Legal Updates

On 1 January 2012, the Work Health and Safety Act 2011 (Qld) (the WHS Act) commenced in Queensland. The WHS Act imposes an obligation on officers of not for profit corporations and associations (both incorporated and unincorporated) to exercise ‘due diligence’ to ensure the company or association complies with its duties under the WHS Act. Due diligence requires that the officers:

• acquire and keep up-to-date knowledge of work health and safety matters;
• gain an understanding of the nature of the operations of the business of their organisation and the hazards and risks associated with those operations;
• ensure resources are available and utilised by the organisation to eliminate or minimise risks to health and safety from those operations;
• ensure the organisation has processes in place for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information;
• ensure that the organisation has, and implements, processes for complying with any relevant duty or obligation; and
• verify the provision and use of the resources and processes by the organisation.

Failure to exercise due diligence may result in substantial financial penalties or even imprisonment.If you wish to discuss further the new obligations on officers of your not for profit organisation please contact Dr Joanne Redburn on 07 3160 0010.

Australian Charities and Not-For-Profits Commission - Discussion Paper on Implementation DesignThe ACNC Discussion Paper has been released to seek feedback on the design and implementation of the new reporting framework that will be administered by the ACNC. The paper also comments on the ACNC’s public information portal and the ACNC’s role in the provisions of educational and guidance for the charitable sector.The proposed reporting framework sets out the information that the ACNC will collect from a charity during the registration process and each year through their annual reporting obligations (financial and non-financial). The reporting framework proposes:

• three-tiered proportional reporting according to a charity’s revenue and whether the charity has deductible gift recipient status;

• a ‘passport’ of validated information, such as the charity’s name, ABN, postal address, office holders and bank account details, would be electronically available to registered government departments; and

• a ‘fixed-form’ for financial information which will align with the Australian Government’s Standard Business Reporting and the Standard Chart of Accounts.

Submission on the discussion paper on implementation design are due 27 February 2012. The discussion paper can be found at http://acnctaskforce.treasury.gov.au.

Large scale not for profit associations considering migrating to a company structure will welcome recent changes to the Associations Incorporation Act 1981 (Qld). The changes effective from December 2012 provide associations with the opportunity to voluntarily transfer incorporation to a company limited by guarantee, or an Indigenous Corporation, without the need to pay transfer duty or capital gains tax.Under this process the change in corporate status does not create a new legal entity. Therefore, providing the added advantage of continuing contracts, for example, employment, building leases, sponsorship and grants, without the need to novate to a new entity.If you would like to discuss the advantages of migrating to a company structure or the process and requirements to transfer incorporation to a company limited by guarantee please contact Dr Joanne Redburn on 07 3160 0010.