Commissioner's Policy Statement: Decision-making

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.

Policy statement

This Commissioner’s Policy Statement guides staff on making decisions under the Australian Charities and Not-for-profits Commission Act 2012 (Cth) (ACNC Act). It sets out how the ACNC will make high quality and consistent decisions. All ACNC decision-makers will be trained in applying this policy.

The ACNC will provide clear reasons for its decisions, and entities have the right to have certain ACNC decisions reviewed or appealed.

Principles

• Principle 1: Decision-makers will have legal authority
• Principle 2: Decision-makers will use fair procedures
• Principle 3: Decision-makers will only take relevant considerations into account
• Principle 4: Decisions will not be unreasonable
• Principle 5: Decision-makers will be open to applying policies flexibly
• Principle 6: Decision-makers will not be directed on decisions
• Principle 7: Decision-makers will not act in bad faith
• Principle 8: Where it will assist a decision-maker to make the most appropriate decision, the decision-maker will make inquiries beforehand
• Principle 9: Decision-makers will provide clear reasons

Principle 1: Decision-makers will have legal authority

1. The Commissioner is the only statutory officeholder at the ACNC. The Assistant Commissioner and all ACNC staff are public servants employed to assist the Commissioner.
2. Under section 115-55 of the ACNC Act, all of the Commissioner’s powers (except the power to delegate) can be delegated to the Assistant Commissioner. The Assistant Commissioner exercises those powers personally and signs decisions in their own name. The Commissioner can continue to exercise a power after delegating it.
3. As the Commissioner and Assistant Commissioner cannot make all the decisions required for the ACNC to function effectively, they have authorised ACNC staff to make some decisions on their behalf.
4. An authorised officer will sign a decision they make in the name of whichever of those two officeholders authorised them to make the decision. They are not making the decision in their own right. Further information on this is available in the ACNC Delegation, Authorisation and Signing Policy (CP2012/06).

Principle 2: Decision-makers will use fair procedures

5. ACNC decision-makers will use fair procedures that are appropriate to the circumstances of each case.
6. There are two main elements of procedural fairness:
   1. giving people the opportunity to be heard, and
   2. making decisions without bias.

The opportunity to be heard

7. The opportunity to be heard does not necessarily mean that there must be an oral hearing or a meeting. It means that entities must be given an opportunity to provide relevant information or evidence to show that they have met any relevant criteria, and to make submissions to address any concerns raised by the decision-maker before a decision is made.
8. ACNC decision-makers will routinely ask for information or submissions by telephone, email or in writing. They may ask for a response within a set time, which may be prescribed by legislation.
9. If an ACNC decision-maker has information or facts that are crucial to the decision, but the relevant entity might not be aware of these, the decision-maker will draw these to the entity’s attention before making any decision which relies on that information (subject to any secrecy provisions in the ACNC Act). The entity is then able to provide more information that may clarify the situation.

Making decisions without bias

10. An ACNC decision-maker must be impartial and unbiased when making a decision. The decision-maker must not have any personal, financial, or other interest in the outcome of a decision they make.
11. The ACNC Conflicts of Interest Policy (CP2014/04) sets out how staff will avoid and manage any real, perceived or potential conflicts of interest.
12. Under the ACNC Conflicts of Interest policy, a decision-maker must draw any real, apparent or potential conflict of interest to the attention of their manager or director and take any reasonable steps to avoid the conflict.
13. The Commissioner, Assistant Commissioner and ACNC staff will also implement and promote the APS Values and Code of Conduct.
14. There will be no ‘appearance of bias' by a decision-maker. There is an appearance of bias when a fair-minded observer would reasonably suspect that the decision-maker is not impartial. If an entity alleges bias or an appearance of bias by a decision-maker, this allegation will be referred to the decision maker’s manager, who will consider the allegation and decide whether the alleged apprehension of bias is reasonable and, if so, transfer the matter to another decision-maker.

