Commissioner's Policy Statement: Reviews and appeals

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, content and definitions common to our policies.

Context statement

1. This Commissioner’s Policy Statement gives guidance on the reviews and appeals process under the Australian Charities and Not-for-profits Commission Act 2012 (Cth) (ACNC Act).
2. The Commissioner has powers under the ACNC Act to make decisions affecting charities and their Responsible People. These powers are delegated to the Assistant Commissioner, who has authorised certain ACNC staff to make specified decisions on their behalf.
3. There is a formal reviews and appeals process for certain decisions (Part 7-2 of the ACNC Act). If an entity is dissatisfied with the decision, they can seek an internal review of the decision within 60 days of receiving notice of the decision (as discussed at Principle 1 of the policy, Commissioner may accept a late objection).
4. If a charity or Responsible Person seeks internal review of a decision (known as an ‘objection’ under the ACNC Act), an ACNC officer that did not make the original decision will review the decision and decide whether it should be changed (objection decision).
5. If the entity is dissatisfied with that decision, they can apply for review by the Administrative Review Tribunal (ART) or appeal to the Federal Court.
6. Reviews and appeals will be dealt with according to the principles set out below.

Decisions the ACNC must review under the ACNC Act

7. Under the ACNC Act, an entity can lodge an objection in relation to the following ACNC decisions:
   • refusal to register the entity (section 30-35)
   • revoking (or not revoking) the charity’s registration (section 35-20)
   • directing the charity to do (or not do) something, changing such a direction or not changing or removing a direction after 12 months (section 85-25), and
   • refusing to remit part or all of an administrative penalty if the remaining penalty is more than 2 penalty units (section 175-60(3)).
8. Under the ACNC Act, a Responsible Person of a charity can lodge an objection in relation to the following ACNC decisions:
   • suspending the Responsible Person from a position or changing the time a suspension of the Responsible Person ends (section 100-10(10)), and
   • removing the Responsible Person from a position (section 100-15(7)).

Review by the Administrative Review Tribunal

9. If a charity or Responsible Person disagrees with the objection decision or considers that the statement of reasons is inadequate, they can apply for review by the ART. An application to the ART about an inadequate statement of reasons must be made within 28 days of receiving the decision. An application for review about the objection decision must be made within 60 days of being served with the objection decision.
10. If the entity lodged a late application and the ACNC did not agree to treat the objection as having been lodged within time, the entity can also seek review by the ART of that decision.
11. An ART decision can be appealed to a court on a question of law within 60 days.
12. Decisions not covered by the ACNC Act’s formal reviews and appeals process cannot be reviewed by the ART.

Appeal to a court

13. If an entity appeals an objection decision directly to a court, they must lodge such an appeal within 60 days of being served with the objection decision.
14. The grounds of a review application to the ART and appeal to the court are limited to those stated in the objection.

Judicial review

15. This type of review may be considered by a court if a person has a concern about the ACNC’s decision-making process or its power to make the decision in question at all. The types of decisions that the ACNC must review, set out at paragraphs 7 and 8, have been exempt from judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). Some ACNC decisions may still be subject to judicial review under the ADJR Act, for example:
    1. to withhold or not withhold information from the Register (section 40-10)
    2. to impose additional reporting requirements (subsection 60-75(1)), approve a substituted accounting period (subsection 60-85(1)), or to allow joint reporting (subsection 60-95(1)), and
    3. to issue a warning (division 80) and to accept or cancel and enforceable undertaking (division 90).
16. There may be other options outside the ADJR Act for aggrieved persons to pursue judicial review of ACNC decisions (including those decisions exempt from judicial review under the ADJR Act). This policy is focused on reviews and appeals about the merits of decisions. Nonetheless, conforming to the Commissioner's Policy Statement: Decision-making will help avoid the types of errors that may give rise to judicial review.

Principles

• Principle 1: The ACNC will accept lawful, in-time, objections, and will be fair in considering whether to accept a late objection.
• Principle 2: There will be an independent decision-making process for reviews.
• Principle 3: The ACNC decision in question stands while a review is pending.
• Principle 4: Decision-making processes and internal review mechanisms will be effective.

