16/09/2020

To say 2020 has been a year of disruption is an understatement!  Between bushfires, floods and COVID-19, the Australian charities and not-for-profit sector has been under significant strain. With increasing rates of public need, many organisations are struggling to meet the demand for their services while also losing donations from the public, one of their biggest sources of funding.

Many organisations have undergone significant change, and not always by choice. Some organisations have increased their services while others have down-sized, merged or changed their projects and programs to meet the new need and challenges. And some organisations have even identified a new purpose and made a fundamental shift to why and how they operate.

Amongst all this turmoil and crisis management, you would almost be forgiven for taking your eye off your regulatory compliance obligations. Almost.

If your organisation has made changes to its board, constitution, operations or activities, there is a good chance you will need to notify one Government regulator or another.

This article will help make sure your organisation is informed about the key changes it needs to report and to which regulator you should be reporting to.

It is important to note that the notification obligations set out below apply to each regulator separately, so your organisation will need to make sure it properly informs each regulator as required. In addition, if you receive Government funding or funding under a philanthropic grant, be sure to check your funding/grant agreement to make sure you have also complied with any of your contractual reporting and compliance obligations.

1. Companies limited by guarantee

What needs to be reported

Who it needs to be reported to

When it needs to be reported

Companies limited by guarantee (not registered with the ACNC)

Change of company name

Change to company’s address

Change to directors

Change to secretary

Change to constitution

ASIC

 

Within 28 days of the change

 

Companies limited by guarantee (registered with the ACNC)

Change of company name

ASIC

Within 28 days of the change

 ACNC

As soon as possible once ASIC has been notified

Change of company name

Change to physical or email address for service

Change to responsible persons (e.g. directors and secretary etc)

Change to constitution or governing document

ACNC

 

Within 60 days (if your organisation is a ‘small’ charity) or within 28 days (if your organisation is a ‘medium’ or ‘large’ charity).

 

2. Corporations under Corporations (Aboriginal and Torres Strait Islander Act) 2006 (Cth) (CATSI Act Corporations)

What needs to be reported

Who it needs to be reported to

When it needs to be reported

CATSI Act Corporations (not registered with the ACNC)

Officer details (such as changes to name, contact details, address, contact number etc). Under the CATSI Act, an ‘officer’ means the corporation’s directors and the contact person or secretary.

ORIC

Within 28 days of the change

Corporate address and/or contact details

ORIC

As soon as possible after the change has occurred

Notification of special resolution of members accepting proposed changes to corporation rule book (the change can go through a pre-approval process with ORIC to ensure it is compliant with the CATSI Act)

ORIC

Within 28 days of the resolution being passed

Notification of special resolution of members to change to corporation name (the change can go through a pre-approval process with ORIC to ensure it is compliant with the CATSI Act)

ORIC

Within 28 days of the resolution being passed

CATSI Act Corporations (registered with the ACNC)

As a CATSI Corporation registered with the ACNC, your reporting obligations to the ACNC are additional to your reporting obligations to ORIC listed above.

Change of company name

Change to physical or email address for service

Change to responsible persons (e.g. directors and any secretaries or contact persons)

Change to constitution or governing document

ACNC

Within 60 days (if your organisation is a ‘small’ charity) or within 28 days (if your organisation is a ‘medium’ or ‘large’ charity).

 

3. Unincorporated associations

What needs to be reported

Who it needs to be reported to

When it needs to be reported

Unincorporated associations (not registered with the ACNC)

Unincorporated associations may not have an official regulatory body like other entities but your organisation may still have reporting obligations depending on its activities. For example, if your organisation is undertaking charitable fundraising activities, it may require a fundraising authority/licence from the relevant state-based Government regulator. Other reporting obligations may include reporting changes to your members or other reporting obligations under any contractual arrangements.

Unincorporated associations (registered with the ACNC)

Change of organisation name

Change to physical or email address for service

Change to responsible persons (e.g. board or committee members or any secretaries)

Change to constitution or governing document

ACNC

Within 60 days (if your organisation is a ‘small’ charity) or within 28 days (if your organisation is a ‘medium’ or ‘large’ charity).

 

4. Incorporated associations

What needs to be reported

Who it needs to be reported to

When it needs to be reported

Incorporated associations (not registered with the ACNC)

The changes to be reported will likely include the following, but you should check with your regulator as you may not be required to report all these changes:

  • change to committee members and/or their contact details (such as address or email)
  • change to governing document
  • change to association address
  • change to public officer

ACT - Access Canberra

Within one month (where your change is to your constitution, notification needs to be made within one month after passing the special resolution to change the rules and approval is needed from Access Canberra to formalise the changes).

NSW – NSW Fair Trading

Within 28 days (where your change is to your constitution, notification needs to be made within 28 days after passing the special resolution to change rules and approval is needed from NSW Fair Trading to formalise the changes).

NT – Licensing NT

  • Within one month after passing the special resolution to change the rules (approval is needed from Licensing NT to formalise the changes).
  • Within 14 days of change of public officer or their details.

Qld – Office of Fair Trading QLD

  • Within three months after passing the special resolution to change the rules (approval is needed from Office of Fair Trading QLD to formalise the changes).
  • Within one month of change of details relating to your association (including change to your office bearers or their address, or your association’s address).

SA – Consumer and Business Services

  • Within one month of change of details relating to your association or change of public officer.
  • Within one month after passing the special resolution to change the rules (approval is needed from Consumer and Business Services to formalise the changes).

Tas –  Consumer, Building and Occupational Services

  • Within 14 days of a change of public officer.
  • Within one month after passing the special resolution to change the rules or association’s name.

Vic – Consumer Affairs Victoria

  • Within 28 days after passing the special resolution to change the rules or association’s name.
  • Within 14 days of change to secretary or their details, registered address of the association or financial year end date.

Incorporated associations (registered with the ACNC)

Everything listed above for your state or territory regulator

State or territory regulator

For all states and territories other than the ACT your organisation will need to report to your specific regulator, as outlined by the jurisdictions above.

If you are an incorporated association in the ACT and registered with the ACNC, your organisation does not need to report to Access Canberra for:

  • changes to responsible persons (which includes the public officer);
  • changes to association’s address or contact details

as the ACNC will pass this information on.

Change of company name

Change to address for service

Change to responsible persons (e.g. board or committee members and any secretaries).

Change to constitution or governing document

ACNC

Within 60 days (if your organisation is a ‘small’ charity) or within 28 days (if your organisation is a ‘medium’ or ‘large’ charities).

 

5. Australian Taxation Office

Your organisation will also likely have details registered with the Australian Taxation Office (ATO) so some changes will need to be reported to them. We have set out the additional reporting obligations your organisation will have to the ATO. These apply regardless of entity type.

What needs to be reported

When it needs to be reported

Change to public officer

Within 28 days

Change to trustees

Within 28 days

Change to entity name or registered business name

ASAP

Change to postal, email or business address

Within 28 days

Change to Australian Company Number (ACN) or Australian Registered Body Number (ARBN)

Within 28 days

Change to main business activity

Within 28 days

What happens if I don’t report something?

Your organisation may face penalties if it does not report within the above timeframes. For example, if your organisation is a charity registered with the ACNC, it may face monetary administrative penalties based on its size. It may also run the risk of being non-compliant with the ACNC Governance Standards. This may cause your organisation’s charity status to be revoked. In addition, your organisation could face late fees from other regulators.

Please get in touch if you need assistance understanding your reporting obligations. Our team of charity law experts are ready to help.   

""