Regulation Impact Statement – Department of the Treasury
On 24 June 2021, the Governor-General of Australia made new regulations empowering the Commissioner of the Australian Charities and Not‑for‑profits Commission (ACNC) to investigate registered charities engaging in or actively promoting serious unlawful activities.
Duties for Australian Charities, and indirectly for responsible persons, are set out in the Australian Charities and Not-for-profits Commission Regulation 2013 (the ACNC Regulations). These governance standards require a registered charity to remain charitable, operate lawfully, and be run in an accountable and responsible way.
The framing of governance standard three in terms of indictable offences had previously led to inconsistent outcomes for certain unlawful conduct, mainly due to differences in State and Territory determinations of unlawful activities as either indictable or summary offences. This resulted in potentially serious offences, such as trespass, vandalism, theft, assault, and threatening harm to persons being defined as summary offences in some jurisdictions.
The preferred option explored in the Regulation Impact Statement (RIS) prepared by the Department of the Treasury (Treasury - linked below) enables the ACNC Commissioner to investigate and take appropriate enforcement action in cases where a registered charity engages in such instances of serious unlawful conduct, and also serves to reduce complexity in the law.
The Office of Best Practice Regulation (OBPR) assessed the RIS prepared by Treasury as adequate to meet the Government’s RIS requirements.
To be consistent with good practice, the RIS would have required more robust impact analysis and relevant data, and more evidence of the uncertainty and complexity of the current scope of unlawful activities. However, the impact analysis was limited as Treasury were unable to access evidence or data from the ACNC due to the strict secrecy rules preventing the ACNC from commenting on compliance activities (further explained in Treasury’s certification letter - linked below).
More details on the assessment of this RIS are provided in the OBPR’s advice to Treasury (also linked below).
The RIS estimates a one-off regulatory cost to regulated entities of $1.4 million.
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