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SLI 2013 No. 22 Regulations as amended, taking into account amendments up to Australian Charities and Not-for-profits Commission Amendment Regulation 2013 (No. 2)
Administered by: Treasury
Registered 10 Jul 2013
Start Date 01 Jul 2013

Commonwealth Coat of Arms

Australian Charities and Not‑for‑profits Commission Regulation 2013

Select Legislative Instrument No. 22, 2013 as amended

made under the

Australian Charities and Not‑for‑profits Commission Act 2012

Compilation start date:                     1 July 2013

Includes amendments up to:            SLI No. 124, 2013

About this compilation

The compiled instrument

This is a compilation of the Australian Charities and Not‑for‑profits Commission Regulation 2013 as amended and in force on 1 July 2013. It includes any amendment affecting the compiled instrument to that date.

This compilation was prepared on 5 July 2013.

The notes at the end of this compilation (the endnotes) include information about amending Acts and instruments and the amendment history of each amended provision.

Uncommenced provisions and amendments

If a provision of the compiled instrument is affected by an uncommenced amendment, the text of the uncommenced amendment is set out in the endnotes.

Application, saving and transitional provisions for amendments

If the operation of an amendment is affected by an application, saving or transitional provision, the provision is identified in the endnotes.

Modifications

If a provision of the compiled instrument is affected by a textual modification that is in force, the text of the modifying provision is set out in the endnotes.

Provision ceasing to have effect

If a provision of the compiled instrument has expired or otherwise ceased to have effect in accordance with a provision of the instrument, details of the provision are set out in the endnotes.

  

  

  


Contents

Part 1—Preliminary                                                                                                             1

1............................ Name of regulation............................................................. 1

3............................ Authority............................................................................ 1

4............................ Definitions.......................................................................... 1

Part 2‑2—Australian Charities and Not‑for‑profits Register                     3

Division 40—Australian Charities and Not‑for‑profits Register          3

Subdivision 40‑A—Additional information that must be included on Register              3

40.1....................... Additional information that must be included on Register.. 3

Subdivision 40‑B—Information withheld or removed from Register          6

40.10..................... Information withheld from Register.................................... 6

Division 45—Governance standards                                                                  10

Subdivision 45‑A—Preliminary                                                                           10

45.1....................... Simplified outline—how the governance standards apply 10

45.2....................... Application....................................................................... 11

45.3....................... Interpretation of governance standards............................. 11

Subdivision 45‑B—Governance standards                                                        11

45.5....................... Governance standard 1—Purposes and not‑for‑profit nature of a registered entity  11

45.10..................... Governance standard 2—Accountability to members....... 12

45.15..................... Governance standard 3—Compliance with Australian laws 13

45.20..................... Governance standard 4—Suitability of responsible entities 14

45.25..................... Governance standard 5—Duties of responsible entities.... 15

Subdivision 45‑C—Protections under governance standard 5                     18

45.100................... Reasonable steps taken to ensure compliance with duties. 18

45.105................... Protection 1....................................................................... 18

45.110................... Protection 2....................................................................... 18

45.115................... Protection 3....................................................................... 19

45.120................... Protection 4....................................................................... 19

Subdivision 45‑D—Transitional arrangements                                               19

45.130................... Exemption until 1 July 2017............................................. 19

Subdivision 45‑E—Disqualified Responsible Entities Register                    20

45.150................... Disqualified Responsible Entities Register....................... 20

Division 60—Requirements for annual financial reports                        22

Subdivision 60‑A—Purpose of Division 60                                                        22

60.1....................... Purpose............................................................................. 22

Subdivision 60‑BRequirements for annual financial reports (core rules)   22

60.5....................... Contents of annual financial report................................... 22

60.10..................... Financial statements and notes.......................................... 22

60.15..................... Responsible entities’ declaration....................................... 23

Subdivision 60‑CRequirements for annual financial reports (special rules)              23

60.20..................... Application of Subdivision 60‑C...................................... 23

60.25..................... Resolution of inconsistency.............................................. 23

60.30..................... Special purpose financial statements................................. 24

Subdivision 60‑DRequirements for annual financial reports (transitional rules)     24

60.35..................... Application of Subdivision 60‑D...................................... 24

60.40..................... Financial statement............................................................ 25

Endnotes                                                                                                                                    28

Endnote 1—Legislation history                                                                             28

Endnote 2—Amendment history                                                                           29

Endnote 3—Uncommenced amendments [none]                                          31

Endnote 4—Misdescribed amendments [none]                                             32


Part 1Preliminary

  

1  Name of regulation

                   This regulation is the Australian Charities and Not‑for‑profits Commission Regulation 2013.

3  Authority

                   This regulation is made under the Australian Charities and Not‑for‑profits Commission Act 2012.

4  Definitions

                   In this regulation:

accounting standards—see section 300‑5 of the Act.

