Under section 18(1) of the Associations Incorporation Act 1985 (SA) an association is eligible to be incorporated if formed for:
The Minister's approval is also required for the incorporation of an association that has a main object of making a profit for its members or to engage in trade or commerce. However many non profit associations engage in trade for ancillary fundraising purposes, and approval is not required for this.
To apply for incorporation, a person authorised by the association must fill in the form called 'Incorporation of an Association Application'. This form must be sent to the Corporate Affairs Commission, which is part of Consumer and Business Services, along with:
See also the Consumer and Business Services publication 'How to incorporate'.
The Corporate Affairs Commission can refuse to incorporate an association if it believes that the association's activities could be carried on better by a body incorporated under another Act. With the consent of the Minister, it can also refuse to incorporate an association if it believes it is in the public interest to do so.
The following are some of the most important consequences of incorporation under the Associations Incorporation Act 1985 (SA).
Note: the Corporate Affairs Commission (referred to below) is part of Consumer and Business Services.
Perpetual Succession [s 20(3)(a)]
Upon incorporation, the association becomes a body corporate with perpetual succession, meaning it can continue to exist indefinitely, regardless of changes to its membership.
Common Seal [s 20(3)(a)]
Corporate Name [s 20(3)(a), s 65]
The association's name is chosen by the association, but must be approved by the Corporate Affairs Commission, and is the corporate name appearing on the certificate of incorporation sent to the association by them. The word 'Incorporated' is part of the association's name and must come at the end of the name. The abbreviation 'Inc.' may be used.
Property [s 20(3)(b)]
The ownership of all real and personal property of an unincorporated association is automatically transferred from the members and the trustees, if any, to the newly incorporated association (subject to any trusts that may affect the property). However, it may still be necessary to register these changes separately (for example, land held by trustees must be transferred to the association and this must be registered at the Lands Titles Office).
Rights and Liabilities [s 20(3)(c), s 21]
The rights or liabilities of an organisation continue and are not 'wiped out' when it incorporates. Any contracts the association was involved in continue to operate. Although members are not personally liable for debts of an incorporated association (unless the rules of the association provide for some liability), they will still be responsible for debts incurred on behalf of the association before incorporation. Members can be required to contribute to the payment of these prior debts.
Profits for members [s 55]
An incorporated association must not make profits for any member of the association or for any associate of a member without the approval of the Corporate Affairs Commission. An association must not pay any money to a member (or any associate of a member) without the Commission's approval. The exceptions to this are reasonable payments for work done for or on behalf of the association, or payments that are incidental to activities carried on by the association in accordance with its objects.
Incorporated associations must have rules, which are sometimes called a constitution. The rules are binding on the association and its members. Some associations have a further set of more detailed rules - called by-laws, ordinances or rules - that deal with administrative or procedural matters. These are also binding on the association and its members. The rules (including alterations to rules) must be sent to the Corporate Affairs Commission (part of Consumer and Business Services) for registration (this does not apply to the more detailed rules or by-laws). The rules of an association must:
A example of rules that can be adapted to suit your organisation is available from the Consumer and Busness Services website - but note that it mainly applies to groups with a general membership and a committee structure.
Alterations to the rules
An incorporated association may change its rules using the method set out in its rules. If its rules do not cover how to make changes, then section 24 of the Associations Incorporation Act 1985 (SA) applies, which states that the rules may be changed by special resolution of the association. 'Special resolution' is defined in section 3 of the Act. It is a resolution where 21 days written notice of the resolution has been given to all members, and where it has been passed by a three-quarters majority of members present at the meeting.
Within one month of making any alteration to its rules, an incorporated association must register the alteration with the Corporate Affairs Commission. If it does not, the association can be fined up to $1250.
An alteration to the name of an incorporated association does not come into force until it is registered. However, any other alteration comes into force at the time the alteration is passed, unless the rules or a resolution of the association state otherwise.
To register an alteration, the association must fill in the form called Registration of Alteration to Rules (form 6) and send it to the Corporate Affairs Commission (Consumer and Business Services) along with:
The forms are available online, and free of charge from the website of Consumer and Business Services.