Incorporation in the Northern Territory

The information given below should be viewed as a guide only and should not be used as a substitute for professional legal advice.

What is incorporation?
Incorporation is a system of State Government or Territory registration that gives an association or community groups certain legal advantages in return for accepting certain legal responsibilities. An incorporated association receives recognition as a legal entity separate from its members and offers some protection for office holders from any debts or liabilities incurred by the group as long as the association doesn't make a profit for its members.

Incorporation is voluntary. Once incorporated groups have to abide by relevant legislation (Read on for details).

Why Incorporate?

Not-for-profit community groups can be unregistered and unrecognised bodies acting under their own rules, or they can be formally recognised bodies with a legal personality of their own.

If you're the honorary treasurer of an unregistered non-profit organisation called Better Community, for example, and you're renting premises for your organisation, you will have to make the lease in your own name (acting as a trustee for Better Community).

If your organisation has registered itself under the Associations Act and has a legal personality, you can have the lease in the name of Better Community Inc.

There are advantages and disadvantages to each approach. The advantages of being an informal group are; that you don't have to pay the costs associated with incorporation and you don't have to comply with many of the requirements nor fill out the forms imposed on corporations.

This doesn't mean, of course, that you can deal with the business or the property of Better Communityas you like -you'll basically have the obligation to act as a trustee for the organisation's purposes - but you can be more flexible about what you do and how you do it. If you're organising a one-off or short-term activity this may be your best choice.

The disadvantage is that if anything goes wrong -if the Better Communityoffice burns down, or if people fall over the mat and injure themselves and sue - it's possible that as the lessee and as a committee member you may be held personally liable. In that case if there isn't enough money in the Better Community cashbox to cover the payout you may have to pay for it yourself.

There can also be difficulties with opening bank accounts, problems with insurance, and confusions about who owns what property. If you stop being a member of Better Communitybut your name is still on the contracts there may be difficulties transferring your responsibilities to the new Treasurer.

Furthermore, most foundations and most government departments will only fund incorporated organisations.

If youre an incorporated association then the lease can be in the name of Better Community, and as an incorporated association Better Communitywill have limited liability; that is to say, if someone falls over in the office and sues and the cashbox doesn't have enough money to pay them then you are not personally liable.

Formal structures

If you want legal status, you have a number of options - you can become

• a co-operative society
• a company limited by guarantee
• an incorporated association or society under the Associations Incorporation Act 1985
• an incorporated association or council under the Commonwealth Aboriginal Councils and Associations Act 1976.

Co-operative societies are suitable only for some purposes, and most community groups don't fit the profile.

Some Aboriginal associations are able to gain legal status under different rules under the Federal Government's Aboriginal Councils and Associations Act 1976. Further information is available from:

Office of the Registrar of Indigenous Corporations
PO Box 2029
Woden ACT 2606
1800 622 431 (Toll Free) or
http://www.oric.gov.au/Content.aspx?content=startCorporation/default.htm&menu=start&class=start&selected=Registration%20options.

For most organisations, the choice is between company status and incorporation. Limited companies are highly regulated; incorporated associations are lightly regulated. Setting up a company is complicated and expensive; incorporating as an association is comparatively cheap and simple. Unless your organisation is very big indeed, your best option will probably be to become an incorporated association.

Incorporating is not the same thing as registering as a charity or getting entitlement to tax exemption. That has to be done separately.

Eligibility
In order to be eligible to be an incorporated association in the NT you must have more than five members, you must be a not-for-profit organisation, and you must have as your objectives:

• religious, educational, charitable or benevolent purposes;
• promoting or encouraging literature, science or the arts;
• recreation or amusement;
• establishing or carrying on or improving a community centre

How to Incorporate
You need to prepare:

A name for the association
You probably already have a name, but you now have to check the name you've chosen to make sure that it hasn't already been taken by another organisation. You will have to check the register of names held at the Australian Securities and Investments Commission. You can do this on-line at www.search.asic.gov.au
Not only can you not use a name if it's already been taken, you can't use it if it's a name that could be confused with an existing organisation. For that reason, it's sensible to have some names in reserve in case you're not allowed to use the one you want.

