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Information sheet and guidelines for incorporation

The "official" part of forming a Corporation is about complying with the legislation and getting to know the legislation. Luckily the Department of Fair Trading has a lot of online resources, and we happily confess that we used them wherever we needed these resources. This page is a copy of the Department's Guidelines to Incorporation.

Project SafeCom became incorporated on December 7, 2001. It's now officially called Project SafeCom Inc. You can see the Certificate by clicking here.

Surf to the Department of Consumer and Employment Protection's Information sheet and guidelines here.

Note about this page: several of the legal requirements for an Incorporated Body in Western Australia have changed, or relaxed, since this page was constructed in 2001, also and especially following the 2007 Review of the WA Incorporations Act. We've left this page in place as a "token page" for our compliance with The Act.

The Guidelines

Below are the Chapter Titles of the Guidelines. Click on any of these to read the particular section.

Eligibility for incorporation

An association is eligible for incorporation if it has more than 5 members and is formed

  1. for a religious, educational, charitable or benevolent purpose;
  2. for the purpose of promoting or encouraging literature, science or the arts;
  3. for the purpose of sport, recreation or amusement;
  4. for the purpose of establishing, carrying on, or improving a community, social or cultural centre, or promoting the interests of a local community;
  5. for political purposes; or
  6. for any other purpose approved by the Commissioner.

Section 4 of the Act also sets out those associations which are ineligible for incorporation.

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Powers of an Incorporated Association

Subject to the provisions of the Act and its rules, an incorporated association may

  1. acquire, hold, deal with, and dispose of any real or personal property;
  2. open and operate bank accounts;
  3. invest its money
    1. in any security in which trust moneys may be invested; or
    2. in any other manner authorised by the rules of the association;
  4. borrow money on such terms and conditions as the association thinks fit;
  5. give such security for the discharge of liabilities incurred by the association as it thinks fit;
  6. appoint agents to transact any business of the association on its behalf; and
  7. enter into any other contract it considers necessary or desirable.

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Liabilitiy of officers, trustees and members

An officer, trustee or a member of an incorporated association is not by reason only of his being such an officer, trustee or member liable in respect of the liabilities of the association. However officers, trustees or members of incorporated associations are not protected from liability for their own negligence or other illegal acts committed by them.

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Committee

The persons who under the rules of an association have the power to manage the affairs of an association constitute the committee of the association. The committee is responsible for keeping proper books of accounts and records in accordance with the provisions laid down in the Act. If a member of a committee of an incorporated association fails to take all reasonable steps to ensure compliance by the association with its obligations under the Act, the member commits an offence and is liable to a fine of AU$500.00. The members of the committee are required to disclose any interest they may have in any contract or proposed contract, entered into or to be entered into by the committee on behalf of the association. The penalty for non-disclosure is a fine of AU$500.00

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Rules and internal disputes

It is not the function of the Ministry of Fair Trading to intervene in the internal disputes of an association nor to provide legal advice or to interpret the rules. Those are matters for the committee and members to decide upon.

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Accounting records and annual general meeting

Every incorporated association must keep such accounting records that correctly show the financial transactions and position of the association. The accounting records must be kept in such a way as will enable true and fair accounts to be prepared at any time and that they can be conveniently and properly audited. Accounts of every association must be submitted to members at the Annual General Meeting (A.G.M.). An A.G.M. shall be held in every calendar year and within 4 months after the end of the association's financial year (or such longer period as the Commissioner may allow in a particular case). However, an incorporated association may hold its first A.G.M. at any time within 18 months after incorporation.

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Record of members, sealholders and rules

An incorporated association shall keep and maintain in an up to date condition

  1. a register of members and their postal or residential addresses;
  2. the rules of the association;
  3. the names and addresses (postal or residential) of the persons who hold the offices of the association provided for by the rules, including all offices held by the persons who constitute the committee and persons who are authorised to use the common seal of the association; and
  4. the names and addresses (residential or postal) of any persons who are appointed or act as trustees on behalf of the association.

