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Who can be a board member?

Who's able to be a board member, and who's ineligible? The answer differs surprisingly from state to state. Here's a simplified version (note that some states put these provisions into the Associations Act and some put them in the Model Rules).

ACT NSW NT QLD SA TAS VIC WA
Dead MR MR MR Act - MR - MR
Convicted Act - Act Act Act - - MR
Insolvent MR MR Act Act Act MR MR -
Under age - - MR Act - - - -
Mentally or physically incapacitated MR MR - - - - - MR
Absent MR MR MR - - - - MR
Not a member MR MR MR - - MR MR MR
Resigned or removed MR MR - - - - MR MR
Left the state - - MR - - MR - -

Note also that different states and territories have different views on what constitutes insolvency, incapacity, and/or a criminal record, and if you want precise answers you must look at the Associations Act in your state along with the Model Rules. A fuller account is given in the stet links in the table.

Note, among other interesting things, that

  • Only two states appear to mind if you're under age
  • Two states kick you off the board if you move interstate
  • Two states appear to allow you to continue as a member once you're dead
  • No two states have the same rules

Obviously, just because something's not prohibited doesn't mean it's a good idea, and there may well be good reasons why you might hesitate to elect an underage interstate prisoner to a Victorian board even though the Act permits it. However, there may be exceptional cases where such a member would be justified, and in those cases it's important to know how much flexibility you have.

The long version

ASSOCIATIONS INCORPORATION ACT 1991 - SECT 63

Disqualification from office

  1. A person who has been convicted, whether in or outside the ACT, of-
    1. an indictable offence in relation to the promotion, formation or management of a body corporate; or
    2. an offence involving fraud or dishonesty punishable by imprisonment for a period of 3 months or more;

    must not, within the period of 5 years after the person was convicted or released from imprisonment for the offence, whichever is later, without leave of the Supreme Court, accept an appointment or act as the public officer or a member of the committee of an incorporated association.

    Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

  2. A person who is an insolvent under administration within the meaning of the Corporations Act must not, without leave of the Supreme Court, accept an appointment or act as the public officer or a member of the committee of an incorporated association.

    Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

  3. A person referred to in subsection (1) may apply to the Supreme Court for leave to accept an appointment or to act as the public officer or a member of the committee of an incorporated association.
  4. A person referred to in subsection (2) may apply to the Supreme Court for leave to accept an appointment or to act as the public officer or a member of the committee of an association.
  5. A person intending to make an application under subsection (3) or (4) must lodge with the registrar-general at least 21 days notice of his or her intention to make the application.
  6. On hearing an application under subsection (3) or (4), the Supreme Court may grant or refuse to grant the applicant leave to accept an appointment or to act as the public officer or a member of the committee of an incorporated association, and may, when granting leave, make the grant subject to any conditions or limitations the court thinks fit.
  7. On the application of the registrar-general, the Supreme Court may revoke or vary leave granted to a person by the court under subsection (6).
  8. A person must not contravene the requirements of any conditions or limitations included in a grant of leave under subsection (6).

    Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

ASSOCIATIONS INCORPORATION REGULATION 1991 - SCHEDULE 1

16 Vacancies

  1. For these rules, a vacancy in the office of a member of the committee happens if the member-
    1. dies; or
    2. ceases to be a member of the association; or
    3. resigns the office; or
    4. is removed from office under section 17 (Removal of committee members); or
    5. becomes an insolvent under administration within the meaning of the Corporations Act; or
    6. suffers from mental or physical incapacity; or
    7. is disqualified from office under the Act, section 63 (1); or
    8. is absent without the consent of the committee from all meetings of the committee held during a period of 6 months.
ASSOCIATIONS INCORPORATION REGULATION 1999 - SCHEDULE 1 - Model rules

18 Casual vacancies

For the purposes of these rules, a casual vacancy in the office of a member of the committee occurs if the member:

  1. dies, or
  2. ceases to be a member of the association, or
  3. becomes an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth, or
  4. resigns office by notice in writing given to the secretary, or
  5. is removed from office under rule 19, or
  6. becomes a mentally incapacitated person, or
  7. is absent without the consent of the committee from all meetings of the committee held during a period of 6 months.
NORTHERN TERRITORY OF AUSTRALIA ASSOCIATIONS ACT

30 Certain persons not to be members of committee etc.

  1. A person who is an insolvent under administration or a disqualified person must not, without leave of the Commissioner, be an officer of an incorporated association.

