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This is a Bill, not an Act. For current law, see the Acts databases.
AUSTRALIAN CHARITIES AND NOT-FOR-PROFITS COMMISSION BILL 2012
2010-2011-2012
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Australian Charities and Not-for-profits
Commission Bill 2012
No. , 2012
(Treasury)
A Bill for an Act to establish the Australian
Charities and Not-for-profits Commission and a
national regulatory framework for the
not-for-profit sector, and for related purposes
i Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Contents
Chapter 1--Introduction
2
Part 1-1--Preliminary
2
Division 5--Preliminary
2
5-5 Short
title
...........................................................................................
2
5-10 Commencement
.................................................................................
2
5-15 Crown
to
be bound ............................................................................. 3
5-20
Extension to external Territories ........................................................ 3
Division 10--Guide to this Act
4
10-5
Guide to this Act ................................................................................ 4
Part 1-2--Objects of this Act
5
Division 15--Objects of this Act
5
15-5
Objects of this Act ............................................................................. 5
15-10
Commissioner to have regard to certain matters in exercising
powers and functions ......................................................................... 5
Chapter 2--Registration of not-for-profit entities
7
Part 2-1--Registration
7
Division 20--Object of this Part
7
20-5
Object of this Part .............................................................................. 7
Division 25--Entitlement to registration
8
25-1 Simplified
outline
..............................................................................
8
25-5
Entitlement to registration ................................................................. 8
Division 30--Process of registration
11
30-1 Simplified
outline
............................................................................
11
30-5
Application of this Division to various kinds of registration ........... 11
30-10
Applying for registration ................................................................. 11
30-15
Dealing with an application for registration .................................... 11
30-20 Registration
of entity ....................................................................... 12
30-25
Notifying outcome of application for registration ........................... 12
30-30
Date of effect of registration ............................................................ 13
30-35
Review of refusal of registration ...................................................... 13
Division 35--Revoking registration
14
35-1 Simplified
outline
............................................................................
14
35-5
Application of this Division to various kinds of registration ........... 14
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 ii
35-10 Revoking
registration
.......................................................................
15
35-15
Notice to registered entity to show cause ......................................... 17
35-20
Review of revocation of registration ................................................ 17
Part 2-2--Australian Charities and Not-for-profits Register
18
Division 40--Australian Charities and Not-for-profits Register
18
40-1 Simplified
outline
............................................................................
18
40-5
Commissioner to maintain Australian Charities and
Not-for-profits Register ................................................................... 18
40-10
Commissioner may withhold or remove information from
Register ............................................................................................ 20
Chapter 3--Responsibilities of registered entities
22
Part 3-1--Governance standards and external conduct
standards
22
Division 45--Governance standards
22
45-1 Simplified
outline
............................................................................
22
45-5 Object
of
this Division ..................................................................... 22
45-10 Regulations
establishing governance standards ............................... 23
Division 50--External conduct standards
24
50-1 Simplified
outline
............................................................................
24
50-5 Object
of
this Division ..................................................................... 24
50-10 External
conduct standards .............................................................. 25
Part 3-2--Record keeping and reporting
26
Division 55--Record keeping
26
55-1 Simplified
outline
............................................................................
26
55-5
Registered entities must keep records .............................................. 26
55-10
Recognised assessment activity ........................................................ 27
Division 60--Reporting
28
Subdivision 60-A--Overview
28
60-1 Simplified
outline
............................................................................
28
Subdivision 60-B--Annual information statements
28
60-5
Registered entities must give annual information statements .......... 28
Subdivision 60-C--Annual financial reports
29
60-10
Medium and large registered entities must give annual
financial reports ............................................................................... 29
60-15 Requirements
for
annual financial reports ....................................... 29
iii Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
60-20
Medium registered entities must have annual financial
reports audited or reviewed .............................................................. 30
60-25
Large registered entities must have annual financial reports
audited ............................................................................................. 30
60-30 Audit
or
review
................................................................................
30
60-35
Audit or review to be conducted in accordance with auditing
standards .......................................................................................... 32
60-40
Auditor's or reviewer's independence declaration .......................... 32
60-45
Auditor's report on annual financial report ...................................... 32
60-50
Reviewer's report on annual financial report ................................... 33
60-55
Auditor or reviewer to be provided with information and
assistance ......................................................................................... 33
60-60 Basic
religious charities ................................................................... 34
Subdivision 60-D--Errors in information statements and financial
reports
34
60-65
Errors in information statements and financial reports .................... 34
Subdivision 60-E--Additional reporting requirements
34
60-70 Object
of
this Subdivision ................................................................ 34
60-75
Additional reporting requirements--particular registered
entity ................................................................................................ 35
60-80
Additional reporting requirements--classes of registered
entities .............................................................................................. 36
Subdivision 60-F--Substituted accounting periods
37
60-85
Commissioner may approve a different accounting period ............. 37
60-90 Commissioner
may
impose conditions ............................................ 38
Subdivision 60-G--Collective and joint reporting
38
60-95
Commissioner may approve collective or joint reporting by
related entities .................................................................................. 38
60-100 Commissioner
may
impose conditions ............................................ 40
60-105 Treatment of reporting groups as small, medium or large
registered entities ............................................................................. 40
Part 3-3--Duty to notify
42
Division 65--Duty to notify
42
65-1 Simplified
outline
............................................................................
42
65-5
Registered entities must notify Commissioner of certain
matters ............................................................................................. 42
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 iv
Chapter 4--Regulatory powers of the ACNC
Commissioner
44
Part 4-1--Information gathering and monitoring powers
44
Division 70--Information gathering powers
44
70-1 Simplified
outline
............................................................................
44
70-5
Commissioner may obtain information and documents ................... 44
70-10
Commissioner may inspect and copy original documents ............... 45
70-15 Commissioner
may
retain
original documents ................................. 46
70-20
Commissioner may inspect and retain copies of documents ............ 46
70-25 Self-incrimination
............................................................................
46
Division 75--Monitoring
48
Subdivision 75-A--Overview
48
75-1 Simplified
outline
............................................................................
48
Subdivision 75-B--Application of this Division
49
75-5 Provisions
subject to monitoring ..................................................... 49
75-10 Information
subject to monitoring ................................................... 49
Subdivision 75-C--Monitoring powers
50
75-15
ACNC officer may enter premises by consent or under a
warrant ............................................................................................. 50
75-20
Monitoring powers of ACNC officers ............................................. 50
75-25 Operating
electronic equipment ....................................................... 51
75-30
Securing evidence of the contravention of a provision subject
to monitoring ................................................................................... 52
75-35
Individuals assisting ACNC officers ............................................... 54
75-40
ACNC officer may ask questions and seek production of
documents ........................................................................................ 55
Subdivision 75-D--Obligations and incidental powers of ACNC
officers
56
75-45 Consent
............................................................................................
56
75-50 Announcement
before
entry under warrant ..................................... 57
75-55
ACNC officer to be in possession of warrant .................................. 58
75-60
Details of warrant etc. to be given to occupier................................. 58
75-65
Expert assistance to operate electronic equipment ........................... 58
75-70
Compensation for damage to electronic equipment ......................... 60
Subdivision 75-E--Occupier's rights and responsibilities
61
75-75
Occupier entitled to observe execution of warrant .......................... 61
75-80
Occupier to provide ACNC officer with facilities and
assistance ......................................................................................... 61
v Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Subdivision 75-F--Monitoring warrants
62
75-85 Monitoring
warrants
........................................................................
62
Subdivision 75-G--Powers of issuing officers
63
75-90 Powers
of
issuing officers ................................................................ 63
Subdivision 75-H--General provisions
63
75-95 Identity
cards
...................................................................................
63
Part 4-2--Enforcement powers
65
Division 80--Warnings
65
80-1 Simplified
outline
............................................................................
65
80-5 Commissioner
may
issue
formal warning ........................................ 65
Division 85--Directions
67
Subdivision 85-A--Overview
67
85-1 Simplified
outline
............................................................................
67
Subdivision 85-B--Commissioner's power to give directions
68
85-5
Commissioner may give directions in certain circumstances .......... 68
85-10
Kinds of direction ............................................................................ 69
85-15
Power to comply with directions ..................................................... 70
85-20 Variation
and
revocation of directions ............................................. 71
85-25
Objections ........................................................................................ 71
Subdivision 85-C--Non-compliance with a direction
72
85-30 Non-compliance
with a direction ..................................................... 72
Division 90--Enforceable undertakings
73
90-1 Simplified
outline
............................................................................
73
90-5
Enforceable provisions .................................................................... 73
90-10 Acceptance
of
undertakings ............................................................. 73
90-15 Enforcement
of undertakings ........................................................... 75
Division 95--Injunctions
76
95-1 Simplified
outline
............................................................................
76
95-5
Enforceable provisions .................................................................... 76
95-10
Injunctions relating to federally regulated entity etc. ....................... 77
95-15
Grant of injunctions ......................................................................... 77
95-20 Interim
injunctions
...........................................................................
78
95-25 Discharging
or
varying injunctions .................................................. 78
95-30
Certain limits on granting injunctions not to apply .......................... 78
95-35
Court to take account of objects of this Act ..................................... 79
95-40 Other
powers
of
a court unaffected .................................................. 79
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 vi
Division 100--Suspension and removal of responsible entities
80
Subdivision 100-A--Overview
80
100-1 Simplified
outline
............................................................................
80
Subdivision 100-B--Suspension and removal of responsible
entities
81
100-5
Commissioner's exercise of power under this Subdivision ............. 81
100-10 Suspension of responsible entities ................................................... 82
100-15 Removal of responsible entities ....................................................... 84
100-20 Effect of suspension or removal--suspended or removed
responsible entities must not be reappointed ................................... 85
100-25 Effect of suspension or removal--prohibition on managing
the registered entity .......................................................................... 85
Subdivision 100-C--Acting responsible entities
87
100-30 Appointment of acting responsible entities ...................................... 87
100-35 Acting responsible entities of trusts with constitutional
corporations as trustees .................................................................... 87
100-40 Terms and conditions of appointment of acting responsible
entities .............................................................................................. 89
100-45 Termination of appointments of acting responsible entities ............ 89
100-50 Resignation of acting responsible entities ........................................ 89
100-55 Powers of acting responsible entities ............................................... 89
100-60 Commissioner may give directions to acting responsible
entities .............................................................................................. 90
Subdivision 100-D--Special provisions about acting trustees
90
100-65 Property
vesting orders .................................................................... 90
100-70 Property vested in acting trustee--former trustees'
obligations relating to books, identification of property and
transfer of property .......................................................................... 91
Chapter 5--The Australian Charities and
Not-for-profits Commission
93
Part 5-1--The ACNC
93
Division 105--Establishment and function of the ACNC
93
105-5 Establishment
...................................................................................
93
105-10 Constitution
of
the ACNC ............................................................... 93
105-15 Function of the ACNC ..................................................................... 93
105-20 ACNC has privileges and immunities of the Crown ........................ 93
vii Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Part 5-2--The Commissioner
94
Division 110--Establishment, functions and powers of the
Commissioner
94
110-5 Establishment
...................................................................................
94
110-10 Assistance
functions
of Commissioner ............................................ 94
110-15 Powers
of
Commissioner ................................................................. 94
110-20 Working
with
the
Advisory Board ................................................... 95
Division 115--Terms and conditions of appointment
96
115-5 Appointment
....................................................................................
96
115-10 Term of appointment ....................................................................... 96
115-15 Acting
Commissioner ...................................................................... 96
115-20 Remuneration
...................................................................................
96
115-25 Leave of absence .............................................................................. 97
115-30 Disclosure of interests to the Minister ............................................. 97
115-35 Outside
employment ........................................................................ 97
115-40 Other
terms
and
conditions .............................................................. 97
115-45 Resignation
......................................................................................
97
115-50 Termination
of
appointment ............................................................ 97
115-55 Delegation
........................................................................................
98
Division 120--Staff and consultants
99
120-5 Staff
.................................................................................................
99
120-10 Consultants
......................................................................................
99
Part 5-3--Finance and reporting requirements
100
Division 125--ACNC Special Account
100
125-5 ACNC
Special
Account ................................................................. 100
125-10 Credits
to
the Account ................................................................... 100
125-15 Purposes of the Account ................................................................ 100
Division 130--Annual report
101
130-5 Annual
report
.................................................................................
101
Chapter 6--The Advisory Board
102
Part 6-1--The Advisory Board
102
Division 135--Establishment, functions and powers
102
135-5 Establishment
.................................................................................
102
135-10 Membership
...................................................................................
102
135-15 Function and powers of Advisory Board ....................................... 102
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 viii
Division 140--Terms and conditions of appointment of members
of the Advisory Board
104
140-5 Appointment
..................................................................................
104
140-10 Term of appointment ..................................................................... 104
140-15 Remuneration
and
allowances ....................................................... 104
140-20 Standing obligation to disclose interests ........................................ 105
140-25 Other
terms
and
conditions ............................................................ 105
140-30 Resignation
....................................................................................
105
140-35 Termination
of
appointment .......................................................... 105
Division 145--Advisory Board procedures
106
145-5 Meetings
of
the
Advisory Board .................................................... 106
Chapter 7--Miscellaneous
108
Part 7-1--Secrecy
108
Division 150--Secrecy
108
Subdivision 150-A--Preliminary
108
150-5
Objects of this Division ................................................................. 108
150-10 Application of this Division to entities other than ACNC
officers ........................................................................................... 108
150-15 Meaning
of
protected ACNC information ...................................... 109
150-20 ACNC officer not required to provide information in certain
cases ............................................................................................... 109
Subdivision 150-B--Disclosure of protected ACNC information
by ACNC officers
109
150-25 Offence--disclosure or use of protected ACNC information ........ 109
Subdivision 150-C--Authorised disclosure
110
150-30 Exception--disclosure
in
performance of duties under Act .......... 110
150-35 Exception--disclosure
on
Register to achieve objects of this
Act ................................................................................................. 110
150-40 Exception--disclosure to an Australian government agency ........ 110
150-45 Exception--disclosure
or
use with consent ................................... 111
150-50 Exception--disclosure of information lawfully made
available to the public .................................................................... 111
Subdivision 150-D--On-disclosure of protected ACNC
information
111
150-55 Offence--on-disclosure of protected ACNC information ............. 111
150-60 Exception--on-disclosure or use for the purpose of the
original exception .......................................................................... 112
ix Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
150-65 Exception--on-disclosure of information lawfully made
available to the public .................................................................... 112
Part 7-2--Review and appeals
113
Division 155--Preliminary
113
155-5 Application
of
this Part .................................................................. 113
155-10 Decisions covered by single notice to be treated as single
decision .......................................................................................... 113
Division 160--Objections
114
160-5 How
objections
are to be made ...................................................... 114
160-10 When objection is to be made ........................................................ 114
160-15 Commissioner
to
decide objections ............................................... 115
160-20 Entity may require Commissioner to make an objection
decision .......................................................................................... 115
160-25 Entity may seek review of, or appeal against,
Commissioner's decision ............................................................... 116
Division 165--AAT review of objection decisions and extension
of time refusal decisions
117
165-5
Modified AAT Act to apply ........................................................... 117
165-10 Sections 27, 41 and 44A of the AAT Act not to apply to
certain decisions ............................................................................. 117
165-15 Modification of section 29 of the AAT Act ................................... 117
165-20 Modification of section 30 of the AAT Act ................................... 118
165-25 Modification of section 37 of the AAT Act ................................... 118
165-30 Modification of section 38 of the AAT Act ................................... 119
165-35 Modification of section 43 of the AAT Act ................................... 120
165-40 Grounds of objection and burden of proof ..................................... 120
165-45 Implementation of Tribunal decisions ........................................... 120
165-50 Pending review not to affect implementation of
administrative decisions ................................................................. 121
165-55 Reviews may be combined ............................................................ 121
Division 170--Court appeals against objection decisions
122
170-5
Time limit for appeals .................................................................... 122
170-10 Grounds of objection and burden of proof ..................................... 122
170-15 Order of court on objection decision ............................................. 122
170-20 Implementation of court order in respect of objection
decision .......................................................................................... 122
170-25 Pending appeal not to affect implementation of
administrative decisions ................................................................. 123
170-30 Appeals may be combined ............................................................. 123
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 x
Part 7-3--Penalties
124
Division 175--Administrative penalties
124
Subdivision 175-A--Overview
124
175-1 Simplified
outline
..........................................................................
124
Subdivision 175-B--Penalties for statements
124
175-5
Application of this Subdivision to statements ................................ 124
175-10 Penalty for false or misleading statements ..................................... 124
175-15 Amount
of
penalty ......................................................................... 125
175-20 Base penalty amount ...................................................................... 126
175-25 Increase
in
penalty ......................................................................... 126
175-30 Reduction of penalty if entity voluntarily tells the
Commissioner ................................................................................ 127
Subdivision 175-C--Penalties for failing to lodge documents on
time
128
175-35 Liability
to
penalty ......................................................................... 128
175-40 Amount
of
penalty ......................................................................... 128
Subdivision 175-D--Machinery provisions for administrative
penalties
129
175-45 Scope of Subdivision ..................................................................... 129
175-50 Notification
of liability .................................................................. 129
175-55 Due date for penalty ....................................................................... 129
175-60 Remission
of
penalty ..................................................................... 129
175-65 General interest charge on unpaid penalty ..................................... 130
175-70 Collection of penalty by Commissioner of Taxation ..................... 130
Part 7-4--Application of this Act to entities
132
Division 180--Obligations, liabilities and offences
132
Subdivision 180-A--Overview
132
180-1 Simplified
outline
..........................................................................
132
Subdivision 180-B--Unincorporated associations and bodies of
persons
132
180-5 Obligations
and liabilities .............................................................. 132
180-10 Offences
.........................................................................................
133
180-15 Offences--defences ....................................................................... 133
Subdivision 180-C--Trusts
134
180-20 Obligations
and liabilities .............................................................. 134
180-25 Offences
.........................................................................................
135
Subdivision 180-D--Bodies corporate
135
xi Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
180-30 Liabilities
.......................................................................................
135
Subdivision 180-E--Rights of indemnity and contribution
136
180-35 Rights
of
indemnity
and contribution ............................................ 136
Part 7-5--Constitutional matters
137
Division 185--Constitutional matters
137
185-5
Concurrent operation of State and Territory laws .......................... 137
185-10 Compensation for acquisition of property ..................................... 137
Part 7-6--Forms and regulations
138
Division 190--Requirements about giving material
138
Subdivision 190-A--Object of this Division
138
190-5 Object
of
this Division ................................................................... 138
Subdivision 190-B--General provisions
138
190-10 Approved
forms
.............................................................................
138
190-15 Commissioner
may
defer
time for lodgement ................................ 139
190-20 Declaration
by entity ...................................................................... 139
190-25 Declaration by entity where agent gives document ....................... 139
190-30 Declaration
by agent ...................................................................... 140
190-35 Signing
declarations ....................................................................... 140
Division 195--Address for service
142
195-5 Address
for
service
........................................................................
142
195-10 How
documents
may be given ....................................................... 142
Division 200--Regulations
144
200-5 Regulations
....................................................................................
144
Chapter 8--Interpretation
145
Part 8-1--Core concepts
145
Division 205--Core concepts
145
Subdivision 205-A--Entities
145
205-5 Entities
...........................................................................................
145
205-10 Companies
.....................................................................................
146
205-15 Federally regulated entity .............................................................. 146
205-20 Constitutional corporation ............................................................ 146
Subdivision 205-B--Registered entities
147
205-25 Small, medium and large registered entities .................................. 147
205-30 Responsible entity .......................................................................... 147
205-35 Basic religious charity ................................................................... 148
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 xii
Subdivision 205-C--Other core concepts
149
205-40 Contribution ................................................................................... 149
Part 8-2--Dictionary
151
Division 300--Dictionary
151
300-5 Dictionary
......................................................................................
151
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 1
A Bill for an Act to establish the Australian
1
Charities and Not-for-profits Commission and a
2
national regulatory framework for the
3
not-for-profit sector, and for related purposes
4
Preamble
5
The Parliament of Australia recognises the unique nature and
6
diversity of not-for-profit entities and the distinctive role that they
7
play in Australia.
8
Not-for-profit entities promote a broad range of community,
9
altruistic and philanthropic purposes. The not-for-profit sector
10
delivers vital services and benefits to communities throughout
11
Australia.
12
Chapter 1 Introduction
Part 1-1 Preliminary
Division 5 Preliminary
Section 5-5
2 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
The not-for-profit sector receives a range of funding, including
1
donations from members of the public and tax concessions, grants
2
and other support from Australian governments.
3
It is important that a national regulatory system that promotes good
4
governance, accountability and transparency for not-for-profit
5
entities be introduced to maintain, protect and enhance public trust
6
and confidence in the not-for-profit sector.
7
It is therefore necessary to establish a Commissioner of the
8
Australian Charities and Not-for-profits Commission who will
9
focus on the not-for-profit sector and will recognise and respond to
10
the diversity and uniqueness of the sector.
11
The Parliament of Australia enacts:
12
Chapter 1--Introduction
13
Part 1-1--Preliminary
14
Division 5--Preliminary
15
5-5 Short title
16
This Act may be cited as the Australian Charities and
17
Not-for-profits Commission Act 2012.
18
5-10 Commencement
19
(1) Each provision of this Act specified in column 1 of the table
20
commences, or is taken to have commenced, in accordance with
21
column 2 of the table. Any other statement in column 2 has effect
22
according to its terms.
23
24
Introduction Chapter 1
Preliminary Part 1-1
Preliminary Division 5
Section 5-15
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 3
Commencement information
Column 1
Column 2
Column 3
Provision(s) Commencement
Date/Details
1. Sections 5-5
and 5-10 and
anything in this
Act not elsewhere
covered by this
table
The day this Act receives the Royal Assent.
2. Sections 5-15
to 300-5
The later of:
(a) 1 October 2012; and
(b) the day the Australian Charities and
Not-for-profits Commission
(Consequential and Transitional) Act
2012 receives the Royal Assent.
However, the provision(s) do not commence
at all if the event mentioned in paragraph (b)
does not occur.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
5-15 Crown to be bound
7
(1) This Act binds the Crown in each of its capacities.
8
(2) This Act does not make the Crown liable to a pecuniary penalty or
9
to be prosecuted for an offence.
10
5-20 Extension to external Territories
11
This Act extends to every external Territory.
12
13
Chapter 1 Introduction
Part 1-1 Preliminary
Division 10 Guide to this Act
Section 10-5
4 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Division 10--Guide to this Act
1
10-5 Guide to this Act
2
The following is a guide to this Act:
3
This Act establishes a regulatory system for not-for-profit entities.
4
This Act establishes a national regulator for not-for-profit entities.
5
The regulator is the Commissioner of the Australian Charities and
6
Not-for-profits Commission (the ACNC).
7
The Commissioner is responsible for registering entities as
8
not-for-profit entities according to their type and subtypes.
9
Registration with the ACNC is a necessary precondition for access
10
to certain Commonwealth taxation concessions. Registration under
11
this Act may also be a prerequisite for other exemptions, benefits
12
and concessions provided under other Australian laws.
13
The Commissioner of the ACNC will cooperate with other
14
government agencies to oversee a simplified and streamlined
15
regulatory framework for not-for-profit entities.
16
The Commissioner of the ACNC will provide information to help
17
the public understand the work of the not-for-profit sector and to
18
support the transparency and accountability of the sector.
19
20
Introduction Chapter 1
Objects of this Act Part 1-2
Objects of this Act Division 15
Section 15-5
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 5
Part 1-2--Objects of this Act
1
Division 15--Objects of this Act
2
15-5 Objects of this Act
3
(1) The objects of this Act are:
4
(a) to maintain, protect and enhance public trust and confidence
5
in the
Australian
not-for-profit sector; and
6
(b) to support and sustain a robust, vibrant, independent and
7
innovative Australian not-for-profit sector; and
8
(c) to promote the reduction of unnecessary regulatory
9
obligations on the Australian not-for-profit sector.
10
(2) This Act achieves those objects by:
11
(a) establishing a national regulatory framework for
12
not-for-profit entities that reflects the unique structures,
13
funding arrangements and goals of such entities; and
14
(b) establishing the Commissioner of the Australian Charities
15
and Not-for-profits Commission, who will:
16
(i) be responsible for registering entities as not-for-profit
17
entities according to their type and subtypes; and
18
(ii) administer the national regulatory framework; and
19
(iii) assist registered entities in complying with and
20
understanding this Act, by providing them with
21
guidance and education.
22
(3) Registration is a prerequisite for an entity to access certain
23
Commonwealth tax concessions.
24
(4) Registration under this Act may also be a prerequisite for other
25
exemptions, benefits and concessions provided under other
26
Australian laws.
27
15-10 Commissioner to have regard to certain matters in exercising
28
powers and functions
29
In performing his or her functions and exercising his or her powers,
30
the Commissioner must have regard to the following:
31
Chapter 1 Introduction
Part 1-2 Objects of this Act
Division 15 Objects of this Act
Section 15-10
6 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
(a) the maintenance, protection and enhancement of public trust
1
and confidence in the not-for-profit sector;
2
(b) the need for transparency and accountability of the
3
not-for-profit sector to the public (including donors, members
4
and volunteers of registered entities) by ensuring the public
5
has access to information about not-for-profit entities;
6
(c) the benefits gained from providing information to the public
7
about not-for-profit entities;
8
(d) the maintenance and promotion of the effectiveness and
9
sustainability of the not-for-profit sector;
10
(e) the following principles:
11
(i) the principle of regulatory necessity;
12
(ii) the principle of reflecting risk;
13
(iii) the principle of proportionate regulation;
14
(f) the need for the Commissioner:
15
(i) to cooperate with other Australian government agencies;
16
and
17
(ii) to administer effectively the laws that confer functions
18
and powers on the Commissioner;
19
(including in order to minimise procedural requirements and
20
procedural duplication);
21
(g) the benefits gained from assisting registered entities in
22
complying with and understanding this Act, by providing
23
them with guidance and education;
24
(h) the
unique nature and diversity of not-for-profit entities and
25
the distinctive role that they play in Australia
.
26
27
Registration of not-for-profit entities Chapter 2
Registration Part 2-1
Object of this Part Division 20
Section 20-5
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 7
Chapter 2--Registration of not-for-profit
1
entities
2
Part 2-1--Registration
3
Division 20--Object of this Part
4
20-5 Object of this Part
5
Tax concessions
6
(1) This Part provides for the Commissioner to register entities as
7
particular types and subtypes of not-for-profit entities. It also
8
provides for the Commissioner to revoke the registration of
9
registered entities.
10
(2) Such registration is a prerequisite for an entity to access certain
11
Commonwealth tax concessions. The object of this Part is to
12
ensure that these tax concessions are available only to entities that
13
are governed and regulated in accordance with this Act.
14
Other concessions
15
(3) Registration under this Act may also be a prerequisite for other
16
exemptions, benefits and concessions provided under other
17
Australian laws.
18
19
Chapter 2 Registration of not-for-profit entities
Part 2-1 Registration
Division 25 Entitlement to registration
Section 25-1
8 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Division 25--Entitlement to registration
1
25-1 Simplified outline
2
The following is a simplified outline of this Division:
3
A not-for-profit entity is entitled to registration under this Act as a
4
type of entity if certain conditions are satisfied.
5
A not-for-profit entity is entitled to registration under this Act as a
6
subtype of entity if certain conditions are satisfied (including that
7
the entity is registered as a type of entity).
8
25-5 Entitlement to registration
9
(1) An entity is entitled to registration as a type of entity if:
10
(a) it meets the conditions in subsection (3); and
11
(b) it meets the description of that type of entity in column 1 of
12
the table in subsection (5); and
13
(c) if the entity has previously been a registered entity, but its
14
registration as a type of entity has been revoked--the
15
Commissioner is satisfied that the matters which led to the
16
revocation have been dealt with such that the registration of
17
the entity would not conflict with the objects of this Act.
