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Joanne Redburn
Legal Practitioner Director
Email: Joanne.Redburn@nfplawyers.com.auBronte Donohoe
Law Student, Paralegal
Email: Bronte.Donohoe@nfplawyers.com.au

On 1 July 2019, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth) (Treasury Laws Amendment) commenced. The Treasury Laws Amendment amends the whistleblower provisions set out in the Corporations Act 2001 (Cth) and aims to consolidate and strengthen the whistleblower protection regime. The basis for the new laws is to improve company transparency, as well as to deter wrongdoing.

In summary, the Treasury Laws Amendment:

• expands the category of persons who can make disclosures;
• allows disclosures to be made anonymously;
• replaces the ‘good faith’ requirement on whistleblowers to one of reasonableness;
• requires all public companies to implement a whistleblower policy as soon as possible and no later than 1 January 2020;
• requires companies to provide training to ensure that potential recipients of disclosures know how to identify a whistleblower disclosure and what to do if they receive one; and
• introduces significantly higher civil and criminal penalties for individuals and companies.

Which NFP organisations must comply with the whistleblower laws?

All NFP organisations that are registered with the Australian Securities and Investment Commission (ASIC) must comply with the new laws. This includes public companies limited by guarantee and Incorporated Associations that have registered with ASIC as a registerable body.

Who can make disclosures?

The definition of a whistleblower is broad, effectively aiming to encourage the reporting of misconduct and illegal behaviour. An individual is an eligible whistleblower if the individual is, or has been, any of the following:

• employees and officers;
• contractors, suppliers and the employees of the suppliers (either paid or unpaid and can include volunteers);
• an associate of the organisation; or
• spouses, relatives or dependants of any of the above.

Associate has the meaning outlined in section 318 of the Income Tax Assessment Act 1936 (Cth).

Who can disclosures be made to?

To qualify for protection under the Treasury Laws Amendment, the disclosure must be made to one of the following people or bodies:

• ASIC;
• an officer or senior manager of the company;
• an auditor or actuary of the company;
• a person authorised by the company to receive protected disclosures;
• a lawyer, for the purpose of legal representation or legal representation regarding the whistleblower protections; or
• to a parliamentarian or a journalist (but only where it is a public interest or emergency disclosure).

What types of disclosures are protected?

The new laws protect disclosures that include where a person has reasonable grounds to suspect that the information disclosed concerns:

• misconduct or an improper state of affairs or circumstances regarding the company;
• conduct that breaches the Corporations Act 2001 (Cth)
• conduct that breaches laws enforced by ASIC;
• conduct that relates to an offence against any law of the Commonwealth which is punishable by imprisonment for 12 months or more; or
• represents a danger to the public or the financial system.

Does my NFP organisation need to implement a whistleblower policy?

All NFP organisations that are public companies limited by guarantee are required to implement a whistleblower policy as soon as possible but before 1 January 2020.  Companies who fail to have a compliant policy in place before 1 January 2020, face fines of up to $12,600.

The NFP organisations whistleblower policy must comply with the Treasury Laws Amendment and include:

• the protections available to whistleblowers;
• details of the people to whom disclosures may be made, and how to make a disclosure;
• information on how the company can support whistleblowers and protect them from victimising;
• information about how the company will investigate disclosures;
• how the company will ensure fair treatment of employees who are mentioned in disclosures; and
• how the policy is to be made available to employees or officers of the company.

Does my NFP organisation need to provide training to the recipients of a disclosures?

Those NFP organisations that are required to implement a whistleblower policy must also ensure the recipients of disclosures receive training, so recipients of disclosures know how to identify a whistleblower disclosure and what to do if they receive one.

What penalties apply for breaching the laws?

The Treasury Laws Amendment introduces significantly higher civil and criminal penalties for individuals and companies that breach the new protection laws.

If an individual or a company breaches a whistleblower’s anonymity, fines of up to $1.05million apply to an individual and up to $10.5million apply to companies engaged in the breach of confidentially.

Significant fines also apply to an individual or company whom engages in threatening or victimising a whistleblower.

What does your NFP organisation need to do?

Given the complexity of the new laws and the severe penalties in the event of a breach, we strongly recommend as a matter of good corporate governance, that all companies regulated under the new legislation adopt a whistleblower policy to ensure the protections in the legislation are observed.

What next?

Use the following checklist as a general guideline to implement a compliant whistleblower policy:

☐       Does your policy:

• outline the protections available to whistleblowers?
• include the details of the people who disclosures may be made to?
• outline how a disclosure is to be made?
• include information on how your NFP can support whistleblowers, including how they will be protected from victimising?
• indicate how the company will investigate disclosures made?
• include how the company will ensure fair treatment of employees mentioned in disclosures?

☐       Have you made the policy available to all employees and officers of the company?

☐       Has your NFP provided training to the potential recipients of disclosures?

☐       Do the potential recipients know how to identify a disclosure and what to do if they receive one?

If you have any questions or wish to seek legal advice on how these whistleblower reforms may impact your NFP, please contact us.

