This Commissioner’s Policy Statement is issued under the authority of the Commissioner and should be read together with the ACNC Policy Framework which sets out the scope, context and definitions common to our policies.
Commissioner's Policy Statement 2012/09 Voluntary Revocation
This Commissioner's Policy Statement sets out the ACNC’s position on when a charity can have its registration as a charity voluntarily revoked. If a charity’s registration is revoked, the ACNC will no longer regulate the charity.
This Commissioner’s Policy Statement also sets out the ACNC’s position on when a registered charity can voluntarily revoke a charity subtype from its registration with the ACNC. If a charity revokes a subtype, the ACNC will still regulate the charity. The charity’s record on the ACNC Register will show that the charity is no longer registered with the subtype it has revoked. See charity subtypes for more information.
Voluntary revocation is to be contrasted with revocation for other reasons (or involuntary revocation) – see the Commissioner’s Policy Statement 2014/03: Revocation by the ACNC.
- Principle 1: The ACNC will approve requests for voluntary revocation unless such revocation carries significant risks
- Principle 2: The ACNC will require charities to provide reasons for requesting voluntary revocation
- Principle 3: The ACNC will have regard to appropriate distribution of funds before approving a request for voluntary revocation
- Principle 4: Where non-compliance is a concern or risk, the ACNC may refuse a request for voluntary revocation
- Principle 5: The ACNC may refuse a request for voluntary revocation where Annual Information Statements or annual financial reports are outstanding
Lodging a request for voluntary revocation of charity registration
- A charity can request that the Commissioner revoke its registration as a charity using the ‘voluntary revocation application’ approved form, which is available through the ACNC Charity Portal at acnc.gov.au/charityportal.
Lodging a request for voluntary revocation of a charity subtype
- If a charity wants to remain registered with the ACNC but wants to revoke its registration of one or more charity subtypes, it can request the Commissioner to revoke the subtypes using the ‘change charity subtype application’ approved form, which is available through the ACNC Charity Portal.
- A voluntary revocation request made using one of these forms is referred to as an ‘Application’ throughout this policy.
Voluntary revocation is not automatic
- The voluntary revocation approval process is not automatic. The Australian Charities and Not-for-profits Commission Act 2012 (Cth) (ACNC Act) gives the Commissioner discretion to decide whether to accept the charity’s revocation request.
- This is because the ACNC Act requires the Commissioner to consider certain factors before approving any revocation (see s 15-10 and s 35-10(2) of the ACNC Act and the principles set out in this Policy).
- If clarification of any matter regarding the Application is required, the ACNC may request further information from the charity before making its decision.
- If the Application is likely to be refused, the charity will be given 14 days’ notice to provide further evidence in support of its Application, before a final decision is made.
Notification of decision
- The ACNC will provide the charity with written notice of its decision within 14 days of making the decision.
- If the Application is approved, the date of revocation will be the date requested by the charity or the day of the decision, which will be specified in the notice of decision.
- If the reason given by the charity for requesting voluntary revocation of its charity registration is that it has ceased to be entitled to registration as a charity, the date of revocation may be backdated to the date the charity first ceased to be entitled.
The ACNC will notify the ATO of a revocation approval
- If the Application is approved, the ACNC will notify the Australian Taxation Office (ATO) of the date of revocation.
- The ATO will make its own decision regarding whether the ACNC revocation will result in the removal of applicable tax concessions.
Review rights: refusal to allow voluntary revocation
- If the ACNC refuses the Application, the charity can object to the decision as per the Commissioner’s Policy Statement 2012/04: Reviews and Appeals.
- The charity may also re-apply for voluntary revocation at a later date, particularly if the circumstances that led to the refusal have changed.
The ACNC will apply the following principles when considering a voluntary revocation request.
Principle 1: The ACNC will approve requests for voluntary revocation unless such revocation carries significant risks
- The overarching principle the ACNC will follow is that it will generally approve an Application, unless it considers there is a significant risk to the ACNC or to the public in approving the Application.
- This reflects the voluntary nature of the registration system, as well as the ACNC Regulatory Approach, which is based on the principles of regulatory necessity, reflecting risk, and proportionate regulation.