18
Note:
Registration of an entity mentioned in paragraph (c) has effect
19
from the time of registration (see section 30-30). It does not
20
rescind the revocation of the previous registration.
21
(2) An entity is entitled to registration as a subtype of entity if:
22
(a) it meets the conditions in subsection (3); and
23
(b) it meets the description of that subtype of entity in column 2
24
of the table in subsection (5); and
25
(c) it is entitled to registration as the type of entity that
26
corresponds to that subtype of entity (as set out in that table);
27
and
28
(d) it is registered as that type of entity.
29
(3) The conditions are as follows:
30
Registration of not-for-profit entities Chapter 2
Registration Part 2-1
Entitlement to registration Division 25
Section 25-5
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 9
(a) the entity is a not-for-profit entity;
1
(b) the entity is in compliance with the governance standards and
2
external conduct standards (see Part 3-1);
3
(c) the entity has an ABN;
4
(d) the entity is not covered by a decision in writing made by an
5
Australian government agency (including a judicial officer)
6
under an Australian law that provides for entities to be
7
characterised on the basis of them engaging in, or supporting,
8
terrorist or other criminal activities.
9
(4) To avoid doubt, an entity may be entitled to registration as more
10
than one subtype of entity.
11
Note:
An entity could be registered as an entity with a purpose that is the
12
relief of poverty, sickness or the needs of the aged, and also be
13
registered as a public benevolent institution.
14
(5) The table is as follows:
15
16
Entitlement to registration
Item Column
1
Type of entity
Column 2
Corresponding subtype of entity
1
Charity
Entity with a purpose that is the relief of poverty,
sickness or the needs of the aged
2
Entity with a purpose that is the advancement of
education
3
Entity with a purpose that is the advancement of
religion
4
Entity with another purpose that is beneficial to the
community
5
Institution whose principal activity is to promote the
prevention or the control of diseases in human beings
6
Public
benevolent
institution
7
Entity with a charitable purpose described in section 4
of the Extension of Charitable Purpose Act 2004
(provision of child care services)
Note:
An entity commonly known as a health promotion charity could be an
17
entity described in column 2 of item 5 of the table (Institution whose
18
Chapter 2 Registration of not-for-profit entities
Part 2-1 Registration
Division 25 Entitlement to registration
Section 25-5
10 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
principal activity is to promote the prevention or the control of
1
diseases in human beings).
2
(6) The object of column 2 of items 1, 2, 3 and 4 of the table in
3
subsection (5) is to describe entities that are covered by the 4 heads
4
of charity traditionally recognised by the courts.
5
6
Registration of not-for-profit entities Chapter 2
Registration Part 2-1
Process of registration Division 30
Section 30-1
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 11
Division 30--Process of registration
1
30-1 Simplified outline
2
The following is a simplified outline of this Division:
3
This Division outlines the process for the registration of entities as
4
a type and subtypes.
5
The Commissioner must register an entity if the entity applies in
6
the approved form, is entitled to registration and has given the
7
Commissioner all necessary information and documents.
8
30-5 Application of this Division to various kinds of registration
9
This Division applies separately in relation to each of the following
10
kinds of registration:
11
(a) registration as a type of entity;
12
(b) registration as a subtype of entity.
13
30-10 Applying for registration
14
(1) An entity may apply to the Commissioner for registration.
15
(2) The application must be in the approved form.
16
30-15 Dealing with an application for registration
17
Requiring further information or documents
18
(1) The Commissioner may require an applicant to give the
19
Commissioner specified information, or a specified document, that
20
the Commissioner needs in order to decide whether the applicant is
21
entitled to registration.
22
Treating application as being refused
23
(2) After the time worked out under subsection (3), the applicant may
24
give the Commissioner, in the approved form, written notice that
25
Chapter 2 Registration of not-for-profit entities
Part 2-1 Registration
Division 30 Process of registration
Section 30-20
12 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
the applicant wishes to treat the application as having been refused,
1
if the Commissioner has not given the applicant before that time
2
written notice that the Commissioner has registered or has refused
3
to register the applicant.
4
Note:
Section 30-25 requires the Commissioner to give the applicant written
5
notice if the Commissioner has registered or has refused to register the
6
applicant.
7
(3) The time is the end of the 60th day after the application was made.
8
However, if before that time the Commissioner requires the
9
applicant under subsection (1) to give information or a document,
10
the time is the later of the following (or either of them if they are
11
the same):
12
(a) the end of the 28th day after the last day on which the
13
applicant gives the Commissioner information or a document
14
that the Commissioner has required under subsection (1);
15
(b) the end of the 60th day after the application was made.
16
(4) If the applicant gives notice under subsection (2), section 30-35
17
operates as if the Commissioner refuses the application on the day
18
on which the notice is given.
19
Note:
Section 30-35 lets the applicant object against refusal of an application
20
in the manner set out in Part 7-2.
21
30-20 Registration of entity
22
The Commissioner must register the applicant if:
23
(a) the application is in the approved form; and
24
(b) if the Commissioner has required the applicant under
25
subsection 30-15(1) to give information or a document--the
26
applicant has given the Commissioner that information or
27
document; and
28
(c) the applicant is entitled to registration under Division 25.
29
30-25 Notifying outcome of application for registration
30
The Commissioner must give the applicant written notice if:
31
(a) the Commissioner registers the applicant; or
32
(b) the Commissioner refuses to register the applicant.
33
Registration of not-for-profit entities Chapter 2
Registration Part 2-1
Process of registration Division 30
Section 30-30
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 13
30-30 Date of effect of registration
1
The registration has effect from a date specified by the
2
Commissioner.
3
30-35 Review of refusal of registration
4
If the applicant is dissatisfied with the Commissioner's refusal to
5
register the applicant in accordance with the application, the
6
applicant may object against the refusal in the manner set out in
7
Part 7-2.
8
9
Chapter 2 Registration of not-for-profit entities
Part 2-1 Registration
Division 35 Revoking registration
Section 35-1
14 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Division 35--Revoking registration
1
35-1 Simplified outline
2
The following is a simplified outline of this Division:
3
The Commissioner may revoke an entity's registration under this Act
4
if
the Commissioner reasonably believes that any of certain
5
conditions
exist. These conditions include the following:
6
(a)
the entity not being entitled to registration;
7
(b)
the entity contravening this Act or not complying
8
with a governance standard or external conduct
9
standard;
10
(c)
the entity providing information that was false or
11
misleading in a material particular in its
12
application for registration;
13
(d)
the entity requesting that the Commissioner revoke
14
the registration.
15
The Commissioner must consider a range of factors before revoking a
16
registered entity's registration under this Act.
17
If the Commissioner believes on reasonable grounds that a registered
18
entity is not entitled to be registered, the Commissioner may give a
19
show cause notice to the entity.
20
35-5 Application of this Division to various kinds of registration
21
(1) This Division applies separately in relation to each of the following
22
kinds of registration:
23
(a) registration as a type of entity;
24
(b) registration as a subtype of entity.
25
(2) However, the Commissioner must revoke a registered entity's
26
registration as a subtype of entity if the Commissioner revokes the
27
Registration of not-for-profit entities Chapter 2
Registration Part 2-1
Revoking registration Division 35
Section 35-10
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 15
entity's registration as the type of entity that corresponds to that
1
subtype (as set out in the table in subsection 25-5(5)).
2
35-10 Revoking registration
3
(1) The Commissioner may revoke the registration of a registered
4
entity if the Commissioner reasonably believes that any of the
5
following conditions are met:
6
(a) at any time after the date of effect of the registration, the
7
entity is or was not entitled to registration;
8
(b) the registered entity provided, in connection with its
9
application for registration, information that was false or
10
misleading in a material particular;
11
(c) at any time after the date of effect of the registration:
12
(i) the registered entity has contravened a provision of this
13
Act, or it is more likely than not that the registered
14
entity will contravene a provision of this Act; or
15
(ii) the registered entity has not complied with a governance
16
standard or external conduct standard, or it is more
17
likely than not that the registered entity will not comply
18
with such a standard;
19
(d) the registered entity has:
20
(i) a trustee in bankruptcy; or
21
(ii) a liquidator; or
22
(iii) a person appointed, or authorised, under an Australian
23
law to manage the affairs of the entity because it is
24
unable to pay all its debts as and when they become due
25
and payable;
26
(e) the registered entity has made a request to the Commissioner,
27
in the approved form, that the Commissioner revoke the
28
registration.
29
(2) In deciding whether to revoke the registration of an entity the
30
Commissioner must take account of the following matters:
31
(a) the nature, significance and persistence of any contravention
32
of this Act or non-compliance with a governance standard or
33
external conduct standard (or any such contravention or
34
Chapter 2 Registration of not-for-profit entities
Part 2-1 Registration
Division 35 Revoking registration
Section 35-10
16 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
non-compliance that is more likely than not) by the registered
1
entity;
2
(b) what action the Commissioner, the registered entity, or any of
3
the responsible entities of the registered entity, could take or
4
have taken:
5
(i) to address any such contravention or non-compliance
6
(or prevent any such contravention or non-compliance
7
that is more likely than not); or
8
(ii) to prevent any similar contravention or non-compliance;
9
(c) the desirability of ensuring that contributions (see
10
section 205-40) to the registered entity are applied
11
consistently with the not-for-profit nature, and the purpose,
12
of the registered entity;
13
(d) the objects of any Commonwealth laws that refer to
14
registration under this Act;
15
(e) the extent (if any) to which the registered entity is conducting
16
its affairs in a way that may cause harm to, or jeopardise, the
17
public trust and confidence in the not-for-profit sector
18
mentioned in subsection 15-5(1) (Objects of this Act);
19
(f) the welfare of members of the community (if any) that
20
receive direct benefits from the registered entity;
21
(g) any other matter that the Commissioner considers relevant.
22
(3) The revocation must specify the day on which the entity's
23
registration is taken to be revoked. The specified day must be:
24
(a) if the reason for the revocation is that the entity is not entitled
25
to registration:
26
(i) the day on which the entity first ceased to be entitled; or
27
(ii) a later day; or
28
(b) if the reason for the revocation is that the entity provided, in
29
connection with its application for registration, information
30
that was false or misleading in a material particular:
31
(i) the day on which the registration took effect; or
32
(ii) a later day; or
33
(c)
otherwise:
34
(i) the day on which the revocation is made; or
35
(ii) a later day.
36
Registration of not-for-profit entities Chapter 2
Registration Part 2-1
Revoking registration Division 35
Section 35-15
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 17
(4) The Commissioner must give the entity written notice within 14
1
days if the Commissioner revokes its registration.
2
35-15 Notice to registered entity to show cause
3
(1) Before revoking the registration, the Commissioner must give a
4
written notice (a show cause notice) to the registered entity.
5
(2) The show cause notice must:
6
(a) state the grounds on which the Commissioner proposes to
7
revoke the registration; and
8
(b) invite the registered entity to give the Commissioner, within
9
28 days after the day the notice is given, a written statement
10
showing cause why the Commissioner should not revoke the
11
registration.
12
(3) This section does not apply if the Commissioner believes, on
13
reasonable grounds and taking into account the matters mentioned
14
in subsection 35-10(2), that it would be appropriate for the
15
Commissioner to revoke the registration without giving a show
16
cause notice to the registered entity.
17
35-20 Review of revocation of registration
18
If the entity is dissatisfied with the revocation of its registration or
19
a decision by the Commissioner to not revoke the entity's
20
registration, the entity may object against the revocation or
21
decision in the manner set out in Part 7-2.
22
23
Chapter 2 Registration of not-for-profit entities
Part 2-2 Australian Charities and Not-for-profits Register
Division 40 Australian Charities and Not-for-profits Register
Section 40-1
18 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Part 2-2--Australian Charities and Not-for-profits
1
Register
2
Division 40--Australian Charities and Not-for-profits
3
Register
4
40-1 Simplified outline
5
The following is a simplified outline of this Division:
6
This Division provides for the Australian Charities and
7
Not-for-profits Register. The Register contains information about
8
each registered entity and each former registered entity.
9
The Commissioner must publish the Register on the internet, but
10
may, subject to the public interest, withhold certain information
11
from such publication.
12
40-5 Commissioner to maintain Australian Charities and
13
Not-for-profits Register
14
Information
15
(1) The Commissioner is to maintain a register (known as the
16
Australian Charities and Not-for-profits Register) in which the
17
Commissioner includes the following information:
18
(a) the following information in respect of each registered entity:
19
(i) the entity's name;
20
(ii) the entity's contact details (including its address for
21
service);
22
(iii) the entity's ABN;
23
(iv) the type of entity as which it is registered or has been
24
registered;
25
(v) each subtype of entity (if any) as which it is registered
26
or has been registered;
27
(vi) the date of effect of each such registration;
28
Registration of not-for-profit entities Chapter 2
Australian Charities and Not-for-profits Register Part 2-2
Australian Charities and Not-for-profits Register Division 40
Section 40-5
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 19
(vii) the entity's governing rules;
1
(b) the following information in respect of each former
2
registered entity:
3
(i) the entity's name;
4
(ii) the entity's ABN;
5
(iii) the type of entity as which it was registered;
6
(iv) each subtype of entity (if any) as which it was
7
registered;
8
(v) the date of effect of each such registration;
9
(vi) the entity's governing rules;
10
(c) the following details in respect of each responsible entity of
11
each registered entity:
12
(i) the name of each responsible entity;
13
(ii) the position held by the responsible entity in relation to
14
the registered entity;
15
(d)
information
statements given by registered entities under
16
Division 60 (except to the extent (if any) that information in
17
an information statement is classified, in the approved form
18
mentioned in section 60-5, as "not for publication");
19
(e) financial reports, and any audit or review reports, given by
20
registered entities under Division 60;
21
(f) the details of the following matters (including a summary of
22
why the matter arose, details regarding any response by the
23
relevant registered entity and the resolution (if any) of the
24
matter):
25
(i) each warning issued to a registered entity by the
26
Commissioner under Division 80;
27
(ii) each direction issued to a registered entity by the
28
Commissioner under Division 85;
29
(iii) each undertaking given by a registered entity and
30
accepted by the Commissioner under Division 90;
31
(iv) each injunction (including interim injunctions) made
32
under Division 95;
33
(v) each suspension or removal made under Division 100;
34
(g) any other information:
35
Chapter 2 Registration of not-for-profit entities
Part 2-2 Australian Charities and Not-for-profits Register
Division 40 Australian Charities and Not-for-profits Register
Section 40-10
20 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
(i) that the Commissioner is authorised to collect under a
1
provision of this Act; and
2
(ii) that is specified in the regulations
.
3
Note:
Regulations made for the purposes of subsection 40-10(1) may
4
provide that the Commissioner must not include information on the
5
Register in certain circumstances.
6
(2) The Commissioner must not include the information mentioned in
7
paragraph (1)(f) before the end of 14 days after the day the warning
8
or direction is issued, the undertaking is given, the injunction is
9
made or the suspension or removal occurs, unless the
10
Commissioner considers that the public interest requires the
11
information to be included earlier.
12
Register to be maintained by electronic means
13
(3) The Register is to be maintained by electronic means.
14
(4) The Register is to be made available for public inspection on the
15
internet.
16
Note:
See section 150-35 for limitations on including personal information
17
on the Register.
18
40-10 Commissioner may withhold or remove information from
19
Register
20
(1) Regulations made for the purposes of this subsection may provide
21
that the Commissioner must not include information on the
22
Register, or must remove information from the Register, in
23
prescribed circumstances.
24
(2) The Commissioner may decline to include information on the
25
Register, or may remove information from the Register, if the
26
Commissioner considers that any of the following circumstances
27
exist:
28
(a)
the
information:
29
(i) is commercially sensitive; and
30
(ii) has the potential to cause detriment to the registered
31
entity (or former registered entity) to which it relates, or
32
to an individual;
33
Registration of not-for-profit entities Chapter 2
Australian Charities and Not-for-profits Register Part 2-2
Australian Charities and Not-for-profits Register Division 40
Section 40-10
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 21
(b) the information is inaccurate, is likely to cause confusion or
1
is likely to mislead the public;
2
(c) the information is likely to offend a reasonable individual;
3
(d) the information could endanger public safety;
4
(e) any circumstances prescribed by the regulations for the
5
purposes of this paragraph.
6
(3) However, the Commissioner may include the information on the
7
Register, or decline to remove information from the Register, if the
8
Commissioner considers that the public interest in the Register
9
including the information outweighs the likely adverse effect of the
10
relevant circumstance or circumstances set out in paragraphs (2)(a)
11
to (e).
12
(4) The Commissioner may remove information mentioned in
13
paragraph 40-5(1)(f) from the Register if:
14
(a) the information has been on the Register for more than 5
15
years; and
16
(b) the Commissioner considers that the public interest does not
17
require the information to be retained on the Register.
18
19
Chapter 3 Responsibilities of registered entities
Part 3-1 Governance standards and external conduct standards
Division 45 Governance standards
Section 45-1
22 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Chapter 3--Responsibilities of registered
1
entities
2
Part 3-1--Governance standards and external
3
conduct standards
4
Division 45--Governance standards
5
45-1 Simplified outline
6
The following is a simplified outline of this Division:
7
This Division sets up a system to allow the creation of minimum
8
governance standards that entities are required to meet (in order to
9
become registered, and on an ongoing basis). These governance
10
standards are to be set out in the regulations.
11
Compliance with the governance standards is a condition of
12
entitlement to registration under paragraph 25-5(3)(b).
13
The object of the system setting up the standards is to provide a
14
minimum level of confidence that registered entities will promote
15
the effective and efficient use of their resources, will meet
16
community expectations about managing their affairs and the use
17
of public money, volunteer time and donations, and will minimise
18
the risk of mismanagement and misappropriation.
19
45-5 Object of this Division
20
(1) The object of this Division is to give the public (including donors,
21
members and volunteers of registered entities) confidence that
22
registered entities:
23
(a) manage their affairs openly, accountably and transparently;
24
and
25
(b) use their resources (including contributions and donations)
26
effectively and efficiently; and
27
Responsibilities of registered entities Chapter 3
Governance standards and external conduct standards Part 3-1
Governance standards Division 45
Section 45-10
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 23
(c) minimise the risk of mismanagement and misappropriation;
1
and
2
(d) pursue their purposes.
3
(2) This Division achieves that object by setting up a system to allow
4
the regulations to specify standards with which a registered entity
5
must comply in order to become registered under this Act, and to
6
remain entitled to be registered under this Act.
7
Note 1:
The main consequence of failure to comply with these standards is a
8
loss of the registered entity's entitlement to registration. If the entity is
9
a federally regulated entity, such a failure to comply may also result in
10
enforcement action under Chapter 4.
11
Note 2:
For the consequences of registration, see section 20-5.
12
Note 3:
A registered entity must notify the Commissioner of significant
13
non-compliance with these standards that results in the entity no
14
longer being entitled to be registered (see section 65-5).
15
45-10 Regulations establishing governance standards
16
(1) The regulations may specify the governance standards.
17
(2) Without limiting the scope of subsection (1), those standards may
18
require a registered entity to:
19
(a) ensure that its governing rules provide for a specified matter;
20
or
21
(b) act, or not act, in a specified manner; or
22
(c) establish and maintain processes for the purpose of ensuring
23
specified matters.
24
(3) Without limiting the scope of subsection (1), those standards may
25
provide that specified requirements do not apply to specified kinds
26
of registered entity.
27
(4) Without limiting the scope of subsection (1), those standards may
28
provide that different requirements apply to different kinds of
29
registered entity.
30
(5) The regulations must not require a registered entity to do, or not to
31
do, a thing (including the things mentioned in subsection (2)) if the
32
registered entity is a basic religious charity.
33
34
Chapter 3 Responsibilities of registered entities
Part 3-1 Governance standards and external conduct standards
Division 50 External conduct standards
Section 50-1
24 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Division 50--External conduct standards
1
50-1 Simplified outline
2
The following is a simplified outline of this Division:
3
This Division sets up a system to allow the creation of minimum
4
external conduct standards that entities are required to meet (in
5
order to become registered, and on an ongoing basis). These
6
external conduct standards are to be set out in the regulations and
7
must deal only with:
8
(a)
matters external to Australia; or
9
(b)
matters not external to Australia but that are
10
closely related to, or have or will have a significant
11
impact on, entities, things or matters external to
12
Australia.
13
Compliance with the external conduct standards is a condition of
14
entitlement to registration under paragraph 25-5(3)(b).
15
50-5 Object of this Division
16
(1) The object of this Division is to give the public (including donors,
17
members and volunteers of registered entities) confidence that:
18
(a) funds sent outside Australia by registered entities:
19
(i) are reaching legitimate beneficiaries; and
20
(ii) are being used for legitimate purposes; and
21
(iii) are not contributing to terrorist, or other criminal,
22
activities; and
23
(b) activities engaged in outside Australia by registered entities
24
are not contributing to terrorist, or other criminal, activities.
25
(2) This Division achieves that object by setting up a system to allow
26
the regulations to specify standards:
27
Responsibilities of registered entities Chapter 3
Governance standards and external conduct standards Part 3-1
External conduct standards Division 50
Section 50-10
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 25
(a) with which a registered entity must comply in order to
1
become registered under this Act, and to remain entitled to be
2
registered under this Act; and
3
(b) regulating funds sent outside Australia by registered entities,
4
and activities engaged in outside Australia by registered
5
entities.
6
Note 1:
The main consequence of failure to comply with these standards is a
7
loss of the registered entity's entitlement to registration. Such a failure
8
to comply may also result in enforcement action under Chapter 4.
9
Note 2:
For the consequences of registration, see section 20-5.
10
Note 3:
A registered entity must notify the Commissioner of significant
11
non-compliance with these standards that results in the entity no
12
longer being entitled to be registered (see section 65-5).
13
50-10 External conduct standards
14
(1) The regulations may specify the external conduct standards.
15
(2) Without limiting the scope of subsection (1), those standards may
16
require a registered entity to:
17
(a) ensure that its governing rules provide for a specified matter;
18
or
19
(b) act, or not act, in a specified manner; or
20
(c) establish and maintain processes for the purpose of ensuring
21
specified matters.
22
(3) However, the external conduct standards must deal only with:
23
(a) matters external to Australia; or
24
(b)
matters not external to Australia but that are closely related to,
25
or have or will have a significant impact on, entities, things or
26
matters external to Australia.
27
28
Chapter 3 Responsibilities of registered entities
Part 3-2 Record keeping and reporting
Division 55 Record keeping
Section 55-1
26 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Part 3-2--Record keeping and reporting
1
Division 55--Record keeping
2
55-1 Simplified outline
3
The following is a simplified outline of this Division:
4
This Division sets out record keeping obligations for registered
5
entities under this Act.
6
55-5 Registered entities must keep records
7
Registered entities must keep records
8
(1) A registered entity must keep written financial records that:
9
(a) correctly record and explain its transactions and financial
10
position and performance; and
11
(b) enable true and fair financial statements to be prepared and to
12
be audited;
13
so as to enable any recognised assessment activity to be carried out
14
in relation to the entity.
15
(2) A registered entity must also keep written records that correctly
16
record its operations, so as to enable any recognised assessment
17
activity to be carried out in relation to the entity.
18
(3) The records must be:
19
(a) in English; or
20
(b) readily accessible and easily convertible into English.
21
Registered entities must retain records
22
(4) Subject to subsection (5), the registered entity must retain the
23
records for 7 years after the transactions, operations or acts covered
24
by the records are completed.
25
(5) The Commissioner may notify the entity in writing that it does not
26
need to retain certain records under subsection (4).
27
Responsibilities of registered entities Chapter 3
Record keeping and reporting Part 3-2
Record keeping Division 55
Section 55-10
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 27
Offence
1
(6) A registered entity commits an offence if the entity does not
2
comply with this section.
3
Penalty: 20 penalty units.
4
(7) An offence against subsection (6) is an offence of strict liability.
5
Note:
For strict liability, see section 6.1 of the Criminal Code.
6
55-10 Recognised assessment activity
7
A
recognised assessment activity, in relation to a registered entity,
8
is:
9
(a) an activity carried out by the Commissioner involving
10
assessment of the entity's entitlement to registration as a type
11
or subtype of entity; or
12
(b) an activity carried out by the Commissioner involving
13
assessment of the entity's compliance with this Act and the
14
regulations; or
15
(c) an activity carried out by the Commissioner of Taxation
16
involving assessment of the entity's compliance with any
17
taxation law.
18
19
Chapter 3 Responsibilities of registered entities
Part 3-2 Record keeping and reporting
Division 60 Reporting
Section 60-1
28 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Division 60--Reporting
1
Subdivision 60-A--Overview
2
60-1 Simplified outline
3
The following is a simplified outline of this Division:
4
This Division sets out the reporting obligations for registered
5
entities based upon the entity's size and determined according to
6
whether the entity is a small, medium or large registered entity.
7
All registered entities must provide the Commissioner with an
8
annual information statement.
9
Medium and large entities must also provide the Commissioner
10
with a financial report. Generally, financial reports need to be
11
reviewed for medium entities or audited for large entities.
12
Additional reporting obligations may be placed on registered
13
entities by the Commissioner in special circumstances, for
14
example, if the Commissioner is concerned about an entity's
15
compliance with this Act.
16
Subdivision 60-B--Annual information statements
17
60-5 Registered entities must give annual information statements
18
(1) A registered entity must give a statement (an information
19
statement) for a financial year to the Commissioner in the
20
approved form.
21
Note:
The Commissioner may approve different approved forms for
22
different entities (see subsection 190-10(4)). For example, different
23
forms could be approved for small, medium and large registered
24
entities.
25
(2) The registered entity must give the information statement to the
26
Commissioner no later than 31 December in the following
27
financial year.
28
Responsibilities of registered entities Chapter 3
Record keeping and reporting Part 3-2
Reporting Division 60
Section 60-10
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 29
Note 1:
Section 190-15 allows the Commissioner to defer the time for giving
1
an approved form.
2
Note 2:
Section 175-35 provides for an administrative penalty for failing to
3
give the Commissioner a statement required by this Act within the
4
required time.
5
(3) Any information that the approved form requires to be provided to
6
the Commissioner must be information that relates to, or has the
7
purpose of, enabling recognised assessment activities to be carried
8
out in relation to registered entities.
9
Subdivision 60-C--Annual financial reports
10
60-10 Medium and large registered entities must give annual
11
financial reports
12
(1) A medium registered entity or a large registered entity must give
13
the Commissioner a financial report for a financial year, together
14
with any auditor's report or reviewer's report that the entity is
15
required to obtain under section 60-20 or 60-25.
16
(2) The registered entity must give the reports to the Commissioner no
17
later than 31 December in the following financial year or such later
18
time as the Commissioner allows.
19
Note:
Section 175-35 provides for an administrative penalty for failing to
20
give the Commissioner a statement required by this Act within the
21
required time.
22
60-15 Requirements for annual financial reports
23
(1) The financial report must comply with the requirements set out in
24
the regulations.
25
(2) Any information that the regulations require to be provided to the
26
Commissioner must be information that relates to, or has the
27
purpose of, enabling recognised assessment activities to be carried
28
out in relation to registered entities.
29
Chapter 3 Responsibilities of registered entities
Part 3-2 Record keeping and reporting
Division 60 Reporting
Section 60-20
30 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
60-20 Medium registered entities must have annual financial reports
1
audited or reviewed
2
(1) A medium registered entity must:
3
(a) subject to subsection (2), do both of the following:
4
(i) have its financial report for a financial year reviewed in
5
accordance with this Subdivision;
6
(ii) obtain a reviewer's report; or
7
(b) do both of the following:
8
(i) have its financial report for a financial year audited in
9
accordance with this Subdivision;
10
(ii) obtain an auditor's report.
11
(2) The Commissioner may, by written notice given to the medium
12
registered entity, provide that paragraph (1)(a) does not apply to
13
the financial report.
14
60-25 Large registered entities must have annual financial reports
15
audited
16
A large registered entity must:
17
(a) have its financial report for a financial year audited in
18
accordance with this Subdivision; and
19
(b) obtain an auditor's report.