Donate Now: Top 5 legal tips for NFP organisation's using online fundraising

For many not for profit (NFP) organisations, such as charities and sporting associations, their first fundraising activity is to incorporate a DONATE NOW button on their website. This article provides our top 5 legal tips that NFP organisations should consider when utilising this type of online fundraising.

1. Make sure you obtain/have a current licence to fundraise in all states/territories.
2. Do not engage in misleading or deceptive conduct.
3. Provide proper receipts to your donors. You can only provide a tax receipt if you are endorsed as a deductible gift recipient.
4. Ensure that money raised is used for the purpose intended.
5. Implement a donation refund policy.

Fundraising licences

Generally, an NFP organisation that fundraises online would need to consider how the campaign is promoted and what states/territory will be target.  However, where an NFP organisation places a DONATE NOW button on its website a donor may come from any state/territory.  That is, the NFP organisation will need to obtain a fundraising licence from each state/territory because a donor may be located in any state/territory.An overview of the processes for each state/territory are set out below.

Queensland

In Queensland, an NFP organisation will need to register as a charity by lodging an Application for Registration of a Charity with the Office of Fair Trading (Qld).

The NFP organisation must advertise a notice of its intention in the Courier Mail and, for NFP organisation located outside Brisbane, a newspaper that publishes at least 5 days per week. The notice allows third parties a period of one month to object to the registration. A copy of the notice must be forwarded to the Office of Fair Trading within 7 days of lodging the application.

There is no renewal period for registration once it has been approved.

New South Wales

Initially, the NFP organisation may not be required to obtain a fundraising licence in New South Wales. NFP organisations raise less than $15,000 in a financial year are considered small fundraisers and do not need to register.

As the NFP organisation nears this threshold, then in New South Wales, the NFP organisation must apply for a licence with NSW Fair Trading (Fair Trading) by lodging a Charitable Fundraising Application. Each licence is subject to the Charitable Fundraising Authority Conditions. Generally, the fundraising licence must be renewed each year. Each year the NFP organisation will need to provide the latest audited financial statements.

Victoria

Initially, the NFP organisation may not be required to obtain a fundraising licence in Victoria. Fundraisers that only use unpaid volunteers and raise less than $10,000 (gross) per year do not need to register.

As the NFP organisation nears this threshold, then in Victoria, the NFP organisation will need to register as a fundraiser with Consumer Affairs Victoria by lodging an Application for fundraiser registration together with a Criminal record and personal insolvency declaration signed by each person on the governing body (ie directors).

The registration period is for 3 years and can be renewed. Each year the NFP organisation will need to lodge an annual statement form, to provide details of donations received and how they were distributed.

Australian Capital Territory

In June 2017 the ACT amended the Charitable Collections Act 2003 (ACT) to exempt ACNC-registered charities from requiring a license to fundraise in the ACT.

NFP organisations that are not registered with the ACNC do need a license by lodging an Application for a New or Amended Charitable Collection Licence with Access Canberra.

The registration period is for either 1-5 years, as selected by you.  To renew your registration, you will need to lodge the same form.

South Australia

From 1 December 2016, ACNC-registered charities are exempt from requiring a license to fundraise in the South Australia.  However, an ACNC-registered charity must notify Consumer and Business Services of its intention to fundraise by lodging a Collections for charitable purposes application/notification form.

NFP organisations that are not registered with the ACNC must apply for a licence in order to fundraise using the abovementioned form.

The licence is usually granted for 12 months and will expire 6 months after the NFP organisation’s financial year ends. Renewals may be done online and the NFP organisation will need to upload and submit its financial statements for the last statement period.

Tasmania

For NFP organisation’s located outside Tasmania, they will need to lodge with Consumer Building and Occupational Services an Application for Approval to Collect Charitable Donations (Form 1). For other NFP organisations, they will need to lodge an Application to Collect Charitable Donations (Form 2).

For Form 1 applications the licence is granted for 3 years and for Form 2 applications the licence is granted for 2 years.  At the end of the licence period the NFP organisation will need to lodge a new application.

Western Australia

In Western Australia, a NFP organisation needs to lodge with the Department of Mines, Industry Regulation and Safety a Charitable collections licence application form together with a Principle Executive Officer declaration form.

The NFP organisation will need to provide a covering letter explaining what the NFP organisation does, who the beneficiaries will be and why a licence is required.  This, together with the forms are considered by the Charitable Collections Advisory Committee.

A licence is for a period of 3 years and can be renewed for an additional 3 years.

Northern Territory

The Northern Territory does not have any licence requirements to conduct fundraising (as described in this article).

Misleading and deceptive conduct

NFP organisation’s who engage in activities in trade or commerce are required by law not to mislead or deceive in relation to those activities. This law applies even if you do not intend to mislead or deceive anyone.

Example

An established charity provides ongoing financial support towards the cost of counselling services to families suffering trauma.  Published on its website, together with its DONATE NOW button, the charity represents to consumers that their donations will help relieve the suffering of families who experience trauma.

