“Removal from the register” is the Act’s term for deregistration. It ends the association’s legal existence, and it can happen without any winding up and, on one ground, without any warning.
When removal takes effect
Section 107 of the Associations Incorporation Act 2023 provides that an association “is removed from the register when the Registrar registers a notice stating the incorporated association is removed from the register”. Until that moment it continues; after it, the association is no longer a legal person, its property vests in the Registrar under section 113 and the Companies Act provisions it imports, and its committee has no authority. Restoration is possible under Division 4; see restoration.
The ten grounds
- it fails to file its annual return within six months after its allocated month;
- it at any time does not comply with section 4 (name, rules, members, three committee members, public officer, registered office);
- it is in liquidation and six months have passed since completion without the prescribed documents;
- it is in liquidation and the Registrar receives the prescribed documents confirming completion;
- a request for removal is filed under section 109;
- the Registrar has reasonable cause to believe it has ceased to exist, or has not or has ceased to have the prescribed qualifications for incorporation;
- it procured its registration through fraud;
- it has continued to exceed or abuse its lawful authority, or continued to violate the Act, the Criminal Code or the Anti-Money Laundering and Counter Terrorist Financing Act 2015;
- it has applied any profits to a purpose other than promoting its objects; or
- it has engaged in fraudulent or unlawful actions.
The word is “must”: once a ground exists and the procedure is complete, the Registrar has no discretion to leave the association on the register. Separately, section 9(5) lets the Registrar cancel an incorporation on the ground that the body should have been a company, a power that sits outside section 108.
Ground (a): the annual return default
This is the ground with no safeguards. Section 110(2) provides that public notice is not required for removal under section 108(a), and section 111(1) provides that “no person may object” to it. An association whose return is six months overdue can be struck off by a notice registered the next day. The Registrar will in practice send reminders to the email address on the register, and section 159 allows an extension in special circumstances, but the Act does not require either. The remedy is restoration under section 115, which the Registrar must grant on application within two years with the outstanding returns and fees. See the annual return.
Grounds (b) to (j): public notice and objection
For every other ground, section 110(1) forbids removal unless public notice has first been given, by the Registrar for grounds (b), (c) and (f) to (j), by the liquidator for ground (d), and by the person requesting removal for ground (e), and the due date in the notice has passed without an application to the Court. The notice must specify a due date at least 30 days after the notice for objections (section 110(3)). Under section 111(2) and (3) any person may object on the grounds that the association is still carrying on business or has other reason to continue, is a party to legal proceedings, is in receivership or liquidation, that the objector is a creditor, member or claimant, or that removal would otherwise not be just and equitable.
An objection is made under section 112 by applying to the National Court, on or before the due date, for an order that the association not be removed, filing a copy with the Registrar within five days; the Court may so order if satisfied that the association should not be removed, and the order must be filed with the Registrar within five days. A creditor with a pending claim, a member fighting a factional deregistration, or a liquidator part-way through a winding up, will use this route.
The effect of removal
Section 113 applies sections 372 to 375 of the Companies Act 1997: the association’s property vests in the Registrar, who may deal with it and must account for the proceeds. Section 114 provides that the liability of any person, including former committee members and members, for acts or omissions before removal “is not affected by the removal” and may be enforced as if the association had not been removed. A creditor’s remedy against the association itself is to have it restored under section 116 so that it can be sued. Land held by the association passes to the Registrar and, on restoration, revests under section 118.
Overseas associations
Registered overseas associations are removed under sections 131 to 135: automatically after six months’ annual return default; on 30 days’ notice for ceasing to exist, fraud, ceasing business or abuse of authority, with objection to the National Court; and at their own request on 30 days’ public notice when they cease operations. See overseas associations.
Public notice means a newspaper or the Gazette, and the Registrar may also publish on the register website. An association’s committee, creditors and members should monitor both. Thirty days is short, and a National Court application takes preparation.
Sources
- Associations Incorporation Act 2023 — ss 3 (“public notice”), 4, 9(5), 107–118, 131–135, 159
- Companies Act 1997 — ss 372–375, 381
- Criminal Code Act (Chapter 262)
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.