read as a reference to an office of the incorporated association (if any); (f) in respect of Part 5.1 of the Corporations Act 2001 of the Commonwealth— section 411(13)—leave out from paragraph (b) "the registered office of the body" and insert "the office (or the main office if there is more than 1) of the incorporated association or, if the association does not have an office, the address of the public officer of the incorporated association" (g) in respect of Part 5.3A of the Corporations Act 2001 of the Commonwealth— (i) section 446A(2)— (A) leave out from paragraph (a) "section 491" and insert "section 41 of the Associations Incorporation Act 1985" (B) leave out from paragraph (b) "section 494" and insert "section 41C of the Associations Incorporation Act 1985" (ii) section 446A(3)—leave out "is" and insert "and section 41D of the Associations Incorporation Act 1985 are" (iii) section 446B—after subsection (1) insert— (1A) In applying the regulations to an incorporated association— (a) the special resolution will be taken to have been passed under section 41(1)(b) of the Associations Incorporation Act 1985; and (b) a reference to section 494 of the Corporations Act 2001 of the Commonwealth will be taken to be a reference to section 41C of the Associations Incorporation Act 1985; and (c) a reference to section 497 of the Corporations Act 2001 of the Commonwealth will be taken to include a reference to section 41D of the Associations Incorporation Act 1985. (h) in respect of Part 5.4B of the Corporations Act 2001 of the Commonwealth— (i) section 465A—leave out "under section 459P, 462 or 464" wherever occurring and insert in each case "to the Court under section 41 of the Associations Incorporation Act 1985" (ii) section 465B(1)—leave out "section 459P, 462 or 464" and insert "section 41 of the Associations Incorporation Act 1985" (iii) section 465C—leave out "section 459P, 462 or 464" and insert "section 41 of the Associations Incorporation Act 1985" (iv) section 467A— (A) leave out "Part 5.4 or 5.4A" and insert "section 41 of the Associations Incorporation Act 1985" (B) leave out paragraph (b) and insert: (b) in the case of an application for the winding up of an incorporated association on the ground that it is unable to pay its debts—a defect in a demand of a kind referred to in section 41(4)(a) of the Associations Incorporation Act 1985; (v) section 467B—leave out "section 233, 459A, 459B or 461" and insert "section 41 or 61 of the Associations Incorporation Act 1985" (vi) section 472—after subsection (2) insert: (2A) The Court may appoint a person who is not an official liquidator to be liquidator or provisional liquidator of an incorporated association in accordance with section 41(9) of the Associations Incorporation Act 1985. (vii) section 475—leave out (i) in respect of Part 5.5 of the Corporations Act 2001 of the Commonwealth— (i) section 490—leave out (ii) section 491—leave out subsection (1) (iii) section 494—leave out (iv) section 496(1)— (A) leave out "section 494" and insert "section 41C of the Associations Incorporation Act 1985" (B) leave out paragraph (a) and insert— (a) apply to the Supreme Court for the association to be wound up under section 41 of the Associations Incorporation Act 1985 on the ground that the association is unable to pay its debts; (v) section 497—leave out subsection (5) (vi) section 501—leave out (vii) section 507—leave out (j) in respect of Part 5.6 of the Corporations Act 2001 of the Commonwealth— (i) section 513A—leave out "section 233, 459A, 459B or 461" and insert "section 41 or 61 of the Associations Incorporation Act 1985" (ii) section 513D—leave out "section 233, 459A, 459B or 461" and insert "section 41 or 61 of the Associations Incorporation Act 1985" (iii) section 532(1)—after "is a registered liquidator" insert "or is or is to be appointed or nominated for appointment as the liquidator of an incorporated association by the Corporate Affairs Commission under section 41 of the Associations Incorporation Act 1985" (iv) section 532(8)—after "imposed on the person" insert "or is not appointed or nominated for appointment as the liquidator of an incorporated association by the Corporate Affairs Commission under section 41 of the Associations Incorporation Act 1985" (v) section 533(1)(d)—leave out "for an examination or order under section 597" and insert "to the Supreme Court under section 62 of the Associations Incorporation Act 1985" (vi) section 534(1)—after "the liquidator may" insert "(if they have the consent of the Minister under section 62E(6) of the Associations Incorporation Act 1985)" (vii) section 544(1)—leave out "to be dealt with under Part 9.7" (viii) section 544—leave out subsection (1A) (ix) section 544(2)—leave out "to be dealt with under Part 9.7" (x) section 544—after subsection (4) insert: (4A) If money paid to the Corporate Affairs Commission under this section remains unclaimed or undistributed, the Commission may pay it to the Treasurer for payment into the Consolidated Account. (4B) A person making a claim in respect of any money paid to the Treasurer under subsection (4A) may apply to the Supreme Court for an order of payment of an amount to the person and the Court, if satisfied that an amount should be paid to the person, must make an order for the payment accordingly. (4C) On the making of an order under subsection (4B) for payment of an amount to a person, or where the Treasurer is otherwise of the opinion that an amount should be paid to a person out of the money paid to the Treasurer under this section, the Treasurer must pay that amount to the person out of money lawfully available for that purpose. (k) in respect of Part 5.7B of the Corporations Act 2001 of the Commonwealth— (i) section 588E(1)—leave