| 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 you're 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 1964
- 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:
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.
How to incorporate in Tasmania
In order to be eligible to be an incorporated association in Tasmania, you must you must be a not-for-profit organisation with one of the following purposes:
- for a religious, educational benevolent or charitable purpose,
- for the purpose of providing medical treatment or attention,
- for the purpose of promoting or encouraging literature, science or art,
- for the purpose of recreation or amusement,
- for the purpose of establishing, managing, carrying on or beautifying a community centre,
- for the purpose of administering superannuation schemes,
- for promoting any of the foregoing or similar purposes
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 need to check the public register of names held by the Department of Consumer Affairs and Fair Trading. You should also check the register of names held at the Australian Securities and Investments Commission.
You can do this on-line at www.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 Model Rules for Associations set out in the Act. These aren't compulsory, and you don't have to adopt them as a whole. If your constitution does not cover all the topics that are in the Model Rules, they will be read into your constitution anyway.
The Tasmanian Model Rules are set out in this document
.
Unless you have special reasons to want different procedures, it's a lot quicker and easier to adopt the Model Rules, just adding in your name and objectives and a few other things like the location of your office.
- Meeting
When you have all these pieces of paper you will need to organise 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)
Give at least four weeks notice of the meeting by putting an advertisement in a paper circulating across your area. Say in the advertisement that you are intending to incorporate.
Public Officer
When a group is incorporated, one member must be appointed as Public Officer. The Public Officer is responsible for supplying the Comissioner of Corporate Affairs with an annual return on the prescribed form (see below) and informing the office if:
- there's a change of Public Officer or a change of registered address
- there's a change of name
- the association becomes a trustee
- the association is winding up
All of these must be notified to the Commissioner on a special form, (see forms below) and there is a charge attached.
An application for incorporation
Once the public meeting has passed the resolutions to incorporate and approved the rules of the association, you have to lodge your application form with:
Consumer Affairs and Fair Trading
GPO Box 1244
Hobart TAS 7001
or fill it out online; see the link below.
The forms for Application for Incorporation of an Association and Notice of Appointment of a Public Officer are available on-line here. There are provisions for lodging applications on-line.
Include a copy of your constitution/rules and an application fee of about $117 (see the current fee schedule).
Check out the usual timeline for approval when you lodge your application, and follow up on progress if it takes any longer than anticipated.
Incorporation - other duties
Once your application has been approved and you have received your certificate of incorporation, there are other duties to be done.
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 must hold Annual General Meetings
Incorporated associations must submit an annual audited financial statement of the organisation's affairs to the Commissioner. There is a fee of $ 43.20, and further fees for late submission.
Forms and Fees
Forms are available on-line at: https://www.cbos.tas.gov.au
Payment Methods and Fees are stated on the forms.
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