All of the abovementioned records must be made available to any member on request and that member may copy or take an extract from the records but shall have no right to remove the records for that purpose.

Miscellaneous

The Act and Regulations also provide for the following matters:

  • Manner in which contracts may be made (Section 14).
  • Disclosure of interest (Section 21).
  • Voluntary winding up (Section 30).
  • Winding up by the Court (Section 31).
  • Distribution of surplus property (Section 33).
  • Cancellation of incorporation by Commissioner (Section 35).
  • False or misleading statements (Section 43).
  • Schedule 1, "matters to be provided for in rules of an incorporated association'5.

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Guidelines for incorporation

Name

Incorporation Advertisement

Before an applicant advertises in a newspaper, the intention to apply for Incorporation of an Association, it is suggested that the applicant write to the Business Names Branch requesting verification that the name of the intended association will be available for registration in Western Australia under Section 8 (1).

Advertisement

An applicant for incorporation must cause an advertisement of intended Application for incorporation (Form 2) to be published once in a newspaper circulating in the area where the association is situated or conducts its affairs. The advertisement must be published NOT LESS THAN ONE MONTH NOR MORE THAN THREE MONTHS BEFORE the application for incorporation is made to the Commissioner. Please note a copy of the advertisement need not be lodged with the Commissioner.

Application

Before applying for incorporation, an applicant should be satisfied that the objects of an association which is seeking incorporation, come within the meaning of the Act. (refer to Eligibility for Incorporation on previous page). Otherwise refer to Step 5 of this pamphlet. An Application for Incorporation (Form 1) together with one copy of the Rules of the Association and the Applicant's Certificate under Section 5 (2) (b), should be lodged with the Business Names Branch. (In preparing the Applicant's Certificate, ensure the name of the newspaper and the exact date of publication is inserted). The applicants fee of AU$80.00 must accompany these documents.

Registration

If the Commissioner is satisfied that

  1. the association is eligible to be incorporated under the Act;
  2. the rules of the association which are lodged with the Commissioner conform to the requirements of the Act;
  3. the name of the association is appropriate having regard to Section 8;
  4. the time, during which any request might be made under Section 7 to refuse incorporation has expired; and
  5. any request under Section 7 has been dealt with;

the Commissioner shall incorporate the association by the issue to the Association of a Certificate of Incorporation (Form 3) under Section 9 (1). However, the Commissioner is not permitted to incorporate the association if he thinks that:

  1. it would be more appropriate for the activities of the association to be carried on by a body corporate incorporated under some other law; or
  2. the incorporation would be against the public interest.

Approval of purpose

If the purpose of an association which is seeking incorporation, is not one which is specified in Section 4 (1) (a) to (e), an application may be made to the Commissioner to approve the purpose under Section 4 (1) (f). A copy of the Rules of the Association must also be lodged along with the application fee of AU$24.00.

Where approval under Section 4 (1) (f) is given, the applicant should then proceed to advertise the intention to incorporate the association (Step 2) and make application (Step 3).

Refusal to approve a purpose or allow incorporation

If the Commissioner refuses to

  1. approve a purpose of an association under Section 4 (1) (f);
  2. permit incorporation under a specific name (Section (8)); or
  3. incorporate the association for the reasons outlined in Step 4;

the applicant may, within one month of receiving notice of the refusal:

  1. request the Minister to review the decision of the Commissioner; and
  2. make representations in writing to the Minister in support of the application.

Any request to the Minister to review the decision of the Commissioner should he accompanied by the application fee of AU$24.00 and addressed to the

  1. Minister for Fair Trading
    The Forrest Centre
    219 St Georges Terrace
    Perth Western Australia 6000

The Minister's decision shall be final and the Commissioner shall give effect to it accordingly and advise the applicant in writing.

Alteration of rules

Section 17 of the Act deals with an incorporated association amending its rules by special resolution. Within one month of the passing of a special resolution to amend its rules, the association shall lodge with the Commissioner, a Notice of the Special Resolution setting out particulars of the alteration together with a certificate given by a member of the committee certifying that the resolution was duly passed as a special resolution and that the rules of the association as so altered conform to the requirements of the Act. The filing fee of AU$13.00 must accompany the notice. A copy of a draft notice of special resolution is available from this office.