out paragraphs (aa), (ab), (e), (ea) and (f) of the definition of "recovery proceeding" (ii) section 588E(4)—leave out paragraphs (a) and (b) and insert: (a) has failed to keep accounting records in relation to a period as required by section 35(1) or 39C(1) of the Associations Incorporation Act 1985; or (b) has failed to retain accounting records in relation to a period for the 7 years required by regulation 6 of the Associations Incorporation Regulations 2023; (iii) section 588E(5)—leave out "subsection 286(1)" and insert "section 35(1) or 39C(1) of the Associations Incorporation Act 1985" (iv) section 588E(6)— (A) leave out "subsection 286(2)" and insert "regulation 6 of the Associations Incorporation Regulations 2023" (B) leave out "financial" wherever occurring and insert in each case "accounting" (v) section 588E(8)—leave out paragraphs (aa), (d), (da) and (e) (vi) section 588GB(2)(b)—leave out "475(1)," (vii) section 588GB(5)—leave out "475(1)," (l) in respect of Part 5A.1 of the Corporations Act 2001 of the Commonwealth— (i) section 601AA—leave out (ii) section 601AB—leave out (iii) section 601AC—after subsection (1) insert: (2) An incorporated association is dissolved on deregistration under this section. (iv) section 601AD—leave out and insert: 601AD—Requirement to keep books following deregistration The persons who were members of the committee of an incorporated association immediately before deregistration or cancellation of incorporation of the association must keep the association's books for 3 years after the deregistration or cancellation. (v) section 601AE—leave out (vi) section 601AF—leave out (2) When provisions of the Corporations Act 2001 of the Commonwealth are applied in relation to an incorporated association, the provisions (together with the provisions of any regulation or rule for the time being in force under the provisions) are to be interpreted according to the definitions of words and expressions and other interpretative provisions contained in the Corporations Act 2001 of the Commonwealth, except where a contrary intention is expressed in the Act or these regulations. 9—Prescribed particulars for application for deregistration (section 43A) For the purposes of section 43A(7) of the Act, the following particulars are prescribed: (a) the name of the incorporated association; (b) the date of the application for deregistration of the incorporated association. 10—Prescribed commission (section 46) For the purposes of section 46(3) of the Act, the prescribed commission is 5%. 11—Exception to requirement that name of association be printed etc on documents (section 54) For the purposes of section 54 of the Act, a chit or ticket evidencing the receipt by an association of an amount not exceeding $10 is prescribed as a receipt or document to which that section does not apply. 12—Commission may destroy documents (section 67(2)(d)) (1) The Commission is authorised to destroy any of the following documents lodged with the Commission: (a) any periodic return, and any annexure to that return, that has been lodged for not less than 7 years; (b) any document (other than rules and any amendment to rules) that has been lodged or registered for not less than 10 years; (c) any document in the custody of the Commission relating to an association, or to an association that is to be taken to have been, incorporated under the repealed Act where the association has been dissolved or had its incorporation cancelled for not less than 10 years. (2) In this regulation— document includes a reference to a transparency of a document produced by photographic or electronic means. 13—Copy of court order to be lodged with Commission An incorporated association must, within 7 days of becoming aware of the making by a court of an order under the Act in relation to the association, lodge a copy of the order with the Commission. Maximum penalty: $1 250. 14—Offence to make false or misleading statement A person must not, in a document lodged with the Commission for the purposes of the Act— (a) make a statement that is, to the person's knowledge, false or misleading; or (b) omit or authorise the omission from any such document a particular which is, to the person's knowledge, a material particular. Maximum penalty: $1 250. Schedule 1—Forms Application for incorporation of an association—Associations Incorporation Act 1985 section 19 1—Details of applicant Full name: Residential address: Phone: Email (optional): 2—Name of association to be incorporated Full name of association: 3—Purpose of association The purpose of the association is [insert brief description eg educational, for conserving resources]. The association is considered to be eligible for incorporation under section 18(1) [specify paragraph] of the Associations Incorporation Act 1985. 4—Financial year of association The financial year of the association ends on [insert end date of financial year as set out in proposed rules]. 5—Place at which books of association to be kept The books of the association will be kept at [insert details of location]. 