South Australian Consolidated Regulations South Australian Consolidated Regulations9—Modifications of Commonwealth Act for the purposes of Part 5 and
section 61 of Act
(1) The provisions of
the Corporations Act 2001 of the Commonwealth applied by Part 5 or
section 61 of the Act apply with the following modifications, additions and
exclusions (in addition to those contained in the Act):
(a) a
reference to ASIC or the Commission is to be read as a reference to the
Corporate Affairs Commission;
(b) a
reference to the Court is to be read as a reference to the Supreme Court of
South Australia;
(c) a
reference to the Gazette is to be read as a reference to the South Australian
Government Gazette;
(d) a
reference to lodge is to be read as a reference to lodge with the Corporate
Affairs Commission;
(e) in
relation to an incorporated association—
(i)
a reference to a constitution is to be read as a
reference to the rules of the incorporated association;
(ii)
a reference to a board of directors is to be read as a
reference to the committee of the incorporated association;
(iii)
a reference to a director is to be read as a reference
to—
(A) a person who occupies or acts in a
position of a member of the committee of the incorporated association, by
whatever name called and whether or not validly appointed to occupy or duly
authorised to act in the position; or
(B) a person in accordance with whose
directions or instructions the committee of the incorporated association is
accustomed to act;
(iv)
a reference to an officer is to be read as including a
reference to an officer within the meaning of the Act (in addition to the
meaning given by
paragraphs (c), (d), (e), (f) and (g) of the definition of "officer" of a
corporation in section 9 of the Corporations Act 2001 of the
Commonwealth);
(v)
a reference to a registered office is to be read as a
reference to an office of the incorporated association (if any);
(f) in
respect of Part 5.1 of the Corporations Act 2001 of the
Commonwealth—
section 411(13)—leave out from paragraph (b) "the registered office of
the body" and insert "the office (or the main office if there is more
than 1) of the incorporated association or, if the association does not
have an office, the address of the public officer of the incorporated
association"
(g) in
respect of Part 5.3A of the Corporations Act 2001 of the
Commonwealth—
(i)
section 446A(2)—
(A) leave out from paragraph (a) "section
491" and insert "section 41 of the Associations Incorporation Act 1985 "
(B) leave out from paragraph (b) "section
494" and insert "section 41C of the Associations Incorporation Act 1985 "
(ii)
section 446A(3)—leave out "is" and insert "and
section 41D of the Associations Incorporation Act 1985 are"
(iii)
section 446B—after subsection (1) insert—
(1A) In applying the
regulations to an incorporated association—
(a) the
special resolution will be taken to have been passed under section 41(1)(b) of
the Associations Incorporation Act 1985 ; and
(b) a
reference to section 494 of the Corporations Act 2001 of the Commonwealth
will be taken to be a reference to section 41C of the
Associations Incorporation Act 1985 ; and
(c) a
reference to section 497 of the Corporations Act 2001 of the Commonwealth
will be taken to include a reference to section 41D of the
Associations Incorporation Act 1985 .
(h) in
respect of Part 5.4B of the Corporations Act 2001 of the
Commonwealth—
(i)
section 465A—leave out "under section 459P, 462 or
464" and insert "to the Court under section 41 of the Associations
Incorporation Act 1985 "
(ii)
section 465B(1)—leave out "section 459P, 462 or
464" and insert "section 41 of the Associations Incorporation Act 1985 "
(iii)
section 465C—leave out "section 459P, 462 or 464"
and insert "section 41 of the Associations Incorporation Act 1985 "
(iv)
section 467A—
(A) leave out "Part 5.4 or 5.4A" and insert
"section 41 of the Associations Incorporation Act 1985 "
(B) leave out paragraph (b) and insert:
(b) in
the case of an application for the winding up of an incorporated association
on the ground that it is unable to pay its debts—a defect in a demand of
a kind referred to in section 41(4)(a) of the Associations Incorporation
Act 1985 ;
(v)
section 467B—leave out "section 233, 459A, 459B or
461" and insert "section 41 or 61 of the Associations Incorporation
Act 1985 "
(vi)
section 472—after subsection (2) insert:
(2A) The Court may
appoint a person who is not an official liquidator to be liquidator or
provisional liquidator of an incorporated association in accordance with
section 41(9) of the Associations Incorporation Act 1985 .
