Description of common types of applicant
A person may be a natural person (a human being), an artificial person, or an entity such as a company which is recognised as a legal person under the law. A person is a separate legal entity, recognised by the law as having rights and obligations.
The following are common types of entities that may make an application for bus operator accreditation or registration:
1. A natural person
A natural person is a human being, as distinguished from an artificial person or an entity such as a company which is recognised as a legal person. A natural person may operate as a sole trader, and use a trade name or business name other that his or her legal name. However, the accreditation or registration can only be granted in the individual’s full legal name, i.e. Mary Jane Smith (trading as MJ Bus Lines).
2. A partnership
A partnership, like a company, is a type of association but narrower because it can only be for commercial purposes. The members of a partnership can be natural persons or artificial persons provided they have legal capacity to make a partnership agreement.
3. A company
A company is a company registered under the Corporations Act 2001 (Cth) (the Corporations Act). For a full legal definition refer to section 9 of the Corporations Act. Companies are registered by the Australian Securities and Investments Commission (ASIC).
A company name will indicate the company's legal status. A proprietary company will include the word ‘Proprietary’ (or the abbreviation Pty) in its name. A company will also indicate the liability of its members in its name. If the liability is limited, the company name ends with the word ‘Limited’ (or the abbreviation Ltd). If there is no liability, the company ends its name with the words 'No liability' or the abbreviation 'N.L.'. Liability doesn't have to be shown if the company has an exemption under the Corporations Act s 150, when the company has been formed for non-commercial objectives, such as a charity or benevolent organisation.
A public company must not include the word Proprietary (or Pty) in its name unless it was a public company prior to 1 July 1998, and the word Proprietary (or Pty) was included in its name prior to 1 July 1998.
Each company is allocated a unique Australian Company Number (ACN). If the company has an Australian Business Number (ABN), it may be used with the company's name (in place of the ACN) on company documents and negotiable instruments, provided that: the ABN includes the nine digit ACN; and the quotation of the ABN is effected in the same manner in which quotation of the ACN would normally occur.
The attributes of a registered company include that it:
- has legal capacity and powers of an individual and the powers of a body corporate
- can sue and be sued
- can enjoy perpetual succession
- may have a common seal, and
- can acquire, hold and dispose of property.
Every company must have at least one member. A proprietary company must have at least one director, but need not have a secretary. A public company must have at least three directors and at least one secretary. Each company must have a registered office in Australia.
4. A statutory incorporated association
A statutory incorporated association is a non-profit association incorporated by registration under the Associations Incorporation Act of a state or territory (for example Associations Incorporation Act 1981 (Vic)), and administered by the relevant state or territory authority. It provides a simple and inexpensive method under which religious bodies, schools, hospitals, charitable institutions and cultural societies can attain separate legal status as a body corporate and give its members the benefit of limited liability.
An incorporated association has the word ‘Incorporated’ (or the abbreviation ‘Inc.’) as the last word in its name.
In general, an incorporated association has the following characteristics:
- it is a legal entity separate from its individual members
- it can hold property
- it can sue and be sued
- can enjoy perpetual succession, and
- it is restricted to operating in its home jurisdiction.
An incorporated association requires a public officer and a committee, and requires a registered office. The associations incorporation legislation imposes less onerous conditions than the Corporations Act governing the activities of companies.
An incorporated association may become registered under the Corporations Act so it can carry on business in other states or territories outside of its home jurisdiction without needing to register as a company.
The incorporated association will become an Australian registered body and upon registration will be allocated an Australian Registered Body Number.
- Victorian legislation, Acts and Statutory rules – on the Victorian Legislation and Parliamentary Documents website
- Commonwealth legislation – on the Australian Government ComLaw website
- Incorporated Associations – on the Consumer Affairs Online website
5. Unincorporated association
An unincorporated association is a non-legal entity, formed by the mutual understanding of its members and consists of nothing more than the aggregate of all its members who share a common lawful purpose and agree to further that interest by collective action. The association is formed by the voluntary action of those people who agree to its formation and the terms of association.
An unincorporated association may or may not have a constitution. However, a constitution is desirable.
Members of an unincorporated association are (subject to its constitution if applicable) capable of entering into contracts and doing things on behalf of other people in the association.
Members are also individually and personally responsible for any debts incurred in the name of the association. Where a contract is signed on behalf of an unincorporated association, the individual members are responsible and may be sued.
In Victoria, government schools are governed by a school council. Each school council is a legal entity in its own right. The Minister may constitute a council as a body corporate, by Order, under section 2.3.2 of the Education and Training Reform Act 2006 (Vic), or its predecessor, section 13 of the Education Act 1958 (Vic). Subject to the constituting order, the school council is capable of exercising all the functions of a body corporate.
The most common structure of a private school is a company limited by guarantee. A company limited by guarantee is a separate legal entity distinct from its members.
The incorporated association, the simpler and less expensive alternative to registration as a company, is primarily intended for sporting clubs and other similar non-profit organisations and may be used for small schools or kindergartens.
Other structures used include unincorporated associations (a non-legal entity) and trusts. A trust is a fiduciary relationship where a person (the trustee) holds the title of property for the benefit of another (the beneficiary). A trustee may be a natural person or a body corporate. A trust is not an artificial legal person.
7. Hospitals and health services
Public hospitals are incorporated by legislation (Health Services Act 1988 (Vic) (the HSA) Division 4 - Public hospitals) as a body corporate.
Private hospitals are registered under the HSA. The Secretary to the Department of Health registers private hospitals, day procedure centres and a supported residential services under Part 4 of the HSA.
Agencies must be registered under Division 2 of Part 3 of the HSA which provides for the registration of an ‘agency’. An agency under Division 2, does not include public hospitals, denominational hospitals, registered community health centres or privately-operated hospitals.
- Lists of hospitals – on the Department of Health, Victoria website
- Metropolitan Hospitals directory
- Rural Hospitals directory
- Community health directory
8. Retirement villages
A retirement village is a community where most residents are aged 55 years or over, or are retired from full-time employment (or are spouses/partners of such people). Residents are provided with accommodation and services, other than services provided in a residential care or aged care facility. A register of retirement villages is kept pursuant to section 38J of the Retirement Villages Act 1986 (Vic).
- List of retirement villages – on the Consumer Affairs Victoria website