Guide for Public Officers and Secretaries of Victorian Incorporated Associations

This Guide is an adaptation of The Secretary’s Handbook (4th edition April 2008) by Prof Myles McGregor-Lowndes, Australian Centre for Philanthropy and Nonprofit Studies, Queensland University of Technology. It has been produced with support from the Office of the Community Sector and Consumer Affairs Victoria, agencies of the State Government of Victoria.

You are welcome to download, display, print and reproduce any part of this Guide for your personal and non-commercial use, or non-commercial use within your not-for-profit organisation, as long as you retain the copyright notice at the end of each part of the Guide.

Part 1 : Important Background Information

This part of the Guide for Public Officers and Secretaries contains background information to help you understand your organisation, and the roles of the public officer and secretary within it.

Key points

• Who is this Guide for?
  This Part explains the roles of public officer and secretary of an incorporated association in Victoria, and helps you work out which parts of the Guide apply to your situation.
  
• How do I use this Guide?
  This Guide is in 10 Parts and include a range of practical tools and other links.
  
• What is an incorporated association?
  An incorporated association is the most common (but not the only) legal structure used by not-for-profit organisations. There are laws which regulate incorporated associations. Laws differ between States and Territories. This Guide deals with Victorian laws.
  
• What are the reporting obligations of an incorporated association?
  An incorporated association must report certain information to Consumer Affairs Victoria as set out in the Associations Incorporation Act 1981 (Vic).
  
• What are the rules and purposes of an incorporated association?
  Every incorporated association has its own “rules” which set out in detail the procedures for running the organisation. Every association also has a statement of purposes which sets out the organisation’s objectives.  This Part has a tool to help you work out what your rules are – it is essential for you to be familiar with them.
  
• What is the role of members of an incorporated association?
  Members of an incorporated association have power to make certain decisions about the running of the organisation. In particular, they appoint the management committee.
  
• What is a management committee?
  The management committee of an incorporated association (that is, its governing body) is responsible for overseeing how the organisation operates. There are usually a number of special positions on the management committee, including the secretary.
  
• Who is the public officer?
  The public officer has legal responsibilities for submitting documents to Consumer Affairs Victoria, and is the official contact person for the organisation.
  
• Where can I go for information and assistance?
  There is this Guide and other resources to help you, and people you can talk to as well.

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Part 2 : Appointing and Removing a Public Officer

This Part of the Guide for Public Officers & Secretaries covers the legal requirements for appointing and removing a public officer of an incorporated association in Victoria.  

Key Points

• Who can be the public officer? 
  The Associations Incorporation Act 1981 (Vic) regulates who can be the public officer of an incorporated association. In addition, the organisation’s own rules and policies may have particular requirements.
  
• How is the public officer appointed?
  Whenever there is a vacancy in the position of public officer the management committee must appoint a new public officer within 14 days.
  
• What happens after the public officer is appointed?
  Every new public officer must notify Consumer Affairs Victoria of particular matters after they have been appointed or if their details change. Most organisations also need to notify the Australian Tax Office of a change of public officer.
  
• When can a public officer’s position become vacant?
  The Associations Incorporation Act 1981(Vic) sets out the circumstances in which the position of public officer will be automatically terminated (vacated).
  
• When can a public officer be removed from office?
  It is also possible for an organisation to remove the public officer from their position.

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Part 3 : Appointing and Removing a Secretary

This Part of the Guide for Public Officers and Secretaries covers appointing and removing a secretary of an incorporated association in Victoria.

Key Points

• Who can be the secretary?
  An organisation’s rules and policies may set out requirements about who can be the secretary. In most organisations, the secretary is a member of the incorporated association and also on the management committee.
  
• How is the secretary appointed?
  The procedures for appointing a secretary are set out in the organisation’s rules. Once appointed, the organisation should consider who needs to be notified about the change of secretary.
  
• When will the position of secretary become vacant?
  The organisation’s rules will set out the circumstances in which the position of secretary will be automatically terminated (vacated), and the procedures for appointing a new person to the position.
  