Factors that will be considered
- In deciding whether to approve an Application, the ACNC is required to:
- consider all the factors listed in s 35-10(2) of the ACNC Act (conditions for revoking registration)
- have regard to matters set out in s 15-10 of the ACNC Act (matters to be considered when exercising powers and functions)
- act in accordance with the objects of the ACNC Act (s 15-5 of the ACNC Act)
- act in accordance with the ACNC Regulatory Approach.
- The following factors are particularly relevant:
- ensuring a charity’s funds are applied consistently with its not-for-profit nature and charitable purpose;
- the extent (if any) to which the charity’s revocation (or charity subtype revocation) may harm or jeopardise:
i. public trust and confidence in the not-for-profit sector
ii. the welfare of those receiving direct benefits from the charity;
- the need for transparency and accountability of the charity sector to the public (including donors, members and volunteers of registered charities); and
- benefits gained, by ensuring the public has access to accurate information about charities on the ACNC Register.
Many requests are straightforward
- Charities may request voluntary revocation of registration as a charity because:
- they have wound up and ceased operating;
- they intend to wind up /dissolve;
- they have merged with another charity;
- they no longer pursue their charitable purposes;
- their purposes or activities have changed which affects their entitlement to registration as a charity.
- Charities may request voluntary revocation of registration as a subtype of charity because:
- they no longer pursue one or more of their original charitable purposes;
- their purposes or activities have changed which affects their entitlement to registration as a particular charity subtype, such as a Public Benevolent Institution or Health Promotion Charity.
- In many instances, these circumstances are straightforward, and in accordance with this principle, the Application will generally be approved.
Voluntary revocation maintains the integrity of the ACNC Register
- A core concern of the ACNC is to maintain the integrity of the ACNC Register, as this assists the ACNC to meet many of the requirements of the ACNC Act.
- The ACNC Register provides the public with information about the activities and operations of registered charities, including details of charity subtypes, which promotes transparency and accountability of the charity sector.
- The ACNC Register displays limited information when a charity’s ACNC registration is voluntarily revoked.
- The charity’s record on the ACNC Register is updated with the statement ‘Charity registration is voluntarily revoked’.
Principle 2: The ACNC will require charities to provide reasons for requesting voluntary revocation
- The ACNC requires a registered charity to provide reasons for requesting voluntary revocation as a charity (or charity subtype) in the Application.
- This is to enable the ACNC to be able to consider the request in accordance with the requirements of the ACNC Act.
Charities that have submitted an application for voluntary revocation as a charity
- The ACNC will consider the charity’s reasons for voluntary revocation as a charity to determine its approach to the Application with regard to protecting the charity’s assets, and maintaining, enhancing and protecting public trust and confidence in the not-for-profit sector.
- The ACNC will consider the charity’s reasons and requested revocation date to ensure that charities are not seeking to avoid compliance with their obligations under the ACNC Act.
Charities that have submitted an application to revoke the registration of one or more charity subtypes
- The ACNC will consider the charity’s reasons for voluntary revocation of one or more charity subtypes.
- A charity is entitled to registration as a subtype of charity if it has a charitable purpose that corresponds with that subtype and it chooses to apply to be registered as that subtype. For example, a charity with a purpose of advancing education may apply to be registered as the ‘advancing education’ subtype. There are also two additional subtypes which are listed in taxation legislation: ‘health promotion charity’ and ‘public benevolent institution.’ The Commissioner is required to register the charity as a subtype if the charity is entitled to registration as that subtype and it applies to be registered as that subtype (section 30-20).
- The subtypes a charity voluntarily revokes may affect eligibility for taxation concessions. Eligibility for charity tax concessions is decided by the Australian Taxation Office (ATO).
- ACNC staff may contact the charity to assist with appropriate revocation of a subtype if required.
Principle 3: The ACNC will have regard to appropriate distribution of funds before approving a request for voluntary revocation
- The ACNC may also seek specific information regarding how the assets of the charity will be distributed upon revocation as a charity. This helps to ensure that a charity’s funds are applied in a manner consistent with its charitable purposes and not-for-profit nature.
