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You may wish to start your own group to oppose a particular development or to address broader environmental issues. If you do this you need to decide whether to give your group legal authority – by incorporating or becoming a company. Incorporation is more common and in the ACT is covered by the Associations Incorporation Act 1991 (ACT).
Incorporation is a form of registration that gives a group legal advantages in return for accepting certain legal responsibilities. Incorporation gives a group its own formal separate legal identity; you are no longer a group of individuals. In the ACT environment groups can become incorporated associations under the Associations Incorporation Act 1991 (ACT) (Associations Act). Another, but less common alternative, is to establish a company under the Corporations Act 2001 (Cth).
The former is a simpler process, resulting in an entity that is less costly to create and maintain, has less ongoing regulatory requirements, and for which the penalties for breaching any regulatory requirement are not as severe. Regardless of the structure it would be prudent to obtain independent legal advice before proceeding.
Advantages to incorporation include:
There are other factors to consider such as:
To become an incorporated association under the Associations Act, you will need:
You can only incorporate if your group is formed to carry on a lawful purpose without financial gain for members.
The Associations Incorporation Regulation 1991 contains a model set of rules that can be adopted as your constitution or articles of association. Alternatively, if you decide to change the constitution to suit the group’s needs, or totally replace it with your own, a checklist of the core rules that must be included in your constitution is available. The ACT Registrar-General and their office manage incorporated associations and can provide information and advice.
Your constitution must include the group’s objectives. Even if you do not incorporate, take time to define your objectives. This provides a focus for people in the group. When you are taking on an issue that will require dedication over some period of time, ground rules are essential.
Define your objectives in specific enough terms. Some organisations have difficulty because they have defined their objects too broadly, for example, ‘the protection of the environment’. However, ‘protecting the environment by working for the creation of national parks’ is more specific.Those who do not agree with the objectives cannot change the broad objective of the organisation. In circumstances where it may be necessary to pursue legal rights of redress, a group’s objectives as set out in a constitution will be a relevant factor in determining standing.
You need to get an application for incorporation form from the Registrar General’s office or website. There are fees associated with incorporation and you should contact the Registrar General’s office or their website for current fees and a checklist on what documents should be lodged with your application.
There are a number of legal obligations which follow incorporation. Some of the obligations are that you must:
The Environmental Defender’s Office is a non-profit community legal centre based in Canberra, advising on environmental and planning law with an aim of increasing public awareness of environmental laws and remedies.
We advise on questions of Commonwealth and Australian Capital Territory law.
We offer a free telephone advice service on environmental law questions. Appointments with our solicitor are also available.
First Floor, 14 Childers Street (opposite the Street Theatre)
Canberra City ACT 2601
Telephone: (02) 6243 3460
Fax: (02) 6243 3461
Email: EDO (ACT) Office email@example.com
GPO Box 574, Canberra ACT 2601
If the incorporated group is to hold a bank account you must apply for a tax file number. If it is a not-for-profit entity, an application is made for income tax exemption. Without either of these your bank will be required to withhold income tax out of any payment of interest. Application forms are available at the Australian Taxation Office.
The Federal Government keeps a Register of Environmental Organisations approved for tax deductibility under the Income Tax Assessment Act 1997 (Cth). Any money paid into a public fund of a registered organisation can be claimed by the person giving the money as a tax deduction. The Commonwealth Department of Environment, Water, Heritage and the Arts administer the register of Environmental Organisations. Under the Income Tax Assessment Act 1997 to be eligible your organisation must meet the following criteria:
The law described in this Fact Sheet is current at 31 March 2010.
The ACT EDO Fact Sheets have been designed to give readers plain English background knowledge to planning and environmental decision making in the ACT. They cannot replace the need for professional legal advice in individual cases. Please contact us as we may be able to provide additional advice.
While every effort has been made to ensure the content is as accurate as possible, the EDO does not accept any responsibility for any loss or disadvantage resulting from reliance or use of this work.
Duplication and reproduction of the information provided in any ACT EDO Fact Sheet is permitted with acknowledgment of the ACT EDO as source.
The ACT EDO Fact Sheets Project was carried out with the assistance of funds made available by the ACT Government under the ACT Environment Grants Program.