Commissioner’s Interpretation Statement: Indigenous charities


Commissioner’s Interpretation Statements help to guide charities, the public and ACNC staff on how we understand the law that applies to charities, including explaining the law made by judges ('common law') and parliament (legislation), as well as any legal issues that may arise.

The Commissioner’s Interpretation Statement: Indigenous charities provides guidance on how the ACNC applies particular aspects of charity law to Indigenous organisations seeking registration as charities, and how those organisations can meet the ACNC’s requirements. These particular legal aspects include:

  • recognition of Indigenous disadvantage (in the context of charitable purpose)
  • application of the public benefit test, and
  • the effect of the new Charities Act 2013 (Cth) (Charities Act), which commenced on 1 January 2014, on these two issues.

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.

More information