20
60-30 Audit or review
21
(1) The audit or review must be undertaken by:
22
(a) a registered company auditor (within the meaning of the
23
Corporations Act 2001); or
24
(b)
a
firm:
25
(i) that consents to be appointed, or is appointed, as auditor
26
of a registered entity; and
27
(ii) at least one member of which is a registered company
28
auditor (within the meaning of that Act) who is
29
ordinarily resident in Australia; or
30
(c) an authorised audit company (within the meaning of that
31
Act); or
32
Responsibilities of registered entities Chapter 3
Record keeping and reporting Part 3-2
Reporting Division 60
Section 60-30
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 31
(d) an entity prescribed by the regulations for the purposes of
1
this paragraph.
2
(2) In the case of a review of the financial report of a medium
3
registered entity, an individual who is taken to be a registered
4
company auditor under subsection 324BE(1) of the Corporations
5
Act 2001 is taken to be a registered company auditor for the
6
purposes of this Subdivision.
7
Note:
Subsection 324BE(1) of the Corporations Act 2001 allows certain
8
members of professional accounting bodies who are not registered
9
company auditors to undertake a review.
10
(3) In the case of an audit, the auditor must form an opinion about:
11
(a) whether the financial report satisfies the requirements of this
12
Division; and
13
(b) whether the auditor has been given all information,
14
explanation and assistance necessary for the conduct of the
15
audit; and
16
(c) whether the registered entity has kept financial records
17
sufficient to enable a financial report to be prepared and
18
audited; and
19
(d) whether the registered entity has kept other records as
20
required by this Part.
21
(4) In the case of a review, the reviewer must form a conclusion about:
22
(a) whether, on the basis of the review, anything has come to the
23
reviewer's attention that causes the reviewer to believe that
24
the financial report does not satisfy the requirements of this
25
Division; and
26
(b) whether the reviewer has been given all information,
27
explanation and assistance necessary for the conduct of the
28
review; and
29
(c) whether the registered entity has kept financial records
30
sufficient to enable a financial report to be prepared and
31
reviewed; and
32
(d) whether the registered entity has kept other records as
33
required by this Part.
34
Chapter 3 Responsibilities of registered entities
Part 3-2 Record keeping and reporting
Division 60 Reporting
Section 60-35
32 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
60-35 Audit or review to be conducted in accordance with auditing
1
standards
2
An audit or review must be undertaken in accordance with the
3
auditing standards.
4
60-40 Auditor's or reviewer's independence declaration
5
(1) A registered entity must obtain from its auditor or reviewer:
6
(a) a written declaration that, to the best of the auditor's or
7
reviewer's knowledge and belief, there have been no
8
contraventions of any applicable code of professional
9
conduct in relation to the audit or review; or
10
(b) a written declaration that, to the best of the auditor's or
11
reviewer's knowledge and belief, the only contraventions of
12
any applicable code of professional conduct in relation to the
13
audit or review are those contraventions details of which are
14
set out in the declaration.
15
(2) The declaration must be signed by the auditor or reviewer (or an
16
individual authorised by the auditor or reviewer).
17
60-45 Auditor's report on annual financial report
18
(1) An auditor's report must contain a statement from the auditor as to
19
whether, in the auditor's opinion, the financial report has been
20
prepared in accordance with this Division. If the auditor is not of
21
that opinion, the auditor's report must say why.
22
(2) If the auditor is of the opinion that the financial report has not been
23
prepared in accordance with this Division, the auditor's report
24
must, to the extent it is practicable to do so, quantify the effect that
25
non-compliance has on the financial report. If it is not practicable
26
to quantify the effect fully, the auditor's report must say why.
27
(3) The auditor's report must describe:
28
(a) any material defect or irregularity in the financial report; and
29
(b) any deficiency, failure or shortcoming in respect of the
30
matters mentioned in paragraph 60-30(3)(b), (c) or (d).
31
Responsibilities of registered entities Chapter 3
Record keeping and reporting Part 3-2
Reporting Division 60
Section 60-50
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 33
(4) The auditor's report must include any statements or disclosures
1
required by the auditing standards.
2
60-50 Reviewer's report on annual financial report
3
(1) A reviewer's report must contain a statement from the reviewer as
4
to whether the reviewer has concluded that, on the basis of the
5
review, anything has come to the reviewer's attention that causes
6
the reviewer to believe that the financial report does not satisfy the
7
requirements of this Division. If the auditor has concluded that
8
anything has come to the reviewer's attention that causes the
9
reviewer to so believe, the reviewer's report must say why.
10
(2) If the reviewer has concluded that anything has come to the
11
reviewer's attention that causes the reviewer to believe that the
12
financial report does not satisfy the requirements of this Division,
13
the reviewer's report must, to the extent it is practicable to do so,
14
quantify the effect that non-compliance has on the financial report.
15
If it is not practicable to quantify the effect fully, the reviewer's
16
report must say why.
17
(3) The reviewer's report must describe:
18
(a) any material defect or irregularity in the financial report; and
19
(b) any deficiency, failure or shortcoming in respect of the
20
matters mentioned in paragraph 60-30(4)(b), (c) or (d).
21
(4) The reviewer's report must include any statements or disclosures
22
required by the auditing standards.
23
60-55 Auditor or reviewer to be provided with information and
24
assistance
25
In having its financial report audited or reviewed, a registered
26
entity must ensure that the auditor or reviewer:
27
(a) has access at all reasonable times to the books of the
28
registered entity; and
29
(b) is given all requested information, explanations or other
30
assistance for the purposes of the audit or review.
31
A request under paragraph (b) must be a reasonable one.
32
Chapter 3 Responsibilities of registered entities
Part 3-2 Record keeping and reporting
Division 60 Reporting
Section 60-60
34 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
60-60 Basic religious charities
1
(1) This Subdivision does not apply to a basic religious charity, or to
2
any report relating to a basic religious charity.
3
(2) However, this Subdivision applies to a basic religious charity in
4
relation to a financial year, and to any report for the year relating to
5
the charity, if the charity gives the Commissioner a financial report
6
for the year.
7
Subdivision 60-D--Errors in information statements and
8
financial reports
9
60-65 Errors in information statements and financial reports
10
(1) Subsection (2) applies if:
11
(a) a registered entity gives its information statement or financial
12
report for a financial year to the Commissioner at a time; and
13
(b) after that time, the registered entity identifies a material error
14
in the statement or report.
15
(2) The registered entity must give a corrected statement or report to
16
the Commissioner:
17
(a) if the entity is a small registered entity--within 60 days after
18
the entity identifies the error; or
19
(b) if the entity is a medium registered entity or a large registered
20
entity--within 28 days after the entity identifies the error.
21
Subdivision 60-E--Additional reporting requirements
22
60-70 Object of this Subdivision
23
The object of this Subdivision is to ensure that the Commissioner
24
can require further information to be provided in particular cases.
25
Example: If there is reason to believe that a registered entity has contravened
26
this Act, further information could enable the Commissioner to carry
27
out a recognised assessment activity in relation to the entity.
28
Responsibilities of registered entities Chapter 3
Record keeping and reporting Part 3-2
Reporting Division 60
Section 60-75
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 35
60-75 Additional reporting requirements--particular registered
1
entity
2
Additional report or additional reporting requirements
3
(1) The Commissioner may:
4
(a) determine, in writing, that:
5
(i) a particular registered entity must prepare a report in
6
addition to any other statement or report the registered
7
entity is required to prepare; and
8
(ii) the entity must give that report to the Commissioner by
9
a time specified in the determination; or
10
(b) determine, in writing, that a particular registered entity must:
11
(i) include particular additional information in an
12
information statement or financial report; or
13
(ii) meet particular additional requirements in relation to the
14
manner in which an information statement or financial
15
report is to be prepared.
16
(2) A determination under subsection (1) is not a legislative
17
instrument.
18
Additional reports
19
(3) A determination under paragraph (1)(a) must specify:
20
(a) the information to be included in the report; and
21
(b) any other requirements to be met in relation to the manner in
22
which the report is prepared.
23
(4) A determination under paragraph (1)(a) may require the report to
24
be prepared:
25
(a) for a particular period or periods; or
26
(b) in relation to circumstances as they exist as at a particular
27
date or dates.
28
This subsection does not limit subsection (3).
29
(5) The determination may require the report to be prepared for all
30
periods of a particular kind that start or end on or after a date
31
Chapter 3 Responsibilities of registered entities
Part 3-2 Record keeping and reporting
Division 60 Reporting
Section 60-80
36 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
specified in the determination. This subsection does not limit
1
subsection (3).
2
Determination
3
(6) A determination under subsection (1) may be made in respect of a
4
past or future period but if it is in respect of a past period, the
5
determination must be made no later than 6 years after the end of
6
that period.
7
(7) The Commissioner must give the registered entity written notice of
8
the making of the determination.
9
(8) A determination under subsection (1) must be for the purpose of
10
enabling a recognised assessment activity to be carried out.
11
60-80 Additional reporting requirements--classes of registered
12
entities
13
Additional reports or additional reporting requirements
14
(1) The Commissioner may:
15
(a) make a determination in writing:
16
(i) requiring a particular class of registered entities to
17
prepare a report in addition to any information statement
18
or financial report the entities are required to prepare;
19
and
20
(ii) requiring each entity in that class to give that report to
21
the Commissioner by a time specified in the
22
determination; or
23
(b) make a determination in writing requiring a particular class
24
of registered entities to:
25
(i) include particular additional information in an
26
information statement or financial report; or
27
(ii) meet particular additional requirements in relation to the
28
manner in which an information statement or financial
29
report is prepared.
30
(2) A determination under subsection (1) is a legislative instrument.
31
Responsibilities of registered entities Chapter 3
Record keeping and reporting Part 3-2
Reporting Division 60
Section 60-85
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 37
Additional reports
1
(3) A determination under paragraph (1)(a) must specify:
2
(a) the information to be included in the report; and
3
(b) any other requirements to be met in relation to the manner in
4
which the report is prepared.
5
(4) A determination under paragraph (1)(a) may require the report to
6
be prepared:
7
(a) for a particular period or periods; or
8
(b) in relation to circumstances as they exist as at a particular
9
date or dates.
10
This subsection does not limit subsection (3).
11
(5) The determination may require the report to be prepared for all
12
periods of a particular kind that start or end on or after a date
13
specified in the determination. This subsection does not limit
14
subsection (4).
15
Determinations
16
(6) A determination under subsection (1):
17
(a) may be expressed to be subject to conditions; and
18
(b) may be in respect of a past or future period but if it is in
19
respect of a past period, the determination must be made no
20
later than 6 years after the end of that period.
21
(7) A determination under subsection (1) must be for the purpose of
22
enabling a recognised assessment activity to be carried out.
23
Subdivision 60-F--Substituted accounting periods
24
60-85 Commissioner may approve a different accounting period
25
(1) The Commissioner may allow a registered entity to adopt an
26
accounting period which is a period of 12 months ending on a day
27
other than 30 June (that is, a 12-month period that does not align
28
with the financial year), if the registered entity applies to the
29
Commissioner in the approved form.
30
Chapter 3 Responsibilities of registered entities
Part 3-2 Record keeping and reporting
Division 60 Reporting
Section 60-90
38 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
(2) If the registered entity adopts such an accounting period, this
1
Division applies in relation to a financial year that starts after the
2
entity adopts the new accounting period as if:
3
(a) each reference in this Division (not including this section)
4
and sections 205-25 and 205-35 to the financial year were a
5
reference to the accounting period that starts during the
6
financial year; and
7
(b) the reference in subsections 60-5(2) and 60-10(2) to
8
31 December were a reference to the last day of the 6-month
9
period after the end of the accounting period.
10
(3) A registered entity seeking to adopt such an accounting period may
11
apply, in the approved form, to the Commissioner for the
12
Commissioner to make a decision under subsection (1).
13
60-90 Commissioner may impose conditions
14
(1) The Commissioner may impose conditions on a decision under
15
subsection 60-85(1) to allow the registered entity to adopt such an
16
accounting period.
17
(2) The conditions may be imposed at the time of making the decision
18
or at any later time.
19
(3) The Commissioner may revoke the decision if satisfied that a
20
condition has not been complied with.
21
Subdivision 60-G--Collective and joint reporting
22
60-95 Commissioner may approve collective or joint reporting by
23
related entities
24
Joint reporting
25
(1) The Commissioner may allow 2 or more registered entities
26
(reporting group) to prepare and lodge a single information
27
statement, or a single information statement and a single financial
28
report, in relation to the reporting group for a financial year.
29
Responsibilities of registered entities Chapter 3
Record keeping and reporting Part 3-2
Reporting Division 60
Section 60-95
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 39
Collective reporting
1
(2) The Commissioner may allow a reporting group to prepare and
2
lodge one or more information statements, or one or more single
3
information statements and one or more single financial reports, in
4
relation to the reporting group for a financial year on a basis other
5
than an entity-by-entity basis.
6
Example: The Commissioner may allow a reporting group of affiliated
7
registered entities that advance religion and relieve poverty to prepare
8
and lodge 2 financial reports, one report in relation to the reporting
9
group's religious functions and one in relation to the reporting group's
10
welfare functions.
11
Application in approved form
12
(3) Registered entities seeking to form a reporting group may apply, in
13
the approved form, to the Commissioner for the Commissioner to
14
make a decision under subsection (1) or (2).
15
Commissioner must consider certain issues
16
(4) In deciding whether to allow 2 or more registered entities to form a
17
reporting group, the Commissioner must consider the following:
18
(a) how the public interest in the transparency and accountability
19
of the registered entities is best served, including the possible
20
effect on:
21
(i) the public's understanding of the activities of the
22
registered entities and the information provided in the
23
information statement or financial report; and
24
(ii) the public's ability to rely upon the information
25
provided in the information statement or financial
26
report;
27
(b) how the altered reporting arrangements would affect the
28
Commissioner's ability to assess a registered entity's
29
entitlement to registration or compliance with this Act;
30
(c) whether members of the reporting group have access to the
31
same or different taxation concessions;
32
(d) how the altered reporting arrangements would affect the
33
Commissioner of Taxation's ability to assess a registered
34
entity's compliance with a taxation law;
35
Chapter 3 Responsibilities of registered entities
Part 3-2 Record keeping and reporting
Division 60 Reporting
Section 60-100
40 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
(e) the possible effect on the compliance and administrative
1
costs of registered entities proposed to be included in the
2
reporting group;
3
(f) the degree of affiliation, control and proximity of registered
4
entities proposed to be included in the reporting group;
5
(g) the objects of this Act;
6
(h) any other matter that the Commissioner considers relevant.
7
60-100 Commissioner may impose conditions
8
(1) The Commissioner may impose conditions on a decision under
9
subsection 60-95(1) or (2) to allow 2 or more registered entities to
10
form a reporting group.
11
(2) The conditions may be imposed at the time of making the decision
12
or at any later time.
13
(3) Without limiting subsection (1), the conditions may include one or
14
more of the following:
15
(a) a condition that certain information in an information
16
statement or financial report be separately identified;
17
(b) a condition that additional line items or notes be added to a
18
financial report about the affairs of a particular registered
19
entity (or part thereof);
20
(c) conditions relating to how the information statements and
21
financial reports for the reporting group are to be structured
22
for the purposes of subsection 60-95(2).
23
Example: A reporting group that includes a deductible gift recipient may be
24
made subject to a condition to include information about deductible
25
donations received, and the spending of those donations, in its annual
26
information statement and notes to its financial reports.
27
(4) The Commissioner may revoke the decision if satisfied that a
28
condition has not been complied with.
29
60-105 Treatment of reporting groups as small, medium or large
30
registered entities
31
For the purposes of the application of this Division in relation to
32
the reporting group:
33
Responsibilities of registered entities Chapter 3
Record keeping and reporting Part 3-2
Reporting Division 60
Section 60-105
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 41
(a) the reporting group is to be treated as a large registered entity
1
if one or more of the registered entities that form the
2
reporting group are large registered entities; or
3
(b) the reporting group is to be treated as a medium registered
4
entity if:
5
(i) paragraph (a) does not apply; and
6
(ii) one or more of the registered entities that form the
7
reporting group are medium registered entities; or
8
(c) the reporting group is to be treated as a small registered entity
9
if paragraphs (a) and (b) do not apply.
10
11
Chapter 3 Responsibilities of registered entities
Part 3-3 Duty to notify
Division 65 Duty to notify
Section 65-1
42 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Part 3-3--Duty to notify
1
Division 65--Duty to notify
2
65-1 Simplified outline
3
The following is a simplified outline of this Division:
4
This Division requires registered entities to notify the
5
Commissioner of certain matters, including significant
6
contraventions or non-compliance that result in the entity ceasing
7
to be entitled to registration.
8
65-5 Registered entities must notify Commissioner of certain
9
matters
10
(1) A registered entity must notify the Commissioner in the approved
11
form if any of the following circumstances exist:
12
(a) its name has changed;
13
(b) its address for service has changed;
14
(c) an entity has ceased to be, or has become, a responsible entity
15
of the registered entity;
16
(d) its governing rules have changed;
17
(e) the circumstances described in subsection (2).
18
Note:
Section 175-35 provides for an administrative penalty for failing to
19
give the Commissioner a notice required by this Act within the
20
required time.
21
(2) For the purposes of paragraph (1)(e), the circumstances exist if:
22
(a) the registered entity:
23
(i) has contravened a provision of this Act; or
24
(ii) has not complied with a governance standard or external
25
conduct standard; and
26
(b) the contravention or non-compliance is significant (see
27
subsection (3)); and
28
(c) as a result of the contravention or non-compliance, any of the
29
following apply:
30
Responsibilities of registered entities Chapter 3
Duty to notify Part 3-3
Duty to notify Division 65
Section 65-5
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 43
(i) the registered entity is no longer entitled to be registered
1
as a type of entity under Division 25;
2
(ii) the registered entity is no longer entitled to be registered
3
as a subtype of entity under Division 25.
4
(3) For the purposes of paragraph (2)(b), in determining whether the
5
contravention or non-compliance is significant, take account of the
6
following matters:
7
(a) the nature, significance and persistence of any contravention
8
or non-compliance;
9
(b) the desirability of ensuring that contributions (see
10
section 205-40) to the registered entity are applied
11
consistently with the not-for-profit nature, and the purpose,
12
of the registered entity.
13
(4) The notification must be given:
14
(a) as soon as practicable; and
15
(b) subject to paragraph (c)--no later than 28 days after the
16
registered entity first becomes aware of the circumstances
17
mentioned in subsection (1); and
18
(c) if the registered entity is a small registered entity and the
19
notification relates only to circumstances mentioned in
20
paragraph (1)(a), (b), (c) or (d)--no later than 60 days after
21
the registered entity first becomes aware of those
22
circumstances.
23
(5) To avoid doubt, 2 or more notifications may be included in the
24
same document.
25
26
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-1 Information gathering and monitoring powers
Division 70 Information gathering powers
Section 70-1
44 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Chapter 4--Regulatory powers of the ACNC
1
Commissioner
2
Part 4-1--Information gathering and monitoring
3
powers
4
Division 70--Information gathering powers
5
70-1 Simplified outline
6
The following is a simplified outline of this Division:
7
The Commissioner can gather information necessary to monitor
8
registered entities' compliance with certain provisions and to
9
assess registered entities' ongoing entitlement to registration.
10
The Commissioner can gather information and documents
11
necessary to determine whether information given in compliance
12
with certain provisions is correct.
13
70-5 Commissioner may obtain information and documents
14
(1) This section applies to an entity if the Commissioner reasonably
15
believes that the entity has information or a document that it is
16
reasonably necessary to obtain for the purpose of determining:
17
(a) whether a registered entity has complied, or is complying,
18
with a provision subject to monitoring under Division 75 (see
19
section 75-5); or
20
(b) whether information subject to monitoring under Division 75
21
(see section 75-10) is correct.
22
(2) The Commissioner may, by written notice given to the entity,
23
require the entity:
24
(a) to give to the Commissioner, within the period and in the
25
manner and form specified in the notice, any such
26
information; or
27
Regulatory powers of the ACNC Commissioner Chapter 4
Information gathering and monitoring powers Part 4-1
Information gathering powers Division 70
Section 70-10
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 45
(b) to attend and give evidence before the Commissioner, or an
1
individual authorised by the Commissioner, for the purpose
2
of obtaining such information; or
3
(c) to produce to the Commissioner, within the period and in the
4
manner specified in the notice, any such documents; or
5
(d) to make copies of any such documents and to produce to the
6
Commissioner, within the period and in the manner specified
7
in the notice, those copies.
8
(3) For the purposes of paragraph (1)(b), the Commissioner may
9
require the evidence mentioned in that paragraph:
10
(a) to be given on oath or affirmation; and
11
(b) to be given orally or in writing.
12
For that purpose, the Commissioner or an ACNC officer may
13
administer an oath or affirmation.
14
(4) An entity commits an offence if:
15
(a) the entity is subject to a requirement under subsection (2);
16
and
17
(b) the entity fails to comply with the requirement.
18
Penalty: 20 penalty units.
19
(5) A period specified under subsection (2) must not be shorter than 14
20
days after the notice is given.
21
(6) A notice under subsection (2) must set out the effect of the
22
following provisions:
23
(a)
subsection
(4);
24
(b) sections 137.1 and 137.2 of the Criminal Code (which deal
25
with false or misleading information or documents).
26
70-10 Commissioner may inspect and copy original documents
27
The Commissioner may:
28
(a) inspect a document produced under paragraph 70-5(2)(c);
29
and
30
(b) make and retain copies of the whole or a part of such a
31
document.
32
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-1 Information gathering and monitoring powers
Division 70 Information gathering powers
Section 70-15
46 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
70-15 Commissioner may retain original documents
1
(1) The Commissioner may take, and retain for as long as is necessary,
2
possession of a document produced under paragraph 70-5(2)(c).
3
(2) The entity otherwise entitled to possession of the document is
4
entitled to be supplied, as soon as practicable, with a copy certified
5
by the Commissioner to be a true copy.
6
(3) The certified copy must be received in all courts and tribunals as
7
evidence as if it were the original.
8
(4) Until a certified copy is supplied, the Commissioner must, at such
9
times and places as the Commissioner thinks appropriate, permit
10
the entity otherwise entitled to possession of the document, or an
11
individual authorised by that entity, to inspect and make copies of,
12
or take extracts from, the document.
13
70-20 Commissioner may inspect and retain copies of documents
14
The Commissioner may inspect, and retain possession of, a copy of
15
a document produced under paragraph 70-5(2)(d).
16
70-25 Self-incrimination
17
(1) An entity is not excused from giving information, or producing a
18
document or a copy of a document, under this Division on the
19
ground that the information or the production of the document or
20
copy might tend to incriminate the entity or expose the entity to a
21
penalty.
22
(2) However, in the case of an individual:
23
(a) the information given, or the document or copy produced; or
24
(b) giving the information or producing the document or copy; or
25
(c) any information, document or thing obtained as a direct or
26
indirect consequence of giving the information or producing
27
the document or copy;
28
is not admissible in evidence against the individual in criminal
29
proceedings, or in proceedings for the recovery of a civil penalty,
30
other than:
31
Regulatory powers of the ACNC Commissioner Chapter 4
Information gathering and monitoring powers Part 4-1
Information gathering powers Division 70
Section 70-25
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 47
(d) proceedings for an offence against subsection 70-5(4); or
1
(e) proceedings for an offence against section 137.1 or 137.2 of
2
the Criminal Code (which deal with false or misleading
3
information or documents) that relates to this Act; or
4
(f) proceedings for an offence against section 149.1 of the
5
Criminal Code (which deals with obstruction of
6
Commonwealth public officials) that relates to this Act.
7
8
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-1 Information gathering and monitoring powers
Division 75 Monitoring
Section 75-1
48 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Division 75--Monitoring
1
Subdivision 75-A--Overview
2
75-1 Simplified outline
3
The following is a simplified outline of this Division:
4
This Division allows an ACNC officer to monitor whether certain
5
provisions have been, or are being, complied with.
6
It also allows an ACNC officer to monitor whether information
7
given in compliance, or purported compliance, with certain
8
provisions is correct.
9
An ACNC officer may enter premises for the purpose of
10
monitoring.
11
Entry must be with the consent of the occupier of the premises or
12
under a monitoring warrant.
13
An ACNC officer who enters premises may exercise monitoring
14
powers. The ACNC officer may be assisted by other individuals if
15
that assistance is necessary and reasonable.
16
An occupier's consent to an ACNC officer entering premises for
17
the purposes of monitoring must be voluntary. ACNC officers must
18
abide by the terms of that consent.
19
An ACNC officer who enters premises under a monitoring warrant
20
must give details of the warrant to the occupier of the premises.
21
The occupier of the premises may observe the execution of a
22
monitoring warrant and must provide reasonable facilities and
23
assistance for the effective execution of the warrant.
24
Regulatory powers of the ACNC Commissioner Chapter 4
Information gathering and monitoring powers Part 4-1
Monitoring Division 75
Section 75-5
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 49
Subdivision 75-B--Application of this Division
1
75-5 Provisions subject to monitoring
2
The following provisions are subject to monitoring under this
3
Division:
4
(a) a provision of this Act that creates an offence;
5
(b) a provision of a legislative instrument made under this Act
6
that creates an offence;
7
(c) a provision of the Crimes Act 1914 or the Criminal Code that
8
creates an offence, to the extent that the offence relates to this
9
Act or a legislative instrument made under this Act;
10
(d) a provision of this Act, if non-compliance with the provision
11
gives rise to an administrative penalty;
12
(e) a provision of a legislative instrument made under this Act, if
13
non-compliance with the provision gives rise to an
14
administrative penalty;
15
(f) a provision of this Act creating a condition, if:
16
(i) compliance with the condition is necessary for an entity
17
to be entitled to registration as a type or subtype of
18
entity; or
19
(ii) non-compliance with the condition may lead to an entity
20
having its registration as a type or subtype of entity
21
revoked.
22
Note:
These conditions are contained in sections 25-5 (Entitlement to
23
registration) and 35-10 (Revoking registration).
24
75-10 Information subject to monitoring
25
(1) Information given in compliance or purported compliance with one
26
or more of the following provisions is subject to monitoring under
27
this Division:
28
(a) a provision of this Act or of a legislative instrument made
29
under this Act;
30
(b) a provision of the Crimes Act 1914 or of the Criminal Code,
31
to the extent that the provision relates to this Act or a
32
legislative instrument made under this Act.
33
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-1 Information gathering and monitoring powers
Division 75 Monitoring
Section 75-15
50 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
(2) Information is also subject to monitoring under this Division if:
1
(a) an entity has given the Commissioner the information
2
(whether it did so voluntarily or in fulfilling an obligation to
3
do so); and
4
(b) the information is included on the Register in accordance
5
with Division 40.
6
Subdivision 75-C--Monitoring powers
7
75-15 ACNC officer may enter premises by consent or under a
8
warrant
9
(1) An ACNC officer may enter any premises and exercise the
10
monitoring powers for either or both of the following purposes:
11
(a) determining whether a provision subject to monitoring under
12
this Division has been, or is being, complied with;
13
(b) determining whether information subject to monitoring under
14
this Division is correct.
15
Note: The
monitoring powers are set out in sections 75-20, 75-25 and
16
75-30.
17
(2) However, an ACNC officer is not authorised to enter the premises
18
unless:
19
(a) the occupier of the premises has consented to the entry and
20
the ACNC officer has shown his or her identity card if
21
required by the occupier; or
22
(b) the entry is made under a monitoring warrant.
23
Note:
If entry to the premises is with the occupier's consent, the ACNC
24
officer must leave the premises if the consent ceases to have effect
25
(see section 75-45).
