Features of incorporated associations
Purpose and membership
An association, as defined by the Associations Incor-poration Reform Act 2012 (Vic) (‘Associations Act’), is any society, club, institution or body formed or carried on for a lawful purpose. An incorporated association cannot be formed with the intention of making a profit for its members. The minimum membership of an association is five people.
An incorporated association has a legal identity that is separate from that of its members. This means that the association can enter into agreements and contracts, sue or be sued, raise and borrow money, and buy property – all in the association’s name.
Liability of members
Flowing from the legal status of the incorporated association is an important feature: that the association’s members are protected against personal responsibility for any debts or liabilities incurred by the association. Their liability is limited to money due under the associations’ rules.
Naming and identifying an association
An association must not have – in the opinion of Consumer Affairs Victoria (CAV) – an undesirable name. While ‘undesirable’ is not defined in the Associations Act, common sense dictates against obviously offensive names.
The association’s name must not be identical or similar to the name of a company registered with ASIC. The association’s name must not be the same as the name of another incorporated association. Once an association is incorporated, it must add the word ‘Incorporated’ or ‘Inc.’ to its name.
An association’s name and registered number must appear on all business documents including letterheads, notices, advertisements and publications.
An association can change its name by passing a special resolution and then seeking CAV’s approval. The Australian Charities and Not-for-profits Commission (ACNC) must also be updated if the association is a registered charity. The change of name does not change the legal identity of the association, nor does it alter its legal rights and obligations. An incorporated association must have a registered address where official documents, communications and notices can be sent or left (the address cannot be a PO Box).
All incorporated associations must have a secretary. The secretary liaises between the association and the people and organisations that the association deals with. Holding the office of secretary does not mean you cannot hold another office in the association (in smaller associations it is common for office holders to have multiple roles). The secretary must be at least 18 years old and be an Australian resident.
The secretary has a number of obligations to CAV; generally, the secretary must keep CAV informed of certain events and assist CAV in its functions. In particular, CAV must be:
- notified of the appointment of the secretary (within 14 days);
- notified of and approve any change to the association’s rules (within 28 days);
- notified of and approve any change to the association’s name (within 28 days);
- sent the annual statement and other required financial information within one month of the association’s annual general meeting, unless the association is registered as a charity with the ACNC (see ‘Financial reporting’, below);
- informed of a changed registered address (within 14 days).
Associations that are also registered as charities should view the ‘Update charity details’ section on ACNC’s website; this outlines what to notify the ACNC about.
Not-for-profit Law’s ‘Secretary’s Satchel’ includes comprehensive information about running an incorporated association (e.g. sample agendas and minutes).
Purposes of an association
An association’s purpose(s) must be set out in the association’s rules. The purpose(s) are what the association is aiming to achieve. Most groups simply need to write down answers to the questions that they discussed when they decided to form an association, including: Why do we want to form an association? What do we want to achieve? How are we going to achieve our aims?
However, note that professional advice may be needed in drafting an association’s purposes if the association wants to fall within a particular category of charity or to obtain charitable taxation concessions (see ‘Tax concessions’ in ‘Other issues to consider’).
An association that is already registered as a charity or has taxation concessions must be careful when it changes its purposes.
The rules of an association
The rules of an association govern the rights and responsibilities of the members and how the association operates. The rules are a contract between the incorporated association and its members.
An association has a choice to adopt one of the following approaches:
- Adopt the model rules provided in the Associations Incorporation Reform Regulations 2012 (Vic). A copy of these rules can be found on CAV’s website. Using the model rules can save an association the time and money.
- Partially adopt the model rules. An association can amend the model rules to suit its purposes. Before amending the model rules, consider: What is intended to be achieved by the amendment or new clause? When amending the model rules, it is important to use simple and clear language. This will assist to avoid later disputes about what was intended by the rules. When amending the model rules, make sure the modified rules contain the matters specified in the Associations Act (sch 1).
