Consumer and Business Services (CBS) regulates incorporated associations in South Australia.
Incorporated associations have responsibilities and obligations, including legal and financial reporting. Committee members and the public officer are responsible for making sure the incorporated association is compliant.
Failure to comply with these obligations may lead to penalties, prosecution or closure of the association.
Annual General Meetings (AGMs) - prescribed associations
Prescribed associations are required to hold Annual General Meetings (AGMs) if their rules include membership of the association.
When to hold an AGM
The first AGM of a newly incorporated association must be held within 18 months of the incorporation.
Subsequent AGMs must be held annually, 5 months after the end of the association's financial year.
If the prescribed association is registered with the Australian Charities and Not-for-Profits Commission (ACNC), it has an additional month to hold its AGM.
Prescribed associations are required to submit their financial statements for the previous financial year to their members at the AGM.
Annual General Meetings (AGMs) - associations that are not prescribed
There is no legal requirement for associations that are not prescribed to hold AGMs, unless their rules specifically require this.
It is best practice for associations to include the requirement to hold AGMs in their rules to promote transparency between members and the committee.
When to hold an AGM
The rules of an association will outline when an AGM is to be held and the calling and proceedings of these meetings.
Minutes, books and record keeping
An incorporated association must create minutes detailing all proceedings within general meetings and committee meetings.
The minutes must be:
- entered into the books of the association
- confirmed by members of the association present at subsequent meetings
- signed by the member:
- who presided at the initial meeting
- who is presiding at the meeting where the minutes are confirmed.
Where minutes have been entered, signed and confirmed, it is to be taken (unless evidence is provided to the contrary) that:
- the meeting was held
- proceedings as recorded in the minutes occurred
- all appointments of officer or auditors recorded in the minutes were validly made.
The books containing the minutes of general meetings must be made available for inspection by any member for free.
Example template for recording Minutes at an AGM
Books
The books of the association must be kept indefinitely. Books include:
- any register or other record of information
- minutes of meetings
- accounts or accounting records
- any other documentation.
An incorporated association must also keep accounting records that correctly record and explain it's financial position and all transactions.
They must be kept for at least 7 years at the place the association is situated or established in South Australia. Alternatively, they can be kept in the custody of an officer of the association in accordance with the rules or a committee resolution.
CBS can require an association to produce their books to check compliance with the law.
Public officer
The public officer must be both:
- 18 years or older
- a permanent resident of South Australia.
Applications lodged under associations law must be authorised by the public officer who should understand what is needed under the law.
Where Consumer and Business Services (CBS) needs to contact an association, CBS will contact the public officer.
CBS must be notified within one month of a new public officer being appointed, or if the existing public officers' details change.
Name and address requirements
An association's full name (including the word 'Incorporated' or 'Inc') must appear on any:
- letter
- statement
- invoice
- notices or advertisements
- publications (including websites)
- order for goods or services
- receipt in connection with its activities (except for those under $10)
- bills of exchange
- other documents which are given, drawn or issued by an association.
The association's official address must be an address in South Australia where the public officer can generally be found and documents can be served.
It can't be a post office box.
The public officer must advise CBS if there is a change to the official address within 28 days.
Extensions of time or exemptions from legal requirements
Extensions of time or exemptions for an incorporated association's legal requirements can be considered in certain situations.
The association must provide sufficient reasons for why they are unable to comply with these requirements.
You need to apply to CBS for an extension or exemption.
Natural justice
When the committee of an association makes decisions about disputes between members, or between the committee and members, it must follow the rules of natural justice.
How to observe natural justice:
- The person must be told about all allegations against them, including any evidence. This helps them understand what they are being accused of so they can prepare a proper response.
- They must be given a real chance to speak, respond to the allegations, and point out anything they believe is wrong or inaccurate.
- The decision should be made through a fair and unbiased process.
CBS recommends that if a negative determination is made, especially if it involves expelling someone from membership, the person should have the right to appeal at a general meeting.
Reviews
If you're not satisfied with a CBS decision, you can apply to the South Australian Civil and Administrative Tribunal (SACAT) for a review.
You must submit a review application within 21 days of the decision. Please note: CBS decisions to issue a certificate to involuntarily wind up an association cannot be appealed or reviewed.
Complaints
Where you have evidence that an association has breached its rules or associations law you can make a complaint about an association.
Offences
It is an offence for an officer of an incorporated association to:
- convince a person to give credit to the association through false pretences or any other fraud
- make or intend to make any gift or transfer relating to any property of the association with the intent to defraud the association or its members or creditors
- conceal or remove any part of the property of the association within 2 months before or after the date of any unsatisfied judgement or order seeking the association to pay money.
Charity status
An incorporated association can also be registered as a charity through the Australian Charities and Not-for-Profits Commission (ACNC).
The ACNC is the national regulator for charitable and not-for-profit entities.
There are benefits to being registered with the ACNC, but there are also additional requirements. These are outlined on the ACNC website.
Incorporated associations are not required to have a Deductible Gift Recipient status - however, may need one for fundraising or for charitable purposes.
Related information
Legislation
Contact CBS Associations and Cooperatives
Email: associations@sa.gov.au
Phone: 131 882, choose option 7
You can also book an appointment with the Associations Team for further assistance.
