2. Members' access to the records
Except for those association records which members have a specific right to access under the Act, members' access to association records is generally dealt with under an association's rules. As a result access should be based on what the majority of members have approved, although specific arrangements may need to be made for confidential materials such as any staff or client files.
It is useful to remember that an incorporated association should not be run as if its committee is a “secret society”. If the availability of information to ordinary members, such as access to committee minutes or financial accounts, is restricted without good reason, this tends to create mistrust and tension.
2.1 Members' register
The Act requires that associations maintain an up-to-date register of members, which must include each member's name and residential or postal address. Importantly, the Act also provides each member with the right to inspect the register, and to make a copy of any part of its contents. A member does not, however, have a right to remove the register from the association's possession.
The members' register has proven to be problematic for some associations, and a refusal by some committees to allow access to the register has in the past led to the prosecution and fining of a number of committee members. Some people have held a belief that the Commonwealth's privacy legislation overrides this requirement of the Act, but the courts have not supported this view. Instead, it is clear that committees do not have the power to deny members this fundamental right of access to the member's register.
It is relatively easy to comply with the requirements of the Act, while at the same time minimising the concerns that some people may have over their name and address being made available to other members.
- Make sure that the register contains only each member's name and their residential or postal address. If the association wants (or needs) to keep other information on its members (such as telephone numbers, or spouse's details, etc), then develop a separate register that contains these details. This should be kept secure and confidential, as it could be subject to privacy considerations (see 'Privacy and confidentiality of records' below). The simple register of names and addresses is the only register that is required to be accessed under the Act.
- Ensure that members are made aware that it is a legal requirement that their name and address can be made available to other members. It is a good idea to advise people of this requirement when they apply to become a member; for example, by making it clear on the application form. For current members, it can be useful to defuse some of the emotion by pointing out that their names and addresses are also obtainable through sources such as the electoral roll and the telephone directory. Members can of course, give a Post Office box as their address for the purposes of the register, although the cost may not be justified for most.
- Do not allow members to record their contact address as c/- the association. Legal advice indicates that the address on the register must be at least the postal address to which mail for that person would normally be delivered.
- Safeguard the privacy of under-age members by creating a “non-member” category for them (such as “players” for juniors in a sporting club). There can often be particular concerns about privacy for this group, and by making them 'something other than members' means that their addresses would not be available to other members through the association. As non-members, juniors would not be able to join the committee for example, but in any event, there is a doubt over whether it is legally appropriate for under-age persons to serve in that capacity. Creating a 'non-member' category would probably involve an amendment to the rules of association. This topic is dealt with in the section on Altering the Rules.
- Remember that your association does not have to provide a copy of the members' register for a person to take away and use. The requirement is simply to allow a member to view the register and for the member to make a copy of all, or part, of the register.
Important! If the association maintains a members' register that includes information, other than the names and addresses as required by the Act, the association might find itself in breach of privacy laws if it makes that register available for inspection by members. (See also Privacy and confidentiality of records). The only certain way to comply with both the Western Australian and Commonwealth legal obligations is to maintain the register (or registers) as described above.
2.2 Record of office holders
Associations are required to maintain an up-to-date record of the names and residential or postal addresses of:
- all office bearers;
- all committee members;
- those members who are authorised to use the common seal; and
- any persons who are appointed or act as trustees for the association.
As is the case with the members' register, members are entitled to view this record upon request. Once again, they may make a copy of all or part of the record, but may not remove the record for this purpose.
The record of office holders does not appear to have generated the same levels of anxiety as the register of members, and many associations make this information freely available and without the need for a request by a member. Associations usually find that where members can make contact easily with their committee, this assists with the smooth running of the organisation.
2.3 Rules of association
Every association must have a set of rules, often known as a 'Constitution', and the way in which an association operates is largely governed by its rules. The Act requires that the rules of an association must be maintained in an up-to-date condition. In order to keep them current, the rules can be amended by a special resolution of the members, and this process is explained further in Section 10 - Altering the Rules.
The Act also requires that a copy of the rules be held by Commerce as the “official” version of the association's rules. The rules of an association as lodged with Commerce (including any amendments lodged) are the only effective rules of the association. It is important that Commerce is notified of any amendment to the rules, within one month of the date of the meeting where the special resolution was passed. If there is a dispute to which an amendment to the rules is relevant, and Commerce has not been notified, then it may not be possible to rely on the amendment to resolve the dispute.
As with the members' register and record of office holders, an association's rules must be accessible to all its members and members can copy or take an extract from the rules, although members cannot remove the rules for that purpose.
However, many associations provide their members with a personal copy of the rules as a matter of policy. Provided that the cost is not prohibitive, it is a good practice that can assist with the smooth running and effective management of the association.