Incorporating an incorporated association - general

Establishing an incorporated association

To make sure you get the best out of this article, we think it is a good idea to first:

  1. think about whether or not you should incorporate a separate legal entity; and
  2. read our handy guide to incorporation types to work out which entity will best suit your needs (coming soon!)

And if you are really serious about getting started, you should definitely check out our course on starting a charity or not-for-profit.

Introduction and summary

While each Australian state and territory has its own particular laws relating to incorporated associations and have their own specific government regulators, there are a number of common themes that will give you a general idea of what is required and what to expect.

In summary, you will need to:

  • decide to incorporate;
  • get ready for incorporation (e.g. decide on a name, an address and prepare a constitution);
  • if you are already an 'unincorporated association', get approval from your members to go ahead; and
  • complete and lodge the application forms together with any other required materials.
Step 1 - Get ready to incorporate

Assuming that you, or the core team of people you are working with, have decided to establish an incorporated association, there are now a few things you need to do to get ready. The main three are:

  • decide on a name;
  • prepare a constitution; and
  • decide who will be the first people to sit on your association's management committee and who will be the first 'public officer' (or 'secretary').

Choosing a name

We have a whole article on naming your organisation that applies to all organisations. To give you an idea though, your name:

  • will need to include the word 'Incorporated' (or the abbreviation 'Inc') at the end of the name;
  • can't be a name already used by another company or organisation; and
  • can't be offensive or include expletives;

Constitution

A constitution is a document that contains the high level rules about how your organisation will be governed. It is therefore important to get this document right.

This is not to say that you can't change your constitution down the track, you certainly can.

However, changing a constitution does require a special resolution, so it is useful to get it as good as it can be from the beginning.

The good news is that each Australian state and territory laws include a model constitution that is ready for use and, because the regulator created it, pretty well means that it will comply with your local state or territory associations laws.

The not so good news is that these model constitutions are, by their very nature, general. This means that they will only be partly what you need – a good start, but not the end of the story! They are not tailored to your requirements.

We strongly recommend that if you use the model constitution, you use it as the starting point only.

There is an entire part of our starting a charity course dedicated to the governance of an organisation and its first constitution which in itself is worth the price of the course, even if we do say so ourselves.

If you would like expert legal advice and guidance to give you one-on-one support to prepare your constitution, then please contact us. It would be our pleasure to help. We love constitutions!

Work out who will form your first management committee 

While the minimum number of management committee members required to incorporate an association may vary from state to state, the point is that putting some thought and planning into who will be the first management committee members is a very worthwhile exercise.

Who will be most suitable for these roles will depend on a number of factors, including:

  • what is your association intending to do?
  • who is willing to be nominated for, and to fulfill, this role?
  • how long are the initial office holders expected to remain in their position?
  • how do the proposed people as a group complement each other based on the initial needs of the association?

Assessing who is most suitable also requires an understanding of what the role, responsibilities, duties and expectations of a management committee member actually are.

You can learn more about the duties of management committee members in our article coming soon!

We know that it can sometimes be difficult to understand what your duties are and that debates about governance can get rather heated at times.

If you would like expert guidance and advice on a duties or governance question or situation, please do get in touch. Our experienced governance lawyers are ready and raring to help.

Work out who your first public officer will be 

You will also need to decide who will be the first public officer of your new association. Depending on which state you are incorporating in, the public officer might be referred to as the 'secretary'.

Regardless of the title, one of the key roles of the 'public officer' or 'secretary' is to be the interface between the local government regulator and your association. The public officer (or secretary) will be the key point of contact for your association and must agree to give their details (such as name and address) to the regulator for this purpose.

Broadly speaking, the public officer (or secretary) must also:

  • be over 18 years of age;
  • live in Australia (or in some states, live in the state within which you are to be incorporated); and
  • consent in writing to be the association's public officer.


Step 2 - Obtain pre-approval 

If you are not already operating as an unincorporated association and want to jump straight to incorporation, then in most states and territories you will need the approval of at least five people to do so. The approval will need to be in writing and should be signed by all five people.

If you are already a part of a larger group of people formed as an unincorporated association, then before you complete and lodge an application form to incorporate, you will need to obtain formal agreement by your full membership base to:

  • go ahead and incorporate an association;
  • adopt a constitution;
  • appoint the initial management committee and public officer (or secretary).

You can see now why it is important to complete the work described at step one of our incorporating an association article before moving to this step. Calling the members together when you are unprepared, or do not have everything that you need, could well result in the need to call the members together a second time, which is unlikely to make you any friends!

If you are already operating as an unincorporated association, the formal decision to incorporate and the decision to adopt a constitution will each need to be made by a special resolution of your current members. A special resolution is a resolution passed by 75% or more of your members at a members' meeting where a quorum is present.

Note: While unusual, some constitutions (or rules of association) can require a special resolution to be passed by a percentage higher than 75%, so best check your constitution before putting the special resolutions forward.

The resolutions to appoint your first management committee and the first public officer (or secretary) only needs to be passed by a regular majority (being more than 50%).

Important notes

If your unincorporated association does not have a set of rules by which it is governed, then we recommend that you contact us or your local Government regulator for advice on how best to ensure that the decisions relating to the incorporation of your association are conducted appropriately.

If you are operating as an unincorporated association, it is very unlikely that your current constitution (or rules of association) will be sufficient for an incorporated association. We therefore strongly recommend that you take time and care, as described at step one of our incorporating an association article, to prepare a constitution that is the best it can be for the beginning years of your incorporated association.

Step 3 - Make an application

Applications for registration of an association are made to the relevant Government body in your state or territory. The Government bodies go by different names, but in many states, the relevant department is the Department of Fair Trading.

We have prepared a free resource for you that provides the name and contact details (including website address) of each of the state regulators responsible for incorporated associations. You can find the download link at the bottom of this page.

The application must be made using the forms that are prepared and provided by the relevant regulator.

The information required to complete the form will vary from state to state, but in general terms, you will need to provide:

  • the details of the people who will form the association's first management committee;
  • the details of the people who will be the first members of the association;
  • the proposed name of your association and its first official address;
  • a statement of your association's purpose (or objects);
  • a copy of your association's proposed constitution;
  • the details of the person who is to be the association's first public officer;
  • copies of any required special resolution, as described at step 2.


Your application will also need to be accompanied by the required fee which, depending on the state you are incorporating in, will vary from around $50 to $200.

While the incorporation process is reasonably self-explanatory and while each government regulator provides reasonably helpful guidance, please feel free to contact us if you think we could be of assistance.

Step 4 - Wait to hear from the regulator

Once the responsible Government department has received your application for incorporation, it will review the paperwork. This can take a number of weeks, and sometimes longer.

You may also be contacted for more information or to discuss your constitution, so make sure that the contact person listed on the application form is full bottle on your association and the information submitted with your application.

What has been your experience of preparing and applying for incorporation as an association? Please share your tips and traps and ask any questions in the comments section below.

And last, but certainly not least, we have prepared a free download just for you!

Download our free Incorporated Associations Regulator Contact List for an easy reference to:

  • the contact details (including website) of all state and territory regulators;
  • a link to the specific website pages relating to association's;
  • a link to each state and territory's model constitution.
Download & Resources
Author: Darren Fittler
Darren Fittler is one of Australia's leading lawyers specialising in serving charity and not-for-profit organisations for more than 15 years.


You can find out more about Darren Fittler here.