Complaints about an association
Associations traditionally have been regarded as essentially community-based organisations which are largely independent of government intervention. Therefore members in particular have a crucial role in ensuring that their association conducts itself in a way that is acceptable to them.
The Department of Commerce can only intervene in the limited circumstances allowed under the Associations Incorporation Act 1987, and then generally only to ensure that association members are able to contact one another and to make informed decisions.
- What can I do if I think that something is going wrong with an incorporated association?
- Where to start
- Obtaining copies of the rules and Act
- What you can do
- What complaints can the department investigate?
- What to include in your complaint
- What to expect
There are a number of options that are available to you if you think that there is something going wrong with an incorporated association. First, however, some useful tips when dealing with concerns about an incorporated association:
- In dealing with any concern or dispute it is useful to remember that there is usually some “common ground” between the parties. Generally everyone who joins an association does so because they have a commitment to the purposes of the association, whatever those might be. If everyone focuses on this common ground – what is in the best interests of the association - it might be easier to resolve the dispute.
- Remember to take into consideration the amount of time that members, and in particular committee members, put into their associations, often on a purely voluntary basis. Don’t be unrealistic about the time frames in which your concerns or issues can be dealt with.
- It is generally in the interests of any association, and even more importantly, those purposes that the association was set up to pursue, if any concerns or disputes can be dealt with without creating ill feeling between members. Often people will still need to have contact and dealings with each other in the future.
- If you intend to raise concerns or allegations about individuals, you should always make sure that you have some proof; not only because you might potentially be subject to legal action if you make unsubstantiated allegations, but also because it can be very difficult to undo the damage which may be caused by an unfounded accusation.
In most cases, a good place to start is to decide whether your concerns relate to individual members of an association, the committee of management, or how the association operates generally. Just as important is knowing what the rules of the association and the Act require; these may help you to identify what the problem is and what might be the best way to approach it. For example:
- Is there a problem because of the manner in which a committee or ordinary member deals with other members? A grievance process might be the most appropriate resolution so you would need to check the rules to see if they contain a grievance procedure.
- Is there a problem because you feel that committee members might not be complying with the rules? Once again, you would need to be familiar with the rules to see if there have been any breaches, and to find out if there is any action you can take.
- Are you concerned that the association may not be acting in accordance with its obligations under the Act? You would need to obtain a copy of the Act to confirm what these obligations are.
If you haven’t already done so, start off by getting a copy of the rules.
Under section 28 of the Act, a member of an association has a right to inspect the rules as kept by the association, and to take a copy. Members of the association or any member of the public also can obtain a copy of any association’s rules from the Department for a fee.
If there is a dispute about which rules are the “correct” ones for an association, it is only the rules that are lodged with this Department which are effective under the Act.
A copy of the Act and its associated Regulations can be purchased from the:
State Law Publisher
10 William Street
Perth, Western Australia
Telephone: 9426 0000
The Act and Regulations also can be viewed on the State Law Publisher’s website, Go to “Online Publications” and then “Western Australian Statutes”.
There are a number of options available to members and others if they have concerns about an incorporated association. These include:
- Raise your concerns informally with association committee members. They may be able to provide explanations or additional information to answer your concerns. Alternatively, committee members might consider that the issues you raise do need to be addressed and agree to make changes to how the association conducts itself, or, if required, to propose alterations to the rules for consideration by the general membership.
- Raise your concerns formally by writing to the committee.
- If you are a member or receive services from an association, check the rules and see if it includes any mediation or grievance provisions. These provisions generally set out a process for trying to resolve disputes or complaints and often involve calling on an independent third party to try to mediate.
- Even if the rules don’t provide for mediation or a grievance process, the individual or committee may agree to meet and discuss the problem with you in the presence of an independent third party agreed between you.
- Raise your concerns to the general membership, for example, by writing a letter and asking it to be read and tabled at the next general meeting.
- If you are a member of the association, check the rules relating to meetings. Many associations’ rules provide that a certain number or proportion of members can request a special general meeting. Some rules provide that if the committee fails to convene the meeting within a certain time, the members are allowed to convene the meeting themselves.
- Even if the rules of your association don’t allow for members to require that a special general meeting be convened, section 27 of the Act allows members to request to inspect and copy an incorporated association’s register of members. The register of members must include the names and residential or postal addresses of all association members. Once you have access, you can write to other members about your concerns. This may result in the committee convening a special general meeting so that the issues can be discussed before the general membership. Alternatively, because incorporated associations must convene annual general meetings under the Act, these matters of concern could be debated then.
- If none of the options above have worked or are appropriate to the problem, check which government department may be able to assist. For example, if the problem concerns an employment issue, you could contact “Wageline” on 1300 655 266; if it concerns a liquor license, you may want to contact the Office of Racing, Gaming & Liquor. Note too that if the association receives government funding and your complaint relates to matters within the funding agreement, you may want to bring your concerns to the attention of the funding body.
