March Seminar - Intellectual Property 

Your organisation's intellectual property (IP) is one of its most valuable assets, but one that many organisations don't fully understand. Presented by experienced IP lawyers, this seminar will provide an overview of intellectual property law for community groups, including:

• what is intellectual property and why should we be concerned?
• how can we protect our intellectual property?
• how can we make sure that we have the intellectual property rights we need?
• we have volunteers developing our website and materials - what do we need to know?

Come along to this seminar to learn about IP with a focus on issues faced by not-for-profit organisations.

Date: Wednesday 20 March 2025
Time: 9.30 - 12.00 (registrations open 09:15am)
Venue: Minter Ellison Lawyers - Level 16 Rialto Towers 
525 Collins Street, Melbourne 

To register for this seminar, please visit our website below.

Last October, PILCH, through the work of PilchConnect, was granted leave to make submissions and provide expert advice to the Supreme Court as amicus curiae in an appeal bought by the Melbourne City Council (the Council). An 'amicus curiae' means 'friend of the court'.

The Council appealed an August 2011 Magistrate's decision requiring an individual who pleaded guilty to breaches of the Food Act to make a donation to St Vincent De Paul's food van service.

The appeal challenged not just the decision, but the underlying power of Victorian Courts to require an offender to make a payment either to a charity or into the Court fund (known historically as the 'poor box') for distribution to charity, as part of an adjourned undertaking (previously called a good behaviour bond). Making a payment to charity is a common sentencing practice, particularly in the Victorian Magistrates' Court, and PilchConnect made arguments in support of the practice.

Last week, Justice John Dixon delivered his judgment, accepting Melbourne City Council's arguments. 

The effect of the successful appeal is far-reaching. It has put an end to the historic sentencing practice of court-ordered payments to charity which (anecdotally) distribute millions of dollars to charities each year. 

PilchConnect is now urging Parliament to reconsider Victoria's sentencing laws and re-instate this sentencing practice in appropriate circumstances.

PilchConnect would like to thank the great work of law firm Herbert Smith Freehills and barristers Andrew Woods and Samuel Bird for their pro bono assistance with this case.

The matter recieved extensive media coverage, which is available on the PilchConnect website below:

Proposed ACNC Governance Standards Consultation 

This month, PilchConnect made a submission to Treasury in response to draft governance standards proposed to apply to charities registered with the Australian Charities and Not-for-profits Commission (ACNC). The proposed standards originated from a consultation paper released by the Treasury in late 2012.

In acknowledging that the draft standards are a significant improvement on previous proposals, PilchConnect made a number of recommendations aimed at clarifying obligations for charities - in particular, the small to medium groups that have limited resources to comply with additional governance obligations.

Our submission makes the following key points: 

• Proposed Standard 1 (Purposes and NFP Character of a Charity) is acceptable, subject to improving its drafting and clarifying the scope.
• Proposed Standard 2 (Accountability to Members) needs further work to clarify the expected outcomes and to avoid the potential for inconsistent and/or burdensome application. 
• Proposed Standard 3 (Compliance with Australian Laws) is unnecessary and inappropriate as a governance standard. Its reach, and the powers conferred on the ACNC to take action under it, are overly broad. 
• Proposed Standard 4 (Responsible Management of Financial Affairs) is acceptable, subject to improving its drafting, clarifying its scope, and focussing on reasonable financial management. 
• Proposed Standard 5 (Suitability of Responsible Entities) is problematic in practice and unwarranted particularly for small charities. 
• Proposed Standard 6 (Duties of Responsible Entities) is conceptually and practically problematic, and should be reconsidered. 

The Proposed ACNC Governance Standards Consultation Paper can be found here. 

PilchConnect's submission can be found below:

Regulatory Impact Assessment - potential duplication of governance and reporting standards for charities

This month, PilchConnect made a submission to the Council of Australian Governments (COAG) on the regulatory impact assessment of potential duplication of governance and reporting standards for charities. This is in response to the draft governance standards proposed to apply to charities registered with the ACNC.

Amongst the key points raised in the submission, PilchConnect recommended that:

• registered charities should be exempt from having to report under State and Territory legislative frameworks, endorsing a ‘report once use often' approach through information sharing between the ACNC and State and Territory regulators 
• ultimately, a referral of powers would be the most effective way to achieve national coordination and eliminate duplication of regulation, and
• state and Territory regulators should work with the ACNC to ensure that compliance with State and Territory governance obligations will be sufficient to meet ACNC governance standards.

PilchConnect's submission can be found below:

Human Rights and Anti-Discrimination Bill 2012 - Final Report Released 

The Senate Legal and Constitutional Affairs Legislation Committee this month released its final report on the Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012.