    Penalty: 200 penalty units.

  2. A person who has been convicted within or outside the Territory -
    1. on an indictment of an offence in connection with the promotion, formation or management of a body corporate;
    2. of an offence involving fraud or dishonesty punishable on conviction by imprisonment for not less than 3 months;
    3. of an indictable offence;
    4. of an offence against this Act; or
    5. a prescribed offence,

      must not, within 5 years after the conviction or, if the person was sentenced to imprisonment in relation to the offence, within 5 years after release from prison, without leave of the Commissioner, be an officer of an incorporated association.

      Penalty: 200 penalty units.

  3. Subsection (2) applies even if the conviction or release from prison occurred before the commencement of this Act.
  4. When granting leave under this section, the Commissioner may impose the conditions the Commissioner considers appropriate.
  5. The Commissioner may revoke leave granted under this section.
  6. In this section -

    insolvent under administration means a person who -

    1. under the Bankruptcy Act 1966 of the Commonwealth, is a bankrupt in relation to a bankruptcy from which the person is not discharged; or
    2. under the law of a country other than Australia, has the status of an undischarged bankrupt, and includes -
    3. a person who has executed a personal insolvency agreement under Part X of the Bankruptcy Act 1966 of the Commonwealth or the corresponding provisions of the law of another country, in either case if the terms of the deed have not been fully complied with; and
    4. a person whose creditors have accepted a composition under Part X of the Bankruptcy Act 1966 of the Commonwealth or the corresponding provisions of the law of a another country, in either case if a final payment has not been made under that composition.
(MODEL CONSTITUTION) REGULATIONS (NO 28 OF 2004) - SCHEDULE

Eligibility of committee members

  1. A committee member must be a member who is 18 years or over.
  2. A committee member must also meet the criteria provided in the Schedule.
  3. Committee members must be elected to the Committee at an annual general meeting or appointed under clause 33.

Vacating office

The office of a committee member becomes vacant if -

  1. the member -
    1. is disqualified from being a committee member under section 30 or 40 of the Act;
    2. resigns by giving written notice to the Committee;
    3. dies or is rendered permanently incapable of performing the duties of office by mental or physical ill-health;
    4. ceases to be a resident of the Territory; or
    5. ceases to be a member of the Association;
  2. the member is absent from more than -
    1. 3 consecutive committee meetings; or
    2. 3 committee meetings in the same financial year without tendering an apology to the Chairperson; of which meetings the member received notice and the Committee has resolved to declare the office vacant; or
  3. in any of the circumstances provided for by the Schedule.
ASSOCIATIONS INCORPORATION ACT 1981

Membership of management committee

  1. An incorporated association must have a management committee.
  2. All members of the management committee must be adults.

Eligibility for election to a management committee

1. A person is not eligible to be elected as a member of an incorporated association's management committee if-

  1. the person has been convicted-
    1. on indictment; or
    2. summarily and sentenced to imprisonment, other than in default of payment of a fine; and
  2. the rehabilitation period in relation to the conviction has not expired.

(1A) Also, a person is not eligible to be elected as a member of an incorporated association's management committee if-

  1. under the Bankruptcy Act 1966 (Cwlth) or the law of an external territory or another country, the person is an undischarged bankrupt; or
  2. the person has executed a deed of arrangement under the Bankruptcy Act 1966 (Cwlth), part X or a corresponding law of an external territory or another country and the terms of the deed have not been fully complied with; or
  3. the person's creditors have accepted a composition under the Bankruptcy Act 1966 (Cwlth), part X or a corresponding law of an external territory or another country and a final payment has not been made under the composition.

2. In this section- rehabilitation period has the meaning given in the Criminal Law (Rehabilitation of Offenders) Act 1986.

