Replace Association Act 1984 Links with Accociation Act 2009 Links within current CAcert Inc rules

-or- Make CAcert Inc Rules compliant to Accociation Act 2009 rules

Introduction

Back in 2009 the Association Act has moved from Association Act rules ASSOCIATIONS_INCORPORATION_ACT_1984 to ASSOCIATIONS_INCORPORATION_ACT_2009. CAcert Inc rules referes back to Association Act rules of 1984. Many of the Association Act rules moved in topic number or some has been removed. To make the CAcert Inc rules Association Act 2009 compliant the minimum requirement is to replace the AA1984 links with the AA2009 links.

References

ASSOCIATIONS INCORPORATION ACT 2009
ASSOCIATIONS_INCORPORATION_ACT_1984
(not as yet submitted to secretary, this entry is a reminder for AGM/Next)

Motion

To fix identified Association Act 2009 rules within CAcert Inc rules that referes to Association Act 1984 rules.

1. Old text of Header

Rules CAcert Incorporated Association
under the Associations Incorporation Act, 1984

page 1 + page 2

New text of Header

Rules CAcert Incorporated Association
under the Associations Incorporation Act, 2009

page 1 + page 2

2. Old text of 1(1) Definitions

 1 Definitions
(1) In these rules:
    ...
    the Act means the Associations Incorporation Act 1984.

New text of 1(1) Definitions

 1 Definitions
(1) In these rules:
    ...
    the Act means the Associations Incorporation Act 2009.

3. Old text of rule 2.a Membership Qualification

2 Membership qualification
A person is qualified to be a member of the association if, but only if:
  (a) the person is a person referred to in section 15(1) (a), (b) or
      (c) of the Act and has not ceased to be a member of the
      association at any time after incorporation of the association
      under the Act, or
  (b) the person is a natural person:
      i.  who has been nominated for membership of the
          association as provided by rule 3, and
      ii. who has been approved for membership of the association
          by the committee of the association.

reference to Accociation Act 1984 rule 15

15 Effect of incorporation
(1) On and from the date specified as the date of incorporation in a certificate of
incorporation of an association granted under this Act (other than under section 14 (5)),
but subject to this Act and the rules of the incorporated association:
(a) in the case of a certificate granted under section 10, the persons who were the
    members of the association immediately before that date or, where the certificate
    is granted in respect of a proposed association as referred to in section 8 (2), the
    persons who under that subsection authorised incorporation of the proposed
    association,
(b) in the case of a certificate granted under section 47, the persons who were,
    immediately before that date, the members of the incorporated associations which
    were parties to the amalgamation to which the certificate relates, or
(c) in the case of a certificate granted under section 48, the persons who,
    immediately before that date, were the members of the company or society in
    respect of which the application under that section was made,
together with any other persons who from time to time become members of the
incorporated association (as from the time they become members), are an incorporated
association by the name set out in the certificate, subject to any change of name effected
by the issue of a new certificate of incorporation under section 14 (5).

New Text of rule 2.a

to remove old 2.a entirely and move former 2.b to 2.a

2 Membership qualification
A person is qualified to be a member of the association if, but only if:
  (a) the person is a natural person:
      i.  who has been nominated for membership of the
          association as provided by rule 3, and
      ii. who has been approved for membership of the association
          by the committee of the association.

reference to Accociation Act 2009
```
NO DIRECT REFERENCE FOUND
```

4. Old Text of rule 15.1 Constitution and membership

15 Constitution and membership
(1) Subject in the case of the first members of the committee to
    section 21 of the Act, the committee is to consist of:
    (a) the office-bearers of the association, and
    (b) 3 ordinary members, each of whom is to be elected at the
        annual general meeting of the association under rule 16.
(2) The office-bearers of the association are to be:
    (a) the president
    (b) the vice-president
    (c) the treasurer, and
    (d) the secretary
(3) Each member of the committee is, subject to these rules, to hold
office until the conclusion of the annual general meeting following
the date of the member's election, but is eligible for re-election.