26
75-20 Monitoring powers of ACNC officers
27
The following are the monitoring powers that an ACNC officer
28
may exercise in relation to premises under section 75-15:
29
(a) the power to search the premises and any thing on the
30
premises;
31
(b) the power to examine or observe any activity conducted on
32
the premises;
33
Regulatory powers of the ACNC Commissioner Chapter 4
Information gathering and monitoring powers Part 4-1
Monitoring Division 75
Section 75-25
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 51
(c) the power to inspect, examine, take measurements of, or
1
conduct tests on, any thing on the premises;
2
(d) the power to make any still or moving image or any
3
recording of the premises or any thing on the premises;
4
(e) the power to inspect any document on the premises;
5
(f) the power to take extracts from, or make copies of, any such
6
document;
7
(g) the power to take onto the premises such equipment and
8
materials as the ACNC officer requires for the purpose of
9
exercising powers in relation to the premises;
10
(h) the power to sample any thing on the premises;
11
(i) the powers set out in subsections 75-25(1) and (3) and
12
75-30(2).
13
75-25 Operating electronic equipment
14
(1)
The
monitoring powers include the power to:
15
(a) operate electronic equipment on the premises; and
16
(b) use a disk, tape or other storage device that:
17
(i) is on the premises; and
18
(ii) can be used with the equipment or is associated with it.
19
(2)
The
monitoring powers include the powers mentioned in
20
subsection (3) if information (relevant data) is found in the
21
exercise of the power under subsection (1) that is relevant to
22
determining whether:
23
(a) a provision subject to monitoring under this Division has
24
been, or is being, complied with; or
25
(b) information subject to monitoring under this Division is
26
correct.
27
(3) The powers are as follows:
28
(a) the power to operate electronic equipment on the premises to
29
put the relevant data in documentary form and remove the
30
documents so produced from the premises;
31
(b) the power to operate electronic equipment on the premises to
32
transfer the relevant data to a disk, tape or other storage
33
device that:
34
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-1 Information gathering and monitoring powers
Division 75 Monitoring
Section 75-30
52 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
(i) is brought to the premises for the exercise of the power;
1
or
2
(ii) is on the premises and the use of which for that purpose
3
has been agreed in writing by the occupier of the
4
premises;
5
and remove the disk, tape or other storage device from the
6
premises.
7
(4) An ACNC officer may operate electronic equipment as mentioned
8
in subsection (1) or (3) only if:
9
(a) the ACNC officer believes on reasonable grounds that the
10
operation of the equipment can be carried out without
11
damage to the equipment; and
12
(b) the ACNC officer has reasonable grounds to suspect that:
13
(i) the equipment contains data relevant to determining
14
whether a circumstance described in paragraph (2)(a) or
15
(b) exists; or
16
(ii) the disk, tape or other storage device contains data
17
relevant to determining whether a circumstance
18
described in paragraph (2)(a) or (b) exists.
19
Note:
For compensation for damage to electronic equipment, see
20
section 75-70.
21
75-30 Securing evidence of the contravention of a provision subject
22
to monitoring
23
(1) This section applies if an ACNC officer enters premises (whether
24
under a monitoring warrant or by consent of the occupier) for
25
either or both of the following purposes:
26
(a) determining whether a provision subject to monitoring has
27
been, or is being, complied with;
28
(b) determining whether information subject to monitoring is
29
correct.
30
(2)
The
monitoring powers include the power to secure a thing for a
31
period not exceeding 24 hours if:
32
(a) the thing is found during the exercise of monitoring powers
33
on the premises; and
34
Regulatory powers of the ACNC Commissioner Chapter 4
Information gathering and monitoring powers Part 4-1
Monitoring Division 75
Section 75-30
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 53
(b) an ACNC officer believes on reasonable grounds that:
1
(i) a provision subject to monitoring has been contravened
2
with respect to the thing; or
3
(ii) the thing affords evidence of the contravention of a
4
provision subject to monitoring; or
5
(iii) the thing is intended to be used for the purpose of
6
contravening a provision subject to monitoring; and
7
(c) the ACNC officer suspects on reasonable grounds that:
8
(i) it is necessary to secure the thing in order to prevent it
9
from being concealed, lost or destroyed before a warrant
10
to seize the thing is obtained; and
11
(ii) it is necessary to secure the thing without a warrant
12
because the circumstances are serious and urgent.
13
(3) If an ACNC officer suspects on reasonable grounds that the thing
14
needs to be secured for more than 24 hours, the ACNC officer may
15
apply to an issuing officer for an extension of that period up to a
16
specified time.
17
(4) The ACNC officer must give notice to the occupier of the
18
premises, or an individual who apparently represents the occupier,
19
of his or her intention to apply for an extension. The occupier or
20
individual is entitled to be heard in relation to that application.
21
(5) The issuing officer may issue the extension if he or she is satisfied,
22
by information on oath or affirmation, that it is necessary to do so
23
in order to prevent the thing from being concealed, lost or
24
destroyed before a warrant to seize the thing is obtained.
25
(6) The provisions of this Division relating to the issue of monitoring
26
warrants apply, with such modifications as are necessary, to the
27
issue of an extension.
28
(7) The period may be extended more than once.
29
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-1 Information gathering and monitoring powers
Division 75 Monitoring
Section 75-35
54 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
75-35 Individuals assisting ACNC officers
1
ACNC officers may be assisted by other individuals
2
(1) An ACNC officer may be assisted by other individuals in
3
exercising powers or performing functions or duties under this
4
Division, if that assistance is necessary and reasonable. An
5
individual giving such assistance is an individual assisting the
6
ACNC officer.
7
Powers, functions and duties of an individual assisting the ACNC
8
officer
9
(2) An individual assisting the ACNC officer:
10
(a) may enter the premises; and
11
(b) may exercise powers and perform functions and duties under
12
this Division for the purposes of assisting the ACNC officer
13
to determine whether:
14
(i) a provision subject to monitoring under this Division
15
has been, or is being, complied with; or
16
(ii) information subject to monitoring under this Division is
17
correct; and
18
(c) must do so in accordance with a direction given to the
19
individual assisting by the ACNC officer.
20
(3) A power exercised by an individual assisting the ACNC officer as
21
mentioned in subsection (2) is taken for all purposes to have been
22
exercised by the ACNC officer.
23
(4) A function or duty performed by an individual assisting the ACNC
24
officer as mentioned in subsection (2) is taken for all purposes to
25
have been performed by the ACNC officer.
26
(5) If a direction is given under paragraph (2)(c) in writing, the
27
direction is not a legislative instrument.
28
Regulatory powers of the ACNC Commissioner Chapter 4
Information gathering and monitoring powers Part 4-1
Monitoring Division 75
Section 75-40
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 55
75-40 ACNC officer may ask questions and seek production of
1
documents
2
Application of this section
3
(1) This section applies if an ACNC officer enters premises for the
4
purposes of determining whether:
5
(a) a provision subject to monitoring under this Division has
6
been, or is being, complied with; or
7
(b) information subject to monitoring under this Division is
8
correct.
9
Entry with consent
10
(2) If the entry is authorised because the occupier of the premises
11
consented to the entry, the ACNC officer may ask the occupier to
12
answer any questions, and produce any document, relating to:
13
(a) the operation of the provision; or
14
(b)
the
information.
15
Entry under a monitoring warrant
16
(3) If the entry is authorised by a monitoring warrant, the ACNC
17
officer may require any individual on the premises to answer any
18
questions, and produce any document, relating to:
19
(a) the operation of the provision; or
20
(b)
the
information.
21
(4) An individual is not excused from answering a question, or
22
producing a document or a copy of a document, under
23
subsection (3) on the ground that the answer or the production of
24
the document or copy might tend to incriminate the individual or
25
expose the individual to a penalty.
26
(5)
However:
27
(a) the answer given, or the document or copy produced; or
28
(b) giving the answer or producing the document or copy; or
29
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-1 Information gathering and monitoring powers
Division 75 Monitoring
Section 75-45
56 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
(c) any information, document or thing obtained as a direct or
1
indirect consequence of giving the answer or producing the
2
document or copy;
3
is not admissible in evidence against the individual in criminal
4
proceedings, or in proceedings for the recovery of a civil penalty,
5
other than:
6
(d) proceedings for an offence against subsection (6); or
7
(e) proceedings for an offence against section 137.1 or 137.2 of
8
the Criminal Code (which deal with false or misleading
9
information or documents) that relates to this Act; or
10
(f) proceedings for an offence against section 149.1 of the
11
Criminal Code (which deals with obstruction of
12
Commonwealth public officials) that relates to this Act.
13
Offence
14
(6) An individual commits an offence if:
15
(a) the individual is subject to a requirement under
16
subsection (3); and
17
(b) the individual fails to comply with the requirement.
18
Penalty for contravention of this subsection: 20 penalty units.
19
Subdivision 75-D--Obligations and incidental powers of ACNC
20
officers
21
75-45 Consent
22
(1) Before obtaining the consent of an occupier of premises for the
23
purposes of paragraph 75-15(2)(a), an ACNC officer must inform
24
the occupier that the occupier may refuse consent.
25
(2) A consent has no effect unless the consent is voluntary.
26
(3) A consent may be expressed to be limited to entry during a
27
particular period. If so, the consent has effect for that period unless
28
the consent is withdrawn before the end of that period.
29
(4) The occupier may extend the period of a consent that is limited as
30
mentioned in subsection (3).
31
Regulatory powers of the ACNC Commissioner Chapter 4
Information gathering and monitoring powers Part 4-1
Monitoring Division 75
Section 75-50
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 57
(5) A consent that is not limited as mentioned in subsection (3) has
1
effect until the consent is withdrawn.
2
(6) If an ACNC officer entered premises because of the consent of the
3
occupier of the premises, the ACNC officer, and any individual
4
assisting the ACNC officer, must leave the premises if the consent
5
ceases to have effect.
6
75-50 Announcement before entry under warrant
7
(1) Before entering premises under a monitoring warrant, an ACNC
8
officer must:
9
(a) announce that he or she is authorised to enter the premises;
10
and
11
(b) show his or her identity card to the occupier of the premises,
12
or to an individual who apparently represents the occupier, if
13
the occupier or individual is present at the premises; and
14
(c) give any individual at the premises an opportunity to allow
15
entry to the premises.
16
(2) However, an ACNC officer is not required to comply with
17
subsection (1) if the ACNC officer believes on reasonable grounds
18
that immediate entry to the premises is required:
19
(a) to ensure the safety of an individual; or
20
(b) to ensure that the effective execution of the warrant is not
21
frustrated.
22
(3)
If:
23
(a) an ACNC officer does not comply with subsection (1)
24
because of subsection (2); and
25
(b) the occupier of the premises, or an individual who apparently
26
represents the occupier, is present at the premises;
27
the ACNC officer must show his or her identity card to the
28
occupier or individual as soon as practicable after entering the
29
premises.
30
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-1 Information gathering and monitoring powers
Division 75 Monitoring
Section 75-55
58 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
75-55 ACNC officer to be in possession of warrant
1
An ACNC officer executing a monitoring warrant must be in
2
possession of the warrant or a copy of the warrant.
3
75-60 Details of warrant etc. to be given to occupier
4
(1) An ACNC officer must comply with subsection (2) if:
5
(a) a monitoring warrant is being executed in relation to
6
premises; and
7
(b) the occupier of the premises, or an individual who apparently
8
represents the occupier, is present at the premises.
9
(2) The ACNC officer must, as soon as practicable:
10
(a) make a copy of the warrant available to the occupier or
11
individual (which need not include the signature of the
12
issuing officer who issued it); and
13
(b) inform the occupier or individual of the rights and
14
responsibilities of the occupier or individual under
15
Subdivision 75-E, in English.
16
75-65 Expert assistance to operate electronic equipment
17
(1) This section applies if an ACNC officer enters premises (whether
18
under a monitoring warrant or by consent of the occupier).
19
Securing equipment
20
(2) The ACNC officer may secure any electronic equipment that is on
21
the premises if the ACNC officer suspects on reasonable grounds
22
that:
23
(a) there is relevant data on the premises; and
24
(b) the relevant data may be accessible by operating the
25
equipment; and
26
(c) expert assistance is required to operate the equipment; and
27
(d) the relevant data may be destroyed, altered or otherwise
28
interfered with, if the ACNC officer does not take action
29
under this subsection.
30
Regulatory powers of the ACNC Commissioner Chapter 4
Information gathering and monitoring powers Part 4-1
Monitoring Division 75
Section 75-65
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 59
The equipment may be secured by locking it up, placing a guard or
1
any other means.
2
(3)
Relevant data means information relevant to determining whether:
3
(a) a provision that is subject to monitoring under this Division
4
has been, or is being, complied with; or
5
(b) information subject to monitoring under this Division is
6
correct.
7
(4) The ACNC officer must give notice to the occupier of the
8
premises, or an individual who apparently represents the occupier,
9
of:
10
(a) the ACNC officer's intention to secure the equipment; and
11
(b) the fact that the equipment may be secured for up to 24
12
hours.
13
Period equipment may be secured
14
(5) The equipment may be secured until the earlier of the following
15
happens:
16
(a) the 24-hour period ends;
17
(b) the equipment has been operated by the expert.
18
Note:
For compensation for damage to electronic equipment, see
19
section 75-70.
20
Extensions
21
(6) The ACNC officer may apply to an issuing officer for an extension
22
of the 24-hour period up to a specified time if the ACNC officer
23
suspects on reasonable grounds that the equipment needs to be
24
secured for longer than that period.
25
(7) Before making the application, the ACNC officer must give notice
26
to the occupier of the premises, or an individual who apparently
27
represents the occupier, of his or her intention to apply for an
28
extension. The occupier or individual is entitled to be heard in
29
relation to that application.
30
(8) The issuing officer may issue the extension if he or she is satisfied,
31
by information on oath or affirmation, that it is necessary to do so
32
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-1 Information gathering and monitoring powers
Division 75 Monitoring
Section 75-70
60 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
in order to prevent the destruction, alteration or interference with
1
the relevant data.
2
(9) The provisions of this Division relating to the issue of monitoring
3
warrants apply, with such modifications as are necessary, to the
4
issue of an extension.
5
(10) The period may be extended more than once.
6
75-70 Compensation for damage to electronic equipment
7
(1) This section applies if:
8
(a) as a result of electronic equipment being operated as
9
mentioned in this Division:
10
(i) damage is caused to the equipment; or
11
(ii) the data recorded on the equipment is damaged; or
12
(iii) programs associated with the use of the equipment, or
13
with the use of the data, are damaged or corrupted; and
14
(b) the damage or corruption occurs because:
15
(i) insufficient care was exercised in selecting the
16
individual who was to operate the equipment; or
17
(ii) insufficient care was exercised by the individual
18
operating the equipment.
19
(2) The Commonwealth must pay the owner of the equipment, or the
20
user of the data or programs, such reasonable compensation for the
21
damage or corruption as the Commonwealth and the owner or user
22
agree on.
23
(3) However, if the owner or user and the Commonwealth fail to
24
agree, the owner or user may institute proceedings in a designated
25
court for such reasonable amount of compensation as the court
26
determines.
27
(4) In determining the amount of compensation payable, regard is to
28
be had to whether the occupier of the premises, or the occupier's
29
employees or agents, if they were available at the time, provided
30
any appropriate warning or guidance on the operation of the
31
equipment.
32
Regulatory powers of the ACNC Commissioner Chapter 4
Information gathering and monitoring powers Part 4-1
Monitoring Division 75
Section 75-75
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 61
Subdivision 75-E--Occupier's rights and responsibilities
1
75-75 Occupier entitled to observe execution of warrant
2
(1) The occupier of premises to which a monitoring warrant relates, or
3
an individual who apparently represents the occupier, is entitled to
4
observe the execution of the monitoring warrant if the occupier or
5
individual is present at the premises while the warrant is being
6
executed.
7
(2) The right to observe the execution of the warrant ceases if the
8
occupier or individual impedes that execution.
9
(3) This section does not prevent the execution of the warrant in 2 or
10
more areas of the premises at the same time.
11
75-80 Occupier to provide ACNC officer with facilities and
12
assistance
13
(1) The occupier of premises to which a monitoring warrant relates, or
14
an individual who apparently represents the occupier, must
15
provide:
16
(a) an ACNC officer executing the warrant; and
17
(b) any individual assisting the ACNC officer;
18
with all reasonable facilities and assistance for the effective
19
exercise of their powers.
20
(2) An individual commits an offence if:
21
(a) the individual is subject to subsection (1); and
22
(b) the individual fails to comply with that subsection.
23
Penalty for contravention of this subsection: 20 penalty units.
24
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-1 Information gathering and monitoring powers
Division 75 Monitoring
Section 75-85
62 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Subdivision 75-F--Monitoring warrants
1
75-85 Monitoring warrants
2
Application for warrant
3
(1) The Commissioner may apply to an issuing officer for a warrant
4
under this section in relation to premises.
5
Issue of warrant
6
(2) The issuing officer may issue the warrant if the issuing officer is
7
satisfied, by information on oath or affirmation, that it is necessary
8
that one or more ACNC officers should have access to the
9
premises for the purpose of determining whether:
10
(a) a provision that is subject to monitoring under this Division
11
has been, or is being, complied with; or
12
(b) information subject to monitoring under this Division is
13
correct.
14
(3) However, the issuing officer must not issue the warrant unless the
15
Commissioner or some other individual has given to the issuing
16
officer, either orally or by affidavit, such further information (if
17
any) as the issuing officer requires concerning the grounds on
18
which the issue of the warrant is being sought.
19
Content of warrant
20
(4)
The
warrant
must:
21
(a) describe the premises to which the warrant relates; and
22
(b) state that the warrant is issued under this section; and
23
(c) state the purpose for which the warrant is issued; and
24
(d) authorise one or more ACNC officers (whether or not named
25
in the warrant) from time to time while the warrant remains
26
in force:
27
(i) to enter the premises; and
28
(ii) to exercise the powers set out in this Division in relation
29
to the premises; and
30
Regulatory powers of the ACNC Commissioner Chapter 4
Information gathering and monitoring powers Part 4-1
Monitoring Division 75
Section 75-90
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 63
(e) state whether entry is authorised to be made at any time of
1
the day or during specified hours of the day; and
2
(f) specify the day (not more than 1 month after the issue of the
3
warrant) on which the warrant ceases to be in force.
4
Subdivision 75-G--Powers of issuing officers
5
75-90 Powers of issuing officers
6
Powers conferred personally
7
(1) A power conferred on an issuing officer by this Division is
8
conferred on the issuing officer:
9
(a) in a personal capacity; and
10
(b) not as a court or a member of a court.
11
Powers need not be accepted
12
(2) The issuing officer need not accept the power conferred.
13
Protection and immunity
14
(3) An issuing officer exercising a power conferred by this Division
15
has the same protection and immunity as if the issuing officer were
16
exercising the power:
17
(a) as the court of which the issuing officer is a member; or
18
(b) as a member of the court of which the issuing officer is a
19
member.
20
Subdivision 75-H--General provisions
21
75-95 Identity cards
22
(1) The Commissioner must issue an identity card to an ACNC officer
23
who the Commissioner considers is likely to exercise powers and
24
functions under this Division.
25
Form of identity card
26
(2) The identity card must:
27
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-1 Information gathering and monitoring powers
Division 75 Monitoring
Section 75-95
64 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
(a) be in the form set out in writing by the Commissioner; and
1
(b) contain a recent photograph of the ACNC officer.
2
Offence
3
(3) An individual commits an offence if:
4
(a) the individual has been issued with an identity card; and
5
(b) the individual ceases to be an ACNC officer; and
6
(c) the individual does not return the identity card to the
7
Commissioner within 14 days after ceasing to be an ACNC
8
officer.
9
Penalty: 1 penalty unit.
10
(4) An offence against subsection (3) is an offence of strict liability.
11
Note:
For strict liability, see section 6.1 of the Criminal Code.
12
Defence: card lost or destroyed
13
(5) Subsection (3) does not apply if the identity card was lost or
14
destroyed.
15
Note:
A defendant bears an evidential burden in relation to the matter in this
16
subsection (see subsection 13.3(3) of the Criminal Code).
17
ACNC officer must carry card
18
(6) An ACNC officer must carry his or her identity card at all times
19
when exercising powers under this Division as an ACNC officer.
20
21
Regulatory powers of the ACNC Commissioner Chapter 4
Enforcement powers Part 4-2
Warnings Division 80
Section 80-1
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 65
Part 4-2--Enforcement powers
1
Division 80--Warnings
2
80-1 Simplified outline
3
The following is a simplified outline of this Division:
4
The Commissioner may give a registered entity a warning notice if:
5
(a)
the entity is a federally regulated entity and the
6
Commissioner reasonably believes that the entity
7
has contravened a provision of this Act, or that it is
8
more likely than not that the entity will contravene
9
a provision of this Act; or
10
(b)
the entity is a federally regulated entity and the
11
Commissioner reasonably believes that the entity
12
has not complied with a governance standard, or
13
that it is more likely than not that the entity will
14
not comply with a governance standard; or
15
(c)
the Commissioner reasonably believes that the
16
entity has not complied with an external conduct
17
standard, or that it is more likely than not that the
18
entity will not comply with an external conduct
19
standard.
20
The notice may inform the registered entity of the circumstances in
21
relation to the contravention or non-compliance and outline actions
22
that could be taken under this Act in response to the contravention
23
or non-compliance.
24
80-5 Commissioner may issue formal warning
25
(1) Subsection (2) applies if:
26
(a) a registered entity is a federally regulated entity and the
27
Commissioner reasonably believes that:
28
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-2 Enforcement powers
Division 80 Warnings
Section 80-5
66 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
(i) the registered entity has contravened a provision of this
1
Act; or
2
(ii) it is more likely than not that the registered entity will
3
contravene a provision of this Act; or
4
(b) a registered entity is a federally regulated entity and the
5
Commissioner reasonably believes that:
6
(i) the registered entity has not complied with a governance
7
standard; or
8
(ii) it is more likely than not that the registered entity will
9
not comply with a governance standard; or
10
(c) the Commissioner reasonably believes that:
11
(i) a registered entity has not complied with an external
12
conduct standard; or
13
(ii) it is more likely than not that a registered entity will not
14
comply with an external conduct standard.
15
(2) The Commissioner may, by written notice given to the registered
16
entity:
17
(a) inform the registered entity of the circumstances in relation to
18
the contravention, likely contravention, non-compliance or
19
likely non-compliance; and
20
(b) warn the registered entity of the action that may be taken
21
under this Act in response to the contravention, likely
22
contravention, non-compliance or likely non-compliance.
23
Note:
Information relating to warnings may be placed on the Register in
24
accordance with Division 40.
25
(3) In deciding whether to give a warning, and deciding the content of
26
the warning, the Commissioner must take account of the matters
27
mentioned in subsection 35-10(2).
28
29
Regulatory powers of the ACNC Commissioner Chapter 4
Enforcement powers Part 4-2
Directions Division 85
Section 85-1
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 67
Division 85--Directions
1
Subdivision 85-A--Overview
2
85-1 Simplified outline
3
The following is a simplified outline of this Division:
4
The Commissioner's guidance and education (see section
110-10
) will
5
assist registered entities to comply with and understand their
6
obligations under this Act. However, where enforcement action is
7
required, the Commissioner's range of enforcement powers includes
8
the power to issue directions, so that the Commissioner can provide a
9
proportionate and effective regulatory response.
10
The Commissioner may give a registered entity a written direction
11
if:
12
(a)
the entity is a federally regulated entity and the
13
Commissioner reasonably believes that the entity
14
has contravened a provision of this Act, or that it is
15
more likely than not that the entity will contravene
16
a provision of this Act; or
17
(b)
the entity is a federally regulated entity and the
18
Commissioner reasonably believes that the entity
19
has not complied with a governance standard, or
20
that it is more likely than not that the entity will
21
not comply with a governance standard; or
22
(c)
the Commissioner reasonably believes that the
23
entity has not complied with an external conduct
24
standard, or that it is more likely than not that the
25
entity will not comply with an external conduct
26
standard.
27
The Commissioner may only issue directions that the
28
Commissioner considers are necessary to address the contravention
29
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-2 Enforcement powers
Division 85 Directions
Section 85-5
68 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
or non-compliance, and may only do so after considering a range
1
of policy matters.
2
A decision of the Commissioner to issue a direction is reviewable
3
in accordance with Part 7-2.
4
A registered entity that does not comply with a direction commits
5
an offence.
6
Subdivision 85-B--Commissioner's power to give directions
7
85-5 Commissioner may give directions in certain circumstances
8
(1) The Commissioner may give a registered entity a written direction
9
of a kind specified in subsection 85-10(1) only if:
10
(a) the registered entity is a federally regulated entity and the
11
Commissioner reasonably believes that:
12
(i) the registered entity has contravened a provision of this
13
Act; or
14
(ii) it is more likely than not that the registered entity will
15
contravene a provision of this Act; or
16
(b) the registered entity is a federally regulated entity and the
17
Commissioner reasonably believes that:
18
(i) the registered entity has not complied with a governance
19
standard; or
20
(ii) it is more likely than not that the registered entity will
21
not comply with a governance standard; or
22
(c) the Commissioner reasonably believes that:
23
(i) the registered entity has not complied with an external
24
conduct standard; or
25
(ii) it is more likely than not that the registered entity will
26
not comply with an external conduct standard.
27
(2) In deciding whether to give a direction, and deciding the content of
28
the direction, the Commissioner must take account of the matters
29
mentioned in subsection 35-10(2).
30
(3) The direction must:
31
Regulatory powers of the ACNC Commissioner Chapter 4
Enforcement powers Part 4-2
Directions Division 85
Section 85-10
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 69
(a) specify the ground or grounds mentioned in subsection (1) on
1
the basis of which the direction is given; and
2
(b) specify the time by which, or the period during which, the
3
registered entity must comply with the direction.
4
85-10 Kinds of direction
5
(1) The kinds of direction that the registered entity may be given are
6
directions to:
7
(a) do a specified act that:
8
(i) if paragraph 85-5(1)(a) applies--the Commissioner
9
considers is necessary to address the contravention
10
mentioned in that paragraph (or prevent the likely
11
contravention mentioned in that paragraph); or
12
(ii) if paragraph 85-5(1)(b) or (c) applies--the
13
Commissioner considers is necessary to address the
14
non-compliance mentioned in that paragraph (or prevent
15
the likely non-compliance mentioned in that paragraph);
16
or
17
(b) not do a specified act that:
18
(i) if paragraph 85-5(1)(a) applies--the Commissioner
19
considers is necessary to refrain from doing to address
20
the contravention mentioned in that paragraph (or
21
prevent the likely contravention mentioned in that
22
paragraph); or
23
(ii) if paragraph 85-5(1)(b) or (c) applies--the
24
Commissioner considers is necessary to refrain from
25
doing to address the non-compliance mentioned in that
26
paragraph (or prevent the likely non-compliance
27
mentioned in that paragraph).
28
Note:
Information relating to directions, variations of directions and
29
revocations of directions may be placed on the Register in accordance
30
with Division 40.
31
(2) Without limiting the generality of paragraphs (1)(a) and (b), the
32
direction may be:
33
(a) to ensure that an individual covered by subsection (3) does
34
not make, or participate in making, decisions that affect the
35
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-2 Enforcement powers
Division 85 Directions
Section 85-15
70 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
whole, or a substantial part, of the business of the registered
1
entity; or
2
(b) to not enter into a specified commercial transaction, financial
3
transaction or other transaction, including the following:
4
(i) borrowing any amount;
5
(ii) repaying any money on deposit or advance;
6
(iii) paying or transferring any amount or asset to any entity,
7
or creating an obligation (contingent or otherwise) to do
8
so.
9
(3) This subsection covers an individual (other than a responsible
10
entity of the registered entity):
11
(a) who makes, or participates in making, decisions that affect
12
the whole, or a substantial part, of the business of the
13
registered entity; or
14
(b) who has the capacity to affect significantly the registered
15
entity's financial standing; or
16
(c) in accordance with whose instructions or wishes the
17
responsible entities of the registered entity are accustomed to
18
act (excluding advice given by the individual in the proper
19
performance of functions attaching to the individual's
20
professional capacity or his or her business relationship with
21
the responsible entities of the registered entity).