• Removing a secretary
  The procedures for removing a secretary are also set out in the organisation’s rules.

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Part 4 : Secretaries Legal Role, Powers and Duties

This Part of the Guide for Public Officers and Secretaries covers the legal role, powers, duties and liabilities of a secretary of an incorporated association in Victoria.

Key Points

• What are the main legal tasks of a secretary?
  In Victoria, laws regulating incorporated associations shape the secretary’s tasks and responsibilities. The specific tasks of the secretary are set out in an organisation’s rules. The secretary usually has responsibility for organising meetings, dealing with memberships and keeping records of the organisation.
  
• What are the legal duties of a secretary?
  The law developed by the courts sets out how a secretary must act when they are performing their role. If the secretary is also a member of the organisation’s management committee, they also have specific (statutory) duties under the Associations Incorporation Act 1981 (Vic).
  
• What happens if a secretary breaches any of their legal duties?
  There are consequences for breach of duty under judge-made law and the Associations Incorporation Act 1981 (Vic). These are discussed in this Part.
  
• Does a secretary have power to act on behalf of the organisation?
  The law does not directly give a secretary power to act on behalf of the incorporated association. However, the management committee may authorise the secretary to act on behalf of the organisation.
  
• When is a secretary personally liable for the debts and liabilities of the organisation? There are some circumstances in which a secretary may be held personally liable (legally responsible) for the debts and liabilities of the organisation.

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Part 5 : Preparing and Giving Notice of Meetings

This Part of the Guide for Public Officers and Secretaries covers preparing and giving notice of meetings of an incorporated association in Victoria.

Key Points

• What is a notice of meeting (and notice of motion)?
  A notice of meeting is a written notice that a meeting is to take place at a specified time. A notice of motion is a notice, given by a member of the organisation, that proposes some decision or action be discussed and voted on at the next meeting.
  
• What are the legal requirements for notices of meetings?
  Depending on the type of notice and the type of meeting, laws may regulate the content of the notice, the time and method of giving it, who the notice is to be given to, and what to do if the meeting (or motion) is adjourned to another time and place.
  
• Notice of a general meeting
  This Part sets out requirements for notices of general meetings of the organisation’s members. A sample notice and checklist tools are provided.
  
• Notice of an annual general meeting
  There are special notice requirements for an annual general meeting.
  
• Extra requirements for special resolutions and removing an auditor
  There are extra notice requirements for general meetings where certain types of decisions are proposed to be made.
  
• Notice of a management committee meeting
  This Part discusses requirements for notice of management committee meetings. A sample notice and checklist tools are provided.
  
• What if a notice of meeting may be invalid?
  There are ways your organisation may be able to overcome a possible defect in a notice.

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Part 6 : Procedures for Meetings

This Part of the Guide for Public Officers and Secretaries sets out the legal requirements for meeting procedures, focusing particularly on the role of the secretary of an incorporated association in Victoria.

Key Points

• Establishing meeting procedures
  Meeting procedures for incorporated associations can vary, depending on the type of organisation, the type of meeting, and the organisation’s policies, practices and culture. As long as the legal requirements are met, the meeting can be as formal or relaxed as the situation allows.
  
• Procedures for a general meeting
  The legal requirements and common procedure at general meetings is set out in this Part. 
  
• Procedures for an annual general meeting
  At an annual general meeting, certain matters must be considered by members and elections of the management committee may be held. A sample agenda, with guidance for the secretary, is provided in this Part.
  
• Procedures for management committee meetings
  The legal requirements and common procedure at meetings of the management committee are set out in this Part.
  
• Voting methods
  There are range of ways in which people who are entitled to vote at a meeting can do so. A variety of voting methods are set out in a tool in this Part.
  
• Proxy voting
  Some organisations allow members who are not actually present at a meeting to vote by proxy – that is, by appointing someone else to attend the meeting and vote on their behalf. A flowchart is provided to assist you to review proxies.

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Part 7 : Minutes of Meetings

This part of the Guide for Public Officers and Secretaries covers the task of preparing and keeping the minutes of meetings of incorporated associations in Victoria.

