Registering a charity
There are a number of steps that an organisation should consider when deciding whether they are ready to register as a charity. If your idea is still in an early form, it is worthwhile to develop it as much as possible in order to show what your plans are for your charity once you decide to proceed with registration.
Forming the Board
In order to set up a charity you must have an elected board. While some company structures will allow you to have only 3 directors on a board, most require 5 elected directors. A majority of people on your board must be considered “responsible people.” Generally, “responsible people” means they have degrees; are part of a profession that is regulated by a code; or anyone that satisfies the requirement according to the rules.
Any person on a board must act with reasonable care and diligence; honestly and fairly in the interest of the charity; and ensure that they do not abuse their position. Any conflicts must be tabled and board members must ensure that the charity does not operate while insolvent. The board will be crucial in approving decisions and ensuring that the charity operates successfully.
How to register a charity
Step One: Register your company type with ASIC. Some charities prefer to become registered as incorporated associations in order to show that their organisations are local and only limited to the state that they are located within. Other common models include registering a company limited by guarantee. This means that directors’ liability will be limited to a small monetary amount usually listed in the constitution and will not be personally liable for any losses the company makes beyond these few dollars unless they are guilty of serious misconduct or failing to abide by their director’s duties. You will need to have details of your constitution ready to submit along with the application for ASIC to review. Much of the information you prepare for the ASIC application will help you later on when applying to the Australian Charities and Not for Profit Commission (ACNC).
Step Two: Once your organisation is approved you can submit an application to the Australian Business Registry. You will need to supply all board member’s tax file numbers at this stage and register your company.
Stage Three: Once you have registered your company with ASIC and the ABR you will need to register as a charity with the ACNC. This step is completed online through the charities portal and is straightforward but you will need to provide information on the purposes of your charity. If your idea is still in a development stage the ACNC may ask for further information or clarification about the ideas you have put forward and may contact you for this information. If your idea is well developed and you have some pre-existing infrastructure on the ground, you should have no problem in registering your charity with the ACNC.
It is important to note that it is possible to register as a charity but not have tax deductibility.
Stage Four: Once your charity is registered you can then think about whether it is suitable for your charity to apply for Deductible Gift Recipient (DGR) status. This is when all donations to your charity will become tax deductible. While most charities would like their organisation to have DGR status, they must check that the purposes of their charity fit under an acceptable DGR category.
Stage Five: Register for a fundraising licence and reap the benefits of having registered a charity for DGR.
Warlows Legal are experts in registering charities. Contact us to enquire about how one of our charity lawyers can help.