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A not-for-profit (or non-profit) organisation is an organisation that applies its profits to further the objectives of the organisation.  It is not operating for the profit or gain of its individual members during its operation nor when it winds up. On the other hand, a for-profit organisation can distribute its profit to its individual members, investors or shareholders during its operation or when it winds up.

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Not-for-profit organisations may derive their profit from a variety of sources, such as from donations, charging members for public services, selling or leasing property, State or Commonwealth funding etc. It can use the profit to employ staff, carry out programs, enhance infrastructure etc., provided that it is directed to furthering the objectives of the organisation.

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Some of the legal benefits of a not for profit structure include:

• State and Federal tax exemptions, concessions and benefits;

• access to some legal structures only accessible by not-for-profit organisations, e.g. incorporated associations;

• access to State and Commonwealth funding;

• access to private philanthropic bodies; and

• ability to conduct fundraising activities.

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Some organisations may seek to achieve a particular social outcome and trade in goods and services to achieve that outcome - these are known as social enterprises. These organisations can choose to be either not-for-profit or a for-profit, with the main difference being that not-for-profit social enterprises apply all of their profits to achieve a social outcome, rather than distributing to members, investors or shareholders.  For further information on social enterprises please see our Social Enterprises Resources page.

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When you set up a not for profit organisation, it is important that you choose an appropriate legal structure for your organisation's needs.

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Choosing a legal structure

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The legal structure that you choose when setting up your not-for-profit organisation will affect, among other things, the way you hold meetings, the minimum number of members, reporting requirements, tax obligations, and costs. It is important to understand the statutory requirements that go with the structure that you choose.

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An overview of legal structures commonly used by not-for-profit organisation is provided below.

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Incorporated associations

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An incorporated association is a legal entity that is distinct from its individual members which operates in the State/Territory in which it is registered.

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Many incorporated associations originate from a group of people who agree to act together as an organisation (i.e. an unincorporated association). The advantage of being an informal group is that there are few legal responsibilities.  There are no statutory requirements governing the way the group is organised, nor does the group have to follow any particular procedures. At its simplest, the group has the obligation to act as a trustee for the association’s purposes.

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The disadvantage is that if anything goes wrong, for example, if someone sues the association, it is possible that as the lessee and as a committee member you may be held personally liable. In that case, if the association does not have enough money to cover the pay-out, it may fall to the individuals running the assocition to pay the cost.  Additionally, if you stop being a member of the association but your name is still on the contract, there may be difficulties transferring your responsibilities. Furthermore, most foundations and government departments will only fund organisations that are legal entities that are distinct from its individual members.

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To overcome these disadvantages, the unincorporated association may decide to incorporate and become an incorporated association (see below ‘incorporating an unincorporated association‘). ‘Incorporation’ is the system used by Federal and State Governments to register an organisation as a distinct legal entity.

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Incorporated associations are incorporated under the relevant State-based incorporated associations legislation and are regulated by the relevant State-based authority.

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Suitable for: locally-focused community groups with limited capacity to meet reporting obligations and limited funds and resources

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Not suitable for: groups with fewer members than prescribed by the relevant State-based associations law or for wholly owned subsidiaries of parent organisations

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Companies limited by Guarantee

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A company limited by guarantee is a legal entity distinct from its individual members that can operate anywhere in Australia.

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In a company limited by guarantee, the members of the company have limited liability.  The members agree in writing (a ‘guarantee’) to pay a nominal amount (usually $10-$100) to the property of the company.  If the company is wound up, the liability of the members is limited to the nominal amount that they have guaranteed.

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Some of the benefits of this structure include:

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• it is facilitative of not-for-profit status;

• as a public company, it is subject tothe extra scrutiny, transparency and accountability required by legislation, giving it a level of credibility and independence that will give confidence to funders and members alike;

• it can be established as a ‘special purpose’ company;

• it is a straightforward structure familiar to organisations who wish to provide funding or be involved;

• it provides operational flexibility;

• the liability of members is limited to a fixed amount, the sum of the guarantee;

• it allows for perpetual succession;

• the company has capacity to enter into and enforce contracts;

• the company has the capacity to sue and be sued;

• it has all the benefits of corporate status; and

• the activities of the organisation may be carried out throughout Australia.

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Companies limited by guarantee are incorporated under the Corporations Act 2001 (Cth) and are regulated by the Australian Securities and Investments Commission (ASIC).

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NOTE: companies limited by guarantee registered as charities will also be regulated by the Australian charities and Not-for-profit Commission (ACNC). For further information on charities please see our NFP Resources – Charities page.

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Suitable for: groups wanting to operate nationally, charities registered with the ACNC, wholly owned subsidiaries of parent organisations

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Not suitable for: groups with limited capacity to meet reporting obligations and limited funds and resources

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Indigenous corporations

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A co-operative is a form of not-for-profit organisation which is member-owned. A co-operative must have at least five members. The fact that they are member-owned means that co-operatives allow for a more democratic style of work, and make pooling of resources and sharing of skills to be more competitive.  Co-operatives supply goods and services to their members or to the general public.

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Co-operatives are regulated by the relevant state or territory office of fair trading or consumer affairs.  A non-trading cooperative does not give returns to members, and may or may not have share capital. By contrast, a trading cooperative is able to do both of these things.

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Some of the benefits of this structure include:

• all shareholders have an equal vote at general meetings, regardless of their shareholding or involvement in the cooperative;

• shareholders, directors, managers and employees have no responsibility for debts of the co-operative unless those debts are resulted from recklessness, negligence or fraudulent activity;

• members, other than directors, can be under 18;

• a co-operative is member owned and controlled, rather than controlled by investors; and

• all members and shareholders have to be active in the cooperative.

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Suitable for: groups providing services to its members

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Not suitable for: larger organisations or organisations wanting to have non-voting members

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Other structures

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There are other structures available that are not organisations. These include charitable trusts, public ancillary funds, and private ancillary funds.

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If you need any further assistance, we can provide advice on which structure is most appropriate for you.

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Establishing a Not-For-Profit Organisation

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Once you have decided on the appropriate legal structure, you can now establish your not-for-profit organisation.  There are three main steps:

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• register (or incorporate) – the process is different for each type of legal structure and is determined by the requirements of the relevant legislation;

• apply for an Australian Business Number (ABN) – this is a unique number which identifies your not-for-profit organisation to the Australian Taxation Office and other government department and agencies.  It is not compulsory unless the organisation has has a goods and services tax turnover of $150,000 or more.  However, if your not-for-profit organisation wishes to register as a charity with the ACNC or register a business name, it must have an ABN;

• register a business name – you will only need to register your business name with ASIC if it is not your organisation's name.

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The following checklists can assist in establishing your not for profit organisation:

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• Checklist to establish a Public Company Limited by Guarantee

• Checklist to establish a Charity (Company)