Principle 3: Decision-makers will only take relevant considerations into account

15. Before making a decision, the decision-maker will consider all relevant facts. The ACNC Act sets out material facts that ACNC decision-makers must consider before making some decisions.
16. An ACNC decision-maker cannot consider any irrelevant matters in making decisions. For example, when deciding whether to register an organisation as a charity, a decision-maker could not decide that an applicant met all the requirements listed above but refuse to register it because it represents a religion whose beliefs are inconsistent with the decision-maker’s personal beliefs. That would be an invalid decision because the decision-maker has considered an irrelevant fact, as well as appearing to demonstrate a bias.

Principle 4: Decisions will not be unreasonable

17. An ACNC decision-maker has a duty to make a decision that is reasonable in all the circumstances. Different people may make different decisions based on the same facts – this does not mean a decision is invalid. However, if no reasonable person could have exercised his or her power in the way that the decision-maker did, that decision could be reviewed and may be invalid.

Principle 5: Decision-makers will be open to applying policies flexibly

18. An ACNC decision-maker will not rigidly follow policies, and fail to take into account other relevant factors. Decision-makers will adhere to ACNC policies, but bear in mind that there may be unusual circumstances that require a flexible approach.

Principle 6: Decision-makers will not be directed on decisions

19. The Commissioner, or their delegate, will not be directed to decide a matter in a particular way. They must consider the application or matter, analyse the relevant law, assess the evidence against the legal criteria to be met, and make a decision based on their own judgment. They can be assisted by others in preparing to make the decision.
20. An authorised officer who is making a decision on behalf of the Commissioner or a delegate can be provided with written directions setting out the procedure on how to make a decision and guidance and policies about the matter that is being considered. This may include obtaining legal advice. However, this advice cannot direct the decision-maker to reach a particular decision on a particular application.

Principle 7: Decision-makers will not act in bad faith

21. An ACNC decision-maker will not act in bad faith when making a decision under the ACNC Act. A commonly quoted definition of ‘bad faith’ is that it “implies a lack of honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision maker” (SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397 at [19]).
22. If a decision-maker deliberately makes no attempt to perform their statutory duty, or makes a decision for a reason other than a proper purpose, this may be what is called an ‘improper purpose’. A decision made solely for an improper purpose will be invalid.
23. Acting in bad faith may also be a breach of the Public Service Act 1999 (Cth), and the APS Values and Code of Conduct.

Principle 8: Where it will assist a decision-maker to make the most appropriate decision, the decision-maker will make inquiries beforehand

24. ACNC decision-makers will seek further information when they require it before making a decision.
25. While the onus is on the entity to provide the information needed to show they have met the relevant criteria, the decision-maker must make reasonable enquiries to obtain information relevant to the decision.

Principle 9: Decision-makers will provide clear reasons

26. Consistent with the principles of procedural fairness, the ACNC will provide a written statement of reasons for a decision made under the ACNC Act when:
    1. it is a decision that has an adverse impact on an entity, and
    2. the decision may be reviewed or appealed.
27. An entity has the right to understand the reasons, evidence, and facts that the decision-maker relied on when making the decision. Providing these reasons enables the entity to decide if they want to ask for a review of the decision or to appeal the decision.
28. For some decisions, the ACNC may have to provide reasons for a decision under other legislation, such as section 28 of the Administrative Appeals Tribunal Act 1975 (Cth) or section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
29. The written reasons for a decision will set out the decision-maker’s legal authority to make the decision, the findings on material facts, the evidence or other material relied upon, and the reasons for the decision. The reasons will also refer to the relevant provisions of the ACNC Act, Australian Charities and Not-for-profits Commission Regulation 2013 (Cth), and/or other legislation.
30. When the ACNC provides written reasons for a decision, the entity will generally be given contact details for the decision-maker or a person who is familiar with the decision and the reasons. The entity will be given information about how to ask for a review or appeal of the decision.

Rights for an ACNC decision to be reviewed or appealed

31. A person who is not satisfied with a decision made by the ACNC may be able to object to the decision or seek a review of it. It may be a decision that can be reviewed internally. Alternatively, or in addition, it may be possible to seek an external review or appeal, through the Administrative Appeals Tribunal or a court. For more information on this, see the ACNC Reviews and Appeals Policy (CPS2012/04).