reference to Association Act 1984 rule 21

21 Committee of incorporated association
(1) Unless the rules of an incorporated association otherwise provide, the first members
of the committee of the incorporated association are:
(a) in the case of an association incorporated pursuant to the application of a
person authorised under section 8 (1)--the members of the committee of the
association immediately before the association was incorporated,
(b) in the case of an association incorporated pursuant to the application of a
person authorised under section 8 (2)--the persons nominated pursuant to that
subsection to be the first members of the committee,
(c) in the case of an incorporated association formed by the amalgamation of
incorporated associations pursuant to section 47--the person specified in the
application for that amalgamation under section 46 as nominated to be the first
members of the committee of the amalgamated incorporated association, or
(d) in the case of a company or society incorporated as an incorporated
association pursuant to section 48--the persons who had the management of the
society or who were directors of the company, as the case may be, immediately
before the date of its incorporation under this Act.
(2) (Repealed)

New text of rule 15.1

15 Constitution and membership
(1) Subject in the case of the first members of the committee to
    section 28 of the Act, the committee is to consist of:
    (a) the office-bearers of the association, and
    (b) 3 ordinary members, each of whom is to be elected at the
        annual general meeting of the association under rule 16.
(2) The office-bearers of the association are to be:
    (a) the president
    (b) the vice-president
    (c) the treasurer, and
    (d) the secretary
(3) Each member of the committee is, subject to these rules, to hold
office until the conclusion of the annual general meeting following
the date of the member's election, but is eligible for re-election.

reference to Association Act 2009 rule 28

28 Committee to be established
(1) An association must establish a committee to manage its affairs. An association's
registration is liable to be cancelled if it does not comply with this subsection.
(2) The committee must include 3 or more members, each of whom is aged 18 years or
more and at least 3 of whom are ordinarily resident in Australia. An association's registration
is liable to be cancelled if its committee does not comply with this subsection.
(3) The committee may exercise such of the association's powers as are not required by
this Act or its constitution to be exercised by the association in general meeting.
(4) A committee member's acts are valid despite any defect in his or her appointment.
(5) Within 14 days after vacating office, a former committee member of an association
must ensure that all documents in his or her possession that belong to the association are
delivered to the public officer for delivery to his or her successor. Maximum penalty: 1
penalty unit.

5. Old Text of rule 24.3 Annual general meetings - holding of

(3) Clauses (1) and (2) have effect subject to any extension or
permission granted by the Director-General under section 26(3) of
the Act.

reference to Association Act 1984 rule 26(3)

26 Annual general meeting
(3) The Director-General may, on application (accompanied by the prescribed fee) being
    made by the public officer of the incorporated association concerned, subject to such
    conditions as the Director-General thinks fit:
    (a) extend the period of 6 months referred to in subsection (1) or the period of 18
        months referred to in subsection (2), or
    (b) permit an annual general meeting to be held in a calendar year other than the
        calendar year in which it would otherwise be required by subsection (1) to be
        held.

New Text of rule 24.3

(3) Clauses (1) and (2) have effect subject to any extension or
permission granted by the Director-General under section 37(2) of
the Act.

reference to Association Act 2009 rule 37(2)

37 General meetings
(2) An association's committee must ensure that annual general meetings are held:
    (a) within 6 months after the close of the association's financial year, or
    (b) within such further time as may be allowed by the Director-General or
        prescribed by the regulations.
        Maximum penalty: 1 penalty unit.

6. Old Text of rule 25.2.d Annual general meetings - calling of and business at

25 Annual general meetings - calling of and business at

(2) (d) to receive and consider the statement which is required to be
        submitted to members under section 26(6) of the Act.

reference in Association Act 1984 rule 26

26 Annual general meeting
 (6) At the annual general meeting of an incorporated association, the committee of the
     association shall submit to members of the association a statement which is not
     misleading and which gives a true and fair view of the following:
     (a) the income and expenditure of the association during its last financial year,
     (b) the assets and liabilities of the association at the end of its last financial year,
     (c) the mortgages, charges and other securities of any description affecting any of
         the property of the association at the end of its last financial year,
     (d) in respect of each trust of which the association was trustee during a period,
         being the whole or any part of the last financial year of the association:
         (i) the income and expenditure of the trust during that period,
         (ii) the assets and liabilities of the trust during that period, and
         (iii) the mortgages, charges and other securities of any description
               affecting any of the property of the trust at the end of that period.

