Members' access to the records
Except for those records association members have a specific right to access under the Act, members’ access to records is dealt with under an association’s rules. Access should be based on what the majority of members have approved. Other specific arrangements may need to be made for confidential materials such as staff or client files.
Incorporated associations should not be run as if its committee is a ‘secret society’. Mistrust and tension could be caused if the availability of information such as committee minutes or financial accounts to ordinary members is restricted without good reason.
The Act requires associations to maintain an up-to-date register of members, which must include each member’s name and one of the following:
- residential address;
- postal address; or
- email address.
Where any change in the association’s membership occurs the records must be updated within 28 days of the change.
The Act gives members the right to inspect the register and make a copy of any part of its contents. A member does not have a right to remove the register from the association’s possession.
A refusal by some committees to allow access to the members register has in the past led to the prosecution and fining of a number of committee members.
Some people have held a belief the Commonwealth’s privacy legislation overrides this requirement of the Act, however the courts have not supported this view. It is clear committees do not have the power to deny members a fundamental right to access the member’s register.
It is easy to comply with the requirements of the Act, while at the same time minimising the concerns that people may have over their name and address being made available to other members, such as:
- ensuring the register contains only each member’s name and their nominated contact information. If the association wants or needs to keep other information on its members (telephone numbers, spouse’s details, etc.), then develop a separate record 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). The simple register of names and nominated contact information is the only register that is required to be accessed under the Act.
- making members aware that it is a legal requirement that their name and nominated contact information 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 such as 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. Alternatively members can give an email address or post office box address for the purposes of the register, although the cost of maintaining a post office box may not be justified for most.
- not allowing members to record their contact address as c/- the association.
- safe guarding the privacy of under-age members by creating a ‘non-member’ category for them such as ‘players’ for juniors in a sporting club. By making them ‘something other than members’ means their addresses are not available to other members through the association. Juniors as non-members are not able to join a committee and there is also doubt over whether it is legally appropriate for under-age persons to serve in that capacity. Creating a ‘non-member’ category would involve an amendment to the association‘s rules. This topic is dealt with in Altering the Rules.
- the Act enabling associations to include a requirement in the rules that any member wishing to make a copy of or take an extract from the register of members – must provide a statutory declaration stating the purpose for which the information is required and the purpose is related to the affairs of the association. The provision of a statutory declaration demonstrates the good intentions of the requesting member. A sample statutory declaration is included at the end of this chapter.
- the new law introducing an option for members to request their association provide them with a copy of the members register. Again the rules may require members to provide a statutory declaration. The management committee may also require members to pay a fee for the copy.
- A person must not use or disclose any information in the register of members unless the purpose is directly to the affairs of the association.
For example the information cannot be used to send material for political, religious, charitable or commercial purposes.
If the association keeps a members register that includes information other than the names and nominated contact details, it might find itself in breach of privacy laws if the register is made available for inspection by members. (See also Privacy and confidentiality of records).
The best way to comply with both the Western Australian and Commonwealth legal obligations is to maintain the register or registers as described above.
Record of office holders
Associations are required to maintain an up-to-date record of the names and current 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.
The address recorded in the record office holders may be:
- a residential, business or post office box address; or
- an email address.
As is the case with the members’ register, members are entitled to view the record of office holders upon request and make a copy of all or part of the record. They may not remove the record for this purpose. Furthermore the inspecting member must not disclose or use the information unless the purpose is directly connected to the affairs of the association.
The record of office holders does not generate the same level of concern as the register of members. Many associations make this information freely available and without the need for a request by a member. Where members can easily contact their committee, the organisation runs smoother.
Rules of association
Every association must have a set of rules, often known as a ‘constitution’. The rules largely govern the way in which an association operates. The Act requires an association’s rules to be kept up-to-date. To ensure this, the rules can be amended by a special resolution of the members. This process is explained further in Altering the Rules.
The Act also requires a copy of the rules to be held by Consumer Protection as the 'official' version of the association’s rules. The rules lodged by an association with Consumer Protection (including any amendments) are the only effective rules of the association.
It is important to notify Consumer Protection 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 of the rules is relevant and Consumer Protection has not been notified, then it may not be possible to rely on the amendment to resolve the dispute.
The association must give each member a copy of the rules in force when their membership starts. Should a person wish to access the rules at any time during their membership they may:
- request to inspect the rules and make a copy or take an extract; or
- request that the association give them a copy of the rules or any particular part in force at the time of the request.