Who can register with the ACNC
The ACNC can only register charities. Charity has a special legal meaning, but this can include a wide range of not-for-profits. It cannot include individuals.
A charity is a not-for-profit that:
- has a charitable purpose that is for the benefit of the public
- has no disqualifying purposes (such as to promote unlawful activities)
- is not a political party or government body
- meets other ACNC rules for registration.
Meeting the charitable purpose requirement
A purpose is the reason an organisation is set up, or what its activities work toward, also called its mission or object. To be registered, this purpose must be charitable. The law recognises many kinds of purposes as charitable, and the Charities Act lists twelve types of charitable purposes.
The ACNC Commissioner recognises the unique situation of Australia’s Indigenous peoples and recognises their disadvantage. An organisation whose purpose is to address this disadvantage is likely to have a charitable purpose. However, the interpretation statement confirms that Indigenous organisations do not need to use the language of ‘Indigenous disadvantage’.
When the ACNC registers charities, it registered as a ‘subtype’ of charity, which reflects these purposes. A charity wanting to address Indigenous disadvantage will be usually be registered with the subtype of ‘advancing social and public welfare’, unless it would like to be registered under a different subtype (with a different purpose).
Meeting the public benefit test
To be registered as a charity, the organisation’s charitable purposes must benefit the public. The Charities Act sets out what public benefit means and applies a ‘public benefit test’. There are a number of ways Indigenous organisations can meet this public benefit requirement.
When the public benefit test is limited or does not apply
Under the Charities Act there are some cases where the public benefit test is limited or does not apply.
- Presumed public benefit
The public benefit test does not apply for some charitable purposes unless there is clear evidence that the purpose is not for the benefit of the public. For example, organisations seeking to address Indigenous disadvantage can be registered as having the purpose of advancing social and public welfare and the public benefit would be presumed.
- Native title and Indigenous land rights
The Charities Act makes it clear that organisations that receive, hold or manage benefits relating to native title or traditional Indigenous land rights are for the public benefit even though they may benefit people who are related to each other.
Relief of necessitous circumstances
For organisations relieving the necessitous circumstances of Australian individuals (individuals in need), the benefit does not have to be directed to the general public.
When the public benefit test does apply
If the public benefit test does apply to Indigenous organisations, then the interpretation statement sets out that the ACNC will accept that an Indigenous organisation benefits a sufficient section of the public if it:
- has a charitable purpose, and
- benefits a traditional owner or native title group whose members are related.