22
(4) Without limiting the generality of subsection (1), the direction
23
may:
24
(a) specify a particular class of acts or particular classes of acts;
25
or
26
(b) make different provision with respect to different acts or
27
different classes of acts.
28
(5) A direction does not apply to the payment or transfer of money
29
pursuant to an order of a court or a process of execution.
30
85-15 Power to comply with directions
31
The registered entity has power to comply with the direction
32
despite anything in its governing rules or any contract or
33
arrangement to which it is a party.
34
Regulatory powers of the ACNC Commissioner Chapter 4
Enforcement powers Part 4-2
Directions Division 85
Section 85-20
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 71
85-20 Variation and revocation of directions
1
(1) The Commissioner may, by notice in writing to the registered
2
entity, vary the direction if, at the time of the variation, the
3
Commissioner considers that the variation is necessary and
4
appropriate.
5
(2) In deciding whether to vary a direction, and deciding the content of
6
the variation, the Commissioner must take account of the matters
7
mentioned in subsection 35-10(2).
8
(3) The direction has effect until the Commissioner revokes it by
9
notice in writing to the registered entity. The Commissioner may
10
revoke the direction if, at the time of revocation, the Commissioner
11
considers that the direction is no longer necessary or appropriate.
12
(4) In deciding whether to revoke a direction, the Commissioner must
13
take account of the matters mentioned in subsection 35-10(2).
14
(5) Subsection (6) applies if:
15
(a)
either:
16
(i) the Commissioner gives a direction to the registered
17
entity at a time; or
18
(ii) the Commissioner varies a direction at a time; and
19
(b) the Commissioner does not vary or revoke the direction for
20
12 months after that time.
21
(6) The Commissioner must consider within a reasonable time after
22
the end of that 12 months whether it would be reasonable to vary
23
or revoke the direction.
24
85-25 Objections
25
A registered entity that is dissatisfied with any of the following
26
decisions may object against it in the manner set out in Part 7-2:
27
(a) a decision to give a direction;
28
(b) a decision to vary a direction;
29
(c) a decision not to vary or revoke a direction after considering
30
whether to vary or revoke it in accordance with subsection
31
85-20(6).
32
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-2 Enforcement powers
Division 85 Directions
Section 85-30
72 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Subdivision 85-C--Non-compliance with a direction
1
85-30 Non-compliance with a direction
2
(1) A registered entity commits an offence if:
3
(a) it does, or fails to do, an act; and
4
(b) doing, or failing to do, the act results in a contravention of a
5
direction given to it under Subdivision 85-B.
6
Penalty: 40 penalty units.
7
Note:
If a body corporate is convicted of an offence against this subsection,
8
subsection 4B(3) of the Crimes Act 1914 allows a court to impose a
9
fine of up to 5 times the penalty stated above.
10
(2) If a registered entity does or fails to do an act in circumstances that
11
give rise to the registered entity committing an offence against
12
subsection (1), the registered entity commits an offence against that
13
subsection in respect of:
14
(a) the first day on which the offence is committed; and
15
(b) each subsequent day (if any) on which the circumstances that
16
gave rise to the registered entity committing the offence
17
continue (including the day of conviction for any such
18
offence or any later day).
19
Note:
This subsection is not intended to imply that section 4K of the Crimes
20
Act 1914 does not apply to offences against this Act or the regulations.
21
22
Regulatory powers of the ACNC Commissioner Chapter 4
Enforcement powers Part 4-2
Enforceable undertakings Division 90
Section 90-1
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 73
Division 90--Enforceable undertakings
1
90-1 Simplified outline
2
The following is a simplified outline of this Division:
3
The Commissioner's guidance and education (see section
110-10
) will
4
assist registered entities to comply with and understand their
5
obligations under this Act. However, where enforcement action is
6
required, the Commissioner's range of enforcement powers includes
7
the power to accept enforceable undertakings, so that the
8
Commissioner can provide a proportionate and effective regulatory
9
response.
10
This Division provides the Commissioner with the authority to
11
accept an undertaking relating to provisions in this Act or in
12
legislative instruments made under this Act from a registered entity
13
that is a federally regulated entity. The Commissioner will also
14
have the authority to accept an undertaking relating to external
15
conduct standards from any registered entity.
16
Undertakings may be enforced in a designated court. The orders
17
that may be made by a court include an order directing compliance
18
with an undertaking, an order requiring any financial benefit from
19
a failure to comply with an undertaking to be surrendered, an order
20
for damages, and any other orders that the court considers
21
appropriate.
22
90-5 Enforceable provisions
23
The following provisions are enforceable under this Division:
24
(a) a provision of this Act;
25
(b) a governance standard or external conduct standard;
26
(c) a provision of a legislative instrument made under this Act.
27
90-10 Acceptance of undertakings
28
(1)
The
Commissioner may accept any of the following undertakings:
29
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-2 Enforcement powers
Division 90 Enforceable undertakings
Section 90-10
74 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
(a) a written undertaking given by a registered entity that is a
1
federally regulated entity that the entity will, in order to
2
comply with a provision enforceable under this Division, take
3
specified action;
4
(b) a written undertaking given by a registered entity that is a
5
federally regulated entity that the entity will, in order to
6
comply with a provision enforceable under this Division,
7
refrain from taking specified action;
8
(c) a written undertaking given by a registered entity that is a
9
federally regulated entity that the entity will take specified
10
action directed towards ensuring that:
11
(i) the entity does not contravene a provision enforceable
12
under this Division in the future; or
13
(ii) it is more likely than not that the entity will not
14
contravene such a provision in the future.
15
(2)
The
Commissioner may accept any of the following undertakings:
16
(a) a written undertaking given by a registered entity that the
17
entity will, in order to comply with an external conduct
18
standard, take specified action;
19
(b) a written undertaking given by a registered entity that the
20
entity will, in order to comply with an external conduct
21
standard, refrain from taking specified action;
22
(c) a written undertaking given by a registered entity that the
23
entity will take specified action directed towards ensuring
24
that:
25
(i) the entity does not fail to comply with an external
26
conduct standard in the future; or
27
(ii) the entity is more likely than not to comply with such a
28
standard in the future.
29
(3) The undertaking must be expressed to be an undertaking under this
30
section.
31
Note:
Information relating to undertakings may be placed on the Register in
32
accordance with Division 40.
33
(4) The entity may withdraw or vary the undertaking at any time, but
34
only with the written consent of the Commissioner.
35
Regulatory powers of the ACNC Commissioner Chapter 4
Enforcement powers Part 4-2
Enforceable undertakings Division 90
Section 90-15
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 75
(5) The written consent of the Commissioner is not a legislative
1
instrument.
2
(6) The Commissioner may, by written notice given to the entity,
3
cancel the undertaking.
4
90-15 Enforcement of undertakings
5
(1)
If:
6
(a) the Commissioner has been given an undertaking under
7
section 90-10; and
8
(b) the undertaking has not been withdrawn or cancelled; and
9
(c) the Commissioner considers that the entity that gave the
10
undertaking has breached the undertaking;
11
the Commissioner may apply to a designated court for an order
12
under subsection (2).
13
(2) The court may make any or all of the orders mentioned in
14
subsection (3) if it is satisfied that:
15
(a) the entity has breached the undertaking; and
16
(b) the entity is still a registered entity; and
17
(c) if the Commissioner was given the undertaking under
18
subsection 90-10(1) (undertakings by federally regulated
19
entities)--the entity is still a federally regulated entity.
20
(3) The orders are as follows:
21
(a) an order directing the entity to comply with the undertaking;
22
(b) an order directing the entity to pay to the Commonwealth an
23
amount up to the amount of any financial benefit that the
24
entity has obtained directly or indirectly and that is
25
reasonably attributable to the breach;
26
(c) any order that the court considers appropriate directing the
27
entity to compensate any other entity that has suffered loss or
28
damage as a result of the breach;
29
(d) any other order that the court considers appropriate.
30
31
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-2 Enforcement powers
Division 95 Injunctions
Section 95-1
76 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Division 95--Injunctions
1
95-1 Simplified outline
2
The following is a simplified outline of this Division:
3
The Commissioner's guidance and education (see section
110-10
) will
4
assist registered entities to comply with and understand their
5
obligations under this Act. However, where enforcement action is
6
required, the Commissioner's range of enforcement powers includes
7
the power to apply for injunctions, so that the Commissioner can
8
provide a proportionate and effective regulatory response.
9
A designated court may grant an injunction (including a consent
10
injunction or interim injunction) in the enforcement of provisions
11
enforceable under this Division if:
12
(a)
the injunction or interim injunction relates to a
13
registered entity that is a federally regulated entity;
14
or
15
(b)
the injunction or interim injunction relates to a
16
registered entity and is in respect of an external
17
conduct standard.
18
Injunctions may restrain registered entities from contravening a
19
provision enforceable under this Division, or compel the doing of a
20
thing.
21
95-5 Enforceable provisions
22
The following provisions are enforceable under this Division:
23
(a) a provision of this Act;
24
(b) a governance standard or external conduct standard;
25
(c) a provision of a legislative instrument made under this Act.
26
Regulatory powers of the ACNC Commissioner Chapter 4
Enforcement powers Part 4-2
Injunctions Division 95
Section 95-10
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 77
95-10 Injunctions relating to federally regulated entity etc.
1
A designated court may grant an injunction or an interim injunction
2
under this Division only if:
3
(a) the injunction or interim injunction relates to a registered
4
entity that is a federally regulated entity; or
5
(b) the injunction or interim injunction relates to a registered
6
entity and is in respect of an external conduct standard.
7
95-15 Grant of injunctions
8
Restraining injunctions
9
(1) If a person has engaged, is engaging or is proposing to engage, in
10
conduct in contravention of a provision enforceable under this
11
Division, a designated court may, on application by the
12
Commissioner, grant an injunction:
13
(a) restraining the person from engaging in the conduct; and
14
(b) if, in the court's opinion, it is desirable to do so--requiring
15
the person to do a thing.
16
Performance injunctions
17
(2)
If:
18
(a) a person has refused or failed, or is refusing or failing, or is
19
proposing to refuse or fail, to do a thing; and
20
(b) the refusal or failure was, is or would be a contravention of a
21
provision enforceable under this Division;
22
the designated court may, on application by the Commissioner,
23
grant an injunction requiring the person to do that thing.
24
Consent injunctions
25
(3) A designated court may grant an injunction by consent of all the
26
parties to proceedings under this section, whether or not the court
27
is satisfied that the person has contravened, or will contravene, a
28
provision enforceable under this Division.
29
Note:
Information relating to injunctions may be placed on the Register in
30
accordance with Division 40.
31
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-2 Enforcement powers
Division 95 Injunctions
Section 95-20
78 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
95-20 Interim injunctions
1
Grant of interim injunctions
2
(1) Before deciding an application for an injunction under
3
section 95-15, a designated court may grant an interim injunction:
4
(a) restraining a person from engaging in conduct; or
5
(b) requiring a person to do a thing.
6
No undertakings as to damages
7
(2) The designated court must not require the Commissioner to give an
8
undertaking as to damages as a condition of granting an interim
9
injunction.
10
95-25 Discharging or varying injunctions
11
A designated court may discharge or vary an injunction granted by
12
that court under this Division.
13
95-30 Certain limits on granting injunctions not to apply
14
Restraining injunctions
15
(1) The power of a court under this Division to grant an injunction
16
restraining a person from engaging in conduct may be exercised:
17
(a) whether or not it appears to the court that the person intends
18
to engage again, or to continue to engage, in conduct of that
19
kind; and
20
(b) whether or not the person has previously engaged in conduct
21
of that kind; and
22
(c) whether or not there is an imminent danger of substantial
23
damage to any other entity if the person engages in conduct
24
of that kind.
25
Performance injunctions
26
(2) The power of a court under this Division to grant an injunction
27
requiring a person to do a thing may be exercised:
28
Regulatory powers of the ACNC Commissioner Chapter 4
Enforcement powers Part 4-2
Injunctions Division 95
Section 95-35
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 79
(a) whether or not it appears to the court that the person intends
1
to refuse or fail again, or to continue to refuse or fail, to do
2
that thing; and
3
(b) whether or not the person has previously refused or failed to
4
do that thing; and
5
(c) whether or not there is an imminent danger of substantial
6
damage to any other entity if the person refuses or fails to do
7
that thing.
8
95-35 Court to take account of objects of this Act
9
In exercising the powers conferred on a court under this Division,
10
the court must take into account the objects of this Act.
11
95-40 Other powers of a court unaffected
12
The powers conferred on a court under this Division are in addition
13
to, and not instead of, any other powers of the court, whether
14
conferred by this Act or otherwise.
15
16
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-2 Enforcement powers
Division 100 Suspension and removal of responsible entities
Section 100-1
80 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Division 100--Suspension and removal of responsible
1
entities
2
Subdivision 100-A--Overview
3
100-1 Simplified outline
4
The following is a simplified outline of this Division:
5
The Commissioner's guidance and education (see section
110-10
) will
6
assist registered entities to comply with and understand their
7
obligations under this Act. However, where enforcement action is
8
required, the Commissioner's range of enforcement powers includes
9
the power to
suspend or remove a responsible entity of a registered
10
entity
, so that the Commissioner can provide a proportionate and
11
effective regulatory response.
12
The Commissioner may suspend or remove a responsible entity of
13
a registered entity if:
14
(a)
the registered entity is a federally regulated entity
15
and the Commissioner reasonably believes that the
16
registered entity has contravened a provision of
17
this Act, or that it is more likely than not that the
18
registered entity will contravene a provision of this
19
Act; or
20
(b)
the registered entity is a federally regulated entity
21
and the Commissioner reasonably believes that the
22
registered entity has not complied with a
23
governance standard, or that it is more likely than
24
not that the registered entity will not comply with a
25
governance standard; or
26
(c)
the Commissioner reasonably believes that the
27
registered entity has not complied with an external
28
conduct standard, or that it is more likely than not
29
that the registered entity will not comply with an
30
external conduct standard.
31
Regulatory powers of the ACNC Commissioner Chapter 4
Enforcement powers Part 4-2
Suspension and removal of responsible entities Division 100
Section 100-5
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 81
The Commissioner may only do so if the suspension or removal is
1
necessary to address the contravention or non-compliance, and
2
may only do so after considering a range of policy matters.
3
A decision of the Commissioner to suspend or remove a
4
responsible entity is reviewable in accordance with Part 7-2.
5
The Commissioner may appoint acting responsible entities to
6
replace suspended or removed responsible entities, so that the
7
registered entity may continue to function.
8
Subdivision 100-D deals with the property of a registered entity
9
that is a trust, if a trustee of the trust is suspended or removed.
10
Subdivision 100-B--Suspension and removal of responsible
11
entities
12
100-5 Commissioner's exercise of power under this Subdivision
13
(1) The Commissioner can exercise a power under this Subdivision in
14
relation to a registered entity only if:
15
(a) the registered entity is a federally regulated entity and the
16
Commissioner reasonably believes that:
17
(i) the registered entity has contravened a provision of this
18
Act; or
19
(ii) it is more likely than not that the registered entity will
20
contravene a provision of this Act; or
21
(b) the registered entity is a federally regulated entity and the
22
Commissioner reasonably believes that:
23
(i) the registered entity has not complied with a governance
24
standard; or
25
(ii) it is more likely than not that the registered entity will
26
not comply with a governance standard; or
27
(c) the Commissioner reasonably believes that:
28
(i) the registered entity has not complied with an external
29
conduct standard; or
30
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-2 Enforcement powers
Division 100 Suspension and removal of responsible entities
Section 100-10
82 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
(ii) it is more likely than not that the registered entity will
1
not comply with an external conduct standard.
2
(2) This Subdivision does not apply to an entity that is a responsible
3
entity of the registered entity only because of paragraph 205-30(c)
4
(about trustees in bankruptcy, liquidators etc.).
5
(3) The Commissioner cannot exercise a power under this Subdivision
6
in relation to a registered entity that is a basic religious charity.
7
Note:
Information relating to suspensions and removals may be placed on
8
the Register in accordance with Division 40.
9
100-10 Suspension of responsible entities
10
Suspension
11
(1) The Commissioner may suspend any of the responsible entities of
12
the registered entity, if the Commissioner considers that doing so is
13
necessary to address the contravention or non-compliance
14
mentioned in subsection 100-5(1) (or to prevent the likely
15
contravention or non-compliance mentioned in that subsection).
16
(2) The suspension of a responsible entity under subsection (1):
17
(a) starts when the Commissioner gives the responsible entity
18
notice of the suspension under subsection (3); and
19
(b) ends at the time specified in the notice.
20
(3) If the Commissioner decides to suspend a responsible entity under
21
subsection (1), the Commissioner must give to the responsible
22
entity a written notice:
23
(a) setting out the decision; and
24
(b) giving the reasons for the decision; and
25
(c) setting out the time the suspension ends.
26
Suspension--show cause notice
27
(4) Before suspending a responsible entity, the Commissioner must
28
give a written notice (a show cause notice) to the registered entity.
29
(5) The show cause notice must:
30
Regulatory powers of the ACNC Commissioner Chapter 4
Enforcement powers Part 4-2
Suspension and removal of responsible entities Division 100
Section 100-10
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 83
(a) state the grounds on which the Commissioner proposes to
1
suspend the responsible entity; and
2
(b) invite the registered entity to give the Commissioner, within
3
28 days after the day the notice is given, a written statement
4
showing cause why the Commissioner should not suspend
5
the responsible entity.
6
(6) Subsections (4) and (5) do not apply if the Commissioner believes,
7
on reasonable grounds and taking into account the matters
8
mentioned in subsection 35-10(2), that it would be appropriate for
9
the Commissioner to suspend the responsible entity without giving
10
a show cause notice to the registered entity.
11
Extension of suspensions
12
(7) The Commissioner may change the time the suspension of a
13
responsible entity ends.
14
(8) If the Commissioner decides to change the time the suspension of a
15
responsible entity ends under this section, the Commissioner must
16
give to the responsible entity a written notice:
17
(a) setting out the decision; and
18
(b) giving the reasons for the decision; and
19
(c) setting out the new time the suspension ends.
20
Matters Commissioner must take into account
21
(9) In deciding whether to suspend any of the responsible entities,
22
when the suspension starts and ends, or whether to change the time
23
the suspension ends, the Commissioner must take account of the
24
matters mentioned in subsection 35-10(2).
25
Review of decisions under this section
26
(10) A responsible entity that is dissatisfied with either of the following
27
decisions under this section may object against the decision in the
28
manner set out in Part 7-2:
29
(a) a decision to suspend the responsible entity;
30
(b) a decision to change the time a suspension of the responsible
31
entity ends.
32
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-2 Enforcement powers
Division 100 Suspension and removal of responsible entities
Section 100-15
84 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
100-15 Removal of responsible entities
1
Removal
2
(1) The Commissioner may remove any of the responsible entities of
3
the registered entity if the Commissioner considers that doing so is
4
necessary to address the contravention or non-compliance
5
mentioned in subsection 100-5(1) (or prevent the likely
6
contravention or non-compliance mentioned in that subsection).
7
(2) If the Commissioner decides to remove a responsible entity under
8
this section, the Commissioner must give to the responsible entity a
9
written notice:
10
(a) setting out the decision; and
11
(b) giving the reasons for the decision.
12
Removal--show cause notice
13
(3) Before removing a responsible entity, the Commissioner must give
14
a written notice (a show cause notice) to the registered entity.
15
(4) The show cause notice must:
16
(a) state the grounds on which the Commissioner proposes to
17
remove the responsible entity; and
18
(b) invite the registered entity to give the Commissioner, within
19
28 days after the day the notice is given, a written statement
20
showing cause why the Commissioner should not remove the
21
responsible entity.
22
(5) Subsections (3) and (4) do not apply if the Commissioner believes,
23
on reasonable grounds and taking into account the matters
24
mentioned in subsection 35-10(2), that it would be appropriate for
25
the Commissioner to remove the responsible entity without giving
26
a show cause notice to the registered entity.
27
Matters Commissioner must take into account
28
(6) In deciding whether to remove any of the responsible entities, the
29
Commissioner must take account of the matters mentioned in
30
subsection 35-10(2).
31
Regulatory powers of the ACNC Commissioner Chapter 4
Enforcement powers Part 4-2
Suspension and removal of responsible entities Division 100
Section 100-20
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 85
Review of decisions under this section
1
(7) A responsible entity that is dissatisfied with a decision to remove
2
the responsible entity under this section may object against the
3
decision in the manner set out in Part 7-2.
4
100-20 Effect of suspension or removal--suspended or removed
5
responsible entities must not be reappointed
6
(1) A responsible entity suspended under section 100-10 cannot
7
become a responsible entity of the registered entity until the
8
suspension ends.
9
(2) A responsible entity removed under section 100-15 cannot become
10
a responsible entity of the registered entity.
11
(3)
If:
12
(a) an individual is a responsible entity of a registered entity
13
because:
14
(i) the registered entity is a company (or is a trust, a trustee
15
of which is a company); and
16
(ii) the individual is a director of the company; and
17
(b) the individual is suspended under section 100-10 or removed
18
under section 100-15;
19
the individual ceases to be a director of the company (until, in the
20
case of suspension, the suspension ends).
21
Note:
Suspension or removal of an individual as a responsible entity does
22
not necessarily affect the rights or duties of the individual in other
23
capacities.
24
For example, under the governing rules of an incorporated sporting
25
club an individual may be a director of the club (and therefore a
26
responsible entity) because he or she is the club captain. Removal of
27
the individual as a responsible entity may not in itself remove the
28
individual from the office of club captain.
29
100-25 Effect of suspension or removal--prohibition on managing
30
the registered entity
31
(1) An entity commits an offence if:
32
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-2 Enforcement powers
Division 100 Suspension and removal of responsible entities
Section 100-25
86 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
(a) the entity is suspended under section 100-10 or removed
1
under section 100-15; and
2
(b) the entity makes, or participates in making, decisions that
3
affect the whole, or a substantial part, of the business of the
4
registered entity.
5
Penalty: Imprisonment for 1 year or 50 penalty units, or both.
6
(2) An entity commits an offence if:
7
(a) the entity is suspended under section 100-10 or removed
8
under section 100-15; and
9
(b) the entity exercises the capacity to affect significantly the
10
registered entity's financial standing.
11
Penalty: Imprisonment for 1 year or 50 penalty units, or both.
12
(3) An entity commits an offence if:
13
(a) the entity is suspended under section 100-10 or removed
14
under section 100-15; and
15
(b) the entity is an individual; and
16
(c) the entity communicates instructions or wishes to the
17
remaining responsible entities of the registered entity:
18
(i) knowing that those responsible entities are accustomed
19
to act in accordance with the suspended or removed
20
entity's instructions or wishes; or
21
(ii) intending that those responsible entities will act in
22
accordance with those instructions or wishes; and
23
(d) the communication of those instructions or wishes is not
24
advice given by the entity in the proper performance of
25
functions attaching to the entity's professional capacity or his
26
or her business relationship with the remaining responsible
27
entities of the registered entity.
28
Penalty: Imprisonment for 1 year or 50 penalty units, or both.
29
(4) Strict liability applies to paragraphs (1)(a), (2)(a) and (3)(a).
30
Note:
For strict liability, see section 6.1 of the Criminal Code.
31
Regulatory powers of the ACNC Commissioner Chapter 4
Enforcement powers Part 4-2
Suspension and removal of responsible entities Division 100
Section 100-30
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 87
Subdivision 100-C--Acting responsible entities
1
100-30 Appointment of acting responsible entities
2
Suspension
3
(1) If the Commissioner suspends a responsible entity under
4
section 100-10, the Commissioner may appoint one or more
5
persons (the acting responsible entities) to act in the place of the
6
responsible entity during the period of the suspension.
7
(2) If the Commissioner suspends:
8
(a) all directors of a company; or
9
(b) all trustees of a trust;
10
under section 100-10, the Commissioner must appoint one or more
11
persons (the acting responsible entities) to act in the place of the
12
suspended directors or trustees during the period of the suspension.
13
Removal
14
(3) If the Commissioner removes a responsible entity under
15
section 100-15, the Commissioner may appoint one or more
16
persons (the acting responsible entities) to act in the place of the
17
removed responsible entity until all of the vacancies created by the
18
removal are filled.
19
(4) If the Commissioner removes:
20
(a) all directors of a company; or
21
(b) all trustees of a trust;
22
under section 100-15, the Commissioner must appoint one or more
23
persons (the acting responsible entities) to act in the place of the
24
removed directors or trustees until at least one of the vacancies
25
created by the removal are filled.
26
100-35 Acting responsible entities of trusts with constitutional
27
corporations as trustees
28
(1) This section applies if:
29
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-2 Enforcement powers
Division 100 Suspension and removal of responsible entities
Section 100-35
88 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
(a) the Commissioner removes or suspends a responsible entity
1
of a registered entity at a time; and
2
(b) at that time, the registered entity is a federally regulated
3
entity to which paragraph 205-15(b) (a trust, all of the
4
trustees of which are constitutional corporations) applies, and
5
to which no other paragraph in section 205-15 applies; and
6
(c) just before that time, the responsible entity was:
7
(i) a corporation to which paragraph 51(xx) of the
8
Constitution applied; or
9
(ii) a body corporate that was incorporated in a Territory.
10
(2) Subject to subsection (3), the Commissioner must not appoint a
11
person as an acting responsible entity of the registered entity unless
12
the person meets whichever of the following requirements is
13
applicable:
14
(a) in a case to which subparagraphs (1)(c)(i) and (ii) apply--the
15
person is a constitutional corporation;
16
(b) in a case to which only subparagraph (1)(c)(i) applies--the
17
person is a corporation to which paragraph 51(xx) of the
18
Constitution applies;
19
(c) in a case to which only subparagraph (1)(c)(ii) applies--the
20
person is a body corporate that is incorporated in that
21
Territory.
22
(3) The Commissioner may appoint a person that does not meet the
23
requirement in subsection (2) as an acting responsible entity of the
24
registered entity under section 100-30 if it is not practical for the
25
Commissioner to appoint a person that does meet that requirement.
26
(4) If the Commissioner appoints a person that does not meet the
27
requirement in subsection (2) as an acting responsible entity in
28
accordance with subsection (3) at a time:
29
(a) the person cannot act as a responsible entity under
30
section 100-30 for longer than 6 months; and
31
(b) if it becomes practical at a later time for the Commissioner to
32
appoint a person that does meet that requirement--the person
33
cannot act as a responsible entity after that later time.
34
Regulatory powers of the ACNC Commissioner Chapter 4
Enforcement powers Part 4-2
Suspension and removal of responsible entities Division 100
Section 100-40
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 89
100-40 Terms and conditions of appointment of acting responsible
1
entities
2
(1) The Commissioner may determine the terms and conditions of the
3
appointment of the acting responsible entities. The determination
4
has effect despite anything in:
5
(a) any Australian law other than this section; or
6
(b) the registered entity's governing rules; or
7
(c) if the suspended or removed responsible entities were
8
directors of a trustee of the registered entity--the governing
9
rules of the trustee.
10
(2) Without limiting subsection (1), the Commissioner may make a
11
determination under that subsection to the effect that the acting
12
responsible entities' fees are to be paid out of the assets of:
13
(a) the registered entity; or
14
(b) if the suspended or removed responsible entities were
15
directors of a trustee of the registered entity--the trustee.
16
100-45 Termination of appointments of acting responsible entities
17
The Commissioner may terminate the appointment of an acting
18
responsible entity at any time.
19
100-50 Resignation of acting responsible entities
20
(1) An acting responsible entity may resign by writing given to the
21
Commissioner.
22
(2) The resignation does not take effect until the end of the seventh
23
day after the day on which it was given to the Commissioner.