PILCH made a number of recommendations, both in written submissions and through evidence provided at the Committee Hearing last month.  PilchConnect is pleased that a number of its recommendations were adopted in the final report of the Committee.

The following Recommendations of the Committee are relevant to the not-for-profit sector:

• that ‘voluntary or unpaid work' be specifically listed as an area of public life
• that the definition of ‘employment' in the Draft Bill be amended to remove the paragraph relating to voluntary, or unpaid work, and that a new definition of ‘voluntary or unpaid work' be included, and 
• that in defining ‘voluntary or unpaid work', regard should be had to the legal differences between employees and volunteers. 

The final report can be found below:

The 2013 training program at PilchConnect is well under way, and February has been a busy month for our on-request training program!

This month, PilchConnect lawyers have travelled to:

• Preston to deliver training on the Associations Incorporation Reform Act
• Camperdown for a full-day of Legal Issues in Managing Volunteers training
• Maldon for training on Legal Duties of Board and Committee Members
• Footscray for training on starting up a community group. Working with the Humanitarian Crisis Hub, PilchConnect Lawyer, Stephanie Tonkin delivered training to people from South Sudan who are thinking of or have recently started a community group (see the photo below)
• Altona for training on Legal Issues in Managing Volunteers, and 
• Wantirna for training on the Associations Incorporation Reform Act (to an audience of 100!).

For more information on PilchConnect's training on request program, visit our website below. 

(Photo: PilchConnect Lawyer, Stephanie Tonkin, delivers training for the Humanitarian Crisis Hub.)

The ACNC opened its doors in December 2012. There is a staged transition program for the handover of regulation of registered charities from ASIC and the ATO to the ACNC.

PilchConnect has a new webpage to assist organisations in understanding what the changes are and when they come into effect.

Some changes are yet to be finalised, and we will keep updating this page as the changes become clearer.

Guide to Fundraising

Many not-for-profit groups engage in fundraising activities. In many states in Australia, including Victoria, a fundraising registration or permit is required to fundraise.

Fundraising is a broad concept, and groups need to be careful to ensure they have appopriate licences and processes in place before starting to fundraise.

The PilchConnect Guide to Fundraising explains:

• which activities are considered fundraising activities in Victoria
• when your group will need to register to fundraise
• ongoing obligations for all fundraisers (whether required to be registered or not) such as maintaining a special fundraising bank account
• other laws groups need to consider when fundraising (such as requirements for lottery permits)
• when your group needs to consider fundraising laws and licensing requirements in other states
• issues to consider when fundraising online, and
• issues to consider when using third party fundraisers.

 The PilchConnect Guide to Fundraising

It's also important to consider the Australian Consumer Law when fundraising, particularly when your fundraising involves the sale of goods or services (like merchandise or event tickets).

The legal duty to disclose and manage conflicts of interest

Recent changes to the laws for incorporated associations broaden the requirement that committee members disclose and manage conflicts of interest. The term ‘pecuniary interest' (used under the old law when referring to conflicts of interest) has been replaced by ‘material personal interest' in the new Associations Incorporation Reform Act 2012 (the AIR Act).

What does ‘material personal interest' mean?

The AIR Act does not define ‘material personal interest'. However, it is clear that material personal interest refers to more than just a financial interest in a matter being discussed and decided by the committee. This might include a non-financial benefit to family members, close associates and other organisations to which the committee member belongs.

Generally, whenever a committee member has a material personal interest in a matter being considered by the committee, they must disclose and manage that interest. In specific circumstances listed in the AIR Act, a committee member may not need to disclose a material personal interest. This includes:

• where a material personal interest exists only because the member is an employee of the association 
• where the member belongs to a class of persons for whose benefit the association is established, and 
• the interest is held in common with all or a substantial proportion of members.

Tip! Simply having a material personal interest in a decision that a committee needs to make is not a breach of the law, nor does it prevent someone from being a part of the committee.

Tip! Where a member has a material personal interest in a matter, they must:

• disclose the interest immediately
• not participate in discussions on the matter, and 
• not vote on the matter.

This process should be documented in relevant meeting minutes. 

Tip! If you are unsure whether something would be considered to be a material personal interest, best practice would be to err on the side of caution and disclose and manage the interest.

For further information on the legal duty of committee members to disclose and manage conflicts of interest, refer to PilchConnect's Guide to the Legal Duties of Board and Committee Members, available below.

PilchConnect is a specialist legal service which provides legal help to not-for-profit community organisations.

The service provides free and low cost legal information, training, advice and legal referrals for Victorian not-for-profit community organisations. We also undertake law reform and advocacy work about the wide range of legal issues that affect the not-for-profit sector.

To find out more about our legal services, visit our website below:

 PilchConnect - Legal help for community groups. 

View our staff profiles here. 

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