Act means the Australian Charities and Not‑for‑profits Commission Act 2012.

general purpose financial statement has the meaning given by the accounting standards.

individual donor means an individual who makes a contribution to a registered entity.

member has the meaning given by the Income Tax Assessment Act 1997.

private ancillary fund has the same meaning as in the Income Tax Assessment Act 1997.

private ancillary fund guidelines has the same meaning as in the Income Tax Assessment Act 1997.

Register: see section 300‑5 of the Act.

registered entity means an entity that is registered under Part 2‑1 of the Act.

special purpose financial statement means a financial statement that is not a general purpose financial statement.

taxation law: see section 300‑5 of the Act.

Part 2‑2Australian Charities and Not‑for‑profits Register

Division 40Australian Charities and Not‑for‑profits Register

Subdivision 40‑AAdditional information that must be included on Register

40.1  Additional information that must be included on Register

                   For paragraph 40‑5(1)(g) of the Act, the information in an item in the following table is specified if the conditions (if any) mentioned in the item exist.

 

Additional information

Item

Information

Condition(s)

1

Whether, for a financial year (or substituted accounting period), a registered entity is:

(a) a small registered entity; or

(b) a medium registered entity; or

(c) a large registered entity; or

(d) a basic religious charity

The Commissioner:

(a) has received an annual information statement or annual financial report for the financial year; or

(b) has otherwise become aware of the information because:

(i)   the information was not provided as described in paragraph (a); or

(ii)  the information provided as described in paragraph (a) was incorrect

1A

Purpose of registered entity

Both of the following:

(a) the information has been voluntarily disclosed to the Commissioner by the registered entity, as an extract of the governing rules of the entity, for the purpose of being included on the Register;

(b) the Commissioner is satisfied that the extract:

(i)   is consistent with the governing rules of the entity; and

(ii)  complies with governance standard 1, set out in section 45‑5

2

The countries (other than Australia) in which a registered entity operates

The Commissioner:

(a) has received the information from the registered entity; or

(b) has otherwise become aware of the information because:

(i)   the information was not received from the registered entity; or

(ii)  the information provided by the registered entity was incorrect

3

The States or Territories in which a registered entity operates

The registered entity has voluntarily disclosed the information to the Commissioner for the purpose of being included on the Register

4

Other names by which a registered entity may be publicly known

Both of the following:

(a) the registered entity has voluntarily disclosed the information to the Commissioner for the purpose of being included on the Register;

(b) the use of the name is not contrary to an Australian law

5

The categories of benefit recipients of a registered entity

The Commissioner:

(a) has received an annual information statement for that financial year; or

(b) has otherwise become aware of the information because:

(i)   the information was not provided as described in paragraph (a); or

(ii)  the information provided as described in paragraph (a) was incorrect

6

Either:

(a) a copy of an annual report of a registered entity for a financial year (or substituted accounting period); or

(b) an electronic link to a registered entity’s annual report, on a website maintained by the entity

The registered entity has voluntarily disclosed the information to the Commissioner for the purpose of being included on the Register

7

An annual or financial reports of a registered entity for a financial year (or substituted accounting period) before the 2012‑13 financial year

Either:

(a) the registered entity has voluntarily disclosed the information to the Commissioner for the purpose of being included on the Register; or

(b) an Australian government agency has voluntarily disclosed the information to the Commissioner for the purpose of being included on the Register, and the reports are publicly available

8

The day a registered entity was established in Australia

The registered entity has voluntarily disclosed the information to the Commissioner for the purpose of being included on the Register

9

Both of the following:

(a) whether, for a financial year (or a substituted accounting period), a registered entity has been approved by the Commissioner to prepare and lodge joint or collective reports under Subdivision 60‑G of the Act;

(b) if so—the other registered entity or entities that are grouped with a registered entity under Subdivision 60‑G of the Act

 

10

An electronic link to a website maintained by a registered entity

The registered entity has voluntarily disclosed the information to the Commissioner for the purpose of being included on the Register

11

A statement that a registered entity has failed to give the Commissioner a report or statement required by Division 60 of the Act

Both of the following:

(a) the registered entity has not given Commissioner a report or statement required by Division 60 of the Act;

(b) More than 6 months (or a longer period allowed by the Commissioner for the purposes of this item) have elapsed since the day the report or statement was required to be given

Note 1:       For items 1 and 5 of the table, an example of the Commissioner becoming aware of information is where:

(a)    a registered entity has given the Commissioner incorrect information in an annual information statement or annual financial statement; and

(b)    through an audit or review of the registered entity, the Commissioner then becomes aware of the correct information.

Note 2:       For item 4 of the table, information that may be included on the Register includes:

(a)    a registered business name under the Business Names Registration Act 2011; and

(b)    a name on a notified State or Territory register under that Act.

Note 3:       For item 5 of the table, a benefit recipient of a registered entity includes an entity or cause that the registered entity assists or furthers in undertaking its purpose.

