Commissioner's Policy Statement

This Commissioner’s Policy Statement gives guidance on making decisions under the ACNC Act. It sets out how the ACNC will make decisions in order to ensure high quality decision-making, promote consistency in decisions and to inform the public about how the ACNC makes decisions. All ACNC decision-makers will be trained in using this policy.

Principle 1: Decision-makers will have legal authority
Principle 2: Decision-makers will use fair procedures
Principle 3: Decision-makers will take account of relevant considerations and will not take into account irrelevant considerations
Principle 4: Decisions will not be unreasonable
Principle 5: Decision-makers will not apply government policy inflexibly
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 enquiries beforehand
Principle 9: Decision-makers will provide clear reasons

Context

  1. The ACNC has based this policy on the work of the Administrative Review Council (ARC), which sets out principles of administrative law.
  1. The ARC lists eight fundamental standards that decision-makers must comply with when making decisions. They are (in the order used in this policy):
  • decision-makers must have legal authority to make a decision
  • decision-makers must act in accordance with principles of natural justice (often referred to as ‘procedural fairness’), in other words:
    • giving people the opportunity to be heard
    • making decisions without bias
  • decision-makers must take account of relevant considerations and ignore irrelevant ones
  • decisions must not be unreasonable
  • decision-makers must not apply government policy inflexibly
  • decision-makers must not act under dictation (be told what to decide)
  • decision-makers must not act in bad faith, and
  • decision-makers may have a duty to make enquiries before making a decision.
  1. The ACNC will provide clear reasons for decisions, and entities have rights to have ACNC decisions reviewed or appealed.

Principles

Principle 1: Decision-makers will have legal authority

  1. The Commissioner is the only statutory office-holder at the ACNC. The Assistant Commissioner and all ACNC staff are public servants employed to assist the Commissioner.
  1. Under section 115-55 of the ACNC Act, all of the Commissioner’s powers (except the power to delegate) can and have been delegated to the Assistant Commissioner. The Assistant Commissioner exercises that power on their own behalf and signs decisions in their own name, as a delegate of the Commissioner. The Commissioner can continue to exercise a power after delegating it.
  1. As the Commissioner and Assistant Commissioner cannot make all the decisions required for the ACNC to function efficiently and well, they have authorised officers to make some decisions on their behalf. Only the Commissioner, Assistant Commissioner and those authorised officers can make specific decisions under the ACNC Act.  
  1. When making a decision, an authorised officer will make it under an authorisation from the Commissioner or Assistant Commissioner. An authorised officer will sign a decision they make in the name of the Commissioner or the delegate (the Assistant Commissioner). They are not making the decision in their own right.  Further information on this is available in Corporate Policy: Delegation, Authorisation and Signing (CP 2012/06).

Principle 2: Decision-makers will use fair procedures

  1. ACNC decision-makers will use fair procedures that are appropriate to the circumstances of each case. As far as possible, under the ACNC Act, decision-makers will be flexible in the procedures they use.  
  1. There are two main elements of procedural fairness:
  • giving people the opportunity to be heard, and
  • making decisions without bias.

The opportunity to be heard

  1. The courts have made clear that the opportunity to be heard does not necessarily mean there must be an oral hearing or a meeting with the decision-maker. This principle means that entities must be given an opportunity to provide relevant information or evidence to show they have met any criteria required and to make submissions to address any concerns raised by the decision-maker, before a decision is made.  
  1. The ACNC will not ordinarily hold oral hearings or meetings before making decisions. ACNC decision-makers may ask for information or submissions by telephone, email or in writing. They may ask for a response within a set time. For example, under section 30-15(1), when assessing an application for registration the decision-maker may require an applicant to give specified information or documents that they need before they can decide whether the applicant is entitled to be registered.
  1. 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 the decision (subject to any relevant secrecy requirements under the ACNC Act). The entity is then able to provide more information that may clarify the situation and strengthen their position before the decision is made.

Decisions made without bias

  1. An ACNC decision-maker must be impartial and not biased when making a decision. The decision-maker must not have any personal, financial or other interest in the outcome of a decision they make.  
  1. To ensure that no ACNC decision-maker could have a personal, financial or other interest in a decision being considered, the ACNC has adopted the ATO Conflicts of Interest Chief Executive Instruction CEI 2014/06/10 and ATO Conflicts of Interest Guidelines CEI 2014/06/10 so that they also apply to the Commissioner, staff, contractors and all who work at or for the ACNC. This arrangement is set out in the ACNC Corporate Policy: Conflict of interest, gifts and outside employment (CP 2014/04) (Conflicts of Interest policy) along with clarification of how the ATO policy is interpreted in the ACNC context. Under this policy, the Commissioner and Assistant Commissioner must complete a Disclosure of Interests form annually for themselves and their families. The Commissioner must also disclose to the Minister in writing all interests that conflict or could conflict with the performance of their functions (section 115-30).  
  1. 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. A decision-maker who is on the board of a charity or volunteers for a charity would not make any decision in relation to that charity. All decision-makers will be trained in using the Conflicts of Interest policy.
  1. The Commissioner, Assistant Commissioner and ACNC staff will also implement and promote the APS Values and Code of Conduct.
  1. 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 it and decide whether that decision-maker will continue to assess the application or it will be transferred to another decision-maker.