24
100-55 Powers of acting responsible entities
25
(1) The acting responsible entities have and may exercise all the rights,
26
title and powers, and must perform all the functions and duties, of
27
the removed or suspended responsible entities.
28
(2) The registered entity's governing rules (and, if the suspended or
29
removed responsible entities were directors of a trustee of the
30
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-2 Enforcement powers
Division 100 Suspension and removal of responsible entities
Section 100-60
90 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
registered entity, the governing rules of the trustee), and every
1
Australian law apply in relation to the acting responsible entities as
2
if the acting responsible entities:
3
(a) in a case to which subsection 100-20(3) applies--occupied
4
the same offices as the suspended or removed responsible
5
entities; or
6
(b) otherwise--were the trustees of the registered entity.
7
100-60 Commissioner may give directions to acting responsible
8
entities
9
(1) The Commissioner may give an acting responsible entity a written
10
notice directing the acting responsible entity to do, or not to do,
11
one or more specified acts or things in relation to the registered
12
entity.
13
(2) The acting responsible entity commits an offence if:
14
(a) the acting responsible entity engages in conduct (within the
15
meaning of section 300-5); and
16
(b) that engagement in conduct contravenes a notice given to the
17
acting responsible entity under subsection (1) of this section.
18
Penalty: 40 penalty units.
19
(3) This section does not affect the validity of a transaction entered
20
into in contravention of a notice given under subsection (1).
21
Subdivision 100-D--Special provisions about acting trustees
22
100-65 Property vesting orders
23
(1) If the Commissioner appoints an acting responsible entity to act in
24
the place of a suspended or removed trustee of the registered entity,
25
the Commissioner must make a written order vesting the property
26
of the registered entity in the acting responsible entity.
27
(2) If the appointment ends, the Commissioner must make a written
28
order vesting the property of the registered entity in the new acting
29
responsible entity, the previously suspended trustee or trustees or
30
the new permanent trustee or trustees (whichever is applicable).
31
Regulatory powers of the ACNC Commissioner Chapter 4
Enforcement powers Part 4-2
Suspension and removal of responsible entities Division 100
Section 100-70
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 91
(3) If the Commissioner makes an order under this section vesting
1
property of a registered entity in a person or persons, then, subject
2
to subsection (4), the property immediately vests in the person or
3
persons by force of this section.
4
(4)
If:
5
(a) the property is of a kind whose transfer or transmission may
6
be registered under an Australian law; and
7
(b) that law enables the registration of such an order, or enables
8
the person or persons to be registered as the owner or owners
9
of that property;
10
the property does not vest in the person or persons until the
11
requirements of the law mentioned in paragraph (a) have been
12
complied with.
13
100-70 Property vested in acting trustee--former trustees'
14
obligations relating to books, identification of property
15
and transfer of property
16
Books
17
(1) An entity commits an offence if:
18
(a) the Commissioner makes an order under subsection
19
100-65(1) or (2) vesting the property of a registered entity in
20
an acting responsible entity; and
21
(b) just before the Commissioner made the order, the property
22
was vested in:
23
(i) the entity (the former trustee); or
24
(ii) 2 or more entities (the former trustees), including the
25
entity; and
26
(c) the former trustee or former trustees do not, within 14 days of
27
the Commissioner making the order, give the acting
28
responsible entity all books (within the meaning of the
29
Corporations Act 2001) relating to the registered entity's
30
affairs that are in the former trustee's or former trustees'
31
possession, custody or control.
32
Penalty: 50 penalty units.
33
Chapter 4 Regulatory powers of the ACNC Commissioner
Part 4-2 Enforcement powers
Division 100 Suspension and removal of responsible entities
Section 100-70
92 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Identification of property and transfer of property
1
(2) Subsections (3) to (5) apply if:
2
(a) the property of a registered entity is vested in an entity (the
3
former trustee) or entities (the former trustees); and
4
(b) the Commissioner makes an order under subsection
5
100-65(1) or (2) vesting the property in an acting responsible
6
entity.
7
(3) The acting responsible entity may, by notice in writing to the
8
former trustee or former trustees, require the former trustee or
9
former trustees, so far as the former trustee or former trustees can
10
do so:
11
(a) to identify property of the registered entity; and
12
(b) to explain how the former trustee or former trustees have
13
kept account of that property.
14
(4) The acting responsible entity may, by notice in writing to the
15
former trustee or former trustees, require the former trustee or
16
former trustees to take specified action that is necessary to bring
17
about a transfer of specified property of the registered entity to the
18
acting responsible entity.
19
(5) The former trustee, or each of the former trustees, commits an
20
offence if:
21
(a) the acting responsible entity gives the former trustee or
22
former trustees a notice under subsection (3) or (4); and
23
(b) the former trustee or former trustees do not, within 28 days of
24
the notice being given, comply with the requirement in the
25
notice.
26
Penalty: 50 penalty units.
27
Strict liability
28
(6) An offence against subsection (1) or (5) is an offence of strict
29
liability.
30
Note:
For strict liability, see section 6.1 of the Criminal Code.
31
32
The Australian Charities and Not-for-profits Commission Chapter 5
The ACNC Part 5-1
Establishment and function of the ACNC Division 105
Section 105-5
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 93
Chapter 5--The Australian Charities and
1
Not-for-profits Commission
2
Part 5-1--The ACNC
3
Division 105--Establishment and function of the ACNC
4
105-5 Establishment
5
The Australian Charities and Not-for-profits Commission (the
6
ACNC) is established by this section.
7
Note:
The ACNC does not have a legal identity separate from the
8
Commonwealth.
9
105-10 Constitution of the ACNC
10
The ACNC consists of:
11
(a) the Commissioner; and
12
(b) any staff assisting the Commissioner as mentioned in
13
subsection 120-5(1).
14
105-15 Function of the ACNC
15
The ACNC's function is to assist the Commissioner in the
16
performance of the Commissioner's functions.
17
105-20 ACNC has privileges and immunities of the Crown
18
The ACNC has the privileges and immunities of the Crown.
19
20
Chapter 5 The Australian Charities and Not-for-profits Commission
Part 5-2 The Commissioner
Division 110 Establishment, functions and powers of the Commissioner
Section 110-5
94 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Part 5-2--The Commissioner
1
Division 110--Establishment, functions and powers of the
2
Commissioner
3
110-5 Establishment
4
(1) There is to be a Commissioner of the ACNC.
5
(2) The Commissioner has:
6
(a) the general administration of this Act; and
7
(b) the other powers and other functions conferred or imposed on
8
him or her by this Act or any other law.
9
110-10 Assistance functions of Commissioner
10
(1) The Commissioner has the function of assisting registered entities
11
in complying with and understanding this Act, by providing them
12
with guidance and education.
13
(2) The Commissioner also has the function of assisting the public in
14
understanding the work of the not-for-profit sector, in order to
15
improve the transparency and accountability of the sector, by
16
giving the public relevant information on the Commission's
17
website.
18
(3) To avoid doubt, this section does not limit any other function of the
19
Commissioner.
20
110-15 Powers of Commissioner
21
The Commissioner has the power to do all things necessary or
22
convenient to be done for or in connection with the performance of
23
his or her functions.
24
Note:
The expenditure of public money must comply with the requirements
25
in the Financial Management and Accountability Act 1997.
26
The Australian Charities and Not-for-profits Commission Chapter 5
The Commissioner Part 5-2
Establishment, functions and powers of the Commissioner Division 110
Section 110-20
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 95
110-20 Working with the Advisory Board
1
(1) In performing his or her functions and exercising his or her powers,
2
the Commissioner may (but is not required to) have regard to the
3
advice and recommendations given to him or her by the Advisory
4
Board (whether or not the advice and recommendations were given
5
in response to a request).
6
(2) The Commissioner may attend Advisory Board meetings if invited
7
to do so under subsection 145-5(8).
8
9
Chapter 5 The Australian Charities and Not-for-profits Commission
Part 5-2 The Commissioner
Division 115 Terms and conditions of appointment
Section 115-5
96 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Division 115--Terms and conditions of appointment
1
115-5 Appointment
2
(1) The Commissioner is to be appointed by the Governor-General by
3
written instrument.
4
(2) The Commissioner is to be appointed on a full-time basis.
5
115-10 Term of appointment
6
The Commissioner holds office for the period specified in the
7
instrument of appointment. The period must not exceed 5 years.
8
Note:
The Commissioner is eligible for reappointment (see section 33AA of
9
the Acts Interpretation Act 1901).
10
115-15 Acting Commissioner
11
The Minister may appoint an individual to act as the
12
Commissioner:
13
(a) during a vacancy in the office of the Commissioner (whether
14
or not an appointment has previously been made to the
15
office); or
16
(b) during any period, or during all periods, when the
17
Commissioner is absent from duty or from Australia, or is,
18
for any reason, unable to perform the duties of the office.
19
Note:
Sections 33AB and 33A of the Acts Interpretation Act 1901 have rules
20
that apply to acting appointments.
21
115-20 Remuneration
22
(1) The Commissioner is to be paid the remuneration that is
23
determined by the Remuneration Tribunal. If no determination of
24
that remuneration by the Tribunal is in operation, the
25
Commissioner is to be paid the remuneration that is prescribed.
26
(2) The Commissioner is to be paid the allowances that are prescribed.
27
(3) This section has effect subject to the Remuneration Tribunal Act
28
1973.
29
The Australian Charities and Not-for-profits Commission Chapter 5
The Commissioner Part 5-2
Terms and conditions of appointment Division 115
Section 115-25
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 97
115-25 Leave of absence
1
(1) The Commissioner has the recreation leave entitlements that are
2
determined by the Remuneration Tribunal.
3
(2) The Minister may grant the Commissioner leave of absence, other
4
than recreation leave, on the terms and conditions as to
5
remuneration or otherwise that the Minister determines.
6
115-30 Disclosure of interests to the Minister
7
The Commissioner must give written notice to the Minister of all
8
interests, pecuniary or otherwise, that the Commissioner has or
9
acquires and that conflict or could conflict with the proper
10
performance of the Commissioner's functions.
11
115-35 Outside employment
12
The Commissioner must not engage in paid employment outside
13
the duties of his or her office without the Minister's approval.
14
115-40 Other terms and conditions
15
The Commissioner holds office on the terms and conditions (if
16
any) in relation to matters not covered by this Act that are
17
determined by the Minister.
18
115-45 Resignation
19
(1) The Commissioner may resign his or her appointment by giving
20
the Governor-General a signed notice of resignation.
21
(2) The resignation takes effect on the day it is received by the
22
Governor-General or, if a later day is specified in the resignation,
23
on that later day.
24
115-50 Termination of appointment
25
(1) The Governor-General may terminate the appointment of the
26
Commissioner:
27
(a) for misbehaviour; or
28
Chapter 5 The Australian Charities and Not-for-profits Commission
Part 5-2 The Commissioner
Division 115 Terms and conditions of appointment
Section 115-55
98 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
(b) if the Commissioner is unable to perform the duties of his or
1
her office because of physical or mental incapacity.
2
(2) The Governor-General may terminate the appointment of the
3
Commissioner if:
4
(a)
the
Commissioner:
5
(i) becomes bankrupt; or
6
(ii) applies to take the benefit of any law for the relief of
7
bankrupt or insolvent debtors; or
8
(iii) compounds with his or her creditors; or
9
(iv) makes an assignment of his or her remuneration for the
10
benefit of his or her creditors; or
11
(b) the Commissioner is absent, except on leave of absence, for
12
14 consecutive days or for 28 days in any 12 months; or
13
(c) the Commissioner fails, without reasonable excuse, to
14
comply with section 115-30; or
15
(d) if the Commissioner engages, without the Minister's
16
approval, in paid employment outside the duties of his or her
17
office (see section 115-35).
18
115-55 Delegation
19
(1) The Commissioner may, by instrument in writing, delegate any of
20
the Commissioner's powers or functions to an SES employee, or
21
acting SES employee, of the ACNC.
22
(2) In exercising powers under a delegation, the delegate must comply
23
with any written directions of the Commissioner.
24
Note:
See section 34AAB of the Acts Interpretation Act 1901.
25
26
The Australian Charities and Not-for-profits Commission Chapter 5
The Commissioner Part 5-2
Staff and consultants Division 120
Section 120-5
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 99
Division 120--Staff and consultants
1
120-5 Staff
2
(1) The staff assisting the Commissioner are to be persons engaged
3
under the Public Service Act 1999 and made available for the
4
purpose by the Commissioner of Taxation.
5
(2) When performing services for the Commissioner under this
6
section, a person is subject to the directions of the Commissioner.
7
Example: In making a decision about the registration of an entity under this Act
8
in accordance with the directions of the Commissioner, an ACNC
9
officer acts independently of the Australian Taxation Office.
10
120-10 Consultants
11
(1) The Commissioner may, on behalf of the Commonwealth, engage
12
consultants to assist in the performance of the ACNC's functions.
13
(2) The Commissioner may not engage a member of the Advisory
14
Board as a consultant.
15
16
Chapter 5 The Australian Charities and Not-for-profits Commission
Part 5-3 Finance and reporting requirements
Division 125 ACNC Special Account
Section 125-5
100 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Part 5-3--Finance and reporting requirements
1
Division 125--ACNC Special Account
2
125-5 ACNC Special Account
3
(1) The Australian Charities and Not-for-profits Commission Special
4
Account (the Account) is established by this section.
5
(2) The Account is a Special Account for the purposes of the Financial
6
Management and Accountability Act 1997.
7
125-10 Credits to the Account
8
There may be credited to the Account amounts equal to the
9
following:
10
(a) amounts received by the Commonwealth in connection with
11
the performance of the Commissioner's functions under this
12
Act;
13
(b) amounts received by the Commonwealth in relation to
14
property paid for with amounts debited from the Account;
15
(c) amounts of any gifts given or bequests made for the purposes
16
of the Account.
17
Note:
An Appropriation Act provides for amounts to be credited to a Special
18
Account if any of the purposes of the Account is a purpose that is
19
covered by an item in the Appropriation Act.
20
125-15 Purposes of the Account
21
The purposes of the Account are as follows:
22
(a) paying or discharging the costs, expenses and other
23
obligations incurred by the Commonwealth in the
24
performance of the Commissioner's functions;
25
(b) paying any remuneration and allowances payable to any
26
person under this Act (including staff mentioned in
27
section 120-5);
28
(c) meeting the expenses of administering the Account.
29
Note:
See section 21 of the Financial Management and Accountability Act
30
1997 (debits from Special Accounts).
31
The Australian Charities and Not-for-profits Commission Chapter 5
Finance and reporting requirements Part 5-3
Annual report Division 130
Section 130-5
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 101
Division 130--Annual report
1
130-5 Annual report
2
Annual report to be given to Minister
3
(1) The Commissioner must, as soon as practicable after the end of
4
each financial year, prepare and give to the Minister, for
5
presentation to the Parliament, a report on the Commissioner's
6
operations during that year.
7
Note:
See also section 34C of the Acts Interpretation Act 1901, which
8
contains provisions about annual reports.
9
Contents of annual report
10
(2) The Commissioner must include in the report an evaluation of the
11
ACNC's overall performance during the year.
12
13
Chapter 6 The Advisory Board
Part 6-1 The Advisory Board
Division 135 Establishment, functions and powers
Section 135-5
102 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Chapter 6--The Advisory Board
1
Part 6-1--The Advisory Board
2
Division 135--Establishment, functions and powers
3
135-5 Establishment
4
The ACNC Advisory Board is established by this section.
5
135-10 Membership
6
The Advisory Board is to consist of:
7
(a) the holders of any offices determined by the Minister for the
8
purposes of this paragraph; and
9
(b) at least 2, but no more than 8, other members (the general
10
members) with:
11
(i) expertise relating to not-for-profit entities (including
12
charities); or
13
(ii) experience and sufficient qualifications in relation to
14
law, taxation or accounting.
15
135-15 Function and powers of Advisory Board
16
(1) The Advisory Board's function is, at the request of the
17
Commissioner, to provide advice and make recommendations to
18
the Commissioner in relation to the Commissioner's functions
19
under this Act.
20
(2) The Advisory Board has power to do all things necessary or
21
convenient to be done for or in connection with the performance of
22
its function.
23
Note:
The expenditure of public money must comply with the requirements
24
in the Financial Management and Accountability Act 1997.
25
(3) To avoid doubt, the Advisory Board cannot give any directions to
26
the Commissioner.
27
The Advisory Board Chapter 6
The Advisory Board Part 6-1
Establishment, functions and powers Division 135
Section 135-15
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 103
Example: The Advisory Board could not direct the Commissioner in relation to
1
the management of the ACNC.
2
3
Chapter 6 The Advisory Board
Part 6-1 The Advisory Board
Division 140 Terms and conditions of appointment of members of the Advisory Board
Section 140-5
104 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Division 140--Terms and conditions of appointment of
1
members of the Advisory Board
2
140-5 Appointment
3
General members
4
(1) A general member is to be appointed by the Minister by written
5
instrument, on a part-time basis.
6
(2) An individual is eligible to be appointed as a general member only
7
if the person is ordinarily resident in Australia.
8
Chair and Deputy Chair
9
(3) The Minister must appoint one member to be the Chair and another
10
member to be the Deputy Chair.
11
Validity of appointments
12
(4) An individual's appointment as a general member, the Chair or the
13
Deputy Chair is not invalid because of a defect or irregularity in
14
connection with the individual's appointment.
15
140-10 Term of appointment
16
A general member holds office for the period specified in the
17
instrument of appointment. The period must not exceed 3 years.
18
Note:
A general member is eligible for reappointment (see section 33AA of
19
the Acts Interpretation Act 1901).
20
140-15 Remuneration and allowances
21
(1) A general member is to be paid the remuneration that is determined
22
by the Remuneration Tribunal. If no determination of that
23
remuneration by the Tribunal is in operation, the general member
24
is to be paid the remuneration that is prescribed by the regulations.
25
(2) A general member is to be paid the allowances that are prescribed
26
by the regulations.
27
The Advisory Board Chapter 6
The Advisory Board Part 6-1
Terms and conditions of appointment of members of the Advisory Board Division 140
Section 140-20
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 105
(3) This section (other than subsection (2)) has effect subject to the
1
Remuneration Tribunal Act 1973.
2
140-20 Standing obligation to disclose interests
3
(1) A member of the Advisory Board must give written notice to the
4
Minister of all interests, pecuniary or otherwise, that the member
5
has or acquires and that conflict or could conflict with the proper
6
performance of the Advisory Board's function.
7
(2) The notice must be given to the Minister as soon as practicable
8
after the member becomes aware of the potential for conflict of
9
interest.
10
140-25 Other terms and conditions
11
A member of the Advisory Board holds office on the terms and
12
conditions (if any) in relation to matters not covered by this Act
13
that are determined, in writing, by the Minister.
14
140-30 Resignation
15
(1) A general member may resign his or her appointment by giving the
16
Minister a signed notice of resignation.
17
(2) The Chair may resign his or her appointment as the Chair without
18
resigning his or her appointment as a general member (if
19
applicable).
20
(3) The Deputy Chair may resign his or her appointment as the Deputy
21
Chair without resigning his or her appointment as a general
22
member (if applicable).
23
(4) A resignation takes effect on the day it is received by the Minister
24
or, if a later day is specified in the resignation, on that later day.
25
140-35 Termination of appointment
26
The Minister may terminate a general member's appointment at
27
any time.
28
29
Chapter 6 The Advisory Board
Part 6-1 The Advisory Board
Division 145 Advisory Board procedures
Section 145-5
106 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Division 145--Advisory Board procedures
1
145-5 Meetings of the Advisory Board
2
Holding meetings
3
(1)
The
Chair:
4
(a) must convene 4 meetings of the Advisory Board in each
5
financial year; and
6
(b) may convene such additional meetings as are necessary for
7
the efficient performance of the Advisory Board's function.
8
Procedure of meetings
9
(2) Subject to subsection (4), the Commissioner may, by writing,
10
determine matters relating to the operation of the Advisory Board.
11
(3) Subject to subsection (4), if no determination is in force for the
12
purposes of subsection (2), the Advisory Board may operate in the
13
way it determines.
14
(4) The Chair must ensure that minutes of meetings are kept.
15
Disclosure of interest by a member
16
(5) If a member of the Advisory Board has a direct or indirect financial
17
interest in a matter being considered, or about to be considered, at a
18
meeting, being an interest that could conflict with the proper
19
performance of the Advisory Board's function, then the member
20
must disclose that interest to the other members as soon as
21
practicable.
22
Disclosure to be recorded in the minutes of the meeting
23
(6) Any disclosure under subsection (5), and any decision made by the
24
Advisory Board in relation to the disclosure, must be recorded in
25
the minutes of the meeting.
26
(7) The member must not take part in the making of a decision by the
27
Board in relation to the matter mentioned in subsection (5) unless
28
The Advisory Board Chapter 6
The Advisory Board Part 6-1
Advisory Board procedures Division 145
Section 145-5
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 107
the Chair agrees or, if the member is the Chair, the Commissioner
1
agrees.
2
Attendance by Commissioner
3
(8) The Chair may invite the Commissioner to attend all or part of an
4
Advisory Board meeting.
5
Determination not a legislative instrument
6
(9) A determination made under subsection (2) is not a legislative
7
instrument.
8
9
Chapter 7 Miscellaneous
Part 7-1 Secrecy
Division 150 Secrecy
Section 150-5
108 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Chapter 7--Miscellaneous
1
Part 7-1--Secrecy
2
Division 150--Secrecy
3
Subdivision 150-A--Preliminary
4
150-5 Objects of this Division
5
The objects of this Division are:
6
(a) to protect confidential and personal information by imposing
7
strict obligations on ACNC officers (and other entities that
8
acquire protected ACNC information), and so encourage
9
people to provide correct information to the Commissioner;
10
and
11
(b) to facilitate efficient and effective government administration
12
and law enforcement by allowing disclosures of protected
13
ACNC information for specific purposes.
14
150-10 Application of this Division to entities other than ACNC
15
officers
16
This Division applies in relation to the following entities in the
17
same way as it applies in relation to ACNC officers:
18
(a) an entity engaged to provide services relating to the ACNC;
19
(b) an individual employed by, or otherwise performing services
20
for, an entity mentioned in paragraph (a);
21
(c)
an
individual:
22
(i) appointed or employed by, or performing services for,
23
the Commonwealth or an authority of the
24
Commonwealth; and
25
(ii) performing functions or exercising powers under or for
26
the purposes of this Act;
27
(d) a member of the Advisory Board.
28
Miscellaneous Chapter 7
Secrecy Part 7-1
Secrecy Division 150
Section 150-15
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 109
150-15 Meaning of protected ACNC information
1
In this Act:
2
protected ACNC information means information that:
3
(a) was disclosed or obtained under or for the purposes of this
4
Act; and
5
(b) relates to the affairs of an entity; and
6
(c) identifies, or is reasonably capable of being used to identify,
7
the entity.
8
150-20 ACNC officer not required to provide information in certain
9
cases
10
Except where it is necessary to do so for the purposes of giving
11
effect to this Act, an ACNC officer is not to be required:
12
(a) to produce to a court or tribunal a document containing
13
protected ACNC information; or
14
(b) to disclose protected ACNC information to a court or
15
tribunal.
16
Subdivision 150-B--Disclosure of protected ACNC information
17
by ACNC officers
18
150-25 Offence--disclosure or use of protected ACNC information
19
(1) An entity commits an offence if:
20
(a) the entity is, or has been, an ACNC officer; and
21
Note:
This Division applies to certain other entities in the same way as
22
it applies to ACNC officers (see section 150-10).
23
(b) the entity has acquired protected ACNC information in the
24
entity's capacity as an ACNC officer; and
25
(c)
the
entity:
26
(i) discloses the information to another entity, other than an
27
entity covered by subsection (2); or
28
(ii) uses the information.
29
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
30
Chapter 7 Miscellaneous
Part 7-1 Secrecy
Division 150 Secrecy
Section 150-30
110 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
(2) This subsection covers the following entities:
1
(a) the entity to whom the information relates;
2
(b) if the entity to whom the information relates has an agent in
3
relation to the information--the agent;
4
(c) if the entity to whom the information relates is a registered
5
entity--a responsible entity of that registered entity.
6
(3) Subdivision 150-C provides for exceptions to the prohibition in
7
subsection (1).
8
Note:
A defendant bears an evidential burden in relation to a matter in this
9
subsection (see subsection 13.3(3) of the Criminal Code).
10
Subdivision 150-C--Authorised disclosure
11
150-30 Exception--disclosure in performance of duties under Act
12
An ACNC officer may disclose or use protected ACNC
13
information if the disclosure or use is in the performance of his or
14
her duties under this Act.
15
150-35 Exception--disclosure on Register to achieve objects of this
16
Act
17
An ACNC officer may disclose protected ACNC information if:
18
(a) the Commissioner may include the information on the
19
Register under Division 40; and
20
(b) the disclosure is for the purpose of including the information
21
on the Register under Division 40; and
22
(c) if the information is personal information (within the
23
meaning of the Privacy Act 1988)--the disclosure is
24
necessary to achieve the objects of this Act.
25
150-40 Exception--disclosure to an Australian government agency
26
An ACNC officer may disclose protected ACNC information if:
27
(a) the disclosure is to an Australian government agency; and
28
(b) the ACNC officer is satisfied that the information will enable
29
or assist the Australian government agency to perform or
30
exercise any of the functions or powers of the agency; and
31
Miscellaneous Chapter 7
Secrecy Part 7-1
Secrecy Division 150
Section 150-45
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 111
(c) the disclosure is for the purpose of enabling or assisting the
1
Australian government agency to perform or exercise any of
2
the functions or powers of the agency; and
3
(d) the disclosure is reasonably necessary to promote the objects
4
of this Act.
5
150-45 Exception--disclosure or use with consent
6
An ACNC officer may disclose or use protected ACNC
7
information that relates to the affairs of an entity if:
8
(a) the entity has consented to the disclosure for a purpose; and
9
(b) the disclosure or use is for that purpose.
10
150-50 Exception--disclosure of information lawfully made
11
available to the public
12
An ACNC officer may disclose protected ACNC information if:
13
(a) the information has already been lawfully made available to
14
the public; and
15
(b) the disclosure is for the purposes of this Act.
16
Subdivision 150-D--On-disclosure of protected ACNC
17
information
18
150-55 Offence--on-disclosure of protected ACNC information
19
(1) An entity commits an offence if:
20
(a) the entity acquires protected ACNC information; and
21
(b) the entity acquired the protected ACNC information
22
otherwise than as an ACNC officer; and
23
(c) the acquisition occurred because of a disclosure or use of the
24
protected ACNC information under an exception in
25
Subdivision 150-C, or section 150-60, for a purpose specified
26
in that exception; and
27
(d)
the
entity:
28
(i) discloses the protected ACNC information to another
29
entity (other than an entity covered by subsection (2));
30
or
31
Chapter 7 Miscellaneous
Part 7-1 Secrecy
Division 150 Secrecy
Section 150-60
112 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
(ii) uses the protected ACNC information.
1
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
2
(2) This subsection covers the following entities:
3
(a) the entity to whom the information relates;
4
(b) if the entity to whom the information relates has an agent in
5
relation to the information--the agent;
6
(c) if the entity to whom the information relates is a registered
7
entity--a responsible entity of that registered entity.
8
(3) Sections 150-60 and 150-65 provide for exceptions to the
9
prohibition in subsection (1).
10
Note:
A defendant bears an evidential burden in relation to a matter in this
11
subsection (see subsection 13.3(3) of the Criminal Code).
12
150-60 Exception--on-disclosure or use for the purpose of the
13
original exception
14
(1) An entity may disclose or use protected ACNC information if:
15
(a) the information was originally disclosed under an exception
16
in Subdivision 150-C or this Subdivision for a purpose
17
specified in that exception (the original purpose); and
18
(b) the disclosure or use is made by the entity for the original
19
purpose, or in connection with the original purpose.