- Draft its own rules, which must contain the matters specified in the Associations Act (sch 1).
For help developing a customised set of rules that comply with the law, see Not-for-profit Law’s ‘Rules Tool’.
An incorporated association cannot be formed with the intention of making a profit for its members. In this way, it is different from for-profit organisations.
However, an association can carry out the activities listed below, which are deemed by the Associations Act to not be activities with a view to making a profit for an association’s members.
An association can:
- make a profit itself, so long as that profit is not divided among its members;
- divide its assets among its members on dissolution, where doing so is specifically allowed under the Associations Act. There are limited circumstances where this can occur (e.g. where the member is a not-for-profit entity and CAV approves the distribution);
- provide its members with a benefit if they would be entitled to it notwithstanding their membership of the association;
- compete for trophies or prizes in contests related to the association’s purpose; and
- receive benefits through the enjoyment of facilities or services provided by the association for social, recreational, educational or other similar purposes.
In addition, community organisations can participate in a number of activities typically associated with business. For example, an association can buy and sell goods and services where doing so is consistent with the association’s purpose.
Annual general meetings
Incorporated associations must hold annual general meetings (AGMs). An association’s first AGM must be held within 18 months of incorporation. Subsequent AGMs must be held within five months after the end of the financial year. An association may apply to CAV for an extension for holding an AGM.
COVID-19 and AGM extensions
Associations are usually charged a fee to apply for an extension for holding an AGM. Due to the COVID-19 pandemic, CAV has temporarily waived this fee.
Regardless of the formality or content of an AGM, the association’s financial statements must be presented to its members at the AGM.
The financial statements must include the following information:
- the income and expenditure of the association during the previous financial year;
- the assets and liabilities of the association at the end of the previous financial year;
- details of any mortgages, charges or securities affecting property owned by the association, as at the end of the previous financial year;
- details of the above information concerning any trusts of which the association was the trustee during the previous financial year.
For a complete list of what needs to be included in an association’s financial statements, see ‘Financial statements and auditing requirements – incorporated associations’.
Details of an AGM must be lodged by the secretary with CAV within one month of the date of the AGM. CAV must be told when the AGM was held, details of the compulsory financial information (set out above), certification that they were presented to the AGM, the resolutions relating to the financial statements and the lodgment fee.
Minutes of meetings
Incorporated associations must prepare and keep accurate minutes of all meetings (including general meetings and committee meetings). Minutes are a formal written record of the matters discussed and the decisions made at a meeting. It is good practice to confirm the accuracy of the minutes at the next meeting.
For more information, see www.nfplaw.org.au/meetings.
Meeting templates are available at https://www.acnc.gov.au/tools/templates.
Legal requirements of meetings
For more information about the legal requirements applicable to AGMs (and other meetings, such as management, sub-committees and special general meetings), see www.nfplaw.org.au/meetings.
Victorian incorporated associations that are registered with the ACNC as charities do not have to lodge an annual statement with CAV or pay the annual fee, for the financial year that ended on 30 June 2018 or subsequent years, so long as they provide an annual information statement to the ACNC. This exemption does not apply to charities that have been approved by the ACNC to have their financial details withheld from the ACNC register or that report to the ACNC as part of an approved reporting group.
If the exemption does not apply, the committee must ensure that financial statements are prepared at the end of each financial year. The committee must be satisfied that the financial statements give a ‘true and fair’ view of the association’s financial position and performance.
Whether additional financial reporting is required depends on an association’s total revenue from all its activities in the previous financial year.
The Associations Act establishes a three-tiered reporting framework, based on associations’ revenue:
- tier one: annual revenue of less than $250 000;
- tier two: annual revenue of $250 000–$1 million;
- tier three: annual revenue over $1 million.
Tier one associations do not have any additional reporting requirements. They do not need to have their financial statements externally reviewed or audited unless:
- it is required by the rules of the association;
- a majority of members vote to do so at a general meeting; or
- they are directed to do so by CAV.