Subdivision 40‑BInformation withheld or removed from Register

40.10  Information withheld from Register

             (1)  For subsection 40‑10(1) of the Act, the Commissioner must not include information specified in an item of the following table on the Register, or must remove information specified in an item of the following table from the Register:

                     (a)  in the circumstances mentioned in the item; and

                     (b)  if the registered entity to which the information relates makes a request, in the approved form, that the information not be included on the Register.

 

Item

Column 1

Information

Column 2

Circumstance(s)

1

The name and ABN of a registered entity

All of the following:

(a) the registered entity is a private ancillary fund;

(b) the publication of the name is likely to result in the identification of an individual donor;

(c) the name and ABN can be substituted on the Register with a description that:

(i) is unlikely to result in the identification of an individual donor; and

(ii) would not mislead the public as to the nature and characteristics of the registered entity; and

(iii) would not reasonably be regarded as identifying a different registered entity; and

(iv) would make clear on the Register that the name of the registered entity has been withheld;

(d) the Commissioner has consulted the registered entity about the description referred to in paragraph (c)

2

A contact detail for a registered entity, including the address for service for the entity

Both of the following:

(a) the registered entity is a private ancillary fund;

(b) the publication of the detail:

(i) is likely to result in the identification of an individual donor; or

(ii) would create an unreasonable administrative burden on the registered entity

3

A governing rule in the governing rules of a registered entity

Both of the following:

(a) the registered entity is a private ancillary fund;

(b) the publication of the governing rule is likely to result in the identification of an individual donor

4

The name of a responsible entity

Both of the following:

(a) the registered entity is a private ancillary fund;

(b) the publication of the name is likely to result in the identification of an individual donor

5

Information in an annual information statement

The publication of the information is likely to result in the identification of an individual donor

6

Information in a financial report, audit or review report

The publication of the information is likely to result in the identification of an individual donor

             (2)  Items 1, 2, 3, 5 and 6 of the table in subsection (1) continue to apply to information that relates to an individual donor who has died if:

                     (a)  the individual donor died within the previous 2 years; or

                     (b)  a responsible entity of the registered entity is an associate of the individual donor.

Note:          Subsection (2) ensures that the privacy of the family of an individual donor will remain protected while the family remains actively involved in the management of the registered entity.

             (3)  For subsection (2), a registered entity must:

                     (a)  notify the Commissioner, in the approved form, that information that is not on the Register because of this section can no longer be excluded from the Register because:

                              (i)  an individual donor has died; and

                             (ii)  subsection (2) no longer applies to require the information to be treated that way; and

                     (b)  provide the notification with the first information statement the registered entity provides to the Commissioner after the registered entity becomes aware that the events referred to in subparagraphs (a)(i) and (ii) have occurred.

             (4)  Item 4 of the table in subsection (1) does not apply if the responsible entity is an entity of a kind mentioned in guideline 14 of the private ancillary fund guidelines.

             (5)  Items 5 and 6 of the table in subsection (1) do not apply to information that relates to a breach of:

                     (a)  the Act; or

                     (b)  a legislative instrument made under the Act; or

                     (c)  the taxation law.

Division 45Governance standards

Subdivision 45‑APreliminary

45.1  Simplified outline—how the governance standards apply

The governance standards support registered entities in fulfilling their objectives by providing a minimum level of assurance that they meet community expectations in relation to how a registered entity should be managed.

Community expectations in relation to governance may include expectations about how a registered entity goes about managing its affairs, the use of public monies, volunteer time and donations provided to it, how the entity manages the risks that it faces, how the entity promotes the effective and responsible use of its resources and how the entity goes about demonstrating that it is operating transparently and for a proper purpose.

The steps a registered entity will need to take to comply with the governance standards will vary according to its particular circumstances, such as its size, the sources of its funding, the nature of its activities and the needs of the public (including members, donors, employees, volunteers and benefit recipients of the registered entity).

The compliance obligations, processes and reasonable steps specified in the governance standards are to be interpreted having regard to the objects of the Act and the matters the Commissioner must consider in exercising the Commissioner’s powers as listed in section 15‑10 of the Act (in particular, the principles of regulatory necessity, reflecting risk and proportionate regulation, as well as the unique nature and diversity of not‑for‑profit entities and the distinctive role that they play in Australia).

The objects of the Act are: to maintain, protect and enhance public trust and confidence in the Australian not‑for‑profit sector; to support and sustain a robust, vibrant, independent and innovative Australian not‑for‑profit sector; and to promote the reduction of unnecessary regulatory obligations on the Australian not‑for‑profit sector.

The governance standards also act as a mechanism which may enliven the enforcement powers in Part 4‑2 of the Act to help protect and sustain the not‑for‑profit sector and maintain and enhance public trust and confidence.

45.2  Application

                   For the purposes of section 45‑10 of the Act, the governance standards in Subdivision 45‑B are specified.

45.3  Interpretation of governance standards

                   The governance standards in Subdivision 45‑B must be interpreted in a manner that is consistent with the objects of the Act and the requirements of section 15‑10 of the Act.