The fundraising activity, ie the DONATE NOW, of the charity is likely to occur in trade or commerce due to the continuous nature of its activity.  The statement, on its own, appears to accurately reflect the true situation and is therefore unlikely to mislead or deceive consumers.

However, if the charity makes the same representation to consumers but the donation is provided to another charity to assist with the cost of supplying books to children with low literacy rates then the representation is misleading and deceptive.

A charity engaging in misleading and deceptive conduct would breach the Competition and Consumer Law. In such circumstances as the above example the regulators have a variety of enforcement options available, including issuing an infringement notice.  The regulator can also take court action against the charity and may seek a monetary penalty.  The maximum penalty being $1.1 million for an NFP organisation that is a corporation.

Receipting

NFP organisation’s who have obtained a fundraising authority must keep records of monies received by donors utilising the DONATE NOW button in accordance with the applicable fundraising legislation. However, provided the NFP organisation deposits the monies received into an account (at a bank, building society or credit union) that only consists of money raised from fundraising, the NFP organisation generally is not required to provide a receipt to the donor.  In such circumstances, NFP organisations would generally maintain two accounts; one for fundraising and one for operations.If an NFP organisation is endorsed as a deductible gift recipient and the amount of the donation is $2.00 the NFP organisation may provide a tax recipient that complies with the relevant tax law.

Use of monies received from fundraising

Each NFP organisation’s constituent document sets the primary obligation for use of any income or assets received by the NFP organisation.  An NFP organisation must only use its income and assets solely in pursuit of its purpose (or objects) which are also set out in its constitution document.Therefore, any money received by an NFP organisation through its DONATE NOW online fundraising activity must only be used in pursuit of its purpose.  If the NFP organisation has made a representation in relation to that purpose, then the monies raised through the DONATE NOW must be used for that intended purpose.Depending on the additional regulatory requirements of the NFP organisation, for example an income tax exempt entity, ACNC registered charity, Office of State Revenue concessions/exemptions, the NFP organisation would also need to demonstrate that its income and assets are used in pursuit of its purpose.

Implement a donation refund policy

There are a number of issues to consider when a donor has requested a refund of their donation, for example was the donation amount incorrect or made accidently or did the donor simply change their mind.If an NFP organisation made an error in processing the donation it would be required to correct that error.  Generally, there is no requirement to refund a donation if a donor changes their mind.  However, in the absence of a clear refund policy this becomes a grey area and may lead to a dispute.We recommend incorporating a donation refund policy on the NFP organisation’s website. Ideally in close proximity to the DONATE NOW button.  Set out below is a refund policy to used as guidance.

Donation Refund Policy

This refund policy outlines the procedure for issuing a refund of your donation.

Errors made by us

Should an error be made in the amount of any donation, you must notify us of the error within 60 days of making the donation.

All requests for refunds must be made in writing and directed by email to [insert email address] or by post to [insert postal address].

The request should set out the details of the initial donation including the date, amount, name of the donor, the receipt number and the nature of the error. If the error is in relation to a tax invoice that was issued, the incorrect amount immediately becomes void and invalid, and a new tax invoice will be issued for the amount of the corrected donation.

If an error is made by us or our financial institution, a full refund will be made as soon as possible following notification of the error.

Change of mind on donation

Refunds of the amount pledged will not automatically be made simply because you have changed your mind. It is for this reason that we ask that you make your choice to donate carefully.

Errors in donation pledged

We are under no obligation to give a refund if an error has been made on your part, but will endeavour to ensure that any genuine errors (such as to the amount donated) are rectified.

We reserve the right to deduct any bank or transaction charges for any refund processed. Should an error be detected and a request for refund be made after 60 days have expired, we regret that we are unable to refund any monies.

