This thesis is a study of the law relating to non-profit associations in Australia and New Zealand. This body of law consists of two separate but related parts : the common law relating to unincorporated associations, which has been developing for almost two centuries in the United Kingdom, Australia and New Zealand, and the law of incorporated associations which has been introduced legislatively in Australasian jurisdictions over the last one hundred and thirty years.
The primary object of the study is to establish the present state of the law. Important secondary objects are recognition of areas of doubt or difficulty and the recommendation of legislative measures necessary to develop a unified law of non-profit associations in these jurisdictions.
Part A contains a general introduction to the work and an historical chapter which examines the treatment of groups by the early legal system provides an explanation for the deferred development of the modem law of unincorporated associations and places the law of incorporated associations in context.
Parts B (Unincorporated Associations) and C (Incorporated Associations), which contain studies of the development of the two aspects of the law, represent the core of the thesis. Although associations of both types share common functions and operate in or on the periphery of common legal systems, different pressures have shaped their development. That and the regulatory element inherent in the law of incorporated associations warrant the separate exposition of these facets of the law. To facilitate intra-legal comparisons many chapters in these Parts are paired viz. Definition (Chapters 3 and 13), Constitutions (Chapters 4 and 15), Property (Chapters 5 and 16), Membership Rights and Obligations (Chapter 6 and part Chapter 17), Contract (Chapter 7 and part Chapter 18), Tortious Liability (Chapter 8 and part Chapter 18) and Dissolution (Chapter 10 and part Chapter 20).
The central problem of the law relating to unincorporated associations (Part B) is the refusal of the legal system to recognise the association as an entity separate from its members. As a consequence the collective interests represented by the association are not amenable to the general body of laws unless those interests can in some manner be represented before the courts. This aspect of the law is dominated by procedure. The substantive law is primarily a study of the acceptance of devices to enable association interests to be represented in court. Chapter 3: Definition seeks a legally acceptable definition for the diverse range of bodies to be studied. Chapters 4 to 10, which derive the substance of the present law from its sometimes divergent case-law origins, evidence the efficacy of the common law process as an instrument to enable the association, through its surrogates, to be treated as if it were an entity for most purposes. Allied with this acceptance (recognition at second-hand), the legal system has to a limited extent developed social rules to govern the conduct of associations with outsiders and their own members. Indications of these developments are present in all chapters but are particularly evident in Chapter 6: Membership Rights and Duties, Chapter 7: Contract and Chapter 9: Gifts and Bequests. Chapter 11: Proceedings by and against Associations, which contains a summation of the modes by and extent to which the association interest has gained representation in the courts, is a measure of the success of the common law and holds the key to future developments of this aspect of the law.
Part C (Incorporated Associations) deals with associations which are legally recognised. As incorporation pursuant to legislation is the distinctive feature of these associations, the emphasis of this aspect of the study is on legislative developments in Australia and New Zealand (Chapter 12), the incorporation process (Chapter 14), the regulatory consequences of incorporation (Chapter 17, Chapter 19: Offences and Criminal Liability and part Chapter 20 : Termination). Other chapters consider the functioning of this particular form of corporation in dealings with members and outsiders.
Although all Australasian jurisdictions possess associations incorporation legislation, New South Wales does not have a functioning Act. The nature of the enacted but not yet proclaimed New South Wales Act is examined in Chapter 21.
Part D is a summation of the work. It recognises the developments which have occurred over the past two centuries, spotlights the weaknesses apparent in that legal construct and proposes legislative measures which should be taken if Parliaments are desirous of developing a unified and rational law of non-profit associations.