6—Details of public officer of association The following person has attained 18 years of age, is a resident of South Australia and has consented to be the public officer of the association: Full name: Occupation: Residential address: Postal address: Phone: Email: 7—Rules of association Information about how the matters required by section 23A of the Associations Incorporation Act 1985 are provided for in the proposed rules of the association must be included by way of an attachment in the form required by the regulations under the Act. The application must be signed and dated by the applicant and, if the applicant is not the person who has consented to be the public officer of the association, by that person. The name of a person signing must be written legibly under or alongside the signature of that person. Additional requirements The documents required to accompany this form must be marked as follows: "A"—copy of the rules of the association "B"—copy of any instrument creating or establishing a trust— • which is referred to in the rules of the association; or • on which any rule of the association relies for its operation or copy of the settled draft of any instrument prepared for the creation or establishment of a trust of which the association is intended to be the trustee— • where the contemplated trust is referred to in the rules of the association; or • where any rule of the association relies on the contemplated trust for its operation. If there is more than 1 such instrument, the instruments must be marked "B1", "B2" and so on. Each of the marked documents must comply with the following: • the document must be marked with— • the name and registered number of the incorporated association to which it relates; and • a title that describes its contents; and • the name, address and telephone number of the person to be contacted about the application. Application for amalgamation of incorporated associations—Associations Incorporation Act 1985 section 22 1—Details of associations and public officers Association 1: Full name of association: Registration number of association: Public officer of association Full name: Residential address: Phone: Email: Association 2: Full name of association: Registration number of association: Public officer of association Full name: Residential address: Phone: Email: 2—Name of association to be formed on amalgamation Full name of association to be formed on amalgamation: 3—Purpose of association to be formed on amalgamation The purpose of the association to be formed on amalgamation is [insert brief description eg educational, for conserving resources]. The association is considered to be eligible for incorporation under section 18(1) [specify paragraph] of the Associations Incorporation Act 1985. 4—Financial year of association to be formed on amalgamation The financial year of the association to be formed on amalgamation ends on [insert end date of financial year as set out in proposed rules]. 5—Place at which books of association to be formed on amalgamation will be kept The books of the association to be formed on amalgamation will be kept at [insert details of location]. 6—Details of public officer of association to be formed on amalgamation The following person has attained 18 years of age, is a resident of South Australia and has consented to be the public officer of the association to be formed on amalgamation: Full name: Occupation: Residential address: Postal address: Phone number: Email: 7—Rules of association to be formed on amalgamation Information about how the matters required by section 23A of the Associations Incorporation Act 1985 are provided for in the proposed rules of the association to be formed on amalgamation must be included by way of an attachment in the form required by the regulations under the Act. The application must be dated and signed on behalf of each of the associations and by the public officer of the association to be formed on amalgamation. The name of a person signing must be written legibly under or alongside the signature of that person. Additional requirements The certificates of incorporation of each of the associations proposed to be amalgamated must accompany this application. Other documents required to accompany this application must be marked as follows: "A"—copy of the special resolution passed by association 1 supporting the amalgamation "B"—copy of the special resolution passed by association 2 supporting the amalgamation "C"—copy of the rules of the association proposed to be formed by the amalgamation "D"—copy of any instrument creating or establishing a trust— • which is referred to in the rules of the association proposed to be formed by the amalgamation; or • on which any rule of the association proposed to be formed by the amalgamation relies for its operation or copy of the settled draft of any instrument prepared for the creation or establishment of a trust of which the association proposed to be formed by the amalgamation is intended to be the trustee— • where the contemplated trust is referred to in the rules of the association proposed to be formed by the amalgamation; or • where any rule of the association proposed to be formed by the amalgamation relies on the contemplated trust for its operation. If there is more than 1 such instrument, the instruments must be marked "D1", "D2" and so on. Each of the marked documents must comply with the following: • the document must be marked with— • the name and registered number of the incorporated association to which it relates; and • a title that describes its contents; and • the name, address and telephone number of the person to be contacted about the application. Application for registration of alteration to rules—Associations Incorporation Act 1985 section 24 1—Details of association Full name of association: Registration number of association: 2—Details of public officer Full name: Residential address: Postal address: Phone: Email: 3—Making of alteration to rules The association has altered its rules in accordance with those rules by [insert "special resolution on [date]" or provide details of other mechanism for alteration as required or allowed by the rules, and provide details of any approvals or confirmations required by the rules]. 4—Alteration to rules The nature of the alteration is— *alteration to the name of the association *substitution of new set of rules *alteration to rules numbered [specify numbers]