Fundraising - Do's and Don'ts of using social media

Fundraising through social media is ever-increasing as NFP organisations continue to create different ways to find new donors, reach a younger audience, create more engaging fundraising campaigns and save time and money during fundraising.Social media includes Facebook, Instagram, Twitter, LinkedIn, YouTube etc. This continues to grow as technology progresses and new platforms are developed.There are many positive features of using social media as it is easy to use, generally free, easy to connect for many people and it enables content creation and sharing is instant. A unique fundraising campaign run through the reach of social media has the potential to raise large amounts of money.  By way of example, the Ice Bucket Challenge is one of the well known social media fundraising campaigns.  The campaign went viral on social media during July-August 2014 raising millions of dollars for the Muscular Dystropy Association.  This success prompted numerous NFP organisations to re-evaluate how they do fundraising.However, NFP organisations must be warey of the downside to using social media as a tool for fundraising. Social media is far reaching and consequently the fundraising campaign may be subject to various risks, such as the campaign activity itself, negative or disparaging comments, the connection with the purpose etc . This can potentially damage a NFP organisation’s reputation beyond repair.To assist your NFP organisation in reducing the risks in using social media set out below is a checklist of dos and don’ts when using social media.          Do's and Don'ts of using social media                 What you should do             1    Develop a social media policy to ensure that any social media posts are in keeping with the image and values of your NFP organisation.            2    Manage posts and tweets as the online environment is active 24 hours a day.            3    Use social media as an extension of your traditional fundraising and not instead of it.            4    Use photos and images with the necessary consent of the individual or photographer.            5    Keep donors informed via social media of how successful the fundraising event has been, thank them for their participation and also let them know your final fundraising total and what the funds raised will be used (in furtherance or aid of your NFP organisation’s purpose) after your event or activity has finished.            6    Social Media activity is instant, and all activities are in “real time” so you need to monitor your social media sites and activity post often during any major fundraising campaign.            7    Tailor all your content to the specific event and make sure that all the information is accurate and up to date.            8    Make sure that all staff or anyone involved in managing the social media sites have been adequately trained.                What you should not do             9    You should not use any ideas or concepts that are subject to copyright unless you obtain the necessary rights and/or permission to do so.            10    Avoid accidentally using someone else’s trademarks this could potentially infringe their rights.            11    Protect any personal information that is collected by your organisation during the fundraising campaign which is on social media or elsewhere.            12    Be careful not to repost or retweet any defamatory material that could have been inadvertently or intentionally posted on your social media sites.            13    Will you engage any volunteers to assist with the activity? If so, you will need an acknowledgement that no fees are payable and that any fees associated with the event are payable by the volunteer.      This Checklist should alert you to the potential risks of using social media for your fundraising activities and provide guidance on what you should and should not do to avoid any negative implications from doing this.If you require any assistance to consider the options available for third party fundraising arrangements, please contact us.[fusion_builder_row_inner][fusion_builder_column_inner type="1_2" layout="1_2" spacing="" center_content="no" hover_type="none" link="" min_height="" hide_on_mobile="small-visibility,medium-visibility,large-visibility" class="" id="" background_color="" background_image="https://www.nfplawyers.com.au/wp-content/uploads/rosann-website.jpg" background_position="left top" background_repeat="no-repeat" border_size="0" border_color="" border_style="solid" padding="" dimension_margin="" animation_type="" animation_direction="left" animation_speed="0.3" animation_offset="" last="no" border_position="all" element_content=""][/fusion_builder_column_inner][fusion_builder_column_inner type="1_2" layout="1_2" spacing="" center_content="no" hover_type="none" link="" min_height="" hide_on_mobile="small-visibility,medium-visibility,large-visibility" class="" id="" background_color="" background_image="" background_position="left top" background_repeat="no-repeat" border_size="0" border_color="" border_style="solid" padding="" dimension_margin="" animation_type="" animation_direction="left" animation_speed="0.3" animation_offset="" last="no" border_position="all"][fusion_text]Rosann De CampoEmail: rosann.decampo@nfplawyers.com.auNFP LawyersLevel 2, 121 Logan Road, Woolloongabba Qld 4102PO Box 6116, Woolloongabba Qld 4102Phone: (07) 3160 0010[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container][fusion_builder_row_inner][fusion_builder_column_inner type="1_2" layout="1_2" spacing="" center_content="no" hover_type="none" link="" min_height="" hide_on_mobile="small-visibility,medium-visibility,large-visibility" class="" id="" background_color="" background_image="https://www.nfplawyers.com.au/wp-content/uploads/Joanne.png" background_position="left top" background_repeat="no-repeat" border_size="0" border_color="" border_style="solid" padding="" dimension_margin="" animation_type="" animation_direction="left" animation_speed="0.3" animation_offset="" last="no" border_position="all" element_content=""][/fusion_builder_column_inner][fusion_builder_column_inner type="1_2" layout="1_2" spacing="" center_content="no" hover_type="none" link="" min_height="" hide_on_mobile="small-visibility,medium-visibility,large-visibility" class="" id="" background_color="" background_image="" background_position="left top" background_repeat="no-repeat" border_size="0" border_color="" border_style="solid" padding="" dimension_margin="" animation_type="" animation_direction="left" animation_speed="0.3" animation_offset="" last="no" border_position="all"][fusion_text]Joanne RedburnEmail: Joanne.Redburn@nfplawyers.com.auNFP LawyersLevel 2, 121 Logan Road, Woolloongabba Qld 4102PO Box 6116, Woolloongabba Qld 4102Phone: (07) 3160 0010[/fusion_text][/fusion_builder_column_inner][/fusion_builder_row_inner]

Fundraising - Things you need to know about running online competitions or promotional lotteries

So, your NFP organisation has obtained an Authority to Fundraise in each state/territory and now wants to take the next step to expand its online fundraising activities by conducting competitions and/or promotional lotteries online.

Why run online competitions or promotional lotteries?

This is a good way to give back to your donors, whilst receiving funds for your NFP organisation to advance its purposes. The main benefit of carrying out this type of fundraising is that your NFP organisation is giving participating donors (ie players/entrants) the chance to win a prize in exchange for entering a competition or promotion. This adds a level of interest, fun and excitement for players/entrants. It is a win-win situation (especially for players/entrants who win prizes).