Subdivision 45‑BGovernance standards

45.5  Governance standard 1—Purposes and not‑for‑profit nature of a registered entity

Object

             (1)  The object of this governance standard is:

                     (a)  to commit a registered entity, its members and its responsible entities to the registered entity’s purposes; and

                     (b)  to give the public, including members, donors, employees, volunteers and benefit recipients of the registered entity, confidence that the registered entity is acting to further its purposes.

Standard

             (2)  A registered entity must:

                     (a)  be able to demonstrate, by reference to the governing rules of the entity or by other means, its purposes and its character as a not‑for‑profit entity; and

                     (b)  make information about its purposes available to the public, including members, donors, employees, volunteers and benefit recipients; and

                     (c)  comply with its purposes and its character as a not‑for‑profit entity.

Note:          Information in relation to the purposes of a registered entity would be available to the public if it appears on the Australian Charities and Not‑for‑profits Register or in an Australian law on www.comlaw.gov.au or www.austlii.edu.au, or is otherwise made available on request.

45.10  Governance standard 2—Accountability to members

Object

             (1)  The object of this governance standard is to ensure the accountability and transparency of a registered entity to its members.

Standard

             (2)  A registered entity that has members must take reasonable steps to ensure that:

                     (a)  the registered entity is accountable to its members; and

                     (b)  the registered entity’s members have an adequate opportunity to raise concerns about the governance of the registered entity.

Note 1:       The steps that a registered entity may take to ensure that it is accountable to its members could include:

(a)    holding annual general meetings; and

(b)    providing members with an annual report (including financial information and achievements towards its purpose); and

(c)    providing for elections for its responsible entities.

Note 2:       The steps that a registered entity may take to ensure its members have an adequate opportunity to raise concerns could include:

(a)    holding an annual general meeting with a question and answer session; and

(b)    providing an opportunity for members to propose resolutions and to vote upon those resolutions.

Note 3:       When taking the reasonable steps required by governance standard 2, regard must be had to requirements of the governing rules of the registered entity, to the extent that those governing rules include appropriate accountability mechanisms. If those governing rules include appropriate accountability mechanisms, compliance with those rules would demonstrate compliance with governance standard 2.

Note 4:       Subdivision 60‑C of the Act sets out rules about the preparation of annual financial reports.

45.15  Governance standard 3—Compliance with Australian laws

Object

             (1)  The object of this governance standard is to give the public (including members, donors, employees, volunteers and benefit recipients of a registered entity) trust and confidence that a registered entity is governed in a way that ensures its on‑going operations and the safety of its assets, through compliance with Australian laws (including preventing the misuse of its assets).

Note:          Compliance with Australian laws sets a minimum benchmark by which all entities should govern themselves. A failure by a registered entity to comply with an Australian law puts the public (including members, donors, employees, volunteers and benefit recipients of the registered entity) at risk and, therefore, governance standard 3 allows the Commissioner to take a proportionate approach to:

(a)    protect public trust and confidence; and

(b)    protect the assets of the registered entity; and

(c)    ensure that the registered entity continues to operate in a manner that is sustainable and consistent with its purposes.

Standard

             (2)  A registered entity must not engage in conduct, or omit to engage in conduct, if the conduct or omission may be dealt with:

                     (a)  as an indictable offence under an Australian law (even if it may, in some circumstances, be dealt with as a summary offence); or

                     (b)  by way of a civil penalty of 60 penalty units or more.

Note 1:       See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

Note 2:       Governance standard 3 does not extend Australian law to overseas jurisdictions. An Australian law may already extend to an overseas jurisdiction by other means.

Note 3:       While a registered entity must comply with all Australian laws, a serious infringement of an Australian law covered by governance standard 3 may allow the Commissioner to exercise his or her enforcement powers under Part 4‑2 of the Act, following consideration of the matters mentioned in subsection 35‑10 (2) of the Act.

45.20  Governance standard 4—Suitability of responsible entities

Object

             (1)  The object of this governance standard is to maintain, protect and enhance public trust and confidence in the governance and operation of a registered entity.

Standard

             (2)  A registered entity must:

                     (a)  take reasonable steps to ensure that each of its responsible entities meet the conditions mentioned in subsection (3); and

                     (b)  after taking those steps:

                              (i)  be, and remain, satisfied that each responsible entity meets the conditions; or

                             (ii)  if it is unable to be, or remain, satisfied that a responsible entity meets the conditions, take reasonable steps to remove that entity.

Note 1:       Other Australian laws may require responsible entities to be replaced, if removed, because a registered entity may need to have a minimum number of responsible entities.

Note 2:       The reasonable steps required of a registered entity may include:

(a)    obtaining declarations from responsible entities and searching public registers on appointment; and

(b)    obtaining a commitment from a responsible entity that, if its circumstances change, it will advise the registered entity.

             (3)  Subject to subsection (5), the conditions for each responsible entity are that:

                     (a)  it is not disqualified from managing a corporation, within the meaning of the Corporations Act 2001; and

                     (b)  it is not disqualified by the Commissioner, at any time during the preceding 12 months, from being a responsible entity of a registered entity under subsection (4).