Principle 3: Decision-makers will take account of relevant considerations and not take into account irrelevant considerations

  1. Before making a decision, the decision-maker will consider all relevant facts. The ACNC Act sets out the material facts that ACNC decision-makers must consider before making some decisions. For example, the ‘material facts’ in a registration application include that the organisation meets the conditions set out in section 25-5(3). These are that:  
  • it is a not-for-profit entity
  • it complies with the governance standards (unless it is a basic religious charity) and, where applicable, the external conduct standards
  • it has an Australian Business Number (ABN), and  
  • it is not the subject of a decision that found it to be engaging in, or supporting, terrorist or other criminal activities as described in section 25-5(3)(d).
  1. An ACNC decision-maker cannot legally take into account 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 charity met all the requirements listed above but refuse to register it because it was for a religion espousing beliefs that are inconsistent with the decision-maker’s personal beliefs. That would be an invalid decision because the decision-maker has considered irrelevant facts, as well as appearing to demonstrate personal bias.
  1. There can be other relevant facts to be considered in making a decision, which can be identified by analysing the elements of the criteria to be met. When deciding if an applicant is entitled to registration as a ‘charity’, the ACNC applies the definition of ‘charity’ in section 5 of the Charities Act.  This definition requires, amongst other things, that all of the entity’s purposes are charitable and for the public benefit, or incidental or ancillary to, and in furtherance or in aid of such purposes. In assessing a registration application, the decision-maker therefore needs to consider the information provided to decide whether the applicant meets this definition.

Principle 4: Decisions will not be unreasonable

  1. An ACNC decision-maker has a duty to make a decision that is reasonable in all the circumstances. If no reasonable person could have exercised his or her power in the way the decision-maker did, that decision could be reviewed for this reason and may be invalid. This is not the same as a different person making a different decision; that is not the test.

Principle 5: Decision-makers will not apply government policy inflexibly

  1. An ACNC decision-maker will not rigidly follow policy and fail to take into account other relevant factors. Any ACNC policy will be used as a guide that will apply in most circumstances, but decision-makers will bear in mind that there may be unusual circumstances that require a more flexible approach.1
  1. A decision-maker will not apply a policy in a way that limits their discretion.

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

  1. The Commissioner, or the Assistant Commissioner acting under a delegation, will not be directed to decide a matter in a particular way. At law 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 judgement.  They can be assisted by others in preparing to make the decision.  
  1. 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 policy relevant to the matter being considered. At times this may include obtaining legal or other advice before making a decision. 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

  1. An ACNC decision-maker will not act in bad faith in assessing an application or in making a decision under the ACNC Act.  
  1. 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’.2  
  1. If a decision-maker deliberately makes no attempt to follow 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.
  1. Acting in bad faith is 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

  1. While a decision-maker may not be under a legal duty to make further inquiries, ACNC decision-makers will follow good practice by seeking further information when it is required before making a decision.  
  1. Asking for more information is not the same as assisting the entity to establish their case. The entity must provide the information needed to show they have met the criteria required. The decision-maker must make reasonable inquiries to obtain information relevant to the decision.

Principle 9: Decision-makers will provide clear reasons

  1. While the ACNC Act does not always require the provision of reasons for a decision, 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:
  • it is a decision that has an adverse impact on an entity, and
  • the decision may be reviewed or appealed.  
  1. This reflects an entity’s right to understand the reasons, evidence and facts that the decision-maker relied on when making the decision and enables the entity to decide if they want to ask for a review of the decision or to appeal against the decision.  
  1. For example, under section 30-25 of the ACNC Act, the ACNC will give written notice of a decision to register a charity or to refuse to register it. Where the ACNC refuses to register a charity, it will provide written reasons for that decision.  
  1. 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).
  1. The written reasons for 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 refer to the provisions of the ACNC Act that authorise the decision-maker, as well as to the provisions applied or relied upon in making the decision. If the decision-maker has made findings of material facts (for example, that the organisation does not meet the ‘not-for-profit entity’ requirement), they will set these out clearly in the reasons for decision. These written reasons for decision will also refer to or extract relevant parts of the evidence that the decision-maker relied on.
  1. 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 so the entity can contact them to discuss the reasons for the decision. 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

  1. A person who is not satisfied with a decision made by the ACNC may be able to object to the decision and 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 Reviews and Appeals policy.

Footnotes

1 See ACNC Corporate Policy 2012/01: ACNC Policy Framework, Principle 2.
2 SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397 at [19].

References

Administrative Appeals Tribunal Act 1975 (Cth) s 28 
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13
Australian Charities and Not-for-profits Commission Act 2012 (Cth) ss 25-5, 30-15, 115-30, 115-55
Charities Act 2013 (Cth) 
Public Service Act 1999 (Cth)
APS Values and Code of Conduct
ACNC Corporate Policy: ACNC Policy Framework (CP 2012/01)
ACNC Corporate Policy: Conflicts of Interest, gifts and outside employment (CP 2014/04)
ATO Conflicts of Interest Chief Executive Instruction CEI 2014/06/10 and ATO Conflicts of Interest Guidelines CEI 2014/06/10

Version Control

VersionDate of effectBrief summary of change
Version 1 - Initial policy03/12/2012Initial policy endorsed by the Commissioner on 06/12/2012.
Version 216/05/2016Updated to reflect passage of the Charities Act 2013.
Version 309/07/2019Updated to reflect staffing changes, references to other documents and changes to the ACNC Policy Framework.