Five things you need to know (to start with)

1. You need to obtain a licence/permit or authority from the regulators to conduct lotteries in all states/territories;
2. You need terms and conditions for every competition/promotion that your NFP organisation conducts through your website;
3. Every lottery needs to have a percentage of funds raised by ticket sales returned to players/entrants;
4. Any advertisements for promotional lotteries must include specific information about the lottery such as the closing and drawing dates and licence number (where applicable); and
5. Your NFP organisation will need to implement responsible gambling practices to promote responsible and ethical gambling practices.

What does your NFP organisation needs to do in each state/territory?

Queensland

In Queensland, lotteries are classified into different categories depending on the proposed amount of the lottery proceeds.

• Category 1 games – gross proceeds from raffles, lucky door prizes, bingo but are not more than $2,000. No licence is required;
• Category 2 games – gross proceeds from gaming activities is more than $2,000 but not more than $50,000. No licence required but can only be conducted by eligible non-profit associations.
• Category 3 games – includes raffles or art unions (not bingo) where gross proceeds are more than $50,000 and a category 3 gaming licence is required. This type of game can only be conducted by an “eligible incorporated non-profit association” and to seek approval you will need to lodge a Form 2A – Category 3 gaming licence application/renewal with the Office of Liquor and Gaming.

You will need to attach to the application form a copy of the last audited balance sheet or financial affairs of your NFP organisation together with a certified copy of the NFP organisation’s constitution.The fees payable for the licence depend on the amount your NFP organisation wishes to raise as gross proceeds.The licence remains in effect for 1 year and the details of the licence must be included on all advertising material and your NFP organisation’s website.Note: Cash prizes cannot be for a value greater than $100,000.

• Category 4 games – These types of games can be conducted by anyone and no licence is required, however, the purpose is for the benefit of promoting goods or services (which is not likely to be suitable for a not for profit organisation that is raising funds for a charity or sporting association.

New South Wales

In New South Wales your NFP organisation must apply for an art union permit under the Lotteries and Art Unions Act 1901 (Act) to conduct online competitions or promotions where the prize value exceeds $30,000. You will need to complete your application online with the NSW Fair Trading if you wish to conduct a game of chance – art union. The application must be signed by a nominee (director, member of the management committee, or an employee) of your NFP organisation.Your NFP organisation does not need a permit to conduct a raffle (or a guessing game) where the prize value is less than $30,000. However, you will still need to comply with the Act.Your application needs to include details about the promoter, prize details, entry details and draw details how to enter the competition, any conditions of entry (must be over 18 years of age), dates, process for notifying winners, claiming of prizes, tickets that will be available and advertising material.Generally, a permit is issued for a period of up to 12 months for each competition or promotion.Note: Cash prizes cannot be for a value greater than $30,000.

Victoria

In Victoria, your NFP organisation will require a permit to run online competitions which are considered raffles. Your NFP organisation will need to:

1. comply with the conditions in the Gambling Regulation Act 2003 and Gambling Regulations 2015; and
2. register as a community or charitable organisation by completing a Declaration as a community or charitable organisation and lodging it with the Victorian Commission for Gambling and Liquor Regulation.

Your NFP organisation must be a charitable organisation conducting the raffles or lotteries for a charitable, sporting or recreational purpose.The next step is to apply for a minor gaming permit (where the retail value of prizes is more than $5,000) by completing a Gambling Application – Minor gaming permit – raffles, lucky envelopes, fundraising events and pay a fee for each event you wish to conduct.The permit will be issued for a period not exceeding 2 years and will need to be renewed if you are conducting ongoing promotions.Note: Cash cannot be given as a prize unless the cash is part of a travel and/or accommodation prize, in which case only 10% of the total travel prize can be cash.

Australian Capital Territory

In the ACT any lottery which includes an element of chance or a mixture of chance and skill requires a permit under the Lotteries Act 1964 where the total prize value exceeds $2,500. A permit is not required where the competition is a game of skill.Your NFP organisation will need to complete an Application for Permit to conduct a Raffle with the Gambling and Racing Commission – Access Canberra and pay the applicable fee (which varies depending on the value of the prizes that ACT residents may be eligible to win).Note: There is no restriction of cash prizes in ACT.

South Australia

In SA, lotteries can only be conducted by an “association” not formed for private gain and must have at least 10 members, an elected management committee and a constitution. So, provided that your NFP organisation satisfies this requirement then you can conduct lotteries in South Australia. However, your NFP organisation will need a major lottery licence where the total prize value for the promotion is $5,000 or more. You do not need a minor lottery licence where the total prize value is $5,000 or less.For a major lottery, your NFP will need to lodge an Application for a Major Lottery Licence under the Lottery and Gaming Act 1936 with Consumer and Business Services in South Australia with the appropriate fee. Any funds raised through a lottery can only be used for religious, educations, charitable or benevolent purposes. Importantly, in South Australia any draws need to be conducted in front of an independent scrutineer (which is an additional requirement not often necessary in other jurisdictions).Note: There is no restriction on cash prizes in South Australia.