(vii)
section 473(5)—leave out paragraph (a) and insert:
(a) a
member who is, or members who together are, able to cast at least 10% of the
total number of votes that could be cast at a meeting of the association if
all members were present;
(viii)
section 475—leave out
(ix)
section 476—leave out "subsection 475(1) or (2)"
and insert "section 41B of the Associations Incorporation Act 1985 "
(i)
in respect of Part 5.5 of the Corporations Act 2001
of the Commonwealth—
(i)
section 490—leave out
(ii)
section 491—leave out subsection (1)
(iii)
section 494—leave out
(iv)
section 496(1)—
(A) leave out "section 494" and insert
"section 41C of the Associations Incorporation Act 1985 "
(B) leave out paragraph (a) and
insert—
(a)
apply to the Supreme Court for the association to be wound up under
section 41 of the Associations Incorporation Act 1985 on the ground
that the association is unable to pay its debts;
(v)
section 497—leave out subsection (5)
(vi)
section 501—leave out
(vii)
section 507—leave out
(j) in
respect of Part 5.6 of the Corporations Act 2001 of the
Commonwealth—
(i)
section 513A—leave out "section 233, 459A, 459B or
461" and insert "section 41 or 61 of the Associations Incorporation
Act 1985 "
(ii)
section 513D—leave out "section 233, 459A, 459B or
461" and insert "section 41 or 61 of the Associations Incorporation
Act 1985 "
(iii)
section 532(1)—leave out "is" and paragraphs (a)
and (b) and insert:
(a) is a
registered liquidator; or
(b) is
or is to be appointed or nominated for appointment as the liquidator of an
incorporated association by the Corporate Affairs Commission under
section 41 of the Associations Incorporation Act 1985 ;
(iv)
section 532(8)—after "official liquidator" insert
"or is or is to be appointed or nominated for appointment as the liquidator of
an incorporated association by the Corporate Affairs Commission under section
41 of the Associations Incorporation Act 1985 "
(v)
section 533(1)(d)—leave out "for an examination or
order under section 597" and insert "to the Supreme Court under section 62 of
the Associations Incorporation Act 1985 "
(vi)
section 534(1)—after "the liquidator may" insert
"(if he or she has the consent of the Minister under section 62E(6) of the
Associations Incorporation Act 1985 )"
(vii)
section 539(4)—leave out paragraph (b) and insert:
(b) the
auditor has qualified privilege in respect of the report.
(viii)
section 544(1)—leave out "to be dealt with under
Part 9.7"
(ix)
section 544—leave out subsection (1A)
(x)
section 544(2)—leave out "to be dealt with under
Part 9.7"
(xi)
section 544—after subsection (4) insert:
(4A) If money paid to the Corporate Affairs
Commission under this section remains unclaimed or undistributed, the
Commission may pay it to the Treasurer for payment into the Consolidated
Account.
(4B) A person making a claim in respect of any
money paid to the Treasurer under subsection (4A) may apply to the Supreme
Court for an order of payment of an amount to the person and the Court, if
satisfied that an amount should be paid to the person, must make an order for
the payment accordingly.
(4C) On the making of an order under subsection
(4B) for payment of an amount to a person, or where the Treasurer is otherwise
of the opinion that an amount should be paid to a person out of the money paid
to the Treasurer under this section, the Treasurer must pay that amount to the
person out of money lawfully available for that purpose.
(k) in
respect of Part 5.7B of the Corporations Act 2001 of the
Commonwealth—
(i)
section 588E(1)—leave out paragraphs (e) and (f) of
the
definition of "recovery proceeding"
(ii)
section 588E(4)—leave out paragraphs (a) and (b)
and insert:
(a) has
failed to keep accounting records in relation to a period as required by
section 35(1) or 39C(1) of the Associations Incorporation Act 1985 ; or
(b) has
failed to retain accounting records in relation to a period for the 7 years
required by regulation 8 of the Associations Incorporation
Regulations 1993 ;
(iii)
section 588E(5)—leave out "subsection 286(1)" and
insert "section 35(1) or 39C(1) of the Associations Incorporation
Act 1985 "
(iv)
section 588E(6)—
(A) leave out "subsection 286(2)" and
insert "regulation 8 of the Associations Incorporation Regulations 1993 "
(B) leave out "financial", wherever it
occurs, and insert, in each case,
"accounting"
(v)
section 588E(8)—leave out paragraphs (d) and (e)
(l) in
respect of Part 5A.1 of the Corporations Act 2001 of the
Commonwealth—
(i)
section 601AA—leave out
(ii)
section 601AB—leave out
(iii)
section 601AC—after subsection (2) insert:
(3) An incorporated association is dissolved on
deregistration under this section.
(iv)
section 601AD—leave out and insert:
601AD—Requirement to keep books following deregistration
The persons who were members of the committee of an incorporated association
immediately before deregistration or cancellation of incorporation of the
association must keep the association's books (other than books kept by a
liquidator under subsection 542(2)) for 3 years after the deregistration
or cancellation.
(v)
section 601AE—leave out
(vi)
section 601AF—leave out
(2) When provisions of
the Corporations Act 2001 of the Commonwealth are applied in relation to
an incorporated association, the provisions (together with the provisions of
any regulation or rule for the time being in force under the provisions) are
to be interpreted according to the definitions of words and expressions and
other interpretative provisions contained in the Corporations Act 2001 of
the Commonwealth, except where a contrary intention is expressed in the Act or
these regulations.