Under the 2023 Act membership is a legal status with defined content. This article gathers the rights the Act confers; other articles deal with each in more depth.
Who is a member
Section 3 of the Associations Incorporation Act 2023 defines a member as a person “whose name is entered on the member register”, or who has the right to vote for the election of committee members, or who satisfies the qualifications for membership in the rules; a person is not a member merely by being a committee member, officer or employee. “Membership” means the rights and obligations of a member under the rules and the Act. Entry in the register is evidence of membership and the association must treat the registered member as the only person entitled to vote, receive notices and exercise the rights of membership (section 87).
Powers only the members can exercise
Powers that may be exercised by the members only and may not be delegated: (a) to substitute, alter or amend the rules; (b) to substitute, alter or amend the objectives; (c) to wind up the association (subject to a rule letting the committee appoint a liquidator on a specified event). Powers the members exercise unless the rules provide otherwise: (a) to appoint or remove a committee member; (b) to appoint an auditor; (c) to approve a major transaction, meaning one involving more than half the association’s assets.
The first group requires a special resolution (section 63(1)); the second may be by ordinary resolution or at an annual meeting (section 63(2)). The rules may give members other decisions (section 62(4)). See special resolutions.
Voting
Unless the rules provide otherwise, each member has one vote on all matters, and each holder of a jointly held membership has a vote (sections 63(3), 64(1)). Members may participate and vote in meetings by remote communication unless the rules exclude it (section 65). Members holding 75 per cent of all votes may pass a written resolution without a meeting (section 68). See meetings.
Calling meetings
Members are entitled to an annual meeting every calendar year, unless all members agree otherwise or, for a member benefit association, the rules dispense with it (section 66). Members holding one-third of the votes on an issue can compel the committee to call a special meeting (section 67(b)). If meetings cannot be held, a committee member or creditor, or the Registrar for a public benefit association, may ask the National Court to order one (section 70).
Information
A member, or a person the member authorises in writing, may on written notice inspect the certificate, rules, member register, committee and public officer details, registered office, seven years of minutes, communications and annual returns, and auditor’s reports, at the principal place of business or registered office on working days between 9 a.m. and 5 p.m., and may obtain copies within ten days on paying a reasonable fee (sections 84, 85). A member may also make a written request for any information held by the association, which must be answered within a month, and may take an unreasonable refusal or charge to the District Court (section 86). The annual report must be available for inspection a month before the annual meeting (section 75). See inspecting records.
Enforcement
- The rules are “a binding contract between the incorporated association and each member” (section 20(6)), enforceable in the ordinary courts.
- A member may sue a committee member for breach of a duty owed to the member in that capacity (section 51).
- A member may apply to the National Court for an order that the committee take any action the rules or the Act require (section 52), and for an injunction against conduct contravening the Act or the rules (section 50).
- Members holding 20 per cent of the votes may apply to remove a committee member for misconduct (section 45), and any member may apply to disqualify a person under section 32.
- A person wrongly left off or put on the register may ask the District Court to rectify it and award compensation (section 88).
- An expelled or suspended member may challenge the expulsion in court within one year (section 71(5)).
What membership does not give
Membership gives no share in the property or profits; the non-distribution rule in section 3 and the surplus rules in section 143 exclude it. It gives no right to manage; that belongs to the committee under section 35, subject to the reserved powers. It gives no right to a benefit the rules do not confer. And a member is not liable for the association’s debts (section 61). Membership is, in short, a bundle of governance rights and a contract, not an ownership interest.
Members must pay the subscriptions the rules fix, comply with the rules, and, under section 89, may have to disclose the beneficial owner of a membership held for someone else. The rules may add a code of conduct and a disciplinary procedure, subject to the fairness requirements of section 71.
Sources
- Associations Incorporation Act 2023 — ss 3, 20(6), 32, 35, 45, 50–52, 61–71, 75, 84–89, 143
Before relying on anything here, read the current text of the Associations Incorporation Act 2023 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.