Companies limited by guarantee

On this page:

Find out:

  • how to start a charity that is a company limited by guarantee
  • the ongoing obligations of companies limited by guarantee that are registered as charities with the ACNC, including when you must notify the ACNC or ASIC of changes to your company, and
  • when you must contact ASIC or the ACNC about your company.

Starting a charity that is a company limited by guarantee

A company limited by guarantee is a type of legal structure that you may choose for your charity that is registered by the Australian Securities and Investments Commission (ASIC).

After your organisation is registered as a company limited by guarantee with ASIC, you may apply to the ACNC to register as a charity.  Once you are registered with the ACNC, most of the company's ongoing obligations are to the ACNC rather than ASIC.

The ACNC’s template constitution for a charitable company limited by guarantee may assist certain companies limited by guarantee to develop a suitable governing document.

Other legal structures that may be registered with ASIC and registered as charities with the ACNC include registrable Australian bodies, proprietary companies and foreign companies. 

More information

For more information on starting a charity that is a company limited by guarantee, see:

Meeting ACNC and ASIC requirements for charitable companies

If your company limited by guarantee is registered as a charity with the ACNC, you have ongoing obligations to the ACNC.

You do not have to report annually to ASIC or notify ASIC of certain changes. Generally, you should contact ASIC for anything relating to the company's corporate status and the ACNC for anything relating to your charitable status. See the table below for a summary of when to contact the ACNC or ASIC.

If your company stops being registered with the ACNC, you must comply with all ASIC requirements again.

For more information on when you must contact the ACNC or ASIC, see the table below.

Meeting ASIC requirements

If your company is a registered charity, you need to contact ASIC when:

The provisions in the Corporations Act relating to auditors still apply for charitable companies. This means that you may still be required to appoint an auditor, even if your charity is not required to have its reports audited or reviewed. You may also have to notify ASIC about certain events relating to auditors (for example, if an auditor resigns or is removed). Read ASIC’s guidance on appointing an auditor.

For more information, see ASIC’s guidance on charities registered with the ACNC.

Meeting ACNC requirements

If your company limited by guarantee is a registered charity, your charity has ongoing obligations to the ACNC to:

Your company must have a company secretary, who may also be a director (responsible person). Even if your company secretary is not a responsible person, you may wish to include them as your charity’s ‘contact person’.

You can submit your Annual Information Statement and notify the ACNC of changes through the Charity Portal.

You also need to notify the ACNC if you want to:

  • change your charity’s legal structure
  • merge your charity with another charity
  • wind up (close) your charity, or
  • revoke your company’s registration as a charity, even if you want to continue to operate your company.

For more information, see our guidance on merging or winding up your charity and revoking your registration as a charity.

ACNC requirements that replace ASIC requirements

The following are the major requirements under the Corporations Act that companies that are registered charities do not have to comply with. You must comply with similar ACNC requirements instead.

Holding members’ meetings

You do not have to comply with the requirement to hold general meetings of members or annual general meetings under the Corporations Act.

Instead, you must comply with the requirements of ACNC governance standard 2, which requires your charity to be accountable to members. You may still have meetings to help your charity comply with governance standard 2.

Meeting civil statutory directors’ duties

You no longer need to comply with the civil directors’ duties under the Corporations Act.

Instead, you must comply with ACNC governance standard 5, which requires charities to make sure that their responsible persons meet similar duties to those under the Corporations Act.

However, the following requirements of the Corporations Act still apply to directors of companies that are registered charities:

  • criminal offences relating to breaches of duties of good faith and acting for a proper purpose and misuse of position or information (under section 184 of the Corporations Act), and
  • the duty to prevent insolvent trading (under section 588G of the Corporations Act) – this duty is also included under governance standard 5.

Reporting annually

For the 2013 reporting period (that is, from the financial year starting on or after 1 July 2012 but before 1 July 2013), your company was required to:

  • submit an Annual Information Statement to the ACNC (without a financial report ), and
  • send ASIC your financial reports, if your company is medium or large.

From the 2014 reporting period (that is, from the financial year starting on or after 1 July 2013), a company that is a registered charity only needs to submit an Annual Information Statement to the ACNC (with a financial report, if your charity is medium or large).

You do not have to report to ASIC. This means that you do not have to do the following things for ASIC:

  • file an annual review
  • provide financial reports
  • pass a solvency resolution, or
  • pay an annual review fee.

The parts of the Corporations Act that relate to financial reporting still apply to charities that issue debentures.

Attention - Important information!If you receive an annual return fee from ASIC and do not think that you need to pay it, you must contact ASIC and request the fee be withdrawn.  

Keeping records

The ACNC requires all charities to keep financial records.

ASIC does not require companies that are registered with the ACNC to keep written financial records in accordance with the 'Financial Reports and Audit' requirements of the Corporations Act.

