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Contents (2009 - 7)
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Associations Incorporation Act 2009 No 7
Current version for 1 September 2016 to date (accessed 29 March 2017 at 20:14)
Part 7
Part 7 Cancellation and transfer of registration
Division 1 Voluntary cancellation
72   Application for cancellation
(1)  An association may apply to the Secretary for cancellation of its registration.
(2)  The application:
(a)  must be in the approved form, and
(b)  must include a copy of the special resolution by which the association has approved:
(i)  the cancellation of its registration, and
(ii)  the proposed distribution of its assets, and
(c)  must be accompanied by a statement (verified by statutory declaration by a committee member) that the association has no outstanding liabilities.
73   Secretary may direct association to apply for cancellation
(1)  The Secretary may, by order in writing served on an association, direct the association to apply for cancellation of its registration within such time (being not less than 3 months) as is fixed by the direction.
(2)  The Secretary may not give such a direction unless he or she is satisfied that, having regard to the objects of this Act, the association should no longer be registered:
(a)  because some provision of the association’s constitution is contrary to law, or
(b)  because of the Secretary’s assessment of the nature or extent of the association’s activities, or
(c)  because of the Secretary’s assessment of the nature or extent of the association’s dealings with the public, or
(d)  for any other reason that appears sufficient to the Secretary.
74   Decision on application for voluntary cancellation
(1)  The Secretary may determine an application for cancellation of an association’s registration by cancelling the registration or by refusing the application.
(2)  An application for cancellation of an association’s registration must be refused if the Secretary suspects:
(a)  that the association has outstanding obligations under this Act, or
(b)  that the association has outstanding liabilities, or
(c)  that the proposed distribution of assets does not comply with section 75.
(3)  On cancelling an association’s registration, the Secretary is to cause notice of that fact to be published in the Gazette and to be given to the association.
(4)  Any notice to be given to an association under subsection (3) must be sent:
(a)  by post addressed to the association at the association’s official address, or
(b)  if the Secretary suspects that the association’s official address is no longer in use:
(i)  by post addressed to the association at another address that appears to the Secretary to be an address that is used by the association, or
(ii)  by email addressed to the association at an email address that appears to the Secretary to be an email address that is used by the association.
75   Distribution of assets
(1)  On the cancellation of its registration under this Division, an association’s assets are to be distributed in accordance with a special resolution of the association.
(2)  Any such distribution of assets:
(a)  must be approved by the Secretary, and
(b)  is not to be made to or for the benefit of:
(i)  any member or former member of the association, or
(ii)  any person to be held on trust for any member or former member of the association,
unless the member or former member is an association (whether incorporated or unincorporated) whose constitution, at the time of the distribution, prohibits the distribution of property to its members, and
(c)  is subject to any trust affecting those assets or any part of them.
(3)  Any asset that has been supplied by a government department or public authority (including any unexpended portion of a grant) must be returned to the department or authority that supplied it or delivered to such person or body as that department or authority may direct.
(4)  A person aggrieved by the operation of this section in relation to an association’s assets may apply to the Supreme Court for an order as to their disposal.
(5)  The Supreme Court may deal with such an application by making such orders as it thinks fit with respect to the disposal of the association’s assets.
Division 2 Involuntary cancellation
76   Registration may be cancelled
(1)  The Secretary may cancel an association’s registration if satisfied that:
(a)  the association is not in operation, whether or not it has been wound up, or
(b)  the association has fewer than 5 members, or
(c)  the association has failed to establish and maintain a committee in accordance with section 28, or
(d)  the association’s committee does not include 3 or more members of whom each is aged 18 years or more and of whom at least 3 are ordinarily resident in Australia, or
(e)  the association’s committee has not appointed a public officer or has appointed a public officer who is not aged 18 years or more or not ordinarily resident in New South Wales, or
(f)  the association is, or has been, conducting its affairs (including its affairs as trustee of any trust) so as to provide pecuniary gain for its members, or
(g)  during the last 3 financial years, the association has not held an annual general meeting, or
(h)  during the last 3 financial years, none of the documents required to have been lodged for the association under section 45 (if the association is a Tier 1 association) or section 49 (if the association is a Tier 2 association) has been lodged, or
(i)  the association has failed to comply with a direction under section 11 for the change of its name, or
(j)  the association has become registered under this Act because of fraud or mistake, or
(k)  it is in the public interest to cancel the association’s registration.
(2)  An association’s registration is not to be cancelled under this section if:
(a)  the association is being wound up, or
(b)  the Civil and Administrative Tribunal has ordered the Secretary not to cancel the association’s registration.
