Commissioner's Policy Statement: Duty to notify

This Commissioner’s Policy Statement is issued under the authority of the Commissioner and should be read together with the ACNC Policy Framework, which sets out the scope, context and definitions common to our policies.

Policy statement

This Commissioner's Policy Statement sets out charities’ obligation to notify the ACNC of certain matters, including changes to their details or matters that may affect their entitlement to registration under the ACNC Act.

This policy does not cover the application of administrative penalties in the case of false or misleading statements. Refer to Commissioner’s Policy Statement 2015/02: Penalties for False or Misleading Statements for the Commissioner’s approach to these penalties. The policy also does not cover the Commissioner’s approach to the revocation of charities, which is addressed in Commissioner’s Policy Statement 2014/03: Revocation by the ACNC.

Duty to notify

1. Under section 65-5 of the Australian Charities and Not-for-profits Commission Act 2012 (Cth) (ACNC Act), a charity must notify the Commissioner in the approved form of changes to:
   • its name
   • its Address For Service
   • its Responsible People, and
   • its governing rules.
2. The timeframe within which a registered charity must notify the ACNC of certain matters varies depending on its size: small, medium or large. The charity’s size is based on its revenue for the reporting period (section 205-25 of the ACNC Act). Where a charity is required to notify the ACNC of the changes set out in paragraph 1, medium and large charities must do so within 28 days. Small charities must notify the ACNC within 60 days.
3. A charity must also notify the ACNC if it has contravened a provision of the ACNC Act or not complied with the governance or external conduct standards if the contravention or non-compliance is significant and may impact its registration entitlement.
4. In determining the significance of a contravention or non-compliance, the charity should consider:
   • the nature, significance and persistence of any contravention or non-compliance, and
   • the desirability of ensuring that contributions to the charity are applied consistently with the not-for-profit nature, and the purpose of the charity.
5. In the case of a significant contravention or non-compliance as described in paragraphs 3 and 4, all charities must notify the ACNC as soon as practicable and no later than 28 days after they first become aware of the issue.
6. The Commissioner may take regulatory action, which may include revocation of charity registration, in response to any significant non-compliance they are notified of.

Notifying of changes or significant contraventions or noncompliance

7. Charities should use the appropriate ACNC form to notify us of changes to certain matters and of significant contraventions or non-compliance. The forms approved by the Commissioner for these purposes are:
   • Form 3A: Change of Responsible Person
   • Form 3B: Change of charity details
   • Form 3C: Notify contravention or non-compliance
8. The ACNC also allows charities to advise us of some changes to their details as part of completing the Annual Information Statement. However, because the Annual Information Statement is only submitted annually notification by this method may not meet the time limits set out above.
9. The Commissioner also has the power to defer the due date for an approved form to be lodged under section 190-15 of the ACNC Act. In exercising this power, the Commissioner must have regard to the matters listed in section 15-10 of the ACNC Act. The Commissioner will exercise this discretion if it is fair and reasonable or there is a genuine need to do so, taking into account the charity’s individual circumstances. This discretion will be exercised in line with the ACNC's regulatory approach.

Failure to notify

10. Failure to notify the ACNC of the required matters is a breach of the ACNC Act, and may result in further compliance action being taken. In some circumstances, failing to notify the ACNC of required matters may be grounds for the ACNC to revoke the registration of a charity. Secondly, a charity’s willingness to disclose its non-compliance to the Commissioner may be considered a relevant factor by the Commissioner when they determine what a proportionate regulatory response is, as it may demonstrate that the charity is prepared to work with the ACNC to remedy the non-compliance.
11. Where a charity is required to notify the ACNC in the approved form but fails to do so within the timeframes stated in paragraph 4 and 6, it is liable to pay an administrative penalty for failing to lodge documents on time. Penalties become due for payment once the Commissioner has given written notice of the charity’s liability to pay the penalty. For more information on late lodgement penalties, refer to Commissioner’s Policy Statement 2014/02: Penalties for Failing to Lodge Documents on Time.

References

• ACNC Policy Framework
• Australian Charities and Not-for-profits Commission Act 2012 (Cth)
• Commissioner’s Policy Statement 2014/02: Penalties for failing to lodge documents on time
• Commissioner’s Policy Statement 2014/03: Revocation by the ACNC
• Commissioner's Policy Statement 2015/02: Penalties for false or misleading statements