Key Points

• What are “minutes”?
  Minutes are a written record of what was discussed and decided at a meeting. One of the key legal duties of the secretary of an incorporated association is to make sure that accurate minutes are made of the organisation’s meetings, and that these are kept in a safe place.
  
• What are the legal requirements for minutes?
  Both the Associations Incorporation Act 1981 (Vic) and an organisation’s rules set out legal requirements for the minutes of the organisation. Those requirements are discussed in this Part.
  
• Preparing and keeping minutes
  This Part sets out what should be included in the minutes and how they should be kept. It also contains tips for drafting minutes and examples, including “action lists” which summarise people’s responsibilities arising from the meeting.
  
• Confirming and verifying minutes
  The secretary should ensure at each meeting the members (for a members' meeting) or the management committee (for a management committee meeting) pass a resolution confirming the minutes from the previous meeting, and the chairperson signs a copy of the confirmed minutes. This Part explains this procedure and has a tool to help you.

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Part 8 : Reporting to Consumer Affairs Victoria

This part of the Guide for Public Officers and Secretaries covers the obligations of an incorporated association in Victoria to report to Consumer Affairs Victoria (CAV).

Key Points

• What are the legal requirements for reporting to Consumer Affairs Victoria?
  The public officer of an incorporated association is required to report to CAV about certain matters, including the organisation’s financial affairs in an “annual statement”. (However, when new laws commence not before late 2009) the secretary will take on this task. The secretary, together with the organisation’s management committee, prepares documents to be lodged with CAV.
  
• Accounting requirements
  Each incorporated association must maintain adequate and accurate accounting records. These records are the basis of the organisation’s annual statement. There are extra requirements for “prescribed associations”. The treasurer is usually responsible for gathering these, but the public officer must lodge them with CAV.
  
• Preparing and lodging the annual statement
  Every year, a financial statement must be submitted to members of the organisation at the annual general meeting. This must happen before the public officer lodges the annual statement with CAV. The financial statement must contain certain information, and there are particular requirements for preparing and lodging the annual statement.
  
• Can Consumer Affairs Victoria refuse to register documents?
  In some circumstances CAV can refuse to register documents. This includes when CAV considers a lodged document is not a valid document of the organisation. This Part explains what an organisation can do if CAV refuses to register a document.

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Part 9 : Preparing Official and Public Documents

This Part of the Guide for Public Officers and Secretaries covers the legal requirements for official and business documents of incorporated associations in Victoria.

Key Points

• What are “official and business documents”?
  Official and business documents include documents that are prepared in the name of the organisation and documents which are distributed to members or the public on behalf of the organisation.
  
• What are the legal requirements for official and business documents?
  The Associations Incorporation Act 1981 (Vic) sets out some specific requirements for official and business documents of incorporated associations in Victoria. In some circumstances, federal legislation (such as corporations and tax laws) may also be relevant to an incorporated association. This Part sets out what information you must include to satisfy these requirements.

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Part 10 : Keeping Registers, Records and Documents

This Part of the Guide for Public Officers and Secretaries covers the legal requirements for various registers, records and documents kept by incorporated associations in Victoria.

Key Points

• What are the main legal requirements?
  The legal requirements for incorporated associations to keep documents, registers and records are outlined in this Part. Guidance for organisations which are required to keep records of their fundraising activities under the Fundraising Act 1998 (Vic) is also provided in this Part.
  
• Types of registers
  Every incorporated association must have a members register. This Part discusses the members register, and other types of registers which an organisation may choose to have to assist in meeting its legal obligations, and also for good governance practice. Sample registers are provided.
  
• Consumer Affairs Victoria’s powers of inspection, entry, search and seizure
  Where there are serious concerns about an organisation’s compliance with the law, Consumer Affairs Victoria (CAV) may consider using its powers to (among other things) inspect and seize relevant documents of an incorporated association.
  
