The Australian Charities and Not-for-profits Commission is a federal body which exists to regulate charities. Established by the Australian Charities and Not‑for‑profits Commission Act 2012 (‘the Act’), it manages the registration of new charities, and the compliance and annual reporting requirements required for not-for-profits.
The ACNC has a number of powers in relation to the regulation of charities, most notably in deciding whether a particular body meets the requirements to be a charity, and can therefore be registered as one.
Being registered as a charity has numerous advantages to bodies which are pursuing beneficient, charitable or not-for-profit purposes. Amongst other things, it qualifies them for numerous tax exemptions, at both a State and Commonwealth level, and registration as a charity is therefore desirable for many bodies, and sometimes vital to their work.
As a result, there is a process to appeal decisions the ACNC may make in respect of you or your charity.
If you are dissatisfied with a decision of the ACNC, there are numerous avenues of appeal. Per the Act, the types of decisions which must be internally reviewed by the ACNC, before any court or other action is taken, are those decisions:
- relating to registrations, such as a decision not to register a charity or not to register it as a certain type of charity;
- to revoke or not to revoke a charity’s registration;
- to give, vary, or not change a formal ACNC direction;
- relating to the suspension or removal of a person from their position on a charity’s governing body; and
- to refuse to remit the whole or part of an administrative penalty of more than two penalty units ($369.84 until 30 June 2023) that the ACNC has imposed on a charity, Responsible Person, or third party.
You can apply directly to the ACNC for review of such a decision.
Alternatively, if you disagree with an internal review decision or your decision does not fall into one of the above categories, you are currently entitled to apply to have the decision reviewed by the Administrative Appeals Tribunal (AAT) or appeal the decision directly to a court.
‘Review’ by the AAT involves the Tribunal examining your case and deciding whether the ACNC made the right decision. The Administrative Appeals Tribunal is capable of a much more expansive review than a court, which cannot decide whether the decision was ‘right’, but merely whether the ACNC and the Charities Commissioner complied with the law in making it.
It is important to note the ever-changing legal landscape which surrounds reviews of statutory bodies. It was announced in late 2022 that the AAT would be abolished and replaced by a new body which will likely come into effect by the end of 2023. It is possible that this new body, the ‘Administrative Review Tribunal’, will play the same role as the AAT in being able to review an ACNC decision.
If you would like to challenge an ACNC decision and would like to learn more, please contact Warlows Legal for a free consultation.