Note:          Other Australian laws may place other limitations on who may be the responsible entity of a registered entity, or a particular type of registered entity.

             (4)  The Commissioner may disqualify an entity from being eligible to be a responsible entity for the purpose of this governance standard if:

                     (a)  the entity has been previously suspended, or removed, under Division 100 of the Act as a responsible entity of a registered entity; and

                     (b)  the entity has been given notice of its disqualification by the Commissioner; and

                     (c)  the Commissioner reasonably believes that the disqualification is justified having regard to the objects of the Act.

Note 1:       The secrecy provisions in Part 7‑1 of the Act prohibit ACNC officers (including the Commissioner) from disclosing protected ACNC information unless the disclosure is authorised by the Act. This prohibits the ACNC from disclosing information about ongoing investigations about particular responsible entities that may be subject to compliance with governance standard 4.

Note 2:       The effect of a disqualification lasts for no longer than 12 months from the day a notice is issued by the Commissioner (see paragraph (3)(b)).

             (5)  Despite subsection (3), the Commissioner may allow an individual to be a responsible entity for a particular registered entity if the Commissioner believes it is reasonable to do so in the circumstances.

             (6)  An entity that is dissatisfied with a decision of the Commissioner to disqualify the entity under subsection (4) may object to the decision in the manner set out in Part 7‑2 of the Act.

45.25  Governance standard 5—Duties of responsible entities

Object

             (1)  The object of this governance standard is:

                     (a)  to ensure that the responsible entities of a registered entity conduct themselves in the manner that would be necessary if:

                              (i)  the relationship between them and the entity were a fiduciary relationship; and

                             (ii)  they were obliged to satisfy minimum standards of behaviour consistent with that relationship; and

                     (b)  to give the public, including members, donors, employees, volunteers and benefit recipients of a registered entity, confidence that the registered entity:

                              (i)  is acting to prevent non‑compliance with the duties imposed on responsible entities; and

                            (iii)  if non‑compliance with the duties imposed on responsible entities occurs—will act to identify and remedy non‑compliance with the duties imposed on the entity.

Standard

             (2)  A registered entity must take reasonable steps to ensure that its responsible entities are subject to, and comply with, the following duties:

                     (a)  to exercise the responsible entity’s powers and discharge the responsible entity’s duties with the degree of care and diligence that a reasonable individual would exercise if they were a responsible entity of the registered entity;

                     (b)  to act in good faith in the registered entity’s best interests, and to further the purposes of the registered entity;

                     (c)  not to misuse the responsible entity’s position;

                     (d)  not to misuse information obtained in the performance of the responsible entity’s duties as a responsible entity of the registered entity;

                     (e)  to disclose perceived or actual material conflicts of interest of the responsible entity;

Note:       A perceived or actual material conflict of interest that must be disclosed includes a related party transaction.

                      (f)  to ensure that the registered entity’s financial affairs are managed in a responsible manner;

                     (g)  not to allow the registered entity to operate while insolvent.

Note 1:       Governance standard 5 sets out some of the more significant duties of responsible entities. Other duties are imposed by other Australian laws, including the principles and rules of the common law and equity.

Note 2:       Some of the duties imposed by other Australian laws may require a responsible entity to exercise its powers and discharge its duties to a higher standard.

Note 3:       For paragraph (f), ensuring that the registered entity’s financial affairs are managed in a responsible manner includes putting in place appropriate and tailored financial systems and procedures.

                   The systems and procedures for a particular registered entity should be developed having regard to the registered entity’s size and circumstances and the complexity of its financial affairs.

                   The systems and procedures may include:

(a)    procedures relating to spending funds (for example, the approval of expenditure or the signing of cheques); and

(b)    having insurance that is appropriate for the registered entity’s requirements.

             (3)  For paragraph (2)(e), a perceived or actual material conflict of interest must be disclosed:

                     (a)  if the responsible entity is a director of the registered entity—to the other directors (if any); or

                     (b)  if the registered entity is a trust, and the responsible entity is a director of a trustee of the registered entity—to the other directors (if any); or

                     (c)  if the registered entity is a company—to the members of the registered entity; or

                     (d)  in any other case—unless the Commissioner provides otherwise, to the Commissioner, in the approved form.

Note 1:       Company is defined in section 205‑10 of the Act, to include a body corporate or any unincorporated association or body of persons (but not a partnership).

Note 2:       Paragraph (c) applies in situations where paragraph (a) cannot apply, for example, if there is only one director or all the directors have a similar conflict.

Note 3:       Part 7‑6 of the Act provides for the approval of forms.

Note 4:       A responsible entity may disclose a conflict of interest in the form of a standing notice with ongoing effect.

             (4)  If the responsible entity’s conduct is consistent with Subdivision 45‑C, the responsible entity is taken to have complied with the duties mentioned in subsection (2).

             (5)  In this section:

insolvent has the meaning given by subsection 95A (2) of the Corporations Act 2001.

