Starting a development NGO is a significant undertaking involving substantial legal obligations. A number of different federal and state government regulations apply to NGOs, in areas such as incorporation, fundraising and tax status.
The department is not able to provide advice on establishing an NGO. Please see below links for further information:
The Australian Taxation Office is a resource for individuals or organisations who would like to establish an NGO. It has information on access to government concessions, such as income tax exemption, goods and services tax concessions and deductible gift recipient (DGR) status. It also has a publication covering tax basics for not for profit organisations on its website.
The Australian Securities and Investments Commission (ASIC) provides advice regarding establishing a charity or not-for-profit organisation in Australia, as a company limited by guarantee.
The Australian Charities and Not-for-profits Commission (ACNC) has information on registering as a charity (required for access to government concessions).
An organisation that is endorsed as a deductible gift recipient can receive income tax deductible gifts and deductible contributions. The Australian Tax Office manages this process. This provides a way for members of the Australian community to donate to these Australian organisations and be able to claim their donation as a tax deduction. The Overseas Aid Gift Deduction Scheme (OAGDS) is one step in this process.
The Australian Council for International Development (ACFID) is the peak Council for Australian not-for-profit aid and development organisations.
State bodies for incorporation
ACT Office of Regulatory Services
NSW Fair Trading
NT Department of Justice
QLD Office of Fair Trading
SA Office of Consumer and Business Affairs
TAS Consumer Affairs and Fair Trading
VIC Consumer Affairs Victoria
WA Department of Consumer and Employment Protection
Organisations registered in Australia must comply with Australian laws. While NGOs are not expected to have specialised legal knowledge, they are responsible for ensuring they comply with the law, and should therefore have some familiarity with relevant legal obligations, including those that may arise under local in-country laws and regulations.
It is important that NGOs inform themselves of their obligations with regards to Australian counter-terrorism legislation. There are two lists maintained by the Australian Government in relation to terrorism financing of which NGOs should be aware.
The Attorney-General’s Department maintains a ‘List of Terrorist Organisations’ which have been proscribed by the Government as terrorist organisations under Division 102 of the Criminal Code Act 1995.
Penalties also apply under the Charter of the United Nations Act 1945 for making resources available to a designated individual or organisation. The Department of Foreign Affairs and Trade maintains a ‘Consolidated List’ of individuals and entities subject to targeted financial sanctions, including relating to terrorism.
The Australian Aid Program's Fraud Policy Statement stresses the obligation of all personnel, managing contractors and NGOs to identify and report fraud. For more information, see the Fraud Control fact sheet, which outlines how we manage fraud and provides information on fraud cases.
The definition of fraud against the Commonwealth is ‘dishonestly obtaining a benefit, or causing a loss, by deception or other means’. The mental or fault element for the offence of fraud requires more than carelessness, accident or error. Examples of the fault elements necessary to establish fraudulent behaviour are contained in Part 7.3 of the Commonwealth Criminal Code. Dishonesty is determined ‘according to the standards of ordinary people; and known by the defendant to be dishonest according to the standards of ordinary people’ (s 130.3 Criminal Code).
Australian companies or individuals that bribe an official in a foreign country can be prosecuted under Australian law and the laws of foreign countries. The offence of bribing a foreign public official is contained in section 70.2 of the Criminal Code Act 1995 (Cth).
Under Commonwealth law an Australian citizen or resident can be prosecuted for an offence committed against a child in another country under laws that have an extra-territorial application. For more information please see The Australian Government’s Child Protection Policy for Australia’s overseas aid program.