Tier two associations must have their accounts reviewed by an independent accountant. The accountant must be:
- a member (holding a public practice certificate) of CPA Australia, or the Institute of Public Accountants, or the Institute of Chartered Accountants in Australia; or
- someone approved by CAV.
The accountant’s report must be presented to members at the AGM. Tier two associations do not have to audit their accounts unless required by the rules of the association.
Tier three associations must have their accounts audited by an independent auditor. The audit report must be presented to members at the AGM. The auditor must be appropriately qualified and must be an accountant who is a member of one of the peak bodies listed in tier two above, or be approved by CAV, or be a registered company auditor or firm.
The auditor must be independent, so the auditor must not be:
- a member of a committee of the association;
- an employer or employee of a committee member;
- a member of the same partnership as a committee member; or
- an employee of the association.
An incorporated association may only remove its auditor by resolution passed at a general meeting. Two months advance notice of the proposed resolution must be provided to all members, the auditor and to CAV. A resolution is not required if the association’s auditor resigns.
Committee members should be aware that the Associations Act prescribes various penalties for non-performance of the Act’s requirements. Office holders should make themselves aware of their responsibilities and ensure that they are carried out; this satisfies the office holders’ duties to the association and the law.
How to incorporate
Making an application
Applications to register an incorporated association are made to CAV using the online system for incorporated associations, myCAV.
Applications for incorporation must be accompanied by:
- a declaration that the applicant is authorised to make the application;
- a copy of the association’s rules; and
- any trust deed relating to the association.
The cost of applying for incorporation depends on whether the model rules are adopted.
CAV may refuse to incorporate an association when the type of group is not an appropriate association.
When an application to incorporate an association is accepted, a certificate of incorporation showing the organisation’s name, registration number and date of incorporation, and a receipt of payment, is emailed to the association’s secretary.
Ending an association
Amalgamating incorporated associations
Two or more incorporated associations may unite or amalgamate to form one association. When the associations amalgamate, they form a new incorporated association, and CAV will cancel the incorporation of the individual associations without needing to wind-up the associations.
To do this, each of the associations wishing to amalgamate must pass a special resolution approving the terms of the amalgamation and the rules of the proposed amalgamated association.
In addition, the associations must lodge the relevant form with CAV.
When considering an amalgamation, committee members must remember their duty to act in the best interests of their organisation.
Cancelling or winding-up an incorporated association
An association can apply to CAV for voluntary cancellation if it:
- has assets under $10 000;
- has no outstanding debts or liabilities;
- has paid all the relevant fees and penalties to CAV and others; and
- is not involved in any legal proceedings.
An application for voluntary cancellation can be made by:
- the association itself if members have passed a special resolution seeking cancellation;
- a member or a former member if the association is no longer operating;
- a statutory manager appointed under the Associations Act; or
- an administrator if the association is under voluntary administration.
An organisation that wishes to end, but does not meet the criteria for cancellation, must be wound-up voluntarily by special resolution. This option is available to any incorporated association in Victoria, regardless of its annual revenue. Once the special resolution is passed, a liquidator must be appointed, the association’s operations must cease, any debts must be paid, and any surplus assets of the association must be distributed.
Court ordered winding-up
Associations may be compulsorily ended by order of the Victorian Supreme Court where:
- the association has resolved, by special resolution, that it be wound-up by the court;
- the association suspends its operations for a year;
- the association is unable to pay its debts;
- the association has no members;
- the association (or the association as trustee) has traded or divided profits among its members (subject to exceptions contained in the Associations Act);
- the association has acted outside its purpose as stated in its rules; or
- the court believes it is just or equitable to do so.
An application for winding-up can be made by the association, by CAV, or by a member, creditor or liquidator of the association. The provisions in the Corporations Act that relate to corporations winding-up voluntarily or involuntarily also apply to associations winding-up.
For further information about ending an association, visit Not-for-profit Law’s Information Hub.