Subdivision 45‑CProtections under governance standard 5

45.100  Reasonable steps taken to ensure compliance with duties

                   If a responsible entity meets a protection mentioned in this Subdivision, the registered entity is taken to have taken all reasonable steps to ensure that its responsible entities have complied with the duties set out in section 45.25.

45.105  Protection 1

             (1)  A responsible entity meets this protection if the responsible entity, in the exercise of the responsible entity’s duties, relies on information, including professional or expert advice, in good faith, and after the responsible entity has made an independent assessment of the information, if that information has been given by:

                     (a)  an employee of the registered entity that the responsible entity believes on reasonable grounds to be reliable and competent in relation to the matters concerned; or

                     (b)  a professional adviser or expert in relation to matters that the responsible entity believes on reasonable grounds to be within the individual’s professional or expert competence; or

                     (c)  another responsible entity in relation to matters within their authority or area of responsibility; or

                     (d)  an authorised committee of responsible entities that does not include the responsible entity.

             (2)  In determining whether the responsible entity has made an independent assessment of the information or advice, regard must be had to the responsible entity’s knowledge of the registered entity and the complexity of the structure and operations of the registered entity.

45.110  Protection 2

             (1)  A responsible entity meets this protection if the responsible entity makes a decision in relation to the registered entity, and the responsible entity meets all of the following:

                     (a)  the responsible entity makes the decision in good faith for a proper purpose;

                     (b)  the responsible entity does not have a material personal interest in the subject matter of the decision;

                     (c)  the responsible entity informs itself about the subject matter of the decision, to the extent the entity reasonably believes to be appropriate;

                     (d)  the responsible entity rationally believes that the decision is in the best interests of the registered entity.

Note 1:       Protection 2 is also referred to as the “business judgement rule”.

Note 2:       Protection 2 relates to the duty mentioned in paragraph 45.25(2)(a).

             (2)  In this section:

decision means any decision to take, or not take, action in relation to a matter relevant to the operations of the registered entity.

45.115  Protection 3

                   A responsible entity meets this protection if:

                     (a)  at the time when the debt was incurred, the responsible entity had reasonable grounds to expect, and did expect, that the registered entity was solvent at that time and would remain solvent even if it incurred that debt and any other debts that it incurred at that time; or

                     (b)  the responsible entity took all reasonable steps to prevent the registered entity from incurring the debt.

Note:          Protection 3 relates to the duty mentioned in paragraph 45.25(2)(g).

45.120  Protection 4

                   This section is satisfied if, because of illness or for some other good reason, a responsible entity could not take part in the management of the registered entity at the relevant time.

Subdivision 45‑DTransitional arrangements

45.130  Exemption until 1 July 2017

Governing rules

             (1)  If the governing rules of a registered entity, as in effect on the day this Regulation is registered, prevent the registered entity from complying with a requirement of Subdivision 45‑B, the registered entity is exempt from the requirement until 1 July 2017.

             (2)  However, the registered entity must comply with the requirements of Subdivision 45‑B as far as is possible, without breaching its governing rules.

State or Territory law

             (3)  If:

                     (a)  a registered entity is an incorporated association that is subject to a law of a State or Territory in respect to incorporated associations; and

                     (b)  that law sets out duties of responsible entities to the registered entity; and

                     (c)  the registered entity and each of its responsible entities is complying with that law;

the registered entity is taken to be complying with governance standard 5.

             (4)  Subsection (3) ceases to have effect in relation to a registered entity if the relevant provisions of the law of the State or Territory is amended so that it:

                     (a)  sets out duties for responsible entities that are the same as those in governance standard 5; or

                     (b)  otherwise adopts the content of governance standard 5.

             (5)  Subsection (3) ceases to have effect in relation to all registered entities on 1 July 2017.

Subdivision 45‑EDisqualified Responsible Entities Register

45.150  Disqualified Responsible Entities Register

             (1)  The Commissioner must maintain a register, to be known as the Disqualified Responsible Entities Register, in which the Commissioner must include the following information:

                     (a)  the name of entity disqualified by the Commissioner from being a responsible entity of a registered entity, under subsection 45.20(4);

                     (b)  the date that the entity was disqualified by the Commissioner;

                     (c)  whether the disqualification remains subject to review, under Part 7‑2 of the Act.

             (2)  The Disqualified Responsible Entities Register must be maintained by electronic means.

             (3)  The Disqualified Responsible Entities Register must be made available for public inspection, on a website maintained by the Commissioner.

Note 1:       The secrecy provisions in Part 7‑1 of the Act prohibit ACNC officers (including the Commissioner) from disclosing protected ACNC information unless the disclosure is authorised by the Act. This prohibits the ACNC from disclosing information about ongoing investigations about particular responsible entities that may be subject to compliance with governance standard 4.

Note 2:       The Commissioner may remove an entity from the Disqualified Responsible Entities Register if the entity ceases to be disqualified. See governance standard 4 for how the Commissioner disqualifies an entity.