- If there has been a possible breach of the Act, you can make a formal complaint in writing to this Department. (See “What to include in your complaint” below.)
You may want to obtain legal advice on what options are available. Please note that this Department cannot provide private legal advice on such matters.
- In some instances, members or creditors can apply to the Supreme Court to wind up an association. However, you should obtain private legal advice if you want to pursue this option.
Under the Act, the Department and the Commissioner for Consumer Protection have specific powers to regulate associations incorporated under that Act. However, it is important to be aware that it is not a function of the Department to interpret the rules of an association, to intervene in the internal disputes of the association or to provide legal advice. Breaches of the rules are matters to be addressed by members, either through the association’s rules, or by seeking private legal advice.
What the Department will investigate
The Department will only investigate if there appears to have been a breach of the Act or Regulations. Some of the key provisions under the Act are set out below:
- An up to date register of members and their postal or residential addresses must be maintained by the association and be available to members to inspect or copy, but not to remove, on request (section 27).
- The up to date rules of the association must be maintained by the association and be available to members to copy, but not to remove, on request (section 28).
- A record of the names and postal or residential addresses of office bearers and trustees (if any) must be maintained and be available to members to inspect or copy, but not to remove, on request (section 29).
- Annual general meetings are to be held each year within four months of the end of the association’s financial year (section 23).
- Association accounts showing the financial position at the end of the previous financial year must be submitted to members at the annual general meeting (section 26).
- Accounting records must be kept which correctly record and explain the financial transactions and position of the association; enable true and fair accounts to be prepared and allow accounts to be conveniently and properly audited (section 25). Note that the Act does not require these accounts to be audited.
- Addition and alteration of rules must be by special resolution only (section 17). This is defined under the Act as being required to be passed by a majority of no less than threefourths of the members entitled to vote, at a general meeting which was convened in accordance with the association’s rules (section 24).
- Members of the committee who have any direct or indirect pecuniary interest in a matter being considered by the committee must declare that interest and not take part in any deliberations or voting on that matter (sections 21 and 22).
- Associations are not eligible to remain incorporated under the Act if they trade or secure pecuniary profit to members (sections 4(2), 34).
- Associations may be cancelled if they have been inoperative for the preceding 12 months or have fewer than 6 members (section 35).
- Associations incorporated since July 1988 must make provision in their rules for all of the items listed in Schedule 1 of the Act (section 16).
What the Department will not investigate
The Department does not investigate the matters listed below:
- A breach of the association’s rules:
The rules of an association reflect what has been agreed by members about how an association should be run and these are subject to only some fairly minimal requirements under the Act. Non-compliance with the rules is a matter for the members to address either amongst themselves or by taking civil legal action.
Examples of matters which need to be dealt with by members include the admission or expulsion of members, renewal of memberships, the conduct of committee meetings and the inspection of records other than those referred to under the Act, being the register of members, rules and list of office bearers.
- The interpretation of the association’s rules:
The Department cannot adjudicate on what an association’s rules mean. This should be dealt with as provided under the rules or otherwise is for members to determine.
- Disputes between individual members of the association or an individual and the association:
Again the Department cannot adjudicate on disputes concerning individual grievances.
You can contact the Associations Section for information about any concerns you have relating to the operations of an association in terms of its obligations under the Act. However, the Associations Section will only investigate signed, written complaints. (Please note that it is departmental policy that the identity of complainants should not be revealed.)
You should include the following in your complaint:
- the name of the association and its registration number if known;
- a postal address for the association, and if possible, the name and title of an appropriate office bearer;
- full details of the misconduct and which provisions of the Act you believe have been breached, if known;
- any documents which support your allegations; and
- your name and address, and a contact telephone number if convenient.
The Department will assess whether your complaint falls within the terms of the Act and consider whether there is sufficient information and documentation provided to investigate your complaint further. Priority is given to dealing with complaints according to the seriousness of the conduct identified. You will receive an acknowledgement of your complaint with the name and telephone number of the officer assigned to the matter and you may be asked to provide further information and documentation.
An association will always be given an opportunity to comment on any relevant allegations made in a complaint. The Department also has considerable investigative powers, and provided that the circumstances indicate that there has been a failure to comply with the Act, can order the production of association records or require the association to be audited. The Department also has power to direct the association to comply with the Act, to cancel an association in certain circumstances, and in the most extreme case can apply to the Supreme Court to have an association wound up. The Department also can prosecute individual committee members if they have failed to take reasonable steps to ensure the association complies with its obligations under the Act, or have failed to declare when they have a pecuniary interest and abstain from deliberating or voting. The department also can prosecute anyone who knowingly presents false or misleading documents in any material respect to this Department or to a meeting of members.
You should be aware that even in cases where it appears after investigation that there has been a breach of the Act, if the breach does not appear to be deliberate or fraudulent and the association agrees to comply with its obligations in the future, the Department may form the view that formal action is not in the public interest