Does Your Association Require a Public Officer?
- Dwayne Wescombe
- Mar 16, 2019
- 3 min read
Over the years I’ve seen much confusion over the appointment of Public Officers. Many organisation are unclear:
If they are legally required to have a Public Officer;
If they “should” have a Public Officer; or
Of the proper, and legal process, for appointing a Public Officer.
Defining a Public Officer
A Public Officer has 2 primary responsibilities:
Acts as the official point of contact and representative of an organisation to the Australian Taxation Office (ATO).
Is responsible for ensuring the company meets its responsibilities under the Income Tax Assessment Act. If a company fails to meet its obligations under this Act, the Public Officer may be personally liable for any penalties the company faces.
A Public Officer must be an individual who:
Is at least 18 years of age;
Ordinarily resides in Australia;
Is capable of understanding the nature of their appointment as a Public Officer;
Is recorded as the Public Officer for the Association on ATO systems; and
Can establish their identity at contact by the ATO.
Public Officers are usually, and rightly so, the person in the organisation with the most knowledge, and involvement with, the organisations Taxation and Financial matters – so they are usually the Treasurer or the organisations Accountant – however it could also be an employee, any other director, or anyone fulfilling the three requirements above.
Does my Association need a Public Officer?
Every Association MUST nominate a Primary Contact. The Primary Contact is the Public Officer if you have one.
So, does your Association need a Public Officer? Well that depends on your Associations Structure and your individual States Incorporated Associations Act (a list of each State’s Acts and Model Rules can be found in this Article – Who Can Be A Board Member)
An Incorporated Association: The requirement for a Public Officer fall to the Incorporated Associations Act of each State. For example, it is a legal requirement for all South Australian Incorporated Associations to have a Public Officer, however this requirement does not apply to Western Australia. Wherever a Public Officer is not required, the organisation must nominate a Primary Contact with the ATO that is either:
The Board of Directors; or
An individual person nominated by the Board that meets the requirements above.
Unincorporated Associations: Any Unincorporated Association, that is carrying on any form of business, must legally appoint a Public Officer. If the Unincorporated Association is not carrying on any form of business, they need to nominate an “Office Holder” as the Primary Contact with the ATO (President, Vice President, Treasurer or Secretary).
Appointing a Public Officer
So how do you go about appointing a Public Officer? You’re Associations Governing Documents (Constitution) should state the process for your Organisation (but not always), however the following is a generally accepted process:
Have the Board determine the most suitable person (see above).
Ensure this person has signed a “Consent Form” stating they are willing to take on the role of Public Officer. If this consent is not in place then there is no legal standing for that person as the Public Officer. Contact me if you want a template for a Consent Form.
Pass a motion at a Board Meeting that this person be accepted as the organisations Public Officer.
Ensure the passing of the motion, and the existence of the Consent Form, are minuted.
Ensure the Consent Form is filed with the Board documents.
Lodge the Public Officers details with the ATO within 28 days (3 calendar month if the organisation is new).
Other Notes:
An Organisation can only have 1 Public Officer at any one time;
If your Organisation requires a Public Officer (by law, as per your Governing Documents, or as per a minuted decision from the Board of Directors) then you must lodge the Public Officers details with the ATO within 3 months if you are a new Organisation, or within 28 days of a change of Public Officer. Failure to comply with these timeframes can incur significant fines (up to $110 per day).
Please share your thoughts in the comments section below - I learn just as much from you as you do from me.
If this is an area in which TakeControl Solutions may be of assistance to your organisation please do not hesitate to contact me.
Dwayne Wescombe – Managing Director
The information in this document is not warranted and no responsibility is taken for actions undertaken based on this information. As always, we advise legal advice prior to undertaking any actions.
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