Division 60Requirements for annual financial reports

Subdivision 60‑APurpose of Division 60

60.1  Purpose

                   For subsection 60‑15(1) of the Act, this Division prescribes requirements for annual financial reports.

Subdivision 60‑BRequirements for annual financial reports (core rules)

60.5  Contents of annual financial report

                   A registered entity’s financial report for a financial year consists of:

                     (a)  the registered entity’s financial statements for the year (see section 60.10); and

                     (b)  the notes to the financial statements (see section 60.10); and

                     (c)  the responsible entities’ declaration about the statements and notes (see section 60.15).

60.10  Financial statements and notes

             (1)  The financial statements for the financial year are the financial statements in relation to the registered entity that are required to be prepared by the accounting standards.

             (2)  The notes to the financial statements are:

                     (a)  notes required by the accounting standards; and

                     (b)  any other information necessary to give a true and fair view of the financial position and performance of the registered entity.

             (3)  The financial statements and notes:

                     (a)  must give a true and fair view of the financial position and performance of the registered entity; and

                     (b)  subject to Subdivision 60‑C, must comply with the accounting standards.

Note 1:       The accounting standards set out the test for whether a registered entity will need to prepare a general purpose financial statement or can instead prepare a special purpose financial statement. See section 60.30 for the accounting standards that must be complied with in preparing a special purpose financial statement.

Note 2:       If the financial statements and notes prepared in compliance with the accounting standards would not give a true and fair view, additional information must be included in the notes to the financial statements under paragraph (2)(b).

60.15  Responsible entities’ declaration

             (1)  The responsible entities’ declaration is a declaration by the responsible entities of the registered entity that states:

                     (a)  whether, in their opinion, there are reasonable grounds to believe that the registered entity is able to pay all of its debts, as and when they become due and payable; and

                     (b)  whether, in their opinion, the financial statements and notes satisfy the requirements of the Act.

             (2)  The declaration must be signed by a responsible entity that is authorised to do so by the responsible entities.

Subdivision 60‑CRequirements for annual financial reports (special rules)

60.20  Application of Subdivision 60‑C

                   This Subdivision applies if the accounting standards are inconsistent with Subdivisions 60‑E and 60‑G of the Act.

60.25  Resolution of inconsistency

                   The financial statements and notes mentioned in Subdivision 60‑B do not have to comply with the accounting standards to the extent to which the accounting standards are inconsistent with Subdivisions 60‑E and 60‑G of the Act.

Note 1:       In requiring further information under Subdivision 60‑E, or allowing joint and collective reporting under Subdivision 60‑G, the Commissioner may specify requirements relating to the information or reports, including particular accounting standards that do not need to be complied with.

Note 2:       A registered entity would not breach a requirement in the accounting standards to prepare a general purpose financial statement if this Subdivision does not require the entity to comply with the requirement.

60.30  Special purpose financial statements

             (1)  This section applies if a registered entity:

                     (a)  is not required to prepare a general purpose financial statement; and

                     (b)  does not propose to prepare a general purpose financial statement.

             (2)  Each accounting standard mentioned in the following table is taken to apply in relation to the registered entity and the preparation of a special purpose financial statement unless the Commissioner allows the registered entity not to comply with part or all of the accounting standard.

 

Accounting standards

Item

Standard

1

AASB 101, Presentation of Financial Statements

2

AASB 107, Statement of Cash Flows

3

AASB 108, Accounting Policies, Changes in Accounting Estimates and Errors

4

AASB 1031, Materiality

5

AASB 1048, Interpretation of Standards

6

AASB 1054, Australian Additional Disclosures

             (3)  However, subsection (2) does not apply to any part of an accounting standard referred to in the table in that subsection that is expressed to apply only to a reporting entity.

Subdivision 60‑DRequirements for annual financial reports (transitional rules)

60.35  Application of Subdivision 60‑D

                   This Subdivision applies if a registered entity:

                     (a)  was not required, under an Australian law, to prepare a financial report that complied with the accounting standards in the 2012‑13 financial year, or a substituted accounting period that commenced during the 2012‑13 financial year; and

                     (b)  did not prepare a financial report for that financial year, or substituted accounting period, that:

                              (i)  complied with the accounting standards; or

                             (ii)  purported to comply with the accounting standards.

60.40  Financial statement

             (1)  The registered entity’s financial statement for the 2013‑14 financial year, or a substituted accounting period that commences during the 2013‑14 financial year, must comply with section 60.10, subsection (2) or subsection (3).

             (2)  For a medium registered entity, a statement that complies with this subsection must consist of the information set out in the following table.

 

Information

Item

Information

 

Income statement—gross income

1

Government grants

2

Donations and bequests

3

All other revenue

4

Total revenue

5

Other income

6

Total gross income

 

Income statement—expenses

7

Employee expenses

8

Grants and donations made by the registered entity for use in Australia

9

Grants and donations made by the registered entity for use outside Australia

10

All other expenses

11

Total expenses

 

Income statement—net surplus/deficit

12

Net surplus/deficit

 

Balance sheet—assets

13

Total current assets

14

Total non‑current assets

15

Total assets

 

Balance sheet—liabilities

16

Total current liabilities

17

Total non‑current liabilities

18

Total liabilities

 

Balance sheet—net assets/liabilities

19

Net assets/liabilities

Note 1:       This information is also proposed to be contained in the medium registered entity’s 2014 Annual Information Statement.

Note 2:       Government grants are grants that the medium registered entity receives from the Commonwealth, a State or Territory or a local government body.

             (3)  For a large registered entity, a statement that complies with this subsection must consist of the information set out in the following table.

 

Information

Item

Information

 

Income statement—gross income

1

Government grants

2

Donations and bequests

3

All other revenue

4

Total revenue

5

Other income

6

Total gross income

 

Income statement—expenses

7

Employee expenses

8

Interest

9

Grants and donations made by the registered entity for use in Australia

10

Grants and donations made by the registered entity for use outside Australia

11

All other expenses

12

Total expenses

 

Income statement—net surplus/deficit

13

Net surplus/deficit

 

Balance sheet—assets

14

Total current assets

15

Non‑current loans

16

Other non‑current assets

17

Total non‑current assets

18

Total assets

 

Balance sheet—liabilities

19

Total current liabilities

20

Non‑current loans

21

Other non‑current liabilities

22

Total non‑current liabilities

23

Total liabilities

 

Balance sheet—net assets/liabilities

24

Net assets/liabilities

Note 1:       This information is also proposed to be contained in the large registered entity’s 2014 Annual Information Statement.

Note 2:       Government grants are grants that the large registered entity receives from the Commonwealth, a State or Territory or a local government body.


Endnotes

 

Endnote 1—Legislation history

This endnote sets out details of the legislation history of the Australian Charities and Not‑for‑profits Commission Regulation 2013.

 

Number and year

FRLI registration date

Commencement
date

Application, saving and transitional provisions

22, 2013

5 Mar 2013 (see F2013L00401)

6 Mar 2013

 

23, 2013

5 Mar 2013 (see F2013L00402)

1 July 2013

82, 2013

17 May 2013 (see F2013L00793)

18 May 2013

124, 2013

17 June 2013 (see F2013L01015)

18 June 2013

 

Endnote 2—Amendment history

This endnote sets out the amendment history of the Australian Charities and Not‑for‑profits Commission Regulation 2013.

 

ad. = added or inserted    am. = amended    rep. = repealed    rs. = repealed and substituted    exp. = expired or ceased to have effect

Provision affected

How affected

Part 1

 

s. 2......................................

rep. LIA s. 48D

s. 4......................................

am. No. 82, 2013; Nos. 23 and 124, 2013

Part 2.2

 

Division 40

 

Subdivision 40‑A

 

s. 40.1.................................

am. No. 23, 2013

Subdivision 40‑B

 

Subdiv. 40‑B.......................

ad. No. 82, 2013

s. 40.10...............................

ad. No. 82, 2013

Division 45

 

Div. 45................................

ad. No. 23, 2013

Subdivision 45‑A

 

s. 45.1.................................

ad. No. 23, 2013

s. 45.2.................................

ad. No. 23, 2013

s. 45.3.................................

ad. No. 23, 2013

Subdivision 45‑B

 

s. 45.5.................................

ad. No. 23, 2013

s. 45.10...............................

ad. No. 23, 2013

s. 45.15...............................

ad. No. 23, 2013

s. 45.20...............................

ad. No. 23, 2013

s. 45.25...............................

ad. No. 23, 2013

Subdivision 45‑C

 

s. 45.100.............................

ad. No. 23, 2013

s. 45.105.............................

ad. No. 23, 2013

s. 45.110.............................

ad. No. 23, 2013

s. 45.115.............................

ad. No. 23, 2013

s. 45.120.............................

ad. No. 23, 2013

Subdivision 45‑D

 

s. 45.130.............................

ad. No. 23, 2013

Subdivision 45‑E

 

s. 45.150.............................

ad. No. 23, 2013

Division 60

 

Div. 60................................

ad. No. 124, 2013

Subdivision 60-A

 

s. 60.1.................................

ad. No. 124, 2013

Subdivision 60-B

 

s. 60.5.................................

ad. No. 124, 2013

s. 60.10...............................

ad. No. 124, 2013

s. 60.15...............................

ad. No. 124, 2013

Subdivision 60-C

 

s. 60.20...............................

ad. No. 124, 2013

s. 60.25...............................

ad. No. 124, 2013

s. 60-30...............................

ad. No. 124, 2013

Subdivision 60-D

 

s. 60.35...............................

ad. No. 124, 2013

s. 60-40...............................

ad. No. 124, 2013

 

Endnote 3—Uncommenced amendments [none]

There are no uncommenced amendments.

 

Endnote 4—Misdescribed amendments [none]

There are no misdescribed amendments.