Legal Advice for Australian Not-for-Profit Organisations and Charities

DiChoosing an appropriate legal structure is an important first step for a charity or not-for-profit organisation.

We advise on structures including:

• incorporated associations;
• public companies limited by guarantee;
• charitable trusts;
• foundations;
• unincorporated associations;
• social enterprises;
• corporate trustees;
• auspicing arrangements;
• joint initiatives; and
• restructuring existing organisations.

A public company limited by guarantee is a commonly used structure for Australian charities and not-for-profit organisations, particularly where the organisation intends to operate nationally or requires a formal corporate governance framework.

We work with clients and, where appropriate, their accountants and tax advisers to select a structure suited to the organisation’s purposes, activities and future plans.

A charity or not-for-profit organisation’s governing document should clearly define its purposes, powers and decision-making arrangements.

We prepare and review:

• company constitutions;
• incorporated association rules;
• charitable trust deeds;
• membership provisions;
• board and committee structures;
• director and officeholder appointment provisions;
• voting requirements;
• meeting procedures;
• conflict-of-interest provisions;
• winding-up clauses;
• dispute resolution procedures; and
• amendment processes.

We also advise on whether existing governing documents remain appropriate as the organisation’s activities, membership or regulatory obligations change.

Registration with the Australian Charities and Not-for-profits Commission may provide access to charity status and potential taxation concessions, subject to the organisation satisfying the applicable requirements.

We assist with:

• assessing eligibility for charity registration;
• identifying charitable purposes;
• reviewing proposed activities;
• preparing or amending governing documents;
• drafting charitable purpose clauses;
• preparing ACNC applications;
• responding to requests for further information;
• considering charity subtypes;
• changes to registered details; and
• revocation or restructuring issues.

We help organisations ensure that their stated purposes and proposed activities are aligned and clearly explained in the registration material.

Strong governance supports accountability, effective decision-making and public confidence in the organisation.

We advise boards, directors, responsible persons and management teams on:

• governance frameworks;
• board and committee responsibilities;
• delegations of authority;
• conflicts of interest;
• related-party arrangements;
• director and responsible-person duties;
• meeting procedures;
• board resolutions and minutes;
• governance policies;
• decision-making authority;
• risk management;
• access to information;
• member rights; and
• disputes concerning governance or control.

The ACNC Governance Standards require registered charities to remain charitable, operate lawfully and be run in an accountable and responsible way. They operate as high-level principles, requiring each charity to determine how it will demonstrate compliance in its particular circumstances.

Individuals responsible for governing a charity or not-for-profit organisation may have obligations under corporate, associations, trust and charity law.

We advise on:

• duties of care and diligence;
• acting in good faith;
• acting for a proper purpose;
• conflicts of interest;
• misuse of position or information;
• financial oversight;
• delegation and reliance;
• personal liability risks;
• appointment and removal;
• indemnities and insurance;
• board decision-making; and
• concerns about another officeholder’s conduct.

Early advice can help officeholders understand their responsibilities before making significant or contested decisions.etermination.

Charities and not-for-profit organisations may be subject to obligations arising under several different regulatory regimes.

We assist with matters involving:

• ACNC Governance Standards;
• annual information statements;
• changes to charity registration details;
• governing document amendments;
• ASIC requirements;
• incorporated association requirements;
• fundraising regulation;
• member and board records;
• privacy obligations;
• employment obligations;
• workplace policies;
• complaints handling;
• regulatory correspondence; and
• compliance reviews.

We help organisations identify which obligations apply and develop practical processes for managing them.

Charities and not-for-profit organisations frequently deliver programs through government funding, grants, philanthropy and service agreements.

We prepare and review:

• grant agreements;
• government funding agreements;
• service delivery agreements;
• subcontracting arrangements;
• acquittal obligations;
• milestone requirements;
• reporting provisions;
• performance standards;
• intellectual property clauses;
• confidentiality requirements;
• indemnities;
• termination rights; and
• repayment or clawback provisions.

We help organisations understand the obligations attached to funding and identify terms that may create financial, operational or compliance risks.

A not-for-profit purpose does not remove the need for clear and enforceable commercial arrangements.

We prepare and review:

• supplier agreements;
• service agreements;
• consultancy agreements;
• contractor agreements;
• venue and facilities agreements;
• collaboration agreements;
• memoranda of understanding;
• licence agreements;
• confidentiality agreements;
• sponsorship agreements;
• terms and conditions;
• intellectual property arrangements; and
• settlement agreements.

Our advice considers both the commercial terms and the organisation’s charitable or not-for-profit purposes.

Serious complaints or regulatory concerns require a careful and appropriately documented response.

We assist with:

• internal complaints;
• governance concerns;
• alleged misuse of funds;
• conflicts of interest;
• director or committee conduct;
• breaches of policy;
• whistleblower complaints;
• workplace allegations;
• regulator enquiries;
• requests for information;
• compliance notices;
• internal investigations; and
• remediation plans.

Our advice focuses on procedural fairness, regulatory obligations and the organisation’s broader operational and reputational risks.

Disputes may arise between members, directors, founders, donors, service providers or other stakeholders.

We advise on:

• governance disputes;
• membership disputes;
• interpretation of constitutions and rules;
• control of the organisation;
• access to records;
• contractual disputes;
• funding disputes;
• donor restrictions;
• misuse of assets;
• alleged breaches of duty;
• removal of officeholders;
• regulatory complaints; and
• proposed negotiated resolutions.

Where possible, we focus on early and practical resolution. Where formal proceedings are necessary, we work with our commercial litigation and alternative dispute resolution practices to protect the organisation’s position.