Tasmania

In Tasmania, your NFP organisation will need to obtain a permit for a promotion where the total retail value of the prizes is $5,000 or more. You will need to lodge an Application for a Minor Gaming Permit under the Gaming Control Act 1993 with the Tasmanian Liquor and Gaming Commission together with the applicable fee. Minor Gaming Permits are issued for a period of either one or two years and may be subject to conditions.Once a permit is held then each activity conducted under it must be separately approved using an Individual Activity Notification for Raffles Form 7 days prior to conducting the raffle. This is an additional obligation that is over and above the requirements in other states/territories.A minor gaming permit may be granted for a period of one or two years (unless a shorter period is specified in the permit).Note: Cash prizes cannot be for a value greater than $5,000.

Western Australia

In WA, your NFP organisation will need to obtain a standard lottery licence to sell lottery tickets in a game of chance.  The purpose for raising funds must be for the support or conduct of sporting, social, political, literary, artistic, scientific, benevolent, charitable or other like activity (and not for private gain or any commercial undertaking).Your NFP organisation will need to obtain a standard lottery permit under the Gaming and Wagering Commission Act 1987 from the Department of Racing, Gaming and Liquor. A permit authorising a standard lottery shall be issued for a period not exceeding 12 months.Note: No restriction on cash prizes in WA. However, where the total prize value exceeds $20,000 then your organisation would need to provide a bank guarantee or security deposit.

Northern Territory

In the Northern Territory, your NFP will need to be considered an “approved association” under the Gaming Control Act to conduct lotteries online. If your organisation is a community organisation (with a religious, educational, benevolent or charitable purpose) and has at least 10 members then you can apply to become an approved association by completing the relevant form. Where applicable you will need to lodge an Application to become an Approved Association with the Department of the Attorney-General and Justice (NT) together with your organisation’s constitution and various other documents.If your NFP organisation is conducting games of skill, then you do not require a permit. However, for games of chance where the total prize value for the promotion is:

1. more than $5,000 and less than $20,000 then a minor lottery permit is required;
2. more than $20,000 then a major lottery permit is required.

There are numerous requirements in the Northern Territory that need to be complied with such as the value of prizes must be at least one third of the total value of tickets sold.Note: Liquor must not be a principal prize in a lottery (this includes prizes consisting solely of money and liquor).

What are the next steps for your NFP organisation?

After obtaining the necessary permits the next stage involves drafting terms and conditions and setting up the promotion online, entry forms, tickets, prizes and other details so that all aspects of the competition or promotion complies with the regulatory requirements in all states/territories. See schedule of regulatory requirements below.If you have any questions or wish to seek legal advice on any aspects of running online competitions or promotions, please contact us. We can also assist by conducting a workshop for your NFP organisation to work through the processes involved in obtaining the necessary permits.

Fundraising - Regulatory Requirements for Permits in all states/territories

     Jurisdiction    Regulator    Permit required    Eligibility (other than being NFP organisation)    Prize Value/Gross Proceeds        Queensland    Office of Fair Trading, Queensland and Office of Liquor and Gambling Regulation    Yes - Category 3 game permit under the Charitable and Non-profit Gaming Act 1999    Eligible Association (defined in Section 10 of the CNPG Act)    Gross proceeds

>$50,000        New South Wales    Office of Liquor, Gaming and Racing    Yes - Art Union Permit under the Lotteries and Art Unions Act 1901    Not for profit organisation    Prize value

> $30,000        Victoria    Victorian Commission of Gambling and Liquor Regulation    Yes – Minor Gaming Permit under the Gambling Regulation Act 1993    Community and Charitable organisation    Prize value

>$5,000        Australia Capital Territory     ACT Gambling and Racing Commission and Access Canberra    Yes – Permit to conduct a raffle under the Lotteries Act 1964    Not for profit    Prize value

>$2,500        South Australia    Consumer and Business Services    Yes – Major Lottery Licence under the Lottery and Gaming Act 1936    Association as defined in S 121 of the Regulation (at least 10 members etc)    Prize value

>$5,000        Tasmania     Liquor and Gaming Branch, representing the Tasmanian Liquor and Gaming Commission and Consumer Affairs and Fair Trading    Yes - Minor Gaming Permit under the Gaming Control Act 1993    Not for  profit organisation    Prize value

>$5,000        Western Australia    Department of Commerce (Consumer Protection Division) and the Gaming and Wagering Commission of WA    Yes – Standard lottery licence under the Gaming and Wagering Commission Act 1987    Not for profit organisation    Any value unless raffle is for member etc, employees, prizes less than $200.        Northern Territory     Licensing, Regulation and Alcohol Strategy Division, NT Department of Business    Yes – Minor lottery permit under the Gaming Control Act


Yes – Major lottery permit under the Gaming Control Act    Approved association as defined in the Gaming
Control Act (must have at least 10 members etc)    Prize value

>$5,000 to $20,000

Prize value

>$20,000

Is your NFP using an unregistered business name?