Change of name

Section 18 deals with a change in the name of an association. This requires the passing of a special resolution to amend the rules of the association. A special resolution must be passed and a Notice of Special Resolution must be lodged with the Commissioner together with the filing fee of AU$13.00. The Commissioner has a discretion as to whether or not the new name is approved. The Commissioner may require the association to advertise its intention to change its name. After approval for the change of name has been given by the Commissioner, a further fee of AU$13.00 is payable and a Certificate of Change of Name will then be issued. If approval is not given, the association may appeal to the Minister as set out in Step 6.

Change of objects

Section 19 deals with the alteration of the objects or purpose of an association. This requires the passing of a special resolution to amend the rules of the association. A Notice of Special Resolution must be lodged with the Commissioner together with the filing fee AU$13.00 The Commissioner has a discretion as to whether or not the amended objects are approved. The Commissioner may require the association to advertise its intention to change its objects. On approval of the change of objects, a further fee of AU$13.00 is payable. If approval is not given, the association may appeal to the Minister as set out in Step 6.

Receipt of Notice of Special Resolution

Any alteration of the rules of an association, including those mentioned in Steps 8 and 9, has no effect until the Notice of Special Resolution is lodged and any approval, if required, is given. No receipt of fees will be issued by the Office unless it is actually lodged at the public counter. A letter advising the Association that the Notice of Special Resolution has been lodged with the Commissioner will be forwarded to the lodging party.

Rules

Schedule 1 of the Act lists the matters to be provided for in the rules of an incorporated association.

A copy of Standard Rules for an Association is available from this of office. These rules are issued as a guide but may be adopted by your association. They meet the basic requirements specified in Schedule 1 of the Act. Rigid adherence to these rules when drafting provisions of your own constitution is not required, providing that no provision is at variance with the Act.

Enquiries

Written enquiries should be addressed to the

  1. Ministry of Fair Trading
    Business Names Branch, 
    Box W2072 GPO
    Perth 6001

Enquiries may also be made by calling at the Public Counter, 219 St George's Terrace, Perth Western Australia, by telephoning 1300 30 40 14, or by sending an email to
online@mft.wa.gov.au.

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Schedule 1 - Matters to be provided for in rules of an Incorporated Association

The name of the incorporated association.

The objects or purposes of the incorporated association, including a provision in, or substantially in, the following terms

  1. The property and income of the association shall be applied solely towards the promotion of the objects or purposes of the association and no part of that properly or income may be paid or otherwise distributed, directly or indirectly, to members of the association, except in good faith in the promotion of those objects or purposes.
  2. The qualifications (if any) for membership of the incorporated association.
  3. The register of members of the incorporated association.
  4. The entrance fees, subscriptions and other amounts (if any) to be paid by members of the incorporated association.
  5. The name, constitution, membership and powers of the committee or other body having the management of the incorporated association (in this clause referred to as "the committee") and provision for:
  1. the election or appointment of members of the committee;
  2. the terms of office of members of the committee;
  3. the grounds on which, or reasons for which, the office of a member of the committee shall become vacant;
  4. the filling of casual vacancies occurring on the committee; (e) the quorum and procedure at meetings of the committee.
  1. The quorum and procedure at general meetings of members of the incorporated association.
  2. The time within which, and manner in which, notices of general meetings and notices of motion are to be given, published or circulated.
  3. The manner in which the funds of the association are to be controlled.
  4. The intervals between general meetings of members of the incorporated association and the manner of calling general meetings.
  5. The manner of altering and rescinding the rules and of making additional rules of the incorporated association.
  6. Provisions for the custody and use of the common seal of the incorporated association.
  7. The custody of records, books, documents and securities of the incorporated association.
  8. The inspection by members of the incorporated association of records and documents of the incorporated association.

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2008-2012
2005-2012
Project SafeCom