Following the introduction of the new Incorporated Societies Act 2022 (the “new Act”) there are many changes that will be relevant to your society.
One really big change is existing societies will need to reregister under the new Act. A consequence of not reregistering is that the society will cease to exist from either the 1st of December 2025 or two and a half years after clause 4 of schedule 1 commences, whichever date is later (the “transition date”). Whilst there is still time, it would be prudent for societies registered under the Incorporated Societies Act 1908 (the “old Act”) to understand how to reregister under this new regime. If this is you, a review of your rules is needed to ensure it complies with these new regulations. We have written a series of articles on the requirements for your constitution under the new Act, which you can find here.
How do I reregister my society?
The first schedule to the new Act sets out the process for existing societies under the old Act to reregister as societies under the new Act. Until the transition date or until reregistration, the old Act will still apply to existing societies. Before that date, a society can apply to the Registrar of Incorporated Societies to be reregistered as long as it is not in liquidation. Provided all the requirements for incorporation under the new Act are met, the society will be reregistered.
What is needed in an application to be reregistered?
Clause 5 provides for the necessary documents and information needed in an application. Namely, that an application must be created in a manner prescribed by the regulations and have in it, or accompanied with it:
- The information prescribed by the regulations; and
- The society’s proposed name;
- At least 1 contact person’s name and contact details; and
- A copy of the society’s proposed constitution; and;
- The fee prescribed by the regulations.
‘Regulations’ mean the regulations as set out in the new Act. An existing society may amend its rules in accordance with clause 9 or make a new constitution in accordance with clause 10 to ensure they comply with the new Act’s requirements. We have written a series of articles on the requirements for your constitution under the new Act, which you can find here.
Reregistration by the registrar
To issue a society with a certificate of incorporation and register a society’s name and constitution, the Registrar must be satisfied with the society’s application for reregistration. Additionally, the grounds in section 8 and 11 to 13 must not apply. These are grounds for the Registrar to refuse to incorporate a society, including:
- the society is ineligible to be an incorporated society;
- the society’s name does not comply with the requirements;
- the society’s purposes do not comply with the new Act; and
- the society’s constitution does not comply with the new Act.
However, if any of these grounds apply, the Registrar may still reregister the society subject to terms and conditions ensuring the grounds are addressed within a reasonable time. If the grounds are not addressed the society may be removed by the Registrar.
What happens to your society after reregistering?
Clause 11 of the new Act provides that upon reregistration a society will continue as the same legal entity – it does not create a whole new legal entity. Subject to the rights or obligations imposed on the society by the new Act or its constitution, the property, rights and obligations of the existing society are not affected by reregistration. Similarly, any proceedings the existing society is involved in (or will be involved in) can continue (or commence) following reregistration, as set out in clause 11(5).
What are the consequences of not reregistering?
Where an existing society does not reregister and is still incorporated under the old Act, upon the transition date, they will cease to exist and be deemed under the new Act to have been removed by the Registrar as per clause 12. If this happens its surplus assets will be distributed according to part 5 subpart 5 of the new Act. However, the Registrar, or the court in prescribed circumstances, has the power to restore an existing society to the register under section 185 or section 188. Note this cannot be done if six years has passed since the existing society ceased to exist. Clause 12(3) of schedule 1 sets out what happens where a society’s application to reregister has not been fully determined by the transition date.
Summary
With the new Act comes a lot of changes to the requirements for an incorporated society’s constitution. We have helped many incorporated societies over the years and would be happy to discuss your situation with you, especially when it comes to amending your society’s constitution so it meets the requirements set out in the new Act. You can contact us any time by email or phone.
We have a lot more resources at this page dedicated to the Incorporated Societies Act 2022.
This article is not a substitute for legal advice and you should consult your lawyer about your specific situation. Please feel free to contact us at Parry Field Lawyers:
- Steven Moe, Partner – stevenmoe@parryfield.com
- Aislinn Molloy, Senior Solicitor – aislinnmolloy@parryfield.com
- Michael Belay, Solicitor – michaelbelay@parryfield.com
- Sophie Tremewan, Law Clerk – sophietremewan@parryfield.com
