Commissioner's Policy Statement

This Commissioner's Policy Statement 2012/09: Voluntary Revocation sets out the ACNC”s position on when a charity can have their ACNC registration as a charity voluntarily revoked and cease to be regulated by the ACNC. It also sets out when registered charities can voluntarily revoke a charity subtype from their registration with the ACNC. See What is a charity subtype 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 provide reasons for 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

Voluntary Revocation

Lodging a request for voluntary revocation

  1. A charity can ask the Commissioner to revoke its registration as a charity (or charity subtype) using the approved form (s 35-10(1)(e) of the ACNC Act). This form is available through the ACNC Charity Portal at acnc.gov.au/charityportal.  
  • For voluntary revocation as a charity, the form used is a ‘voluntary revocation application’. 
  • For revoking a charity subtype, the form used is a ‘change subtype application’. 
  1. These forms are referred to as ‘Application’ throughout this policy.

Voluntary revocation is not automatic

  1. The voluntary revocation approval process is not automatic. The ACNC Act gives the Commissioner discretion to decide whether to accept the charity’s request to revoke its registration as a charity (or charity subtype). 
     
  2. This is because the ACNC Act requires the Commissioner to consider certain factors before approving a revocation (including a voluntary revocation) (see s 15.10 and s 35.10(2) of the ACNC Act and the principles set out in this Policy).
     
  3. If clarification of any matter regarding the Application is required, the ACNC may request further information from the charity before making its decision.
     
  4. If the Application is likely to be refused, the charity will be provided 14 days’ notice, and will have an opportunity to respond with further evidence in support of its Application, before a final decision is made.

Notification of decision

  1. The ACNC will provide the charity with written notice of its decision within 14 days of making the decision.
     
  2. If the Application is approved, in most cases the date of revocation will be  the day of the decision (as specified in the notice of decision).  
     
  3. If the reason given by the charity for requesting voluntary revocation is 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

  1. If the Application is approved, the ACNC will notify the Australian Taxation Office (ATO) of the date of revocation. 
     
  2. The ATO will make its own decision regarding whether the ACNC revocation will result in the removal of applicable tax concessions. If tax concessions are removed, this will generally take effect from the date of revocation of charity registration.

Review rights: refusal to allow voluntary revocation

  1. 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.
     
  2. The charity may also re-apply at a later date, particularly if the circumstances of the charity that led to the refusal have changed.

Principles

The ACNC will apply the following principles when considering an application under s 35-10(1)(e) of the ACNC Act.

Principle 1: The ACNC will approve requests for voluntary revocation unless such revocation carries significant risks 

  1. 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. 
     
  2. This reflects the voluntary nature of the registration system, as well as the ACNC Regulatory Approach, i.e. principles of regulatory necessity, reflecting risk, and proportionate regulation.

Factors that will be considered

  1. In deciding whether to approve a request for voluntary revocation, the ACNC is required to:
  • consider all the factors listed in s 35-10(2) (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 ACNC Act objects (s 15.5 of the ACNC Act) and ACNC Regulatory Approach.
  1. 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 not-for-profit 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 not-for-profit entities on the ACNC Register.

Many requests are straightforward

  1. Many charities request voluntary revocation of registration as a charity (or charity subtype) 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; or
  • their purposes or activities have changed which affects their entitlement to registration under a particular charity subtype, such as a Public Benevolent Institution or Health Promotion Charity. 
  1. 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

  1. 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. 
     
  2. 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. 
     
  3. Therefore, it is often in the best interest of the ACNC, the public, and the charity, to update the charity’s record on the ACNC Register to show that its “Charity registration is voluntarily revoked”.

Principle 2: The ACNC will require charities provide reasons for voluntary revocation

  1. The ACNC requires a registered charity to provide reasons for requesting voluntary revocation as a charity (or charity subtype) in the Application. 
     
  2. This is because registered charities must pursue charitable purposes, both whilst operating, and when they are wound up (including upon revocation).  
     
  3. Therefore, the provision of reasons for requesting voluntary revocation enables the ACNC to best determine its approach to the Application to protect the charity’s assets, and assists in maintaining, enhancing and protecting public trust and confidence in the not-for-profit sector.
     
  4. Requesting reasons for the Application also helps the ACNC to ensure that charities are not seeking to avoid compliance with their obligations under the ACNC Act.

Principle 3: The ACNC will have regard to appropriate distribution of funds before approving a request for voluntary revocation

  1. 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, even after it is wound up or voluntarily revoked. 
     
  2. 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 and which has rules prohibiting the distribution of assets and income to its members.
     
  3. The ACNC may also ask to be kept informed of these decisions going forward.
     
  4. Where a charity requests voluntary revocation on the basis that is no longer entitled to registration as a charity (or charity subtype), 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.  
  1. 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); 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).

Principle 4: Where non-compliance is a risk, the ACNC may refuse a request for voluntary revocation

  1. Where non-compliance with the ACNC Act is a risk, the ACNC may refuse the Application, particularly in circumstances where: 
  • revocation would prejudice the ACNC’s ability 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. 
  1. 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

  1. 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).
     
  2. Under s 60-5 of the ACNC Act, all registered charities must lodge an Annual Information Statement for each year of its registration with the ACNC. Medium and large charities must also lodge a financial report for the financial year or substituted accounting period, together with any auditor’s or reviewer’s report (ss 60-10, 60-20 and 60-25). See the Commissioner’s Policy Statement 2013/02: Annual Information Statements.
     
  3. 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.

References

Australian Charities and Not-for-profits Commission Act 2012 (Cth) 
Corporate Policy 2012/01:ACNC Policy Framework
What is a charity subtype?
Charitable purposes
Commissioner’s Policy Statement 2013/02: Annual Information Statement  
Commissioner’s Policy Statement 2012/04: Reviews and Appeals
Commissioner’s Policy Statement 2014/03: Revocation by the ACNC 

Version Control

VersionDate of effectBrief summary of change
Version 1 - Original document03/12/2012Initial Policy endorsed by the Commissioner 06/12/2012 
Version 2 - First revision04/08/2014Revision to remove transitional content and to clarify obligation to submit Annual Information Statement
Version 3 - Second revision08/08/2019Updated 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.