Did you know that when your Not For Profit organisation (NFP) pursues its activities in Australia and it has an Australian Business Number it is carrying on a business.In many cases, NFPs will use a name similar to their legal name under which they are registered with the Australian Securities and Investments Commission (ASIC) or relevant State regulator, such as the Office of Fair Trading or Consumer Protection, to carry on their business activities.For example, ‘Here To Help Inc’ (the legal name registered with the Office of Fair Trading) would carry on its business activities using the name ‘Here To Help’ (without the ‘Inc’) or ‘Professional Jet Skiers Association Limited’ (the legal name registered with ASIC) would carry on its business activities using the name ‘Professional Jet skiers Association’ (without the ‘Limited’).In other cases, NFPs may use a name different to their legal name.  For example ‘Here To Help Inc’ may carry on its business activities using the name ‘Here To Help Maintenance Services’.From 31 October 2018, your NFP must register the name under which it carries on business. If your NFP carries on business using an unregistered business name it may be fined up to $6,300.My NFP has a trading name listed on the business names register. Is this a registered business name?Your NFP registered its business name in a state or territory and this name was transferred to the ASIC Business Names Register on 28 May 2012.  These names were listed as 'trading names' on the ASIC Business Names Register.You will need to renew your trading name and pay the registration renewal fee. You will see your NFP’s ‘trading name’ listed under a search of your NFP’s Australian Business Number record.If you wish to use this trading name you will need to renew your registration before 31 October and pay the registration renewal fee. On payment of the registration renewal fee your trading name will be listed as a business name under your NFP’s Australian Business Number record. If you do not do this before 31 October 2018 the trading name will be cancelled.My NFP has a licence from ASIC to omit the word ‘Limited’ from its name and we use that name.  Do I need to register a business name?No. Your NFP may carry on business using its corporate name.A company limited by guarantee NFP may apply to ASIC to change its name to omit the word 'Limited' from the end of its name.A licence to omit the word ‘Limited’ is only available to a company that is:

1. registered under the Australian Charities and Not-for-profits Act 2012 (Cth), and
2. its constitution prohibits the company paying fees to its directors and requires the directors to approve all other payments the company makes to its directors.

If you think your NFP meets the above criteria and would prefer to obtain a licence to change its name to omit the word ‘Limited’ please contact us so we may assist your NFP in the application process.Are there any restrictions on registering my business name?There are a few things your NFP should consider before registering its business name. Your NFP cannot register a name that is identical or nearly identical to an existing business name and some terms are restricted.Some words and phrases cannot be used without the approval of a government minister.  Examples include:

• 'trust' or ‘trustee’
• ‘charity’ or ‘charitable’
• 'consumer' or ‘chamber of commerce
• ‘university’

ASIC may also refuse a name if it's considered offensive or suggests illegal activity.Your NFP can't use words that could mislead people about its activities. This includes associations with the Australian government, the Royal Family, or any ex-servicemen's organisations.What rights does my NFP obtain when it registers a business name?Registration of a business name grants your NFP with a licence to use that business name only for the purpose of your NFP carrying on a business.A business name does not give your NFP exclusive rights to carry on its business activities or ownership over that name.Registering a particular name does not stop another person, organisation or NFP from registering a similar name. It also does not give your NFP the exclusive right to use the name or part of the name.Registering a business name will not stop someone who has registered the name as a trademark from using it.  In fact, using a business name that is similar to someone else’s registered trade mark may lead to your NFP infringing trade mark rights.  You should always conduct a trade mark search before deciding on a business name.The obligation to register a business name is separate to protecting any intellectual property rights in a name or brand, such as registering a trademark.How do I register my business name?You must lodge an application to register your NFP’s business name at www.asic.gov.au.To apply, you will need to create an ASIC Connect account (if you do not already have one) and must provide certain information, including:

• your NFP’s ABN;
• your NFP’s proposed business name;
• your preferred registration period (1 or 3 years);
• your NFP’s details;
• a street address for the principal place of business; and
• a street address for service of documents from ASIC.

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NFP Lawyers is offering until 1 November 2018 a fixed fee package of $950 plus GST to:

• review your NFP’s trading and business names;
• advise on potential trade mark infringement for one (1) business name;
• advise on one (1) business name availability; and
• subject to the above**, obtain registration of one (1) business name* for 3 years.

* The cost for each additional business name is $450 plus GST.

[/fusion_table][fusion_builder_row_inner][fusion_builder_column_inner type="1_2" layout="1_2" spacing="" center_content="no" hover_type="none" link="" min_height="" hide_on_mobile="small-visibility,medium-visibility,large-visibility" class="" id="" background_color="" background_image="https://www.nfplawyers.com.au/wp-content/uploads/Joanne.png" background_position="left top" background_repeat="no-repeat" border_size="0" border_color="" border_style="solid" padding="" dimension_margin="" animation_type="" animation_direction="left" animation_speed="0.3" animation_offset="" last="no" border_position="all" element_content=""][/fusion_builder_column_inner][fusion_builder_column_inner type="1_2" layout="1_2" spacing="" center_content="no" hover_type="none" link="" min_height="" hide_on_mobile="small-visibility,medium-visibility,large-visibility" class="" id="" background_color="" background_image="" background_position="left top" background_repeat="no-repeat" border_size="0" border_color="" border_style="solid" padding="" dimension_margin="" animation_type="" animation_direction="left" animation_speed="0.3" animation_offset="" last="no" border_position="all"][fusion_text]Joanne RedburnEmail: Joanne.Redburn@nfplawyers.com.auNFP LawyersLevel 2, 121 Logan Road, Woolloongabba Qld 4102PO Box 6116, Woolloongabba Qld 4102Phone: (07) 3160 0010[/fusion_text][/fusion_builder_column_inner][/fusion_builder_row_inner][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

