With millions of Australians participating in them, and with the associations themselves numbering in the hundreds of thousands, unincorporated associations truly are social entities. They variously include sports clubs, charities, cultural and arts and environmental organisations, and churches.
“The vast majority of Australians participate in unincorporated associations,” says Matthew Turnour in “Should Australians Have a Revised Uniform Unincorporated Nonprofit Associations Act?” published in the Company and Securities Law Journal (C&SLJ), Vol 37 No 4.
Against the background of revelations of decades of sexual and other abuse within institutions, and with specific reference to the Victorian Parliament’s 2013 Betrayal of Trust: Inquiry into the Handling of Child Abuse by Religious and Other Non-government Organisations Report and the 2017 Royal Commission into Institutional Responses to Child Sexual Abuse, Turnour proposes legislative reform to provide for the recognition of unincorporated associations as legal entities.
The Catholic Church, an unincorporated association, enjoys vast wealth and privileges, status, and huge influence in society. It is also succoured by the state and is composed of a wide cross-section of the population. It seems particularly incumbent that such an organisation has appropriate legal recognition. With reference to the case of Trustees of The Roman Catholic Church v Ellis (2007) 70 NSWLR 565;  NSWCA 117, Turnour illustrates the impact of the existing common law position denying legal status to unincorporated associations. In Ellis, the plaintiff’s claim for damages for sexual abuse committed by a deceased priest failed because it was held the Church could not be sued in its own name at common law as it did not exist as a juridical entity.
The Betrayal of Trust Report suggested that establishing the legal identity of unincorporated associations was required to address the problems of liability and compensation for victims in cases of institutional abuse.
Turnour identifies the issue as not only one of providing proper recourse for victims of institutional abuse, but also of ensuring that individuals holding official positions in unincorporated associations are not exposed to personal liability for conduct that occurred many years prior to their involvement in the association.
In considering how to address these issues, Turnour surveys international experience concluding that straightforward statutory recognition of unincorporated associations, as exemplified by the model Revised Uniform Unincorporated Nonprofit Association Act (RUUNAA) adopted in various US jurisdictions, points a way forward for Australia.
Statutory recognition of religious unincorporated associations may be a way of accommodating their governance structures, while it would also enable them to hold property, says Turnour. The major consideration recommending the proposed reform, however, is that it would enable unincorporated associations to be sued by abuse victims. At the same time, argues Turnour, it would provide for liability not necessarily being ascribed to individuals just because they hold official positions in the associations.
He describes the effect of s 10 of the RUUNAA legislation: “that a party that obtains a judgment against an unincorporated association is able to levy execution against that association and its assets but not against the assets of a member or manager unless there is some basis for liability against the member or manager themselves, independent of the liability of the unincorporated association.”
In discussing how statutory recognition of unincorporated associations might be implemented in Australia, Turnour advocates establishment of a national framework, and says the “best way” to achieve this is for the Commonwealth to set up a co-operative scheme under a referral of State powers pursuant to s 51 (xxxvii) of the Constitution. He also notes there is legislation that already recognises unincorporated associations for particular purposes: Income Tax Assessment Act 1997 (Cth) s 960-100 and Australian Charities and Not-for-profits Commission Act 2012 (Cth) s 205-5.
Enabling great social institutions to be held properly answerable for crimes committed under their auspices would contribute to democratising their accountability. Recognition of unincorporated associations as legal entities would be a step in that direction.
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 See Australian Government, Productivity Commission, Contribution of the Not-for-profit Sector, Research Report (2010) 8.
 Family and Community Development Committee, Parliament of Victoria, Betrayal of Trust: Inquiry into the Handling of Child Abuse by Religious and Other Non-government Organisations (2013) Vol 2, 535.