The aims and objectives of the organisation
It's not so important for getting incorporation, but you should be aware that you may need to consider your written objectives carefully if you have any ambitions to gain tax exempt status later. An association can do almost anything, but a charity is a good deal more restrictive.

A draft set of rules of the association (the constitution)
You may have a constitution already. Whether you do or not, you need to look at the Suggested Format for the Consitution of an Association available from the Ministry of Industries & Business. These aren't compulsory, and you dont have to adopt them as a whole, but you need to make sure that your constitution covers all the topics that are in the Model Rules -that is to say, if the quorum for the Committee of Management in the model rules is three you can still set your own Committee's quorum at five if you want to, but you can't do without a clause saying what the quorum is.
Unless you have special reasons to want different procedures, it's a lot quicker and easier to adopt the Model Rules.

Meeting
Hold a meeting of the organisation to approve the incorporation and adopt the new constitution/rules. Before the meeting you will have to identify people interested in being members and office bearers in the new association.
Type out the formal motions -
"I move that the [name of Association] be formed, and that the [name of Association] constitution and rules be those circulated at this meeting
Moved &&&&&&&&. Seconded &&&&&&&&.
"I move that the [name of Association] incorporate as an incorporated association under the provisions of the Associations Incorporation Act"
Moved &&&&&&&&. Seconded &&&&&&&&.
"I move that the [name of the new Association] be [first preference intended name], or if that name is not approved [second preference intended name], or if that name is not approved [third preference intended name"
Moved &&&&&&&&. Seconded &&&&&&&&.

Arrange for one person to move each motion and another to second it.
Print out copies of the Agenda, the Motions and the Constitution for as many people as you think will come.
At the meeting you must appoint your officebearers, a Public Officer (see below) and a person to make the application (this last person can be the same person as the Public Officer)

Applying for Incorporation
First you have to get a copy of the form "Notice of Intention to Apply for Incorporation" from the Business Affairs section of the Department of Justice or, click here fill it out and return it. You have to show that the name you have chosen is available and that the objects of the association are religious, benevolent, charitable, or educational. This bit is free.
Then you have to place an approved Notice in a newspaper circulating in the Northern Territory, in the area where the association proposes to operate.
A month after the Notice went in, you get the forms and apply for incorporation. Send in your application with a Statutory Declaration showing that you application has been authorised by the Committee, that notice has been published (on such-and-such a date in such-and-such a newspaper) and that the application's particulars are true. Also send in a fee of $65.

After incorporation
Once your application has been approved and you have received your certificate of incorporation, there are other duties to be done.
You have to appoint a Public Officer of the Association and you have to notify the Registrar in writing on the prescribed form and with the prescribed fee, giving his full name, residential address and date of appointment.
You have to file with the Registrar a copy of the Association's Constitution/rules, with the fee and with a Statutory Declaration saying it's a true copy.
Your new name (including the word 'incorporated'or 'Inc') must appear on all your documents and publications.
You will need a common seal (available from any maker of rubber stamps).
You must have a registered address. This can be the address of the Public Officer.
You have to keep a Register of Prescribed Property (property, over the value of $25,000, acquired from, or using funds obtained under a grant from, the Territory or the Commonwealth)

Public Officer
When a group is incorporated, one member must be appointed as Public Officer. The Public Officer is responsible for supplying the Office of Consumer and Business Affairs with an annual audited balance sheet of the Association (with the requisite fee) and informing the Office if:

• there is a change of Public Officer or a change of registered address
• there is a change of name
• the association becomes a trustee
• the association is winding up

Forms and Fees
Applications, balance sheets, notice of appointment of public officer and/or constitutions/amendments can be lodged by hand to any Territory Business Centre or lodged by mail to Business Affairs, 1st Floor, Minerals House, 66 The Esplanade, GPO Box 1722, Darwin NT 0801. Ph: (08) 8946 9530.
These forms can be downloaded at: http://www.nt.gov.au/justice/licenreg/baal/club_assoc.shtml

Charges and Fees applicable to incorporation and returns are detailed at: http://www.nt.gov.au/justice/licenreg/baal/club_assoc.shtml