Governance
In March 2024 TFNA registered an ABN (66 180 343 635) to acquire a domain name (tfna.asn.au) for a website. That triggered an Australian Taxation Office (ATO) requirement to self-assess for income tax exemption. We filed the relevant assessment as a small organisation (annual gross revenue less than $150000) with an educational purpose (providing education to the public or a section of the public) and operating entirely in Australia without a charitable purpose. We answered ‘Yes’ to a question about having and following clauses in our governing documents that “prohibit the distribution of income or assets to members” while operating and winding up. We are required by 30 June 2025 to submit updated governing documents with appropriate clauses.
Our options are to adopt governance documents with the necessary clauses or relinquish the ABN and website domain.
There are at least three options for developing and adopting governance documents:
- Adopt a suitably adapted version of the Queensland Office of Fair Trading (OFT) model rules for incorporated associations and decide whether and when to proceed to incorporation,
- Adopt a suitably adapted version of the Australian Charities and Not-for-profits Commission (ACNC) model rules for a charitable unincorporated association and decide whether or when to apply for registration, or
- Develop and adopt our own rules with minimal formality but including the ATO-required clauses, fulfil our obligation to ATO and continue as we are until there is reason to change.
Incorporation through OFT would establish TFNA as a legal entity separate from its members. That would limit the liability of members, allow the group to sign contracts as a group, buy and sell property, and apply for a range of grants. It would cost $177.95 for registration and require annual reports to government at a cost of $62.10 pa. Noosa First Nations Allies Inc have incorporated and decided to take public liability insurance at about $900 pa. OFT has published a guidebook for incorporated associations and Justice Connect has a guide to deciding whether to incorporate.
It is possible to register with ACNC as a charity without incorporating and ACNC offers advice about remaining unincorporated including that the “unincorporated association structure is generally suitable for small, simple groups or organisations with minimal assets who do work that has minimal risk.” There is no fee charged for registration and ACNC provides a template for rules for unincorporated associations. There would be annual reporting obligations. Checking with the ACNC self-assessment (https://www.acnc.gov.au/charity-registration-self-assessment) suggests that TFNA would be eligible to register if that became desirable.
Until TFNA decides that there would be benefits in incorporating and/or registering as a charity with ACNC it would be possible to operate with a simpler set of rules that develop for ourselves. That would avoid costs associated with incorporation and additional reporting requirements of the Office of Fair Trading and/or ACNC. The rules would need to include the provisions required by ATO.
A DRAFT constitution for TFNA has been developed and a survey is being used to solicit opinions, comments, and suggestions from members. The DRAFT is reproduced clause by clause in the survey and a PDF copy is included here: