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, content and definitions common to our policies.
This Commissioner’s Policy Statement gives guidance on:
- entitlement to registration under Division 25 of the ACNC Act,
- the requirements for registration as a charity and subtype of charity, and
- the process of registering as a charity with the ACNC.
- Principle 1: In considering the registration of organisations as charities the ACNC will adhere to the requirements set out in its legislation
- Principle 2: When requested and the requirements are met, the ACNC will always assign registration as a particular subtype of charity
- Principle 3: The ACNC will adhere to a set process for organisations applying to register as a charity or subtype of charity
- Under the ACNC Act, the Commissioner has the power to register not-for-profit organisations that are charities, according to different ‘subtypes’ of charity (section 25-5(5)).
- Registration is voluntary. However, access to certain Commonwealth charity tax concessions and/or deductible gift recipient status (for particular types of charities), are available only to charities registered under the ACNC Act (section 20-5).
Principle 1: In considering the registration of organisations as charities the ACNC will adhere to the requirements set out in its legislation
- The ACNC Act sets out the requirements that must be met for an organisation to be entitled to registration with the ACNC (section 25-5). These are that the organisation:
- meets the legal meaning of charity
- is a not-for-profit entity
- complies with the Governance Standards referred to in Part 3-1 ACNC Act (unless it is a Basic Religious Charity) and, if applicable, the External Conduct Standards
- has an Australian Business Number (ABN), and
- is not listed in a written decision made by an Australian government agency or judicial officer under an Australian law that identifies them as engaging in, or supporting, terrorist or other criminal activities.
- If the organisation’s previous registration had been revoked, the ACNC can only register the entity again if it meets additional requirements (see paragraphs 21-25).
- An organisation that meets the requirements to register as a charity may also be entitled to register as a ‘subtype’ of charity if it meets the description of that subtype (section 25-5(2)) (see paragraphs 26-30).
- Organisations must meet the following conditions (listed below) in order to apply to register and continue to meet these requirements to remain registered with the ACNC (under section 25-5 ACNC Act).
Be a charity
- Charity has a technical legal meaning. In determining whether or not an organisation is a charity, the ACNC applies the definition set out in the Charities Act 2013 (Cth) (the Charities Act). The ACNC will also take into account the common law on the meaning of charity and charitable purposes, and other relevant legislation such as the Charities (Consequential Amendments and Transitional Provisions) Act 2013 (Cth).
- The Charities Act provides that to be recognised as a charity, an organisation must:
- be not-for-profit
- have a main charitable purpose that is for the public benefit (a charity may have other purposes, but they must be incidental or ancillary to the primary purpose)
- not have a disqualifying purpose
- not be an individual, political party or a government entity.
- Charitable purpose has a special legal meaning, developed in a large body of case law over centuries, and supplemented more recently by legislation. The courts have recognised many different charitable purposes and as society changes, new charitable purposes are accepted. The Charities Act recognises 12 charitable purposes (see paragraph 26) as well as the additional categories of 'Health Promotion Charity' and 'Public Benevolent Institution'. For more information, see ACNC guidance on charitable purpose.
- A charity has a purpose that is for the public benefit if achieving that purpose would be of benefit to the public generally or a sufficient section of the public. A sufficient section of the public may be, for example, a local community, followers of a particular religion, people with a particular disability, refugees or young people. For more information, see ACNC guidance on public benefit.
- The ACNC has published Commissioner’s Interpretation Statements that set out the approach we take to interpreting the law on eligibility for registration.
- A not-for-profit organisation is generally one that does not operate for the profit, personal gain or other benefit of particular people (for example, its members, the people who run it, or their friends and relatives). This applies both while the organisation is operating or if it winds up.
- In determining whether an organisation is 'not-for-profit', the ACNC will consider how the organisation operates, the organisation’s governing document, relevant legislation and relevant case law.
Meet Governance Standards
- The organisation must meet the ACNC Governance Standards. These standards set out the minimum governance requirements that apply to all registered charities, except Basic Religious Charities (see Division 45 of ACNC Regulations, made under section 45-10 of the ACNC Act).
- As noted in paragraph 14, a charity is a Basic Religious Charity if it is registered as the subtype of 'advancing religion', is not entitled to be registered as any other subtype, and the circumstances set out in section 205-35(2)-(5) do not apply.
- The ACNC may refuse to register an organisation if it does not comply with the Governance Standards. More information can be found on our webpage, Governance for Good, ACNC Governance Standards.
Meet External Conduct Standards (if applicable)
- Organisations operating outside of Australia must meet the ACNC External Conduct Standards. These standards provide a minimum level of assurance that an organisation will meet public expectations in relation to its conduct when it undertakes activities (including providing funds), or otherwise supports activities, outside of Australia. (see Division 50 of ACNC Regulations, made under section 50-10 ACNC Act).
- The ACNC may refuse to register an organisation if it operates outside of Australia and does not comply with the External Conduct Standards. More information can be found on our web page on the Standards.
Not be listed in terrorist or other criminal activities
- The organisation must not be listed by an Australian government agency under an Australian law that characterises it as engaging in, or supporting, terrorist or other criminal activities.
- The ACNC will check that the organisation does not appear on either of the two main Australian Government lists of terrorist organisations under:
- Part 5.3 of the Criminal Code (Cth)
- the Charter of the United Nations Act 1945 (Cth) and regulations - for known terrorists and terrorist organisations.
Requirement for charities that were previously registered
- A charity that has previously had its registration revoked may apply to register again. In this case, before the application can be considered, the Commissioner must decide if the matters leading to the revocation have been dealt with in such a way that re-registration would not conflict with the objects of the ACNC Act (such as promoting public trust and confidence in charities) (section25-5(1)(c)).
- If a charity’s registration was revoked because of non-compliance with the ACNC Act, the Commissioner will generally allow a new application only where the charity shows the non-compliance issues have been addressed (see also Revocation by the ACNC). For example, the Commissioner may allow a new application to be considered in situations of past fraud where those responsible for fraud have been removed, and there have been sufficient changes to the charity's governance to manage any future risk.
- If a charity’s registration was revoked because of an inadvertent failure to comply (for example, due to failure to update the contact details of responsible persons) or provide their Annual Information Statement and this has been addressed, the Commissioner will generally allow the new application to be considered.
- If a charity requested revocation previously, and this was accepted under the Commissioner`s Choosing to revoke policy, the Commissioner will generally allow the new application to be considered.
- Generally, the re-registration only has effect from the date of the later registration and does not affect the previous revocation.
Principle 2: When requested and the requirements are met, the ACNC will always assign registration as a particular subtype of charity
- There are 12 subtypes of charity as well as the additional categories of 'Health Promotion Charity' and 'Public Benevolent Institution' available in the table under section 25-5(5). These may be summarised as organisations:
- with the purpose of advancing health
- with the purpose of advancing education
- with the purpose of advancing social or public welfare
- with the purpose of advancing religion
- with the purpose of advancing culture
- with the purpose of promoting reconciliation, mutual respect and tolerance between groups of individuals that are in Australia
- with the purpose of promoting or protecting human rights
- with the purpose of advancing the security or safety of Australia or the Australian public
- with the purpose of preventing or relieving the suffering of animals
- with the purpose of advancing the natural environment
- with any other purpose beneficial to the general public and analogous to the other charitable purposes
- with the purpose of advancing public debate
- which are institutions whose principal activity is to promote the prevention or the control of diseases in human beings (Health Promotion Charities)
- which are Public Benevolent Institutions.
- These subtypes reflect the organisation’s charitable purpose or purposes (listed in section 12 of the Charities Act) as well as the additional categories of 'Health Promotion Charity' and 'Public Benevolent Institution'.
- Organisations can select which subtypes to apply for on the approved registration form. An organisation may be registered as more than one subtype (section 25-5(4)).
- The Commissioner is required to register the charity as a type or subtype if the charity is entitled to registration as that subtype (section 30-20). ACNC staff may contact the charity to assist with appropriate selection or registration as a type or subtype if required.
- Organisations should apply to register for subtypes that are supported by their charitable purposes as set out in their governing documents. The subtypes selected may affect eligibility for taxation concessions. Eligibility for charity tax concessions is decided by the Australian Taxation Office (ATO). For more information, read the ACNC guidance on charity tax concessions factsheet. The ATO website also has a range of useful information.
Principle 3: The ACNC will adhere to a set process for organisations applying to register as a charity or subtype of charity
- The ACNC website contains guidance on the requirements for registration. ACNC Registration staff will always follow a set process in seeking to determine whether an organisation meets the requirements for registration as a charity. This policy sets out that process.
- To register with the ACNC, the organisation must apply on an approved registration form (section 30-10). The ACNC has an online form which includes an optional section for applying for tax concessions to the ATO. A paper form will be supplied on request. The ACNC can provide general advice and assistance with completing the form.
- In determining the purposes of the entity, the ACNC will have regard to the entity's governing rules, its activities and any other relevant matter.
- If the ACNC requires further information to make a decision, it will contact the organisation to ask for this (section 30-15). The ACNC will also contact the organisation if it believes it should refuse the application and provide an opportunity for the organisation to give further information or address the issues raised by the ACNC.
- The ACNC has published service standards indicating the timeframes for processing applications. The ACNC will contact the organisation if there is an unexpected delay. If a registration decision takes longer than 60 days from the date of application, the organisation can apply on an approved form to treat it as having been refused (section 30-15).
- If the ACNC has asked for more information and the charity has provided it, a charity can only apply to treat the application as having been refused after the 60 days have passed from the date of application and at least 28 days have passed since this further information was given. Once the application is treated as being refused, the charity can object to the decision using the review and appeal procedure set out in Part 7-2 of the ACNC Act (see Reviews and appeals policy).
- The Commissioner will give the organisation the decision in writing (section 30-25). The decision will include the date the registration takes effect. In general, this will be the date the decision was made.
- If an application is refused, the reasons for the decision will be provided. If dissatisfied with the decision to refuse registration, the organisation can make an objection application to ask the ACNC to review the decision in accordance with the reviews and appeals procedure set out in Part 7-2.
Entitlement to tax concessions
- Under the ACNC Act, the Commissioner independently determines charitable status and registers organisations as charities. Registration with the ACNC is a pre-requisite for access to Commonwealth charity tax concessions. Eligibility for charity tax concessions is decided by the ATO (for more information, read the charity tax concessions factsheet. The ATO website also has useful information on this topic).
- To save time, charities can apply for registration and Commonwealth charity tax concessions in the same form approved by both the ACNC and the ATO. After the ACNC registers an organisation, it will pass the tax application information on to the ATO to separately decide eligibility for tax concessions.
- Australian Charities and Not-for-profits Commission Act 2012 (Cth)
- Australian Charities and Not-for-profits Commission (Consequential and Transitional) Act 2012 (Cth)
- Charter of the United Nations Act 1945 (Cth)
- Charities Act 2013 (Cth)
- Charities (Consequential Amendments and Transitional Provisions) Act 2013 (Cth)
- Criminal Code (Cth), Part 5.3
- ACNC service standards
- Start registration application (online form)
- Commissioner's Policy Statement: Revocation by ACNC
- Commissioner's Policy Statement: Voluntary revocation
- Legislation relating to ECS
|Version||Date of Effect||Brief summary of change|
|Version 1 – Initial policy||03/12/2012||Initial policy endorsed by the Commissioner on 06/12/2012|
|Version 2 – revised policy||28/07/2014||Revised policy to update policy based on current law and practice|
|Version 3 – updated policy||09/04/2019||Policy revised to include the principles underpinning how the ACNC will undertake registration activities and update the document in line with current processes. Minor changes only.|
|Version 4 – updated policy||20/08/2019||Policy revised to include External Conduct Standards|
|Version 5 – updated policy||31/08/2021||Updated to remove ATO transitional arrangements and voluntary revocation|