- Information may include evidence of the steps the charity took (or will take) to ensure that (upon winding up, or revocation of the charity’s registration with the ACNC) assets that remain after the satisfaction of all debts and liabilities are transferred to another organisation which is charitable at law.
- The ACNC may also ask to be kept informed of these decisions going forward.
- Where a charity requests voluntary revocation on the basis that is no longer entitled to registration as a charity, the ACNC will require further information about:
- when the charity ceased to be entitled to registration, and
- how the charity’s assets have been distributed since that time.
- If a charity does not comply with the ACNC’s requests for information, or requirements to apply its assets to its charitable purposes, the ACNC may:
- refuse the Application;
- issue a direction under the ACNC Act on how surplus assets should be distributed (where appropriate);
- issue a show cause notice (s 35-15 of the ACNC Act), informing the charity of the ACNC’s intention to revoke the charity’s registration on the grounds that it has ceased to be entitled to registration, and backdate the charity revocation to the date it first ceased to be entitled (if applicable). If the ACNC proceeds with this revocation, it will appear as an ‘involuntary revocation’ on the charity’s record on the ACNC Register; or
- refer the charity and its responsible persons to other relevant authorities or Australian government agencies, including the ATO (subject to the Privacy Act 1988 (Cth) and the secrecy provisions under the ACNC Act).
Principles 4 and 5 apply to charities that have requested to voluntarily revoke their registration as a charity
Principle 4: Where non-compliance is a risk, the ACNC may refuse a request for voluntary revocation
- Where non-compliance with the ACNC Act is a risk, the ACNC may refuse the Application, particularly in circumstances where:
- revocation would remove the ACNC’s authority to investigate concerns about a charity;
- there is an ongoing compliance or enforcement activity by another regulator in which the ACNC has a current (or may have a future) interest; or
- the ACNC has a concern that on revocation, the charity’s assets will not be distributed in a way that is appropriate for a charity.
- If the ACNC considers that there is a significant risk in approving the Application, it will generally discuss ways of addressing those risks with the charity. It will give the charity the opportunity to provide additional information to support its Application before making a decision (see Voluntary Revocation Process above).
Principle 5: The ACNC may refuse a request for voluntary revocation where Annual Information Statements or annual financial reports are outstanding
- Before an Application is approved, the charity will be asked to lodge any outstanding Annual Information Statement (and annual financial report if applicable) for each reporting period that it was registered (i.e. financial year or substituted accounting period).
- If a registered charity intends to apply to have registration revoked, it must still submit an Annual Information Statement (and annual financial report if required) for each full financial year or substituted accounting period that it remained registered. If a charity’s registration is revoked before the financial year ends, it will not be required to submit an Annual Information Statement (and financial report if applicable) for that period. A charity will be required to provide financial information when applying to have its registration revoked. See the Commissioner’s Policy Statement 2013/02: Annual Information Statements.
- The ACNC may agree to waive the requirement to lodge Annual Information Statements (and financial reports if applicable) in certain circumstances. The ACNC will consider:
- any extenuating circumstances;
- the need to minimise unnecessary compliance burden against the need for transparency and accountability to the public; and
- the Principles outlined above.
Australian Charities and Not-for-profits Commission Act 2012 (Cth)
Corporate Policy 2012/01:ACNC Policy Framework
What is a charity subtype?
Commissioner’s Policy Statement 2013/02: Annual Information Statements
Commissioner’s Policy Statement 2012/04: Reviews and Appeals
Commissioner’s Policy Statement 2014/03: Revocation by the ACNC
|Version||Date of effect||Brief summary of change|
|Version 1 - Original document||03/12/2012||Initial Policy endorsed by the Commissioner 06/12/2012|
|Version 2 - First revision||04/08/2014||Revision to remove transitional content and to clarify obligation to submit Annual Information Statement|
|Version 3 - Second revision||08/08/2019|
Updated to include voluntary revocation of a charity subtype. Additional principles provided to assist charities understand how the ACNC will consider their request for voluntary revocation. Language updated to ensure consistency.
|Version 4 – Third revision||10/11/2020||Policy revised to provide clarity on how the ACNC will consider a charity’s request for voluntary revocation of their charity registration or a charity subtype.|