New Text of rule 25.2.d

25 Annual general meetings - calling of and business at

(2) (d) to receive and consider the statement which is required to be
        submitted to members under section 44 of the Act.

reference in Association Act 2009 rule 44

44 Submission of reports and statements to AGM
   At each annual general meeting of a Tier 1 association, the association's committee must cause:
   (a) the association's financial statements for the previous financial year, and
   (b) the auditor's report for those statements,
       to be submitted to the meeting.

7. Old Text of rule Appendix 1

CAcert Incorporated (incorporated under the Associations Incorporation Act 1984.
...

New Text of rule Appendix 1

CAcert Incorporated (incorporated under the Associations Incorporation Act 2009.
...

Comments

[2011-11-02, UlrichSchroeter]

this is only one identified difference in reference numbers :-P

[2011-11-05, UlrichSchroeter]

Above 7 topics are all current identified clashes of CAcert Inc rules regarding Association Act 2009 compliance. On overview of Incorporated association obligations and some answered questions can be read in http://www.fairtrading.nsw.gov.au/Cooperatives_and_associations/Associations/Statutory_and_reporting_obligations.html#Financial_reporting and http://www.fairtrading.nsw.gov.au/Cooperatives_and_associations/Associations/Statutory_and_reporting_obligations.html#Financial_reporting
risks:
1. if we don't pass the changes, we're staying any longer in not-compliance to the Association Act 2009. Probably we have to call a SGM in an "emergency" call to get the minimum changes fixed if once OFT becomes aware we're not compliant with our Inc rules
2. if we pass the changes, we've done the essential changes as a minimum requirement that are so called spotted topics (reference to Association Act 2009 instead of old Association Act 1984). OFT can reject the changes, if there are other not yet identified topics that clashes with the Association Act 2009 rules. But this is very very unlikely (eg AGM + finance report for 2009-2010 sent in around March/April this year had not been rejected). And, if OFT will reject the changes we're probably getting a report which topics needs to be fixed too ,-)
So in summary, its probably better to pass the proposed rules changes. A shutdown of CAcert Inc by the OFT becomes more unlikely as we are in the process to come in compliance with the Inc rules Association Act 2009. Financial and Insurance topics are answered in above fairtrading link.

[2011-11-21, UlrichSchroeter]

Old Text of rule 25.2.d Annual general meetings - calling of and business at

is a wrong reference
- reference in Association Act 2009 rule 44
should be rule 48 instead, as CAcert is a tier 2 association (see references above)

rule 44 and 48 differs in the audit report that is required for tier 1 associations. As long as CAcert is a tier 2 association, the auditor's report isn't required

44 Submission of reports and statements to AGM
At each annual general meeting of a Tier 1 association, the association's committee must cause:
(a) the association's financial statements for the previous financial year, and
(b) the auditor's report for those statements,
to be submitted to the meeting.
Maximum penalty: 5 penalty units.

48 Submission of financial statements to AGM
At each annual general meeting of a Tier 2 association, the association's committee must cause
the association's financial statements for the previous financial year to be submitted to the
meeting.
Maximum penalty: 5 penalty units.

so New Text of rule 25.2.d should become:

25 Annual general meetings - calling of and business at

(2) (d) to receive and consider the statement which is required to be
        submitted to members under section 48 of the Act.

- or -

25 Annual general meetings - calling of and business at

(2) (d) to receive and consider the statement which is required to be
        submitted to members under section 44 for a tier 1 association
        -or- section 48 for a tier 2 association of the Act.

[2011-11-27, UlrichSchroeter]
- CARRIED by AGM 2011-11-27
- added to new rules under CAcert Inc rules as of 2011-11-27

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