• Can CAV refuse to accept documents lodged?
  In some circumstances CAV can refuse to register documents, including when CAV considers a lodged document is not a valid document of the organisation.

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Glossary

This Part of the Guide for Public Officers and Secretaries contains plain English definitions of key words and also lists abbreviations used in the Guide.

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Acknowledgements

Contributors to the Guide

We would like to acknowledge a range of participants in this project. It has been a highly effective collaboration - pro bono assistance from lawyers, financial and in-kind support from government, and feedback from a wide range of not-for-profit groups. The project has been lead by PilchConnect - with assistance from Juanita Pope (project worker) and Sandra McCullough (initial editorial assistance).

PilchConnect wishes to thank Professor Myles McGregor-Lowndes (Director, The Australian Centre for Philanthropy and Nonprofit Studies, Queensland University of Technology) for generously permitting PilchConnect to adapt his work, The Secretary’s Handbook (4th ed April 2008), in order to produce this new Victorian Guide for Public Officers and Secretaries. The Queensland Guide has helped thousands of community groups over many years and we hope that our PilchConnect ‘Victorian’ version will have a similar impact!

Project partners

Middletons

Middletons is a full service Australian commercial law firm and is a member of PILCH (Public Interest Law Clearing House, the organisation in which PilchConnect operates as a specialist service). Middletons has provided invaluable pro bono legal assistance to PILCH in preparing the Guide and has also provided in-kind assistance with design and layout.

We appreciate this support, together with the support that all PILCH members provide in taking pro bono referrals for eligible public interest not-for-profit community organisations and assisting with our seminar series for not-for-profits and fact sheets for our legal information web portal.

Office of the Community Sector, Department of Planning and Community Development, Victorian Government

This Guide has been produced with financial support from the Office for the Community Sector, Department of Planning and Community Development.

The Office has also assisted by bringing various parts of government together with the not-for-profit sector, via its Regulatory Reform Reference Group (see below).

Consumer Affairs Victoria, Department of Justice, Victorian Government

This Guide was prepared with the cooperation of Consumer Affairs Victoria (CAV). The Registrar of Incorporated Associations (the regulator of incorporated associations in Victoria) is under the umbrella of CAV, and their input and involvement has ensured that the Guide reflects the daily practice and policies of the Victorian sector regulator.

Reference and focus groups

We would like to thank the Office of the Community Sector Regulatory Reform Reference Group (comprised of a range of not-for-profit peak bodies and CAV), for its support and feedback on the Guide. This feedback has helped us ensure the Guide will be a practical resource for a broad range of community organisations. In particular, we would like to thank Tony Lang (Barrister, representative from the Victorian Bar) for his specialist comments.

We hope the Guide will also be useful for those in peak bodies (such as those on the Regulatory Reform Reference Group) which often provide assistance and support for member organisations on many of the issues covered in the Guide (such as holding their AGM, appointing committee members and so on).

We would also like to thank our not-for-profit community organisation focus group participants: Trevor Matthews (Business and Finance Manager, St Martins Youth Arts Centre), Alisa Tanaka-King (Management Committee Member, Bird On Fence) and Sandra Whitty (former secretary with small youth and environment organisation), plus several others who have been consulted. Your feedback has also helped ensure the Guide is as accessible as possible to non-lawyers!

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Feedback about Guide

PilchConnect welcomes feedback (suggestion, compliments or errors) about the Guide for Public Officers and Secretaries of Victorian Incorporated Associations. Please tell us what you think, how your organisation has used it, how it can be improved etc. We will use this feedback to refine and update the Guide over the next year as further reforms to the Associations Incorporation Act 1981 (Vic) are introduced.

If you would like to provide feedback via our website, you can do so using our  Feedback Page.

Or you can email us at  connect@pilch.org.au.

Thank you!

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Download the Full Guide for Public Officers and Secretaries

The full version of the Guide is available as a pdf document to download (see link below).

Please note that the file size of the Full Guide is 1.7MB. If this file size is too large, individual chapters (in pdf form) are available to download from this page (see above or use 'back to top' link to return to the table of contents).

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