(3)  Before cancelling an association’s registration under this section, the Secretary:
(a)  must cause notice of the proposed cancellation to be given to the association stating the ground or grounds referred to in subsection (1) that the Secretary believes exist, and
(b)  must give the association and its members at least 28 days within which to make submissions to the Secretary with respect to the proposed cancellation, and
(c)  must give due consideration to any submissions that are made within that period.
(4)  After cancelling an association’s registration under this section, the Secretary must cause notice of that fact to be published in the Gazette and to be given to the association.
(5)  Any notice to be given to an association under this section must be sent:
(a)  by post addressed to the association at the association’s official address, or
(b)  if the Secretary suspects that the association’s official address is no longer in use:
(i)  by post addressed to the association at another address that appears to the Secretary to be an address that is used by the association, or
(ii)  by email addressed to the association at an email address that appears to the Secretary to be an email address that is used by the association.
77   Distribution of assets
(1)  On the cancellation of an association’s registration under this Division, the association’s property vests in the Secretary.
(2)  The Secretary:
(a)  may give such directions as the Secretary considers just for or with respect to the payment of the association’s debts and liabilities, the distribution of its property and the winding up of its affairs, and
(b)  may appoint a person for the purpose of investigating the affairs of the association with a view to the realisation of its property, payment of its debts, discharge of its liabilities, distribution of its property and winding up of its affairs, and
(c)  may do all such other acts and things as are reasonably necessary to be done for the purpose of the exercise of the Secretary’s powers under this section.
(3)  The Secretary is entitled to be paid out of an association’s property any costs reasonably incurred in the exercise of the Secretary’s powers under this section in relation to the association.
(4)  Section 65 applies to and in respect of the distribution of any property remaining after satisfaction of the association’s debts and liabilities under subsection (2) and the payment of the Secretary’s costs under subsection (3) in the same way as it applies to and in respect of the distribution of surplus property under that section.
Division 3 Transfer of registration
78   Application for transfer of registration declaration
(1)  An association may apply to the Secretary for a transfer of registration declaration in relation to its proposed registration under a corresponding law.
(2)  Such an application must be authorised by a special resolution passed by the association.
(3)  An application:
(a)  must be in the approved form, and
(b)  must identify the corresponding law under which the association proposes to seek registration, and
(c)  must include a copy of the special resolution referred to in subsection (2), and
(d)  must include any information required by the regulations, and
(e)  must be accompanied by the fee prescribed by the regulations.
79   Decision on application
(1)  The Secretary may determine an association’s application for a transfer of registration declaration:
(a)  by making the transfer of registration declaration in terms:
(i)  that identify the corresponding law under which the association proposes to seek registration, and
(ii)  that indicate that the Secretary has no objection to the association becoming registered under that law, or
(b)  by refusing the application.
(2)  An application for a transfer of registration declaration may be refused if the application does not comply with section 78.
(3)  On making a transfer of registration declaration, the Secretary is to cause a certificate as to the terms of the declaration to be given to the applicant.
80   Effect of transfer of registration declaration
(1)  A transfer of registration declaration authorises the association to which it relates to transfer its incorporation to the corresponding law identified in the declaration.
(2)  If the association becomes registered under the corresponding law, the Secretary must cancel its registration under this Act.
(3)  On cancelling an association’s registration, the Secretary is to cause notice of that fact to be published in the Gazette and to be given to the association.
(4)  Any notice to be given to an association under subsection (3) must be sent:
(a)  by post addressed to the association at the association’s official address, or
(b)  if the Secretary suspects that the association’s official address is no longer in use:
(i)  by post addressed to the association at another address that appears to the Secretary to be an address that is used by the association, or
(ii)  by email addressed to the association at an email address that appears to the Secretary to be an email address that is used by the association.
Division 4 General
81   Loss of corporate status
(1)  Subject to any other Act or law, an association ceases to be a body corporate when its registration is cancelled.
(2)  This Act (except for this Division and Division 4 of Part 6) does not apply to an association whose registration is cancelled.
82   (Repealed)
83   Certain liabilities not affected by cancellation
The cancellation of an association’s registration does not affect any liability of any former public officer or former committee member, and any such liability may be enforced as if the association’s registration had not been cancelled.
84   Reinstatement of registration
(1)  If the Secretary is satisfied that an association’s registration should not have been cancelled under this Part, and the association has not become incorporated under any other Act or law, the Secretary may reinstate its registration under this section.
(2)  If an association’s registration is reinstated under this section, the body corporate previously established by this Act in relation to the association is, as from the time of reinstatement, taken to have continued in existence as if the association’s registration had not been cancelled.
(3)  The regulations may make provision of a savings or transitional nature consequent on the reinstatement of an association’s registration and incorporation under this section.