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

[bruce]

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.
> 
> 
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