The European Union General Data Protection Regulation (the GDPR) contains new data protection requirements that started 25 May 2018. These will harmonise data protection laws across the EU and replace existing national data protection rules. The introduction of clear, uniform data protection laws is intended to build legal certainty for businesses and enhance consumer trust in online services.Some Australian businesses covered by the Australian Privacy Act 1988 (Cth) may need to comply with the GDPR, for example they offer goods and services in the EU.The GDPR have similar requriements to the Australian privacy law.  Both laws require businesses to implement measures that ensure compliance with a set of privacy principles, and both take a privacy by design approach to compliance. Data breach notification is required in certain circumstances. In addition, privacy impact assessments, mandated in certain circumstances under the GDPR, are expected in similar circumstances in Australia. Given these similarities, Australian businesses may already have some of the measures in place that will be required under the GDPR. Even so, they should begin taking steps to evaluate their information handling practices and governance structures, seeking legal advice where necessary, to implement the necessary changes.

On the 1 July 2016 changes to the Private Ancillary Fund Guidelines 2009 and Public Ancillary Fund Guidelines 2011 that set minimum standards for the governance and conduct of ancillary funds and their trustees will come into effect.The amendments include:

• updating the Private Ancillary Fund Guidelines 2009 to reflect improvements incorporated in the later made Public Ancillary Fund Guidelines 2011
• introducing portability into the Private Ancillary Fund Guidelines 2009
• updating both sets of Guidelines to reflect the introduction of the Australian Charities and Not-for-profits Commission (ACNC)
• removing red tape by ensuring that material provided to the ACNC is not also requested separately by the ATO and to allow smaller private funds to seek a review instead of an audit
• updating the investment strategy rules to, amongst other things, ensure funds must consider both their status as a registered charity and conflicts of interest in preparing and maintaining a strategy
• allowing ancillary funds to provide loan guarantees over borrowings of deductible gift recipients
• providing further guidance on calculating the distribution in relation to social impact investments
• giving the Commissioner of Taxation the power to lower the annual minimum distribution rate of a fund in appropriate circumstances.

Further information on applying for a lower annual minimum distribution rate can be found at https://www.ato.gov.au/Forms/Application-to-reduce-the-minimum-ancillary-fund-distribution-rate/.If you require further clarification on these amendments please do not hesitate to contact us.

‍Tax Laws Amendment (Small Business Measures No. 1) Bill 2015 was passed by parliament on 15 June 2015 and is awaiting royal assent. It will reduce the company tax rate from 30 per cent to 28.5 per cent for not for profit companies that are small business entities for the income years starting on or after 1 July 2015.A not for profit company is a small business entity if its aggregated turnover is less than $2 million.The company tax rate and shade-in taxable income limit for not for profit companies that are small business entities will be changed. The current rates and limits will still apply to all other not for profit companies.

‍The ATO has developed a new checklist to help NFPs hand over its tax affairs to a new administrator, see Handover checklist: not-for-profit administrators (QC 45475)NFP organisations experience regular turnover of their administrators, for example treasurers, office bearers or employees involved in the tax administration of the organisation. ‍The checklist aims to help NFPs provide key information about the organisation, along with other relevant documentation, to the new administrator. It covers the following topics:

• registrations
• legal structure
• tax concessions
• your workers
• reporting and paying tax
• record keeping handover.

On 19 March 2015, the Corporations Legislation Amendment (Deregulatory and Other Measures) Act 2014 (Act) became law. As a result of the changes implemented by the Act small companies limited by guarantee and most other companies limited by guarantee with annual revenue of less than $1 million are no longer required to maintain the appointment of an auditor. Exemption from auditor appointment requirement for small and certain other companies limited by guarantee Section 327A(1) of the Corporations Act previously required a public company to appoint an auditor within one month of its incorporation. This requirement extends to companies limited by guarantee, despite section 292(3) of the Corporations Act exempting small companies limited by guarantee from the requirement to prepare an annual financial report and section 301(3) of the Corporations Act allowing most companies limited by guarantee with annual revenue of less than $1 million (whether on an individual or consolidated basis) to review, rather than audit, their annual financial statements. In recognition that the requirement to appoint an auditor is superfluous for many companies limited by guarantee, section 327A has now been amended to exempt companies limited by guarantee from the requirement to appoint an auditor where the company is a small company limited by guarantee or where the directors reasonably believe that the company will fall within the scope of section 301(3) and, accordingly, the company will no longer be required to have its annual financial statements audited.