Not-For-Profit & Charity Lawyers

Getting the right legal structure is crucial. While there are a wide array of structuring options, it’s important to select an appropriate structure that will work for you and your members – now and in the future.

Your organisation is unique, so the cloth needs to be cut to fit. We’ll listen carefully to your aims and aspirations, explain the benefits and drawbacks of each option, and ensure you’re on the right path – from day one.

With strict legal requirements in place for charities, constitutions, rules and by-laws need to be properly drafted. It’s important to have the right framework to protect your governors and properly advance your aims & objects.

Too often, we see constitutions that have narrowly scoped objects – exposing your governors and tax concessions to risk. We offer a review service, where we’ll look at your existing constitution and rules and help you in making sure your operations and objects are compliant above reproach.

Our lawyers regularly assist clients in registering charities with the Australian Charities & Not-for-profits Commission (ACNC). The process is normally:

• Establish your legal entity / structure (e.g. register the company limited by guarantee with ASIC). Getting the Charitable Purposes (objects) along with governance (responsible entitles) and control (members) right in your Constitution is key. Our lawyers advise on these issues every week.
• Obtain an ABN. You can do this yourself to save some money.
• Prepare a Business Plan, policies & MOUs with third parties that the ACNC will require as part of the application process. This will vary depending on your intended charity sub-type and our lawyers will assist you with understanding what you will need. We are finding that with the advent of the ACNC External Conduct Standards that more is required.
• Prepare the ACNC / ATO applications. There is some art in this and again our lawyers are well equipped to prepare the applications and guide you in what you will need to provide to us. We are finding that the ACNC will now regularly make requests for further information during the application process. Again our lawyers are well equipped and experienced to assist you with this.
• Lodge your ACNC charity registration application and ATO tax endorsement application (including Income Tax Exemption, GST Concession, FBT Rebate or Exemption, DGR status)
• Obtain ACNC Charity Registration & ATO tax endorsements
• Obtain relevant state and territory fundraising licenses. Our lawyers assist in understanding what you will need here and can make these applications for you or assist you in doing so yourself. These applications can be made earlier in this time line
• Obtain relevant state and territory revenue law charitable institution status (for stamp duty, land tax and payroll tax)

Most charities understand the tax concessions granted by the ATO. Many however are missing out on State and Territory concessions and exemptions (to which different rules apply). Additionally, there are particularly high standards in place for DGRs where breaches of tax regulations can result in serious penalties.

Work with us. We’ll ensure you’re set up properly to gain and keep your concessions or exemptions.

Asset protection can seem like an overwhelming, time consuming challenge. We’ll help you get set up and running with ease. Our experienced team will ensure you avoid common trust establishment mistakes.

Whether you’re an unincorporated entity looking for a way to own property, or an incorporated not-for-profit wanting to establish a fund for receiving and distributing charitable donations – we can help.

We can also assist in a cy pres application for a Court Order to be made to apply trust property aligned with the original charitable intent of a trust.

Good governance requires continued attention. There’s a plethora of laws, rules and regulations to comply with, and it’s not always easy to keep track of changes. For example there are the ACNC Governance Standards and the External Conduct Standards (commenced 23 July 2019).

Effective management of conflicts of interest seems to be attracting the attention of regulators currently. We assist with Policies and Registers to assist governors in the discharge of their duties.

We’ll help you navigate the legalities, so you can take thoughtful, strategic steps forward for your organisation. We regularly advise governors and boards on their obligations and provide our clients with regular updates on upcoming changes to the law.

Whether you are negotiating a renewal of a major government contract and engaged in a tug or war about acquittal requests that seem unreasonable, our lawyers can help.

Government contracts are starting to be slightly negotiable around issues such as:

• Liquidated damages for early unilateral no-fault termination by government
• Intellectual Property – which as an intangible asset can be owned by more than one person

Our lawyers also regularly assist charities in responding to show cause notices of various arms of government / regulators. Let us help you put your best foot forward

Property deals can become unwieldy – especially when multiple interests and entities get involved. We’ll do the heavy lifting, dotting the ‘i’s’ and crossing the ‘t’s’, while you’re getting on with the business of your charity or not for profit. We’ll keep you informed throughout the process, so you’re always up-to-date.

We can help with conveyancing for commercial and not for profit entities. Our experience includes property transfers, property holding structures, asset protection and contracting, lending, leases, licensing, transfer of business, intellectual property, personal property and other commercial property-related law advice.

We also regularly assist clients in ensuring that any relevant concessions are in place, and seeking exemptions from transfer duty (stamp duty) and land tax.

Employee and volunteer policies can be a minefield. It’s important to put in place clear and solid policies to ensure the smooth operation, and protection of your enterprise.

We’ll help you put together policies which give your staff the flexibility to work effectively, whilst ensuring your organisation is safeguarded.

You may need to have other specific policies in place in order to comply with your legal requirements.

We can help you draft and implement a Whistleblower Policy, which will set out some legal rights and protections for whistleblowers within organisations.

We can also assist in drafting and implementing Children and Vulnerable Adults Policies, which will help to ensure that your organisation is taking steps to protect children and vulnerable adults that it works with from harm.

When expanding your charity or not for profit, you don’t want to miss a thing. In a merger or acquisition, it’s essential to carry out rigorous due diligence. We’ll check for undisclosed dealings or surprises that can potentially hurt you and guide you in understanding who you’re dealing with.

We’ll help you protect your stakeholders and stay true to your heartbeat, as we’ll be by your side throughout the process – so you can handle the situation carefully.

Our lawyers regularly advise on the fundraising licenses and approvals you will need. You need to consider compliance in every State and Territory that your donors may come from.

Our team has put together a free fundraising guide (Fundraising Regulation – Compliance in a Changing Landscape) and published it online library that we hope will be of great assistance to you in understanding many of the fundraising compliance steps that you need to consider.

Currently most social enterprises in Australia are operated by not-for-profits and charities engaged in business / commercial enterprise as part of the outworking of their purpose.

One of the key challenges for social enterprise is raising capital to scale their operations. To date, capital has been raised by traditional debt or Social Impact Bonds (a type of debt with some equity like features). Not-for-profits and charities of course need to take care even with this type of capital, that they remain “not-for-profit” by not offending the non-distribution constraint.

Charities and not-for-profits with significant commercial operations face most of the usual legal challenges of their for-profit cousins (which our commercial lawyers can help with) but face additional challenges in compliance with charity law regulation and the conditions attaching to revenue/tax law concessions (at both Commonwealth and State/Territory levels). Our lawyers work with many charities and not-for-profits engaged in business/commercial enterprise (whether they consider themselves social enterprises or not).

Sometimes you need someone to ‘go to bat’ for you. Whether it’s an employment contract or a trade mark dispute, our experienced litigation team have represented clients across a broad range of legal disputes. Our litigation team will seek to mediate and negotiate with careful diplomacy. However, when it’s required, we can pursue litigation as a last resort.