Charity Act

The Australian Charities and Notforprofits Commission Act 2012

This Act establishes a regulatory system for notforprofit entities.
This Act establishes a national regulator for notforprofit entities. The regulator is the Commissioner of the Australian Charities and Notforprofits Commission (the ACNC).

The Commissioner is responsible for registering entities as notforprofit entities according to charity type and subtypes.

The Commissioner of the ACNC will cooperate with other government agencies to oversee a simplified and streamlined regulatory framework for notforprofit entities.

The Commissioner of the ACNC will provide information to help the public understand the work of the notforprofit sector and to support the transparency and accountability of the sector.

The objects of this Act are:
(1) The objects of this Act are:

(a) To maintain, protect and enhance public trust and confidence in the Australian notforprofit sector; and

(b) To support and sustain a robust, vibrant, independent and innovative Australian notforprofit sector; and

(c) To promote the reduction of unnecessary regulatory obligations on the Australian notforprofit sector.

(2) This Act achieves those objects by:

(a) Establishing a national regulatory framework for notforprofit entities that reflects the unique structures, funding arrangements and goals of such entities; and

(b) Establishing the Commissioner of the Australian Charities and Notforprofits Commission, who will:

(i) be responsible for registering entities as notforprofit entities according to their type and subtypes; and

(ii) Administer the national regulatory framework; and

(iii) Assist registered entities in complying with and understanding this Act, by providing them with guidance and education.

(3) Registration is a prerequisite for an entity to access certain Commonwealth tax concessions.

(4) Registration under this Act may also be a prerequisite for other exemptions, benefits and concessions provided under other Australian laws.

Commissioner to have regard to certain matters in exercising powers and functions

In performing his or her functions and exercising his or her powers, the Commissioner must have regard to the following:

(a) The maintenance, protection and enhancement of public trust and confidence in the notforprofit sector;
(b) The need for transparency and accountability of the notforprofit sector to the public (including donors, members and volunteers of registered entities) by ensuring the public has access to information about notforprofit entities;
(c) The benefits gained from providing information to the public about notforprofit entities;
(d) The maintenance and promotion of the effectiveness and sustainability of the notforprofit sector;
(e) The following principles:
(i) The principle of regulatory necessity;
(ii) The principle of reflecting risk;
(iii) The principle of proportionate regulation;
(f) The need for the Commissioner:
(i) To cooperate with other Australian government agencies; and
(ii) To administer effectively the laws that confers functions and powers on the Commissioner;
(Including in order minimising procedural requirements and procedural duplication);
(g) The benefits gained from assisting registered entities in complying with and understanding this Act, by providing them with guidance and education;
(h) The unique nature and diversity of notforprofit entities and the distinctive role that they play in Australia.

Regulations establishing governance standards

(1) The regulations may specify standards (the governance standards) with which an entity
must comply in order to become registered under this Act, and to remain entitled to be
registered under this Act.
(2) Without limiting the scope of subsection (1), those standards may:
(a) Require the entity to ensure that its governing rules provide for a specified matter; or
(b) Require the entity to achieve specified outcomes and:
(i) Not specify how the entity is to achieve those outcomes; or
(ii) Specify principles as to how the entity is to achieve those outcomes; or
(c) Require the entity to establish and maintain processes for the purpose of ensuring specified matters.

(2-a) Without limiting subparagraph (2-b)(ii), the principles mentioned in that subparagraph may reflect the size of the entity, the amount and nature of contributions to the entity and the nature of the activities undertaken by the entity in pursuit of its purposes.
(3) Without limiting the scope of subsection (1), those standards may provide that specified requirements do not apply to specified kinds of entity.

(4) Without limiting the scope of subsection (1), those standards may provide that different requirements apply to different kinds of entity. Basic religious charities

(5) The regulations must not require a registered entity to do, or not to do, a thing (including the things mentioned in subsection (2) if the registered entity is a basic religious charity. Political advocacy

(6) The regulations must not require an entity not to comment on, or advocate support for, a change to any matter established by law, policy or practice in the Commonwealth, a
State, a Territory or another country, if:

(a) The comment or advocacy furthers, or is in aid of, the purpose of the entity; and
(b) The comment or advocacy is lawful.

External conduct standards

(1) The regulations may specify standards (the external conduct standards) with which an entity must comply in order to become registered under this Act, and to remain entitled to be registered under this Act.

(2) Without limiting the scope of subsection (1), those standards may:
(a) Require the entity to ensure that its governing rules provide for a specified matter; or
(b) Require the entity to achieve specified outcomes and:
(i) Not specify how the entity is to achieve those outcomes; or
(ii) Specify principles as to how the entity is to achieve those outcomes; or
(c) Require the entity to establish and maintain processes for the purpose of ensuring specified matters.

(2-a) Without limiting subparagraph (2)(b)(ii), the principles mentioned in that subparagraph may reflect the size of the entity, the amount and nature of contributions to the entity and the nature of the activities undertaken by the entity in pursuit of its purposes.

(3) However, the external conduct standards must deal only with:
(a) Matters external to Australia; or
(b) Matters not external to Australia but that are closely related to, or have or will have a significant impact on, entities, things or matters external to Australia.

Monitoring

(1) Information given in compliance or purported compliance with one or more of the following provisions is subject to monitoring under this Division:

(a) A provision of this Act or of a legislative instrument made under this Act;
(b) A provision of the Crimes Act 1914 or of the Criminal Code, to the extent that the provision relates to this Act or a legislative instrument made under this Act.

(2) Information is also subject to monitoring under this Division if:
(a) An entity has given the Commissioner the information (whether it did so voluntarily or in fulfilling an obligation to do so); and

(b) The information is included on the Register in accordance with Division 40.

Monitoring powers

(1) An ACNC officer may enter any premises and exercise the monitoring powers for either or both of the following purposes:

(a) Determining whether a provision subject to monitoring under this Division has been, or is being, complied with;

(b) Determining whether information subject to monitoring under this Division is correct.