Legal meaning of charity
‘Charity’ has a technical legal meaning. When the ACNC makes decisions about whether to register your organisation as a charity, we apply the law:
- made by judges (‘common law’) on the meaning of charity and charitable purposes
- taking account of relevant legislation such as the ACNC Act, Charities Act 2013 (Cth) (Charities Act) and Charities (Consequential Amendments and Transitional Provisions) Act 2013 (Cth) (the Charities Consequential and Transitional Act)
Attention:You need to know! Watch our video on what charity means, under the law.
Attention - Important information!There are still other definitions of charity that may be applied by state and territory government agencies.
Previous tax rulings on charitable status
Attention - Important information!Please note that the Australian Taxation Office (ATO) is currently updating sections of its website, including pages on charity tax concessions. During this time you may find some of our links to the ATO are broken. We will be updating our links soon as we can, as the ATO undergoes this process. Thank you for your patience.
The Australian Taxation Office (ATO) has produced tax rulings on charitable status, which set out the ATO Commissioner's opinion about the way the tax law will be interpreted and applied. Taxation Ruling (TR) 2011/4 sets out how the ATO interprets the meaning of charity. This and other ATO rulings are not binding on the ACNC. However, we will have regard to what was previously considered by the ATO to be a charity, including what is set out in taxation rulings.
ACNC Commissioner Interpretation Statements
We are publishing ACNC Commissioner’s Interpretation Statements as they are developed. These set out the approach we will take to interpreting the law on registration of charities.
These statements will progressively replace the ATO’s tax rulings.
Read the Commissioner's Interpretation Statements.
Charities Act – the statutory definition of charity
The Commonwealth Parliament passed the Charities Act 2013 (Cth) (the Charities Act) and the Charities (Consequential Amendments and Transitional Provisions) Act 2013 (Cth) (the Charities Consequential and Transitional Act) on 27 June and they came into effect on 1 January 2014. The Charities Act clearly sets out the legal meaning of charity. The ACNC must apply this law.
The Charities Act restates the existing (judge-made) law in modern language and also recognises charitable purposes such as the protection of human rights, the promotion of reconciliation and tolerance, and by recognising that many modern charities advance causes by preventing, educating, researching and raising awareness. The Charities Consequential and Transitional Act supports us to administer the Charities Act. For example, it contains a table that sets out how the previous table of ACNC charity subtypes match up with the new list of charity subtypes.
Find out more in the Charities Act, the Charities Consequential and Transitional Act and the Explanatory Memorandum, and the background to the Act.
Effect on existing registered charities
Generally, the Charities Act will have no impact on existing registered charities, and we expect that most charities will not have to do anything like changing their purposes once the Act has commenced. In particular, there has been no change to the existing areas of the law like advocacy, the definition of religion, or the commercial activity of charities.
In a few cases (for example, native title bodies, government bodies, disaster relief funds), the Charities Act clarifies some difficult areas of law.
Over time, the ACNC will work with charities to transfer them to the new subtypes created by the Charities Act, if these apply to them. There will be a period of 18 months for this to happen.
Charities applying for registration with the ACNC
The ACNC uses the definition of charity set out in the Charities Act (which came into effect on 1 January 2014) when making decisions on registration applications.
If a registration application was received before 1 January 2014, the law that is used will depend on when the registration decision is made. If it is made after 1 January 2014, the ACNC will apply the definition of charity in the Charities Act 2013. A new registration form became available in January 2014.
As there will only be a few changes to the law as a result of the Charities Act, the ACNC expects that most applications will be decided in the same way as they would have before 1 January 2014.
Changes from the Charities Act
The Charities Act clarifies that to be a recognised as a charity, an organisation must:
- be not-for-profit
- have only charitable purposes that are for the public benefit
- not have a disqualifying purpose
- not be an individual, a political party or a government entity.
The Charities Act confirms that an organisation must only have charitable purposes. It can have other purposes, but these must only be incidental or ancillary purposes that further or assist the charitable purpose or purposes. Read more about charitable purposes and charity subtypes.
The Charities Act does not change the meaning of public benefit. The new definition maintains that certain purposes (for example, advancing education or religion, relieving poverty) are, in the absence of evidence to the contrary, for the public benefit. The Charities Act does not change the way the ACNC determines public benefit in other cases. Read more about public benefit.
The Charities Act makes clearer the existing law on advocacy and political activity by charities. A charity can advance its charitable purposes in the following ways:
- involving itself in public debate on matters of public policy or public administration through, for example, research, hosting seminars, writing opinion pieces, interviews with the media
- supporting, opposing, endorsing and assisting a political party or candidate because this would advance the purposes of the charity (for example, a human rights charity could endorse a party on the basis that the charity considers that the party’s policies best promote human rights), and
- giving money to a political party or candidate because this would further the charity’s purposes.
There are some things to watch out for:
- charities should check their governing documents (such as a constitution, rules or trust deed) and contracts to make sure that there is nothing that prevents them from advocating
- while a charity can support a political party or candidate, this support must be a way of achieving its purposes rather than a goal in itself (for example, it can’t have a hidden purpose of fundraising for a political party)
- if a charity gives money or spends money to support or oppose a political party or candidate, it may need to disclose this under electoral laws (for the Commonwealth rules on this, see the Australian Electoral Commission’s guidance).
Who can register with the ACNC
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