Tenure of members of management committee

  1. The members of the management committee shall hold office and retire and may be removed from office as prescribed by the rules.
  2. The office of a member of the management committee shall be vacated in such circumstances (if any) as may be prescribed by the rules of the incorporated association or if the person holding that office-
    1. dies; or
    2. becomes bankrupt or compounds with creditors or otherwise takes advantage of the laws in force for the time being relating to bankruptcy; or
    3. is-
      1. convicted of an offence under this Act; or
      2. convicted of an indictable offence or an offence punishable on summary conviction for which the person is sentenced to imprisonment, other than in default of payment of a fine; or
    4. has been convicted on indictment or summarily and sentenced to imprisonment, other than in default of payment of a fine, and the rehabilitation period in relation to the conviction has not expired.

3. In this section - rehabilitation period has the meaning given in the Criminal Law (Rehabilitation of Offenders) Act 1986.

Schedule 4 Model Rules

19 Electing the management committee

(2) A person may be a candidate only if the person-

  1. is an adult; and
  2. is not ineligible to be elected as a member under section 61A of the Act.
ASSOCIATIONS INCORPORATION ACT 1985 - SECT 30

30-Certain persons not to be members of the committee

  1. A person who is an insolvent under administration must not, without leave of the Commission, be a member of the committee of an incorporated association, or be in any way (whether directly or indirectly) concerned in or take part in the management of an incorporated association.
    Maximum penalty: $5 000.
  2. A person who has been convicted within or outside the State-
    1. on an indictment of an offence in connection with the promotion, formation or management of a body corporate; or
    2. of an offence involving fraud or dishonesty punishable on conviction by imprisonment for a period of not less than three months; or
    3. of an indictable offence; or
    4. of-
      1. an offence against section 39A; or
      2. an offence against a provision applied by section 41B; or
      3. an offence against section 60,
        must not, within a period of five years after his or her conviction or, if he or she was sentenced to imprisonment, after his or her release from prison, without leave of the Commission, be a member of the committee of an incorporated association, or be in any way (whether directly or indirectly) concerned in or take part in the management of an incorporated association.
        Maximum penalty: $5 000.
  3. When granting leave under this section, the Commission may impose such conditions or limitations as it thinks fit and any person contravening or failing to comply with any such condition or limitation that is applicable to him or her is guilty of an offence. Maximum penalty: $5 000.
  4. The Commission may, at any time, revoke leave granted by it under this section.
ASSOCIATIONS INCORPORATION (MODEL RULES) REGULATIONS 2007 - REG 4

25. Vacation of office

For the purpose of these rules, the office of an officer of the Association, or of an ordinary committee member, becomes casually vacant if the officer or committee member -

  1. dies; or
  2. becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration or estate for their benefit; or
  3. becomes a represented person within the meaning of the Guardianship and Administration Act 1995; or
  4. resigns office in writing addressed to the committee; or
  5. ceases to be ordinarily resident in Tasmania; or
  6. is absent from 3 consecutive meetings of the committee without the permission of the other members of the committee; or
  7. ceases to be a member of the Association; or
  8. fails to pay all arrears of subscription within 14 days after receiving a notice in writing signed by the public officer of the Association stating that the officer or committee member has ceased to be a financial member of the Association.
ASSOCIATIONS INCORPORATION ACT (1981)

Schedule 5

MODEL RULES

24. Vacancies

The office of an officer of the Association, or of an ordinary member of the committee, becomes vacant if the officer or member--

  1. ceases to be a member of the Association; or
  2. becomes an insolvent under administration within the meaning of the Corporations Law; or
  3. resigns from office by notice in writing given to the Secretary.

Casual vacancies in membership of Committee

14 A casual vacancy occurs in the office of a Committee member and that office becomes vacant if the Committee member-

  1. dies;
  2. resigns by notice in writing delivered to the Chairperson or, if the
    Committee member is the Chairperson, to the Vice-Chairperson and
    that resignation is accepted by resolution of the Committee;
  3. is convicted of an offence under the Act;
  4. is permanently incapacitated by mental or physical ill-health;
  5. is absent from more than-
    1. 3 consecutive Committee meetings; or
    2. 3 Committee meetings in the same financial year without tendering an apology to the person presiding at each of those Committee meetings; of which meetings the member received notice, and the Committee has resolved to declare the office vacant;
  6. ceases to be a member of the Association; or
  7. is the subject of a resolution passed by a general meeting of members terminating his or her appointment as a Committee member.

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