ACNC and ASIC requirements when changing your charity’s details

You must do the following things to meet ACNC and ASIC requirements when you change your charity’s name, address, directors or constitution.

To notify the ACNC of changes, you can contact us or log in to the ACNC Charity Portal.

For a quick guide to how to meet ASIC and ACNC requirements, see the table below on when to contact ASIC or the ACNC.

Changing your company name

To change the name of your company, your members must pass a special resolution to change its name and lodge a Form 205 – Notification of resolution with ASIC (lodgement fees apply).

Before starting this process, you may want to:

After ASIC changes the company name, you should also contact the ACNC to let us know about the change. After we confirm that your charity’s name has been changed on the ASIC register, we will change your charity’s name on the ACNC Register.

Removing ‘Limited’ from your company name

You do not need to use the word ‘Limited’ when you use your company name (such as on company letterhead, or on the company’s common seal) if:

  • your company is a charity registered with the ACNC, and
  • its constitution does not allow directors to be paid fees, and requires the directors to approve all other payments the company makes to directors.

The company's legal name (as registered with ASIC) will still include 'Limited' at the end of the name.

If you still want to change your legal name officially to have the word ‘Limited’ removed, you will need to apply to ASIC and pay a fee (see above re changing your company name).

Changing your company address

You must notify the ACNC of a change to your charity’s ‘address for service’, which will be published on the ACNC Register. You should provide your company’s registered office address as your address for service so that the ACNC can pass this information on to ASIC to update the ASIC register. The registered office address must be a physical address (not a PO box or email address).

We will send all correspondence (including legal documents) to your address for service. If you also provide an email address, we will use this as the main way to contact you.

You do not need to notify ASIC of a change of address (such as a registered office address, a principal place of business or officeholder’s residential address).

Changing your directors

You must notify the ACNC of the details of and changes to your company’s directors (who we call ‘responsible persons’).

You do not need to notify the ACNC about officeholders of your company who are not responsible persons, such as your company secretary or chief executive officer. However, you may wish to make your company secretary the ‘contact person’ for the ACNC, so that they can contact, and be contacted by, the ACNC.

You do not need to notify ASIC of any changes to the officeholders of your company.

Changing your constitution

To change your company’s constitution or adopt a new constitution, your members must pass a special resolution.

You must notify the ACNC of changes to your constitution (which we call a ‘governing document’).

You do not need to lodge a copy of the special resolution with ASIC.

ACNC and ASIC registers

The information you report to the ACNC will be available to the public on the ACNC Register, including information you submit in your Annual Information Statement and any changes you notify us of.

Attention - Important information!Because registered charities are not required to notify ASIC of most changes that have been notified to the ACNC, the ASIC Register may not be current for registered charities.

Table: When to contact ASIC or the ACNC

Type of change Who to Contact
  ACNC ASIC
Register    
Apply to register a company No Yes
Apply to register a charity Yes No
Change Details    
Notify of change to name of a company (see ASIC: Changing a company name) Yes, and let ACNC know once ASIC changes the name Yes
Remove word ‘Limited’ from name (without changing legal name) as long as meet s150(1) Corporations Act (see ASIC: Charities registered with the ACNC) No No
Apply to change the name of a company to omit the word ‘Limited’ (see ASIC: Charities registered with the ACNC) Yes, and let ACNC know once ASIC changes the name Yes
Notify of changes to:
  • address for service
  • directors (responsible persons)
  • constitution (governing documents)
Yes No
Report annually    
Submit an Annual Information Statement for each reporting period Yes No
Submit financial statement for 2013 reporting period (period starting on or after 1 July 2012 but before 1 July 2013)
(see ASIC guidance on reporting obligations)
No Yes*
Submit financial reports for 2014 reporting periods onwards (periods starting on or after 1 July 2013) for medium and large charities
Yes No
Criminal liability for director duties
(see What duties remain under the Corporations Act?)
No Yes
Auditor    
Notify of resignation or removal of an auditor No Yes
Notify of appointment of an auditor No No
Close    
Request to revoke registration of a charity or notify of no longer being entitled to registration as a charity or if charity has closed Yes No
Notify external administration of a company Yes, let ACNC know that responsible persons changed to administrator Yes
Apply to deregister a company Yes, and let ACNC know when company is de-registered with ASIC Yes

*Note that ‘small companies limited by guarantee’ under the Corporations Act may not have to submit a financial report.

Contact the ACNC

Phone: 13 ACNC (13 22 62)
Email: advice@acnc.gov.au
Mail: Advice Services, Australian Charities and Not-for-profits Commission, GPO Box 5108, Melbourne VIC 3001
Fax: 1300 232 569

Attention - Important information!This page contains links to external websites. Any external links used by the ACNC are inserted for convenience and do not constitute an endorsement or recommendation of any material at those sites. Information and resources provided by the ACNC is for general information only and is not intended to be a substitute for professional advice regarding your charity's particular circumstances.