Principle 1: The ACNC will accept lawful, in-time, objections, and will be fair in considering whether to accept a late objection.

17. Applications for internal review must be made on the approved notice of objection form within 60 days of service of the original decision. If 60 days has passed and the entity still wishes to seek internal review, it must request an extension of time in writing and set out the reasons for not meeting the timeframe. The Commissioner may or may not agree to the request.
18. The Explanatory Memorandum to the ACNC Act states “the ACNC Commissioner may only accept late lodgement of objections in special circumstances including, but not limited to, situations where:
    1. there were unforeseeable and uncontrollable events, or
    2. further time is required to ensure all the relevant facts are considered in coming to a view on the objection.”
19. The common law also offers a discretion and late objections should typically be accepted where the applicant has shown an “acceptable explanation for the delay” and when it is “fair and equitable in the circumstances” (Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176).
20. Therefore, the Commissioner will decide whether to accept a late objection on a case-by-case basis. The Commissioner will consider the factors listed in section 15-10 of the ACNC Act, the objects of the ACNC Act, and any relevant public interest considerations. The Commissioner may also consider whether:
    1. the applicant has provided a reasonable explanation for the delay,
    2. the applicant took some other action to alert the Commissioner to the fact that they disputed the decision, or whether they could have taken some other action and did not do so,
    3. the objection has merit,
    4. the ACNC will be prejudiced if the Commissioner accepts the late objection,
    5. the applicant and other entities in a similar position are treated fairly, and/or
    6. the case involves an important or unsettled question of law or practice that should be resolved.
21. If the Commissioner decides to refuse to accept a late objection, that decision itself can be reviewed by the ART. The Commissioner will adhere to the Commissioner's Policy Statement: Decision-making when making this decision, including affording the entity procedural fairness.

Principle 2: There will be an independent decision-making process for reviews.

22. An independent ACNC Officer will be appointed to review a decision (ACNC review officer). All reviewable decisions must have been made by either the Commissioner or their delegate. The ACNC review officer must also be authorised to make the decision or exercise the function in question (see Corporate Policy: Delegation, authorisation and signing) and have had no prior involvement in the matter. The objection decision must not be made by the person who made the original decision – in other words, if the original decision was in the name of the Assistant Commissioner, the objection decision must be made by the Commissioner.
23. The ACNC review officer will follow the administrative law principles outlined in the Commissioner's Policy Statement: Decision-making.
24. The ACNC review officer may seek further information to make the objection decision, including the advice of other ACNC staff. However, the original decision maker will not influence or direct the ACNC review officer.
25. The ACNC review officer may reach the same decision as the original decision maker, or the objection decision may differ in part or in whole from the original decision. The review officer may conclude that the original decision-maker’s reasoning was wrong, or flawed, in some way, but still reach the same conclusion for different reasons.
26. We will also provide written reasons for the objection decision, in accordance with the Commissioner's Policy Statement: Decision-making.

Principle 3: The ACNC decision in question stands while a review is pending.

27. While an internal review is being considered, the decision under review must remain in effect. This is consistent with section 165-50 of the ACNC Act. The ACNC will observe its standard processes, work instructions and service standards to give effect to the decision.

Principle 4: Decision-making processes and internal review mechanisms will be effective.

28. We recognise the importance of timely and effective decision making and review processes and mechanisms.
29. Our internal review processes will help the ACNC to understand and identify problem areas in its decision-making or the laws we administer and address these issues to continuously improve its decision-making and client experience.
30. Under section 160-20 of the ACNC Act, if the ACNC has not made an objection decision within 60 days of the objection being lodged, the entity involved may give the Commissioner notice requiring a decision. If the ACNC does not make an objection decision within 60 days of receiving such a notice, the Commissioner is taken to have disallowed an objection. For a variety of reasons, it may not be possible for the ACNC to always make an objection decision within this timeframe. However, ACNC review officers will conduct reviews efficiently and will liaise with entities where there are significant delays.
31. We recognise that review and appeal processes can be costly and time consuming. Accordingly, and in line with our model litigant obligations, we will give due consideration to alternative dispute resolution opportunities.