20
(2) Without limiting subsection (1), treat the disclosure or use as being
21
in connection with the original purpose if:
22
(a) the disclosure is to, or the use is for, any entity, court or
23
tribunal; and
24
(b) the disclosure or use is for the purpose of criminal, civil or
25
administrative proceedings (including merits review or
26
judicial review) that are related to the original purpose.
27
150-65 Exception--on-disclosure of information lawfully made
28
available to the public
29
An entity may disclose protected ACNC information if the
30
information has already been lawfully made available to the public.
31
32
Miscellaneous Chapter 7
Review and appeals Part 7-2
Preliminary Division 155
Section 155-5
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 113
Part 7-2--Review and appeals
1
Division 155--Preliminary
2
155-5 Application of this Part
3
(1) This Part applies if a provision of this Act or of the regulations
4
provides that an entity that is dissatisfied with a decision may
5
object against it in the manner set out in this Part.
6
(2) Such a decision is called an administrative decision.
7
155-10 Decisions covered by single notice to be treated as single
8
decision
9
If:
10
(a) a provision of this Act or of the regulations provides that an
11
entity that is dissatisfied with a decision may object against it
12
in the manner set out in this Part; and
13
(b) a notice incorporates notice of 2 or more such administrative
14
decisions;
15
then, for the purposes of the provision and of this Part, the
16
administrative decisions are taken to be one decision.
17
18
Chapter 7 Miscellaneous
Part 7-2 Review and appeals
Division 160 Objections
Section 160-5
114 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Division 160--Objections
1
160-5 How objections are to be made
2
The entity making the objection must:
3
(a) make it in the approved form; and
4
(b) lodge it with the Commissioner within the review period (see
5
section 160-10); and
6
(c) state in it, fully and in detail, the grounds on which the entity
7
relies.
8
160-10 When objection is to be made
9
(1) The entity must lodge the objection within the period of 60 days
10
(the review period) after notice of the administrative decision has
11
been served on the entity.
12
Late lodgement
13
(2) If the review period has passed, the entity may nevertheless lodge
14
the objection with the Commissioner together with a written
15
request asking the Commissioner to deal with the objection as if it
16
had been lodged within the review period.
17
(3) The request must state fully and in detail the circumstances
18
concerning, and the reasons for, the entity's failure to lodge the
19
objection with the Commissioner within the review period.
20
(4) After considering the request, the Commissioner must decide
21
whether to agree to it or refuse it.
22
(5) The Commissioner must give the entity written notice of the
23
Commissioner's decision under subsection (4).
24
(6) If the Commissioner decides to agree to the request, then the
25
objection is treated as having been lodged within the review
26
period.
27
(7) If the Commissioner decides to refuse the request, the entity may
28
apply to the Administrative Appeals Tribunal for review of the
29
extension of time refusal decision.
30
Miscellaneous Chapter 7
Review and appeals Part 7-2
Objections Division 160
Section 160-15
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 115
160-15 Commissioner to decide objections
1
(1) The Commissioner must decide whether to:
2
(a) allow the objection, wholly or in part; or
3
(b)
disallow
it;
4
if the entity has complied with section 160-5.
5
(2) Such a decision is called an objection decision.
6
(3) The Commissioner must cause to be served on the entity written
7
notice of the Commissioner's objection decision.
8
160-20 Entity may require Commissioner to make an objection
9
decision
10
(1) The entity may give the Commissioner a written notice requiring
11
the Commissioner to make an objection decision, if:
12
(a) the objection has been lodged with the Commissioner within
13
the review period; and
14
(b) the Commissioner has not made an objection decision by the
15
later of:
16
(i) the end of the period (the original 60-day period) of 60
17
days after the day (the objection day) on which the
18
objection is lodged with the Commissioner; and
19
(ii) if the Commissioner, by written notice served on the
20
entity within the original 60-day period, requires the
21
entity to give information relating to the objection--the
22
end of the period of 60 days after the Commissioner
23
receives that information.
24
(2) Treat the reference in subparagraph (1)(b)(i) to the objection day as
25
being a reference to the day on which the Commissioner decides
26
under subsection 160-10(6) to agree to a request in relation to the
27
objection, if the Commissioner does so after the objection day.
28
(3) The Commissioner is taken, at the end of the period of 60 days
29
after being given the notice under subsection (1), to have made a
30
decision under subsection 160-15(1) to disallow the objection, if
31
the Commissioner has not made an objection decision by the end
32
of that period.
33
Chapter 7 Miscellaneous
Part 7-2 Review and appeals
Division 160 Objections
Section 160-25
116 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
160-25 Entity may seek review of, or appeal against,
1
Commissioner's decision
2
If the entity is dissatisfied with the Commissioner's objection
3
decision, the entity may either:
4
(a) apply to the Administrative Appeals Tribunal for review of
5
the objection decision; or
6
(b) appeal against the objection decision to a designated court.
7
8
Miscellaneous Chapter 7
Review and appeals Part 7-2
AAT review of objection decisions and extension of time refusal decisions Division
165
Section 165-5
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 117
Division 165--AAT review of objection decisions and
1
extension of time refusal decisions
2
165-5 Modified AAT Act to apply
3
The AAT Act applies in relation to:
4
(a) the review of objection decisions; and
5
(b) the review of extension of time refusal decisions; and
6
(c)
AAT
extension
applications;
7
subject to the modifications set out in this Division.
8
165-10 Sections 27, 41 and 44A of the AAT Act not to apply to
9
certain decisions
10
(1) Sections 27 (Persons who may apply to Tribunal) and 41
11
(Operation and implementation of a decision that is subject to
12
review) of the AAT Act do not apply in relation to:
13
(a) an objection decision; or
14
(b) an extension of time refusal decision.
15
(2) Section 44A of the AAT Act (Operation and implementation of a
16
decision that is subject to appeal) does not apply in relation to an
17
objection decision.
18
165-15 Modification of section 29 of the AAT Act
19
Section 29 of the AAT Act (Manner of applying for review)
20
applies in relation to an objection decision as if subsections (1) to
21
(6) (inclusive) of that section were omitted and the following
22
subsection were substituted:
23
"(1) An application to the Tribunal for a review of a decision:
24
(a) must be in writing; and
25
(b) may be made in accordance with the prescribed form; and
26
(c) must set out a statement of the reasons for the application;
27
and
28
Chapter 7 Miscellaneous
Part 7-2 Review and appeals
Division 165 AAT review of objection decisions and extension of time refusal
decisions
Section 165-20
118 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
(d) must be lodged with the Tribunal within 60 days after the
1
person making the application is served with notice of the
2
decision.".
3
165-20 Modification of section 30 of the AAT Act
4
Section 30 of the AAT Act (Parties to proceeding before Tribunal)
5
applies in relation to an objection decision or an extension of time
6
refusal decision as if subsection (1A) of that section were omitted
7
and the following subsection were substituted:
8
"(1A) If an application has been made by a person to the Tribunal for the
9
review of an objection decision (within the meaning of the
10
Australian Charities and Not-for-profits Commission Act 2012) or
11
an extension of time refusal decision (within the meaning of that
12
Act):
13
(a) any other person whose interests are affected by the decision
14
may apply, in writing, to the Tribunal to be made a party to
15
the proceeding; and
16
(b) the Tribunal may, in its discretion, by order, if it is satisfied
17
that the person making the application consents to the order,
18
make that person a party to the proceeding.".
19
165-25 Modification of section 37 of the AAT Act
20
(1) Section 37 of the AAT Act (Lodging of material documents with
21
Tribunal) applies in relation to an application for review of an
22
objection decision as if:
23
(a) the requirement in subsection (1) of that section to lodge with
24
the Tribunal such numbers of copies as is prescribed of
25
statements or other documents were instead a requirement to
26
lodge with the Tribunal such numbers of copies as is
27
prescribed of:
28
(i) a statement giving the reasons for the objection
29
decision; and
30
(ii) the notice of the administrative decision concerned; and
31
(iii) the objection concerned; and
32
(iv) the notice of the objection decision; and
33
Miscellaneous Chapter 7
Review and appeals Part 7-2
AAT review of objection decisions and extension of time refusal decisions Division
165
Section 165-30
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 119
(v) every other document that is in the Commissioner's
1
possession or under the Commissioner's control and is
2
considered by the Commissioner to be necessary to the
3
review of the objection decision concerned; and
4
(vi) a list of the documents (if any) being lodged under
5
subparagraph (v); and
6
(b) the power of the Tribunal under subsection (2) of that section
7
to cause a notice to be served containing a statement and
8
imposing a requirement on a person were instead:
9
(i) a power to make such a statement and impose such a
10
requirement orally at a conference held in accordance
11
with subsection 34A(1) of the AAT Act; and
12
(ii) a power, by such a notice, to make such a statement and
13
impose a requirement that the person lodge with the
14
Tribunal, within the time specified in the notice, the
15
prescribed number of copies of each of those other
16
documents that is in the person's possession or under
17
the person's control; and
18
(iii) a power, by such a notice, to make such a statement and
19
impose a requirement that the person lodge with the
20
Tribunal, within the time specified in the notice, the
21
prescribed number of copies of a list of the documents
22
in the person's possession or under the person's control
23
considered by the person to be relevant to the review of
24
the objection decision concerned.
25
(2) Paragraph (1)(b) does not affect any powers that the
26
Administrative Appeals Tribunal has apart from that paragraph.
27
(3) The imposition of a requirement covered by
28
subparagraph (1)(b)(iii) does not prevent the subsequent imposition
29
of a requirement covered by subparagraph (1)(b)(ii).
30
165-30 Modification of section 38 of the AAT Act
31
Section 38 of the AAT Act (Power of Tribunal to obtain additional
32
statements) applies in relation to an application for a review of an
33
objection decision as if the reference to paragraph 37(1)(a) of that
34
Chapter 7 Miscellaneous
Part 7-2 Review and appeals
Division 165 AAT review of objection decisions and extension of time refusal
decisions
Section 165-35
120 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Act were instead a reference to subparagraph 165-25(1)(a)(i) of
1
this Act.
2
165-35 Modification of section 43 of the AAT Act
3
Section 43 of the AAT Act (Tribunal's decision on review) applies
4
in relation to:
5
(a) a review of an objection decision; and
6
(b) a review of an extension of time refusal decision; and
7
(c) an AAT extension application;
8
as if the following subsections were inserted after subsection (2B):
9
"(2C) If a hearing of a proceeding for the review of a decision or an AAT
10
extension application (within the meaning of the Australian
11
Charities and Not-for-profits Commission Act 2012)
is not
12
conducted in public, that fact does not prevent the Tribunal from
13
publishing its reasons for the decision.
14
"(2E) In subsection (2C):
15
reasons for decision includes findings on material questions of fact
16
and references to the evidence or other material on which those
17
findings were based.".
18
165-40 Grounds of objection and burden of proof
19
On an application for review of an objection decision:
20
(a) the applicant is, unless the Administrative Appeals Tribunal
21
orders otherwise, limited to the grounds stated in the
22
objection to which the objection decision relates; and
23
(b) the applicant has the burden of proving that the
24
administrative decision concerned should not have been
25
made or should have been made differently.
26
165-45 Implementation of Tribunal decisions
27
(1) When the decision of the Administrative Appeals Tribunal on the
28
review of an objection decision or an extension of time refusal
29
decision becomes final, the Commissioner must, within 60 days,
30
Miscellaneous Chapter 7
Review and appeals Part 7-2
AAT review of objection decisions and extension of time refusal decisions Division
165
Section 165-50
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 121
take such action as is necessary to give effect to the Tribunal's
1
decision.
2
(2) For the purposes of subsection (1), if no appeal is lodged against
3
the Tribunal's decision within the period for lodging an appeal, the
4
Tribunal's decision becomes final at the end of the period.
5
165-50 Pending review not to affect implementation of
6
administrative decisions
7
The fact that a review is pending in relation to an administrative
8
decision does not in the meantime interfere with, or affect, the
9
administrative decision and any tax, additional tax or other amount
10
may be recovered as if no review were pending.
11
165-55 Reviews may be combined
12
(1) This section applies if:
13
(a) an entity may apply to the Administrative Appeals Tribunal
14
for review of:
15
(i) an objection decision; and
16
(ii) one or more other decisions (whether or not of the
17
Commissioner); and
18
(b) the decisions are related, or it would be efficient for the
19
Tribunal to consider the decisions together.
20
(2) Subject to the requirements of this Act or any other law relating to
21
review of the decisions:
22
(a) the entity may apply for review of the decisions together; and
23
(b) the Administrative Appeals Tribunal may deal with the
24
decisions together.
25
26
Chapter 7 Miscellaneous
Part 7-2 Review and appeals
Division 170 Court appeals against objection decisions
Section 170-5
122 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Division 170--Court appeals against objection decisions
1
170-5 Time limit for appeals
2
An appeal to a court against an objection decision must be lodged
3
with the court within 60 days after the entity appealing is served
4
with notice of the decision.
5
170-10 Grounds of objection and burden of proof
6
In proceedings on an appeal under section 160-25 to a court against
7
an objection decision:
8
(a) the appellant is, unless the court orders otherwise, limited to
9
the grounds stated in the objection to which the objection
10
decision relates; and
11
(b) the appellant has the burden of proving that the
12
administrative decision concerned should not have been
13
made or should have been made differently.
14
170-15 Order of court on objection decision
15
Where a court hears an appeal against an objection decision under
16
section 160-25, the court may make such order in relation to the
17
decision as it thinks fit, including an order confirming or varying
18
the objection decision.
19
170-20 Implementation of court order in respect of objection
20
decision
21
(1) When the order of the court in relation to the objection decision
22
becomes final, the Commissioner must, within 60 days, take such
23
action as is necessary to give effect to the objection decision.
24
(2) For the purposes of subsection (1):
25
(a) if no appeal is lodged against the order within the period for
26
lodging an appeal--the order becomes final at the end of the
27
period; or
28
(b) if the only possible appeal against the order is appeal to the
29
High Court with special leave, and no application for special
30
Miscellaneous Chapter 7
Review and appeals Part 7-2
Court appeals against objection decisions Division 170
Section 170-25
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 123
leave is made within the period of 30 days after the order is
1
made--the order becomes final at the end of the period.
2
170-25 Pending appeal not to affect implementation of
3
administrative decisions
4
The fact that an appeal is pending in relation to an administrative
5
decision does not in the meantime interfere with, or affect, the
6
administrative decision and any tax, additional tax or other amount
7
may be recovered as if no appeal were pending.
8
170-30 Appeals may be combined
9
(1) This section applies if:
10
(a) an entity may appeal to a designated court against:
11
(i) an objection decision; and
12
(ii) one or more other decisions of Australian government
13
agencies (whether or not the Commissioner); and
14
(b) the decisions are related, or it would be efficient for the court
15
to consider the decisions together.
16
(2) Subject to the requirements of this Act or any other law relating to
17
appeals against the decisions:
18
(a) the entity may appeal against the decisions together; and
19
(b) the court may deal with the decisions together.
20
21
Chapter 7 Miscellaneous
Part 7-3 Penalties
Division 175 Administrative penalties
Section 175-1
124 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Part 7-3--Penalties
1
Division 175--Administrative penalties
2
Subdivision 175-A--Overview
3
175-1 Simplified outline
4
The following is a simplified outline of this Division:
5
Subdivision 175-B sets out the circumstances in which
6
administrative penalties apply for making false or misleading
7
statements. It also sets out the amounts of those penalties.
8
An entity is liable to an administrative penalty if the entity is
9
required to give a report, return, notice, statement or other
10
document to the Commissioner by a particular time and the entity
11
does not do so. Subdivision 175-C sets out when the penalty
12
applies and how the amounts of the penalty are calculated.
13
Subdivision 175-B--Penalties for statements
14
175-5 Application of this Subdivision to statements
15
(1) This Subdivision applies to a statement made orally, in a
16
document, or in any other way (including electronically) for a
17
purpose connected with this Act.
18
(2) This Subdivision applies to a statement made by an entity's agent
19
as if it had been made by the entity.
20
175-10 Penalty for false or misleading statements
21
(1) An entity is liable to an administrative penalty if:
22
(a) the entity makes a statement to the Commissioner or to an
23
entity that is exercising powers or performing functions
24
under this Act; and
25
Miscellaneous Chapter 7
Penalties Part 7-3
Administrative penalties Division 175
Section 175-15
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 125
(b) the statement is false or misleading in a material particular,
1
whether because of things in it or omitted from it.
2
Note:
This section applies to a statement made by an entity's agent as if it
3
had been made by the entity (see subsection 175-5(2)).
4
(2) An entity is liable to an administrative penalty if:
5
(a) the entity makes a statement to an entity other than:
6
(i) the Commissioner; or
7
(ii) an entity exercising powers or performing functions
8
under this Act; and
9
(b) the statement is, or purports to be, one required or permitted
10
by this Act; and
11
(c) the statement is false or misleading in a material particular,
12
whether because of things in it or omitted from it.
13
Exception for reasonable care
14
(3) The entity is not liable to an administrative penalty under this
15
section if the entity, and the entity's agent (if relevant), took
16
reasonable care in connection with the making of the statement.
17
175-15 Amount of penalty
18
Base penalty amount
19
(1) Work out the base penalty amount under section 175-20.
20
Adjustments
21
(2) Increase the amount in accordance with section 175-25.
22
(3) Decrease the amount in accordance with section 175-30.
23
Amount of penalty
24
(4) The result is the amount of the penalty.
25
Chapter 7 Miscellaneous
Part 7-3 Penalties
Division 175 Administrative penalties
Section 175-20
126 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
175-20 Base penalty amount
1
(1)
The
base penalty amount under this Subdivision is worked out
2
using this table:
3
4
Base penalty amount
Item
Column 1
If the entity is liable to a penalty under
section 175-10 in relation to a statement that was
false or misleading because of:
Column 2
the base penalty
amount is:
1
intentional disregard of this Act by the entity or its
agent
60 penalty units
2
recklessness by the entity or its agent as to the
operation of this Act
40 penalty units
3
a failure by the entity or its agent to take reasonable
care to comply with this Act
20 penalty units
(2) If 2 or more items in that table apply and one of them produces a
5
greater base penalty amount than any of the others, use that item.
6
(3) If, apart from this subsection, the entity would have a base penalty
7
amount because the entity or its agent treated this Act as applying
8
in a particular way, and that way agreed with:
9
(a) advice given to the entity or its agent by or on behalf of the
10
Commissioner; or
11
(b) general administrative practice under this Act; or
12
(c) a statement in a publication approved in writing by the
13
Commissioner;
14
the base penalty amount is reduced to the extent that it was caused
15
by that treatment.
16
175-25 Increase in penalty
17
Increase the amount by 20% of the base penalty amount if:
18
(a) the entity took steps to prevent or obstruct the Commissioner
19
from finding out about the false or misleading nature of the
20
relevant statement; or
21
(b)
the
entity:
22
Miscellaneous Chapter 7
Penalties Part 7-3
Administrative penalties Division 175
Section 175-30
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 127
(i) became aware of the false or misleading nature of the
1
relevant statement made to the Commissioner or another
2
entity after the statement had been made; and
3
(ii) did not tell the Commissioner or other entity about it
4
within a reasonable time; or
5
(c) the entity had previously been liable to a penalty under this
6
Subdivision.
7
175-30 Reduction of penalty if entity voluntarily tells the
8
Commissioner
9
(1) Reduce the amount by 20% of the base penalty amount if:
10
(a) the Commissioner tells the entity that an examination is to be
11
made of the entity's affairs relating to this Act; and
12
(b)
after that time, the entity voluntarily tells the Commissioner,
13
in the approved form, about the false or misleading nature of
14
the relevant statement; and
15
(c) telling the Commissioner can reasonably be estimated to
16
have saved the Commissioner a significant amount of time or
17
significant resources in the examination.
18
(2) Reduce the amount to nil if the entity voluntarily tells the
19
Commissioner, in the approved form, about the false or misleading
20
nature of the relevant statement before:
21
(a) the day the Commissioner tells the entity that an examination
22
is to be made of the entity's affairs relating to this Act; or
23
(b) if the Commissioner makes a public statement requesting
24
entities to make a voluntary disclosure by a particular earlier
25
day about a matter that applies to its affairs--that earlier day.
26
(3) If the entity voluntarily tells the Commissioner, in the approved
27
form, about the false or misleading nature of the statement after the
28
Commissioner tells the entity that an examination is to be
29
conducted of the entity's affairs relating to this Act, the
30
Commissioner may treat the entity as having done so before being
31
told about the examination if the Commissioner considers it
32
appropriate to do so in the circumstances.
33
Chapter 7 Miscellaneous
Part 7-3 Penalties
Division 175 Administrative penalties
Section 175-35
128 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Subdivision 175-C--Penalties for failing to lodge documents on
1
time
2
175-35 Liability to penalty
3
An entity is liable to an administrative penalty if:
4
(a) the entity is required under this Act to give a report, return,
5
notice, statement or other document to the Commissioner in
6
the approved form by a particular day; and
7
(b) the entity does not give the report, return, notice, statement or
8
document to the Commissioner in the approved form by that
9
day.
10
175-40 Amount of penalty
11
(1) The amount of the penalty is:
12
(a) if the entity is a medium registered entity--double the base
13
penalty amount; or
14
(b) if the entity is a large registered entity--5 times the base
15
penalty amount; or
16
(c) otherwise--the base penalty amount.
17
(2)
The
base penalty amount under this Subdivision is 1 penalty unit
18
for each period of 28 days or part of a period of 28 days:
19
(a) starting on the day when the report, return, notice, statement
20
or other document is due; and
21
(b) ending when the entity gives it;
22
(up to a maximum of 5 penalty units).
23
Note:
See section 4AA of the Crimes Act 1914 for the current value of a
24
penalty unit.
25
Example: An entity lodges a return 31 days late. The base penalty amount under
26
subsection (2) is 2 penalty units.
27
(3) In working out the base penalty amount, the amount of a penalty
28
unit is the amount applying at the start of the relevant 28-day
29
period.
30
(4) The fact that the entity has not yet given the relevant report, return,
31
notice or other document does not prevent the Commissioner
32
Miscellaneous Chapter 7
Penalties Part 7-3
Administrative penalties Division 175
Section 175-45
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 129
notifying the entity that it is liable to an administrative penalty
1
under this Subdivision. That penalty may be later increased under
2
this section.
3
Note:
The Commissioner is required to notify the entity of an administrative
4
penalty (see section 175-50).
5
Subdivision 175-D--Machinery provisions for administrative
6
penalties
7
175-45 Scope of Subdivision
8
This Subdivision applies if an administrative penalty is imposed on
9
an entity by another provision of this Act.
10
175-50 Notification of liability
11
The Commissioner must give written notice to the entity of the
12
entity's liability to pay the penalty and of the reasons why the
13
entity is liable to pay the penalty. The Commissioner may do so in
14
any other notice he or she gives to the entity. The Commissioner is
15
not required to give reasons if he or she decides to remit all of the
16
penalty.
17
Note:
Section 25D of the Acts Interpretation Act 1901 sets out rules about
18
the contents of a statement of reasons.
19
175-55 Due date for penalty
20
The penalty becomes due to the Commonwealth for payment on
21
the day specified in the notice, which must be at least 14 days after
22
the notice is given to the entity.
23
175-60 Remission of penalty
24
(1) The Commissioner may remit all or a part of the penalty.
25
(2) If the Commissioner decides:
26
(a) not to remit the penalty; or
27
(b) to remit only part of the penalty;
28
Chapter 7 Miscellaneous
Part 7-3 Penalties
Division 175 Administrative penalties
Section 175-65
130 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
the Commissioner must give written notice of the decision and the
1
reasons for the decision to the entity.
2
Note:
Section 25D of the Acts Interpretation Act 1901 sets out rules about
3
the contents of a statement of reasons.
4
(3)
If:
5
(a) the Commissioner refuses to any extent to remit an amount of
6
penalty; and
7
(b) the amount of penalty payable after the refusal is more than 2
8
penalty units; and
9
Note:
See section 4AA of the Crimes Act 1914 for the current value of
10
a penalty unit.
11
(c) the entity is dissatisfied with the decision;
12
the entity may object against the decision in the manner set out in
13
Part 7-2.
14
175-65 General interest charge on unpaid penalty
15
If any of the penalty remains unpaid after it is due, the entity is
16
liable to pay the general interest charge (within the meaning of the
17
Taxation Administration Act 1953) on the unpaid amount of the
18
penalty for each day in the period that:
19
(a) started at the beginning of the day by which the amount was
20
due to be paid; and
21
(b) finishes at the end of the last day, at the end of which, any of
22
the following remains unpaid:
23
(i)
the
amount;
24
(ii) general interest charge on any of the amount.
25
Note:
The general interest charge is worked out under Part IIA of the
26
Taxation Administration Act 1953.
27
175-70 Collection of penalty by Commissioner of Taxation
28
(1) For the purposes of Part IIB of the Taxation Administration Act
29
1953 (Running balance accounts, application of payments and
30
credits, and related matters):
31
(a) treat the penalty in the same way as a primary tax debt; and
32
Miscellaneous Chapter 7
Penalties Part 7-3
Administrative penalties Division 175
Section 175-70
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 131
(b) treat general interest charge (if any) under section 175-65 in
1
respect of the penalty in the same way as a primary tax debt.
2
Note:
This allows the Commissioner of Taxation to add the penalty to an
3
entity's running balance account.
4
(2) For the purposes of Chapter 4 in Schedule 1 to the Taxation
5
Administration Act 1953 (Generic collection and recovery rules):
6
(a) treat the penalty in the same way as a tax-related liability;
7
and
8
(b) treat general interest charge (if any) under section 175-65 in
9
respect of the penalty in the same way as a tax-related
10
liability.
11
Note 1:
When the penalty is due and payable (see section 175-55), it is a debt
12
due to the Commonwealth and payable to the Commissioner of
13
Taxation (see section 255-5 in Schedule 1 to the Taxation
14
Administration Act 1953).
15
Note 2:
For exceptions to the duty to pursue recovery of a debt, see section 47
16
of the Financial Management and Accountability Act 1997.
17
(3) If the Commissioner gives an entity a written notice under
18
section 175-50, the Commissioner must notify the Commissioner
19
of Taxation that he or she has done so.
20
(4) If the Commissioner later remits all or a part of the penalty under
21
section 175-60, the Commissioner must notify the Commissioner
22
of Taxation that he or she has done so.
23
(5) The Commissioner of Taxation must notify the Commissioner of
24
any action taken to recover a debt attributable to the penalty, if the
25
Commissioner requests the Commissioner of Taxation in writing to
26
do so.
27
28
Chapter 7 Miscellaneous
Part 7-4 Application of this Act to entities
Division 180 Obligations, liabilities and offences
Section 180-1
132 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Part 7-4--Application of this Act to entities
1
Division 180--Obligations, liabilities and offences
2
Subdivision 180-A--Overview
3
180-1 Simplified outline
4
The following is a simplified outline of this Division:
5
If an entity is subject to an obligation or liability, or commits an
6
offence, certain entities that are responsible for managing the entity
7
may also be subject to the obligation or liability, or commit the
8
offence, in specific situations.
9
Subdivision 180-B--Unincorporated associations and bodies of
10
persons
11
180-5 Obligations and liabilities
12
Obligations
13
(1) Subject to subsection (2), an obligation that is imposed under this
14
Act on a company that is an unincorporated association or body of
15
persons is imposed on each individual who was a director of the
16
association or body at the time the obligation arose, but may be
17
discharged by any such individual.
18
Liabilities
19
(2) An amount that is payable under this Act by a company that is an
20
unincorporated association or body of persons is payable by each
21
individual who was a director of the association or body at the time
22
the amount became payable.
23
(3) If an amount is payable under this section by more than one entity,
24
those entities are jointly and severally liable to pay the amount.
25
Miscellaneous Chapter 7
Application of this Act to entities Part 7-4
Obligations, liabilities and offences Division 180
Section 180-10
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 133
180-10 Offences
1
(1) An offence against this Act committed by a company that is an
2
unincorporated association or body of persons is taken to have
3
been committed by each individual who was a director of the body
4
or association at the time the body or association committed the
5
offence.
