[Aust-NZ] Re: [Fwd: Re: OSGeo local chapter incorporation legal advice]

Tue Jan 29 17:15:35 EST 2008

 +1 from me too.

Re Funding:
1. I think we should initially keep our budget small to reduce overhead.
2. Our focus should be on advocacy. Ie presenting at conferences or 
webcasts or similar. FOSS4G fits in that category.
3. I'd like to see sponsorship and management/control coming from both 
Government and Industry.

Business case for government is:
1. Assuming government agency has identified that long term, it is 
likely to incorporate Open Source into its infrastructure, the agency 
will benefit from a broad local user base of these products. Sponsoring 
a local advocacy will be an effective way to achieve this.

bruce wrote:
> Tim,
>
> Following Jeremy's advice, I'm happy to proceed with your preferred
> option of Incorporating in WA and registering for an ABN with ASIC.
>
> However, we'll need to sort out a few issues first:
>
> - What costs are we looking at, and who is willing to contribute.
>
> - Who will be the registered Office Holders (Directors)? 
>
> - How many Directors do we need?
>
> - How do we determine this?
>
> - Once the organisation has been created, we'll need to establish a Bank
> account for admin purposes. 
>
>   + Who will be signatories? 
>   + What records do we need to keep? 
>   + Who will be filling out the BAS statements etc?
>
> - How much will Director's insurance cost?
>
> - What other costs are there going to be?
>
> I'm sure that there will be more questions. Please contribute.
>
> As there will be a number of us in Perth for the WALIS Forum, perhaps we
> can sort the answers to these (and other) questions out then.
>
> Bruce Bannerman
>
>   
>> On 25/01/2008, at 5:11 PM, Tim Bowden wrote:
>>
>>     
>>> The Aust-NZ chapter of OSGeo (Open Source Geospatial Foundation) is
>>> looking to become incorporated as a non profit.  We are looking for
>>> advice (which we are happy to pay for so long as it doesn't bankrupt
>>> us!) as to the potential liabilities of members and office holders  
>>> under
>>> various courses of action.  Are you able to help us or point us in the
>>> direction of someone who can?
>>>       
>> I can give you some free advice since I'm not meant to be practising  
>> law while I'm meant to be studying full-time for my PhD.
>>
>>     
>>> There have been a few questions raised as to the personal liability
>>> office bearers or members may have while operating outside our state  
>>> of
>>> incorporation.  As far as my reading is concerned, I don't believe we
>>> have a problem, but as I'm not trained in the art of law we have
>>> resolved to get advice on the matter.
>>>       
>> You have the right approach, registering as a State association and  
>> then getting an ARBN to enable you to trade in other States.  This is  
>> fairly common and I used to be the Secretary of another association  
>> which did the same thing (APANA).
>>
>> One of the purposes of incorporating is so that the association can  
>> sue and be sued in its own right.  This means that office holders will  
>> not be liable for actions or debts incurred by the association (even  
>> if the office holder was the one who performed the action or incurred  
>> the debt on its behalf), or for the actions of other office holders or  
>> members of the association.  If the association is sued, the worst  
>> that can happen is that its own assets will be used to satisfy any  
>> court judgment.
>>
>> However if an office holder has acted negligently and caused damage to  
>> a third party then they could also be sued personally.  Office holders  
>> can also be liable if they have breached their fiduciary duties  
>> (duties of good faith) to the association, for example by acting  
>> fraudulently or breaching confidences.  They may also be liable for  
>> incurring debts that they should know the association cannot pay.  It  
>> makes no difference in these cases whether the association is trading  
>> inside or outside of its home state.
>>
>> If office holders want to be completely covered for liability for  
>> their actions, the only way to do this is for the organisation to  
>> obtain insurance.  This is also very common and has been done by some  
>> of the other associations I am involved with (such as WAIA).
>>
>> The other thing to know is the Associations Incorporation Act was  
>> reviewed in 2006, and is about to be completely replaced.  If  
>> Parliament passes a law that accords with the current draft bill,  
>> there will be some completely new audit requirements, and they depend  
>> on the extent of the financial activities and property of the  
>> association.
>>
>> You will probably fall within Tier 1 of the new scheme, assuming you  
>> will have less than $100,000 turnover and less than $100,000 worth of  
>> assets.  This means that your accounts:
>>
>> * must be audited, but
>>
>> * this can be done by "any suitable person", so long as they are not an
>>   office holder or someone who prepared the accounts, or their spouse;
>>
>> * the audit statement doesn't need to be lodged with anyone unless there
>>   are problems; it just needs to be kept on file somewhere.
>>
>> This means that as long as you can find a volunteer to act as auditor,  
>> there shouldn't be any additional costs for the association.  Also,  
>> this only applies from when the new Act comes into effect - which  
>> won't be for a few months.
>>
>> It will now also be necessary to lodge an annual financial statement  
>> with the Commissioner of Associations.
>>
>> There are a few other minor proposed changes, none of which are of  
>> much consequence, but let me know if you want a precis of them, or  
>> check out http://www.docep.wa.gov.au/Corporate/Content/Reviews/Associations/overview.html 
>> .
>>
>> I hope this helps.
>>
>>
>>     
>> ------------------------------------------------------------------------
>>
>> _______________________________________________
>> Aust-NZ mailing list
>> Aust-NZ at lists.osgeo.org
>> http://lists.osgeo.org/mailman/listinfo/aust-nz
>>     

-- 
Cameron Shorter
Geospatial Systems Architect
Tel: +61 (0)2 8570 5050
Mob: +61 (0)419 142 254

Think Globally, Fix Locally
Commercial Support for Geospatial Open Source Solutions
http://www.lisasoft.com/LISAsoft/SupportedProducts.html