Commissioner's Interpretation Statement (CIS 2016/01)

The purpose of this Commissioner’s Interpretation Statement is to provide guidance on the meaning of ‘government entity’ in the Charities Act 2013 (Cth) (the Charities Act). It relates to the definition of ‘charity’ set out in s 5 of the Charities Act, which provides that a ‘charity’ cannot be a ‘government entity’.

The concept of ‘government entity’ is also relevant in relation to s 13 of the Charities Act, and while much of the discussion in this Commissioner's Interpretation Statement will be relevant in that context as well, the statement does not specifically consider the concept of ‘government entity’ as it applies in s 13.

This interpretation statement is highly technical, as the law is very complex in this area. It is likely to be primarily read by legal and other professionals, including professional advisers.

This statement was consulted on in late 2015, and incorporates feedback provided. It should be read together with Appendix A, which sets out the detailed reasoning behind the statement.

This Interpretation Statement was approved by the Commissioner on 22 February 2016.

Note: Since this Commissioner's Interpretation Statement was made, the High Court handed down its judgment in Re Lambie [2018] HCA 6, which clarifies the meaning of 'office of profit under the Crown' (see, in particular, paragraphs [31] to [34]). The ACNC is bound to interpret the meaning of 'office of profit under the Crown' as contained in the Charities (Definition of Government Entity) Instrument 2013 in accordance with the judgment. The guidance in this Commissioner's Interpretation Statement is no longer accurate to the extent that it is inconsistent with the judgment in Re Lambie. We plan to review and update this Commissioner's Interpretation Statement during 2022 and will consult stakeholders as part of the review process.