There are severe penalties for breaches of an officer's duties under the Associations Incorporation Act 1985 (SA). For further duties of officers of prescribed associations, SEE PRESCRIBED ASSOCIATIONS.
Any person, not just an officer of the association, must comply with a requirement made under Associations Incorporation Act 1985 (SA) Part 2, Division 2, which allows the Corporate Affairs Commission to ascertain whether an association is complying with the Act.
General defence [Associations Incorporation Act 1985 (SA) s 58A]
It is a defence to an alleged offence under the Associations Incorporation Act 1985 (SA) if the accused person proves that the offence was not done intentionally and did not result from the accused person's failure to take reasonable care to avoid the offence happening.
Intent to deceive or defraud [Associations Incorporation Act 1985 (SA) s 39A(1)]
It is an offence punishable by up to four years gaol or $20 000 fine for an officer exercising her or his powers or duties to commit an act with intent to deceive or defraud the association, its members or creditors (including employees), creditors of any other person or for any fraudulent purpose.
Improper use of information or position [Associations Incorporation Act 1985 s 39A(2), (3)]
An officer or employee must not make improper use of information acquired by virtue of her or his position in the association, so as to gain an advantage or to cause detriment to the association. An officer or employee must not make improper use of her or his position in the association so as to gain an advantage or to cause detriment to the association. The advantage includes any sort of advantage either for that person or anyone else. These provisions also apply to former officers and employees and carry a maximum penalty of four years gaol or a fine up to $20 000.
A person who makes improper use of information or position is liable for any damage suffered by the association and must also pay the association any profit made [Associations Incorporation Act 1985 (SA) s 39A].
Keeping accounting records [Associations Incorporation Act 1985 (SA) s 39C; s49AC]
An incorporated association must keep accounting records that correctly record and explain the transactions and financial position of the association. If this is not done, both the association and any officer in default are guilty of an offence. The maximum penalties are $2500 for a prescribed association, and in other cases $1250. Section 49AC provides for more severe penalties where s39C was not complied with prior to the association winding up.
Securing compliance with the Associations Incorporation Act [Associations Incorporation Act 1985 (SA) s 57]
Officers of an association must take all reasonable steps to ensure the association complies with the Act. Failure to do so is an offence with a fine of up to $1250.
Falsification of records [Associations Incorporation Act 1985 (SA) s 58]
It is an offence for an officer, former officer, member or former member to falsify the books or records, including records in illegible form, of the association. 'Falsify' in this section has a broad meaning. The maximum penalty is $5000 or one year imprisonment.
Offences in relation to winding up, compromise with creditors, transfer of activities and dissolution [Associations Incorporation Act 1985 (SA) Part 5]
The relevant sections are 41B, 41D, 41E, 49AB, 49AC, 49AD, 49AF.
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