6
(2) Despite subsection (1), the offence is taken to have been
7
committed by a director under that subsection only if the director:
8
(a) aided, abetted, counselled or procured the relevant act or
9
omission; or
10
(b) was in any way knowingly concerned in, or party to, the
11
relevant act or omission (whether directly or indirectly and
12
whether by any act or omission of the director).
13
(3) Subsection (1) does not apply in respect of a director if
14
section 180-15 applies to the director.
15
Note:
A defendant bears an evidential burden in relation to the matter in this
16
subsection (see subsection 13.3(3) of the Criminal Code).
17
180-15 Offences--defences
18
Illness
19
(1) This section applies to a director if, because of illness or for some
20
other good reason, it would have been unreasonable to expect the
21
director to take part, and the director did not take part, in the
22
management of the association or body at any time when:
23
(a) the director was a director of the association or body; and
24
(b) the offence was committed.
25
All reasonable steps
26
(2) This section applies to a director if:
27
(a) the director took all reasonable steps to ensure that the
28
association or body did not commit the offence; or
29
(b) there were no such steps that the director could have taken.
30
Chapter 7 Miscellaneous
Part 7-4 Application of this Act to entities
Division 180 Obligations, liabilities and offences
Section 180-20
134 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
(3) In determining what are reasonable steps for the purposes of
1
subsection (2), have regard to:
2
(a) when, and for how long, the director was a director of the
3
association or body; and
4
(b) all other relevant circumstances.
5
Subdivision 180-C--Trusts
6
180-20 Obligations and liabilities
7
Obligations
8
(1) Subject to subsection (2), an obligation that is imposed under this
9
Act on a trust is imposed on each of the following entities, but may
10
be discharged by any such entity:
11
(a) each entity (whether an individual or a company that is a
12
body corporate) that was a trustee of the trust at the time the
13
obligation arose;
14
(b) if the trustee, or one or more of the trustees, mentioned in
15
paragraph (a) is a company that is a body corporate--each
16
individual who was a director of such a company at the time
17
the obligation arose.
18
Liabilities
19
(2) An amount that is payable under this Act by a trust is payable by
20
each of the following entities:
21
(a) each entity (whether an individual or a company that is a
22
body corporate) that was a trustee of the trust at the time the
23
amount became payable;
24
(b) if the trustee, or one or more of the trustees, mentioned in
25
paragraph (a) is a company that is a body corporate--each
26
individual who was a director of such a company at the time
27
the amount became payable.
28
(3) An amount is payable by a director under paragraph (2)(b) only if
29
the amount is payable by the trust because of a deliberate act or
30
omission of the director involving dishonesty, gross negligence or
31
recklessness
.
32
Miscellaneous Chapter 7
Application of this Act to entities Part 7-4
Obligations, liabilities and offences Division 180
Section 180-25
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 135
(4) If an amount is payable under this section by more than one entity,
1
those entities are jointly and severally liable to pay the amount.
2
(5) For the purpose of ensuring the payment of an amount payable
3
under this section by an entity mentioned in paragraph (2)(a) or (b),
4
the Commissioner of Taxation has the same remedies against the
5
property of the trust as the Commissioner of Taxation would have
6
against the property of the entity.
7
180-25 Offences
8
An offence against this Act committed by a trust no trustee of
9
which is a body corporate is taken to have been committed by each
10
entity that was a trustee of the trust at the time the trust committed
11
the offence.
12
Subdivision 180-D--Bodies corporate
13
180-30 Liabilities
14
(1) An amount that is payable under this Act by a company that is a
15
body corporate is payable by each of the following entities:
16
(a) the body corporate;
17
(b) each individual who was a director of the body corporate at
18
the time the amount became payable;
19
if, at the time the amount became payable, the body corporate was
20
a registered entity.
21
(2) An amount is payable by a director under paragraph (1)(b) only if
22
the amount is payable by the body corporate because of a
23
deliberate act or omission of the director involving dishonesty,
24
gross negligence or recklessness
.
25
(3) If an amount is payable under this section by more than one entity,
26
those entities are jointly and severally liable to pay the amount.
27
Chapter 7 Miscellaneous
Part 7-4 Application of this Act to entities
Division 180 Obligations, liabilities and offences
Section 180-35
136 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Subdivision 180-E--Rights of indemnity and contribution
1
180-35 Rights of indemnity and contribution
2
(1) This section applies if:
3
(a) an amount is payable under section 180-5, 180-20 or 180-30
4
by 2 or more entities (the jointly liable entities); and
5
(b) one of the jointly liable entities (the paying entity) pays that
6
amount; and
7
(c) the paying entity is not the company that is an unincorporated
8
association or body of persons, the trust, or the company that
9
is a body corporate, mentioned in that section (the primary
10
entity).
11
(2) The paying entity has the same rights (whether by way of
12
indemnity, subrogation, contribution or otherwise) against anyone
13
else as if:
14
(a) the paying entity made the payment under a guarantee of the
15
liability of the primary entity to pay the amount; and
16
(b)
under
the
guarantee:
17
(i) the paying entity; and
18
(ii) every other entity (other than the primary entity) that is
19
or was liable to pay that amount under that section;
20
were jointly and severally liable as guarantors.
21
22
Miscellaneous Chapter 7
Constitutional matters Part 7-5
Constitutional matters Division 185
Section 185-5
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 137
Part 7-5--Constitutional matters
1
Division 185--Constitutional matters
2
185-5 Concurrent operation of State and Territory laws
3
This Act is not intended to exclude or limit the operation of a law
4
of a State or Territory that is capable of operating concurrently
5
with this Act.
6
185-10 Compensation for acquisition of property
7
(1) If the operation of this Act would result in an acquisition of
8
property from a person otherwise than on just terms, the
9
Commonwealth is liable to pay a reasonable amount of
10
compensation to the person.
11
(2) If the Commonwealth and the person do not agree on the amount
12
of the compensation, the person may institute proceedings in a
13
designated court for the recovery from the Commonwealth of such
14
reasonable amount of compensation as the court determines.
15
(3) In this section:
16
acquisition of property has the same meaning as in paragraph
17
51(xxxi) of the Constitution.
18
just terms has the same meaning as in paragraph 51(xxxi) of the
19
Constitution.
20
(4) Any damages or compensation recovered or other remedy given in
21
a proceeding that is commenced otherwise than under this section
22
is to be taken into account in assessing compensation payable in a
23
proceeding that is commenced under this section and that arises out
24
of the same event or transaction.
25
26
Chapter 7 Miscellaneous
Part 7-6 Forms and regulations
Division 190 Requirements about giving material
Section 190-5
138 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Part 7-6--Forms and regulations
1
Division 190--Requirements about giving material
2
Subdivision 190-A--Object of this Division
3
190-5 Object of this Division
4
The object of this Division is to set out requirements to ensure the
5
integrity and efficiency of giving material to the Commissioner and
6
other entities.
7
Subdivision 190-B--General provisions
8
190-10 Approved forms
9
(1) A return, notice, statement, application or other document under
10
this Act is in the approved form if, and only if:
11
(a) it is in the form approved in writing by the Commissioner for
12
that kind of return, notice, statement, application or other
13
document; and
14
(b) it contains a declaration signed by an entity or entities as the
15
form requires (see section 190-35); and
16
(c) it contains the information that the form requires, and any
17
further information, statement or document as the
18
Commissioner requires, whether in the form or otherwise;
19
and
20
(d) for a return, notice, statement, application or document that is
21
required to be given to the Commissioner--it is given in the
22
manner that the Commissioner requires (which may include
23
electronically).
24
(2) Despite subsection (1), a document that satisfies paragraphs (1)(a),
25
(b) and (d) but not paragraph (1)(c) is also in the approved form if
26
it contains the information required by the Commissioner. The
27
Commissioner must specify the requirement in writing.
28
(3) The Commissioner may combine in the same approved form more
29
than one return, notice, statement, application or other document.
30
Miscellaneous Chapter 7
Forms and regulations Part 7-6
Requirements about giving material Division 190
Section 190-15
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 139
(4) The Commissioner may approve a different approved form for
1
different entities.
2
Example: The Commissioner may require medium and large registered entities
3
to lodge a different annual information statement to that required to be
4
lodged by small registered entities.
5
190-15 Commissioner may defer time for lodgement
6
The Commissioner may defer the time within which an approved
7
form is required to be given to the Commissioner or to another
8
entity.
9
190-20 Declaration by entity
10
If an entity gives a return, notice, statement, application or other
11
document to the Commissioner in the approved form, the entity
12
must make a declaration in the approved form that any information
13
in the document is true and correct.
14
190-25 Declaration by entity where agent gives document
15
(1) If a return, notice, statement, application or other document of an
16
entity is to be given to the Commissioner in the approved form by
17
an agent on the entity's behalf, the entity must make a declaration
18
in writing:
19
(a) stating that the entity has authorised the agent to give the
20
document to the Commissioner; and
21
(b) declaring that any information the entity provided to the
22
agent for the preparation of the document is true and correct.
23
(2) The entity must give the declaration to the agent.
24
(3) The entity must retain the declaration or a copy of the declaration
25
for:
26
(a) 7 years after it is made; or
27
(b) a shorter period determined by the Commissioner in writing
28
for the entity; or
29
(c) a shorter period determined by the Commissioner by
30
legislative instrument for a class of entities that includes the
31
entity.
32
Chapter 7 Miscellaneous
Part 7-6 Forms and regulations
Division 190 Requirements about giving material
Section 190-30
140 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
(4) A determination under paragraph (3)(c) may specify different
1
periods for different classes of entities.
2
(5) The entity must produce the declaration or copy if requested to do
3
so within that period by the Commissioner.
4
(6) The agent must not give the document to the Commissioner before
5
the entity makes the declaration.
6
(7) The entity must sign the declaration.
7
190-30 Declaration by agent
8
If an agent gives a return, notice, statement, application or other
9
document to the Commissioner in the approved form on behalf of
10
another entity, the agent must, if the document so requires, make a
11
declaration in the approved form stating that:
12
(a) the document has been prepared in accordance with the
13
information supplied by the other entity; and
14
(b) the agent has received a declaration from the other entity
15
stating that the information provided to the agent is true and
16
correct; and
17
(c) the agent is authorised by the other entity to give the
18
document to the Commissioner.
19
190-35 Signing declarations
20
(1) An entity must sign a declaration in a return, notice, statement,
21
application or other document the entity gives to the Commissioner
22
in paper form.
23
(2) If an entity's agent gives a return, notice, statement, application or
24
other document to the Commissioner on the entity's behalf in paper
25
form, the document must contain:
26
(a) if the document so requires--a declaration made by the entity
27
with the entity's signature; and
28
(b) if the document so requires--a declaration made by the agent
29
with the agent's signature.
30
Miscellaneous Chapter 7
Forms and regulations Part 7-6
Requirements about giving material Division 190
Section 190-35
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 141
(3) Any return, notice, statement, application or other document of an
1
entity's that is lodged electronically:
2
(a) if the entity gives it to the Commissioner--must contain the
3
entity's declaration (see section 190-20) with the entity's
4
electronic signature; or
5
(b) if the entity's agent gives it to the Commissioner--must
6
contain the agent's declaration (see section 190-30) with the
7
agent's electronic signature.
8
9
Chapter 7 Miscellaneous
Part 7-6 Forms and regulations
Division 195 Address for service
Section 195-5
142 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Division 195--Address for service
1
195-5 Address for service
2
(1) An entity's address for service for the purposes of this Act is:
3
(a) a physical address in Australia; or
4
(b) a postal address in Australia; or
5
(c) an electronic address;
6
that the entity has given the Commissioner as the entity's address
7
for service for the purposes of this Act.
8
(2) If an entity has given the Commissioner more than one address for
9
service for the purposes of subsection (1), the entity's address for
10
service is such of those addresses as the Commissioner considers
11
reasonable in the circumstances.
12
(3) If an entity has not given the Commissioner an address for service,
13
the entity's address for service is the address that the
14
Commissioner reasonably believes to be the entity's address for
15
service for the purposes of this Act.
16
195-10 How documents may be given
17
(1) For the purposes of this Act, a document (however described) may
18
be given to an entity:
19
(a) in the manner specified in section 28A of the Acts
20
Interpretation Act 1901; or
21
(b) if the entity's address for service is an electronic address--by
22
sending it to that address; or
23
(c) if the entity is a company and a liquidator of the company has
24
been appointed--by leaving it at, or posting it to, the address
25
of the liquidator's office in the most recent notice of that
26
address lodged with ASIC; or
27
(d) if the entity is a company and an administrator of the
28
company has been appointed--by leaving it at, or posting it
29
to, the address of the administrator in the most recent notice
30
of that address lodged with ASIC.
31
Miscellaneous Chapter 7
Forms and regulations Part 7-6
Address for service Division 195
Section 195-10
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 143
(2) Despite section 29 of the Acts Interpretation Act 1901, a document
1
under subsection (1) of this section is taken to be given at the time
2
the Commissioner leaves or posts it.
3
(3) This Division has effect despite paragraphs 9(1)(d) and (2)(d) of
4
the Electronic Transactions Act 1999.
5
6
Chapter 7 Miscellaneous
Part 7-6 Forms and regulations
Division 200 Regulations
Section 200-5
144 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
Division 200--Regulations
1
200-5 Regulations
2
The Governor-General may make regulations prescribing matters:
3
(a) required or permitted by this Act to be prescribed; or
4
(b) necessary or convenient to be prescribed for carrying out or
5
giving effect to this Act.
6
7
Interpretation Chapter 8
Core concepts Part 8-1
Core concepts Division 205
Section 205-5
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 145
Chapter 8--Interpretation
1
Part 8-1--Core concepts
2
Division 205--Core concepts
3
Subdivision 205-A--Entities
4
205-5 Entities
5
(1)
Entity means any of the following:
6
(a)
an
individual;
7
(b) a body corporate;
8
(c) a body politic;
9
(d) any other unincorporated association or body of persons;
10
(e)
a
trust.
11
Note: The
term
entity is used in a number of different but related senses. It
12
covers all kinds of legal person. It also covers groups of legal persons,
13
and other things, that in practice are treated as having a separate
14
identity in the same way as a legal person does.
15
(2) Paragraph (1)(d) does not include a non-entity joint venture (within
16
the meaning of the Income Tax Assessment Act 1997).
17
(3) The trustee of a trust is taken to be an entity consisting of the
18
person who is the trustee, or the persons who are the trustees, at
19
any given time.
20
Note 1:
This is because a right or obligation cannot be conferred or imposed
21
on an entity that is not a legal person.
22
Note 2:
The entity that is the trustee of a trust does not change merely because
23
of a change in the person who is the trustee of the trust, or persons
24
who are the trustees of the trust.
25
(4) A legal person can have a number of different capacities in which
26
the person does things. In each of those capacities, the person is
27
taken to be a different entity.
28
Example: In addition to his or her personal capacity, an individual may be:
29
(a) sole trustee of one or more trusts; and
30
(b) one of a number of trustees of a further trust.
31
Chapter 8 Interpretation
Part 8-1 Core concepts
Division 205 Core concepts
Section 205-10
146 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
In his or her personal capacity, he or she is one entity. As trustee of
1
each trust, he or she is a different entity. The trustees of the further
2
trust are a different entity again, of which the individual is a member.
3
(5) If a provision refers to an entity of a particular kind, it refers to the
4
entity in its capacity as that kind of entity, not to that entity in any
5
other capacity.
6
Example: A provision that refers to a company does not cover a company in a
7
capacity as trustee, unless it also refers to a trustee.
8
205-10 Companies
9
In this Act:
10
company means:
11
(a) a body corporate; or
12
(b) any unincorporated association or body of persons;
13
but does not include a partnership.
14
205-15 Federally regulated entity
15
A
federally regulated entity is:
16
(a) a constitutional corporation; or
17
(b) a trust, all of the trustees of which are constitutional
18
corporations; or
19
(c) a body corporate that is taken to be registered in a Territory
20
under section 119A of the Corporations Act 2001; or
21
(d) a trust, if the proper law of the trust and the law of the trust's
22
administration are the law of a Territory; or
23
(e) an entity, the core or routine activities of which are carried
24
out in or in connection with a Territory.
25
205-20 Constitutional corporation
26
An entity is a constitutional corporation if it is:
27
(a) a corporation to which paragraph 51(xx) of the Constitution
28
applies; or
29
(b) a body corporate that is incorporated in a Territory.
30
Interpretation Chapter 8
Core concepts Part 8-1
Core concepts Division 205
Section 205-25
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 147
Subdivision 205-B--Registered entities
1
205-25 Small, medium and large registered entities
2
(1) A registered entity is a small registered entity for a particular
3
financial year if the revenue of the registered entity for the
4
financial year is less than $250,000, or any other amount
5
prescribed by the regulations for the purposes of this subsection.
6
(2) A registered entity is a medium registered entity for a particular
7
financial year if:
8
(a) it is not a small registered entity for the financial year; and
9
(b) the revenue of the registered entity for the financial year is
10
less than $1,000,000, or any other amount prescribed by the
11
regulations for the purposes of this paragraph.
12
(3) A registered entity is a large registered entity for a particular
13
financial year if it is not a small registered entity or a medium
14
registered entity for the financial year.
15
(4) Revenue is to be calculated for the purposes of this section in
16
accordance with accounting standards in force at the relevant time
17
(even if the standard does not otherwise apply to the financial year
18
of the registered entity concerned).
19
(5) The Commissioner may continue to treat a registered entity as
20
either a small, medium or large registered entity for a financial year
21
if the Commissioner is of the opinion that:
22
(a) the entity was a registered entity of that size for the previous
23
financial year; and
24
(b) the entity, while not being of that size for the current
25
financial year, is likely to return to that size during the next
26
financial year.
27
Note:
For registered entities that form a reporting group, see section 60-105.
28
205-30 Responsible entity
29
Each of the following is a responsible entity of a registered entity:
30
(a) in the case of a registered entity that is a company--a
31
director of the registered entity;
32
Chapter 8 Interpretation
Part 8-1 Core concepts
Division 205 Core concepts
Section 205-35
148 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
(b) in the case of a registered entity that is a trust--each of the
1
following:
2
(i) a trustee of the registered entity;
3
(ii) if a trustee of the registered entity is a body corporate--
4
a director of the trustee;
5
(c) a person who is any of the following:
6
(i) a trustee in bankruptcy of the registered entity;
7
(ii) a receiver, or receiver and manager, of the property of
8
the registered entity;
9
(iii) an administrator of the registered entity;
10
(iv) an administrator of a deed of company arrangement
11
executed by the registered entity;
12
(v) a liquidator of the registered entity;
13
(vi) a trustee or other entity administering a compromise or
14
arrangement made between the registered entity and
15
someone else.
16
205-35 Basic religious charity
17
(1) An entity is a basic religious charity if:
18
(a) the entity is a registered entity; and
19
(b) the entity is registered as the subtype of entity mentioned in
20
column 2 of item 3 of the table in subsection 25-5(5) (Entity
21
with a purpose that is the advancement of religion); and
22
(c) the entity is not entitled to be registered as any other subtype
23
of entity.
24
(2) However, an entity is not a basic religious charity if:
25
(a) the entity is a body corporate that is registered under the
26
Corporations Act 2001; or
27
(b) the entity is a corporation registered under the Corporations
28
(Aboriginal and Torres Strait Islander) Act 2006; or
29
(c) the entity is a corporation registered under the Companies Act
30
1985 of Norfolk Island; or
31
(d) the entity is incorporated under any of the following:
32
(i)
the
Associations Incorporation Act 2009 of New South
33
Wales;
34
Interpretation Chapter 8
Core concepts Part 8-1
Core concepts Division 205
Section 205-40
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 149
(ii)
the
Associations Incorporation Act 1981 of Victoria;
1
(iii)
the
Associations Incorporation Act 1981 of Queensland;
2
(iv)
the
Associations Incorporation Act 1987 of Western
3
Australia;
4
(v)
the
Associations Incorporation Act 1985 of South
5
Australia;
6
(vi)
the
Associations Incorporation Act 1964 of Tasmania;
7
(vii)
the
Associations Incorporation Act 1991 of the
8
Australian Capital Territory;
9
(viii)
the
Associations Act 2010 of the Northern Territory;
10
(ix)
the
Associations Incorporation Act 2005 of Norfolk
11
Island.
12
(3) An entity is also not a basic religious charity if it is a deductible
13
gift recipient.
14
(4) An entity is also not a basic religious charity at a time in a
15
financial year if the Commissioner has allowed it (together with
16
one or more other entities) to form part of a reporting group for the
17
year under section 60-95.
18
(5) An entity is also not a basic religious charity at a time if:
19
(a) the total of the grants (however described) (if any) it receives
20
from Australian government agencies in a financial year
21
exceeds $100,000; and
22
(b) the financial year is:
23
(i) the financial year in which the time occurs; or
24
(ii) either of the previous 2 financial years.
25
Subdivision 205-C--Other core concepts
26
205-40 Contribution
27
A
contribution to a registered entity is the provision of money,
28
property or any other benefit to the entity, and includes the
29
following:
30
(a) the provision by an individual of his or her time or reputation
31
to the entity;
32
Chapter 8 Interpretation
Part 8-1 Core concepts
Division 205 Core concepts
Section 205-40
150 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
(b) the provision by a government of tax concessions or other
1
forms of government support to the entity.
2
3
Interpretation Chapter 8
Dictionary Part 8-2
Dictionary Division 300
Section 300-5
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 151
Part 8-2--Dictionary
1
Division 300--Dictionary
2
300-5 Dictionary
3
In this Act:
4
AAT Act means the Administrative Appeals Tribunal Act 1975.
5
AAT extension application means an application under subsection
6
29(7) of the AAT Act that relates to a review of an objection
7
decision or an extension of time refusal decision.
8
ABN (short for Australian Business Number) has the meaning
9
given by the Income Tax Assessment Act 1997.
10
Account has the meaning given by subsection 125-5(1).
11
accounting standards has the same meaning as in the
12
Corporations Act 2001.
13
ACNC means the Australian Charities and Not-for-profits
14
Commission.
15
ACNC officer means:
16
(a) the Commissioner; or
17
(b) a member of the staff assisting the Commissioner as
18
mentioned in subsection 120-5(1).
19
administrative decision has the meaning given by subsection
20
155-5(2).
21
Advisory Board means the Advisory Board of the ACNC.
22
approved form has the meaning given by section 190-10.
23
ASIC means the Australian Securities and Investments
24
Commission.
25
audit means an audit conducted for the purposes of this Act.
26
Chapter 8 Interpretation
Part 8-2 Dictionary
Division 300 Dictionary
Section 300-5
152 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
auditing standard has the same meaning as in the Corporations
1
Act 2001.
2
auditor's report means a report under section 60-45.
3
Australia includes the external Territories.
4
Australian government agency means:
5
(a) the Commonwealth, a State or a Territory; or
6
(b) an authority of the Commonwealth or of a State or a
7
Territory.
8
Australian law has the meaning given by the Income Tax
9
Assessment Act 1997.
10
base penalty amount:
11
(a) under Subdivision 175-B, has the meaning given by
12
section 175-20; and
13
(b) under Subdivision 175-C, has the meaning given by
14
subsection 175-40(2).
15
basic religious charity has the meaning given by section 205-35.
16
Chair means the Chair of the Advisory Board.
17
Commissioner means the Commissioner of the ACNC.
18
company has the meaning given by section 205-10.
19
constitutional corporation has the meaning given by
20
section 205-20.
21
contribution has the meaning given by section 205-40.
22
damage, in relation to data, includes damage by erasure of data or
23
addition of other data.
24
deductible gift recipient has the same meaning as in the Income
25
Tax Assessment Act 1997.
26
Deputy Chair means the Deputy Chair of the Advisory Board.
27
designated court means:
28
Interpretation Chapter 8
Dictionary Part 8-2
Dictionary Division 300
Section 300-5
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 153
(a) the Federal Court of Australia; or
1
(b) a Supreme Court of a State or Territory that has jurisdiction
2
in relation to matters arising under this Act.
3
director, of a company, means:
4
(a) if the company is incorporated--a director of the company,
5
or an individual who performs the duties of a director of the
6
company; or
7
(b) if the company is not incorporated--a member of the
8
committee of management of the company, or an individual
9
who performs the duties of such a member;
10
regardless of the name that is given to his or her position, or
11
whether or not he or she is validly appointed to occupy, or duly
12
authorised to act in, the position.
13
electronic signature of an entity means a unique identification of
14
the entity in electronic form that is approved by the Commissioner.
15
enforceable:
16
(a) a provision is enforceable under Division 90 if it is
17
mentioned in section 90-5; and
18
(b) a provision is enforceable under Division 95 if it is
19
mentioned in section 95-5.
20
engage in conduct means:
21
(a) do an act; or
22
(b) omit to perform an act.
23
entity has the meaning given by section 205-5.
24
extension of time refusal decision means a decision of the
25
Commissioner under subsection 160-10(4) to refuse a request by
26
an entity.
27
external conduct standard has the meaning given by
28
section 50-10.
29
federally regulated entity has the meaning given by
30
section 205-15.
31
Chapter 8 Interpretation
Part 8-2 Dictionary
Division 300 Dictionary
Section 300-5
154 Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012
former registered entity means an entity that is not a registered
1
entity, but that used to be a registered entity.
2
general member, of the Advisory Board, has the meaning given by
3
section 135-10.
4
governance standard has the meaning given by section 45-10.
5
governing rules, of an entity, means written rules that:
6
(a) govern the establishment or operation of the entity; and
7
(b) can be enforced against the entity.
8
individual assisting an ACNC officer has the meaning given by
9
section 75-35.
10
information statement has the meaning given by section 60-5.
11
issuing officer means a magistrate or a Federal Magistrate.
12
large registered entity has the meaning given by section 205-25.
13
lodge electronically: a document is lodged electronically if it is
14
transmitted to the Commissioner in an electronic format approved
15
by the Commissioner.
16
medium registered entity has the meaning given by section 205-25.
17
monitoring powers has the meaning given by sections 75-20,
18
75-25 and 75-30.
19
monitoring warrant means a warrant issued under section 75-85.
20
objection decision has the meaning given by subsection 160-15(2).
21
premises includes the following:
22
(a) a structure, building, vehicle, vessel or aircraft;
23
(b) a place (whether or not enclosed or built on);
24
(c) a part of a thing mentioned in paragraph (a) or (b).
25
protected ACNC information has the meaning given by
26
section 150-15.
27
Interpretation Chapter 8
Dictionary Part 8-2
Dictionary Division 300
Section 300-5
Australian Charities and Not-for-profits Commission Bill 2012 No. , 2012 155
recognised assessment activity has the meaning given by
1
section 55-10.
2
Register means the Australian Charities and Not-for-profits
3
Register mentioned in section 40-5.
4
registered entity means an entity that is registered under this Act.
5
relevant data has the meaning given by subsection 75-65(3).
6
reporting group has the meaning given by subsection 60-95(1).
7
responsible entity has the meaning given by section 205-30.
8
review means a review of a financial report conducted for the
9
purposes of this Act.
10
reviewer, in relation to a registered entity, means another entity
11
that, under subsection 60-30(1) or (2), can undertake a review of a
12
financial report of the registered entity.
13
reviewer's report means a report under section 60-50.
14
review period has the meaning given by subsection 160-10(1).
15
small registered entity has the meaning given by section 205-25.
16
subject to monitoring:
17
(a) a provision is subject to monitoring under Division 75 if
18
section 75-5 provides that it is subject to monitoring under
19
that Division; and
20
(b) information given in compliance or purported compliance
21
with a provision is subject to monitoring under Division 75
22
if section 75-10 provides that it is subject to monitoring
23
under that Division.
24
taxation law has the same meaning as in the Income Tax
25
Assessment Act 1997.
26