Further details on incorporation as an association
Rules of the Association
If the Model Rules are adopted, there is no need to supply a copy when applying for incorporation. Groups who find the Model Rules too complex or inappropriate for their needs can draft their own rules. In this case, a copy of the rules must be lodged with the application. The association should seek legal advice to ensure the legality of their constitution, as any rule which is contrary to the Act will be overridden by the Model Rules. Also, unless expressly excluded, the provisions of the Model Rules are deemed to form part of the rules of the association in relation to those matters which are not dealt with by the association’s own rules.
The Public Officer
Every incorporated association is required to have a ‘public officer’ who must be 18 years or older and a resident of Tasmania (s14). The public officer is the person tasked with keeping Consumer, Building and Occupational Services informed of changes in the association and its financial situation by filing the Annual Return.
It is the responsibility of the committee (not the members) to appoint a person to this position. Unless the rules of the association say otherwise, the committee is free to select whoever they think is best for the job. That person may be a committee member, a member of the association, or even an interested outsider. Before an application for incorporation is lodged, the committee of the association must appoint a person to be public officer. Details must be provided on the application form.
The public officer’s address is the official address for the service of legal documents on the association.
- It is the public officer’s duty to bring all documents received to the attention of the committee.
- It is possible for the association to stipulate a postal address different to that of the public officer.
- If the public officer changes address, a form notifying this change must be lodged with the Commissioner within 14 days.
It is also the Public Officer’s duty to notify the Commissioner of any changes in the rules of the association and the passing of special resolutions and may have other duties specified in the rules/constitution. The position of public officer will become vacant if they resign, are removed from office, die, become bankrupt, develop a mental illness, or change residency to outside of Tasmania. If the office of public officer at any time becomes vacant, it is the responsibility of the committee to appoint a new public officer. This should be done within 14 days of the vacancy occurring. The new public officer must lodge a form notifying Consumer, Building and Occupational Services of their appointment within 14 days of the appointment.
Annual General Meetings
The holding of Annual General and other meetings of the association is governed by the rules of the association. The timing of the annual general meeting will be dependent upon the statutory requirements for lodging annual returns.
Limits to Limited Liability
Questions of liability and insurance should be discussed with the association’s legal adviser and insurer.
The Effect of Incorporation on Property, Debt and Contract
Incorporation has the effect of automatically transferring ownership of all property, liabilities and contracts from the members and trustees of an unincorporated organisation to the new incorporated association. After incorporation, all money and debts that were owed to (or by) the organisation’s members in relation to the activities of the organisation immediately before incorporation become owed to (or by) the incorporated association. All contracts and arrangements that were lawfully made prior to incorporation become the contracts and arrangements of the incorporated association. The right to sue and be sued is transferred. Property held in the name of trustees on behalf of an unincorporated organisation passes automatically to the association upon incorporation.
However, it is still necessary for some forms to be filled out so that names on the title deeds or other official documents can be changed from the trustee’s name to the Association’s name. For general law land the public officer must, after incorporation, deliver a memorial in writing to the Registrar of Deeds setting out:
- a description of the land or a reference to a plan on which the land is shown;
- the name of the association in which the land is to be vested;
- particulars of the nature of the interest in that land that is to be vested;
- the name of each person who appears by the register to hold that land or interest;
- a statement that upon registration of the memorial, that land or interest becomes vested in the association by virtue of section 13 of the Act.
For land under the Land Titles Act 1980 (Tas) the public officer must, after incorporation, deliver to the Recorder of Titles notice in writing (on a blank instrument form available from the Land Titles Office) setting out:
- the title reference of the land to which the notice relates;
- the name of the association to which the land is to be vested;
- particulars of the nature of the interest in that land that is to be vested in the association;
- the name of each person who appears by the register book to hold that land or interest;
- a statement that, upon the entry by the Recorder upon the grant or certificate of title of that land the land becomes vested in the association.
This notice should also be accompanied by:
- the certificate of title;
- the certificate of incorporation of the association (or a certified copy);
- a certificate of the Commissioner stating the name of the public officer of the association; and
- a statutory declaration of the public officer and of one of the registered proprietors of the land.
If an Association wishes to make a decision, it may do so by passing a resolution at a meeting of the members. Because some decisions are of particular importance (for instance, changing the rules or changing the association’s name), the Act demands that this must be done by passing a ‘special resolution’. A special resolution is one which is passed in the following manner:
- notice must be given to members specifying that a decision requiring a special resolution is to be made;
- the notice must include details of the proposed resolution and give appropriate notice of the meeting, as outlined in the associations current constitution;
- a quorum must be present at the meeting; and
- at least three-quarters of those present must vote in favour of the resolution for it to be passed.
The rules of an association may indicate situations in which a special resolution is required. Regardless of what an association’s rules say, passing a special resolution is always required:
- to change the association’s name;
- to change its rules;
- to change its objects;
- to amalgamate with another incorporated association;
- to voluntarily wind itself up and distribute its property;
- to apply for registration as a company or a cooperative.
Where a special resolution is passed, the public officer must lodge a notice with Consumer, Building and Occupational Services within one month of the passing of that resolution.