A review panel has made 30 recommendations to strengthen the ACNC’s legislative framework.
Strengthening for Purpose: Australian Charities and Not-for-profits Commission Legislative Review 2018 aims to tighten the commission’s legislative structure.
Recommendations focus on the ACNC’s objectives, functions and powers, the regulatory framework itself, and how to reduce red tape.
The ACNC has reminded charities of their obligations to act lawfully and be run in an accountable and responsible way in the pursuit of their charitable purpose.
Basic religious charities (BRCs), however, are exempt from complying with the ACNC’s governance standards.
They are exempted from supplying financial information in annual information statements and submitting annual financial reports. Exemption from governance principles means that the ACNC is unable to take compliance action.
An ACNC spokesperson says: ‘This does not mean that charities are above the law. In addition to being pursued by law enforcement and other government agencies, unlawful activity can lead to revocation of charity status.’
The commission emphasises that registered charities cannot have a ‘purpose of engaging in or promoting unlawful activity’, which may be grounds for the revocation of charity status and loss of tax concessions.
NSW Fair Trading and the ACNC have signed a new agreement that reduces the administrative burden on registered charities.
NSW associations will from now on be required to submit their annual financial reports only to the ACNC, which will share the data with NSW Fair Trading.
The new reporting arrangement is in line with Victorian, South Australian, Tasmanian and ACT reporting arrangements, and will be available to NSW associations from 1 October 2018.
As of 1 July, annual reporting requirements for many Victorian incorporated associations have changed.
If an association is also an ACNC charity for any financial year of the association that ends on or after 30 June 2018, it will no longer need to lodge an annual statement with Consumer Affairs Victoria and pay a lodgement fee.
It continues to lodge an ACNC annual information statement and follow the commission’s regulatory requirements.
The new reporting exemption applies only to annual reporting obligations. Incorporated associations must continue to notify CAV via myCAV of changes such as its name, details and rules.
The exemption is not retrospective. For financial years that end before 30 June 2018, entities must still submit separate annual statements to the ACNC and CAV.
NSW associations also registered as a charity with the ACNC will no longer need to lodge an annual summary of financial affairs with NSW Fair Trading and pay a lodgement fee.
Charities must lodge the association’s annual information statements (and financial statements if required) with the ACNC for each financial year.
The ACNC’s annual information statement for NSW organisations has been updated to include additional questions that collect information on behalf of Fair Trading.
Associations’ NSW registration number and registered name must be in the statement so that they may be correctly identified as being exempt. If an association chooses to decline to answer questions it will need to lodge an annual summary with Fair Trading and pay the lodgement fee.
This change only applies to annual financial reporting obligations to Fair Trading. Incorporated associations must continue to notify Fair Trading of changes such as the association’s name, details, constitution and public officers.
If the association is not on the ACNC charities register, reporting obligations stay the same.
The change is not retrospective. Associations that must lodge annual summaries before 1 October must submit separate annual reports to both the ACNC and Fair Trading.
Associations must hold their AGM within six months of their financial year-end date, when financial statements must be submitted to members. Visit the Running an association webpage for more information about reporting obligations.
The change does not apply to charities approved by the ACNC to withhold details (for example, revenue and address) and financial reports from the ACNC register.
You can confirm your association’s status by using the ACNC charities register.
It should be noted that red-tape amendments do not apply to financial-reporting obligations under the Charitable Fundraising Act 1991 (NSW) and the Charitable Fundraising Regulation 2015 (NSW).
Many registered charities will soon be holding AGMs, reporting to members on their activities and finances and electing members of governing committees.
ACNC’s governance standards require charities to be open and transparent with their members – holding an AGM each year is a way of doing this.
The ACNC recently hosted a webinar aimed at helping charities hold AGMs. You may watch it at acnc.gov.au/webinars.
The commission also has a range of other guidance, tips and templates available at acnc.gov.au/AGM.
The purpose of the Australian Charities and Not-for-profits Commission Amendment Regulations (No. 2) 2018 is to prescribe external conduct standards for the purposes of Division 50 of the Act.
The external conduct standards provide a minimum level of assurance that registered entities meet appropriate standards of governance and behaviour when operating outside Australia.
These standards apply to the registered entity that is operating outside Australia or working with third parties that are operating outside Australia.
A third party, in relation to a registered entity, means an entity that formally or informally collaborates with the registered entity for the purpose of advancing the registered entity’s purpose or purposes, and includes: an entity with which the registered entity has some form of membership, association or alliance, and an entity that has an arrangement with the registered entity.
The commencement date of the instrument is the later of: the commencement day referred to in section 50-20 of the Australian Charities and Not-for-profits Commission Act 2012; and 1 July 2019.
A registered entity is responsible for assessing its compliance with external-conduct standards.
Section 50-10 of the act specifies that an entity must comply with external-conduct standards to become registered or to remain entitled to be registered.
Because complying with standards is a condition of registration, compliance is ‘subject to monitoring’. Where a provision is ‘subject to monitoring’ the ACNC commissioner may use a range of powers under Chapter 4 of the act such as requesting information, entering premises and securing evidence.
Section 35-10 of the act allows the commissioner to revoke an entity’s registration after he or she has assessed several factors, including the nature, significance and persistence of any non-compliance. The commissioner may use all the enforcement powers contained in Chapter 4 when he or she reasonably believes that a registered entity has not complied with an external-conduct standard and is unlikely to comply.
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