Corporate policy: ACNC Policy Framework

Policy Statement

This Corporate Policy sets out the ACNC’s framework for developing, categorising, approving and reviewing policies, operational procedures and other ACNC documents (collectively known as policy documents), to ensure these documents:

• are clear and easy to understand;
• comply with the ACNC’s risk management strategies; and
• support legal compliance and efficient and effective operations.

Principles

• Principle 1: Policy documents will align with the APS and ACNC values
• Principle 2: ACNC staff will follow policies and procedures in carrying out their duties
• Principle 3: Policy documents will be consistent and clear
• Principle 4: Each policy document will receive the appropriate approval
• Principle 5: Policy document owners will ensure documents remain current
• Principle 6: ACNC staff will have access to and use policy documents appropriately
• Principle 7: Supporting documentation will maintain the intent of the policy document

Context

1. The ACNC is the independent national regulator of charities. The ACNC Commissioner, Assistant Commissioner and ACNC staff are subject to legislation and policies that are designed to promote and support a high standard of public administration. The legislation and policies include requirements that apply to all Commonwealth public servants, requirements that apply specifically to ATO staff, and requirements that apply only to ACNC staff. Key pieces of the framework which governs the conduct of ACNC staff are:

2. ACNC Policy Documents are developed to:
   • assist the ACNC to meet the objects of the ACNC Act and manage risk effectively;
   • assist ACNC staff in meeting legal obligations;
   • assist ACNC staff in performing their duties;
   • outline how the ACNC will meet governance expectations for the APS governance; and
   • provide transparency and clarity to ACNC staff and the broader sector and community.
3. The ACNC’s Policy Framework should be read in conjunction with the two operational procedures that sit underneath the framework. The two operational procedures are:
   • OP2014/04: Creating, updating and reviewing policies and procedures; and
   • OP2014/03 Creating, updating and reviewing forms.
4. The ACNC Act provides that staff are made available to the ACNC Commissioner by the Commissioner of Taxation. The ACNC’s relationship with the ATO is governed by a Memorandum of Understanding (MOU). Many ATO policies and procedures (particularly those relating to human resources and the ATO Enterprise Agreement) apply to ACNC staff. The applicable ATO policies, procedures and Chief Executive Instructions are outlined in the MOU.

Authority

5. All ACNC policy documents are issued under the authority of the Commissioner.

Types of policy document

6. The ACNC has the following types of documents that are covered by this policy framework (collectively referred to as ‘policy documents’):
   • Commissioner’s Interpretation Statements which explain how the ACNC understands and interprets the law that applies to charities, including common law and legislation;
   • Commissioner’s Policy Statements which explain how the ACNC interprets and administers the legislation which governs it;
   • Corporate Policies which direct, assist and inform ACNC staff in performing their duties;
   • Operational Procedures which define the responsibilities of ACNC staff and set out the procedures for performing specific tasks;
   • Work Instructions which instruct ACNC staff on how the procedures are to be implemented, in a step-by-step format;
   • Approved forms under the ACNC Act and ACNC Regulation, which charities must use to request the ACNC to take particular action; and
   • Other forms for use by charities to request the ACNC to take particular action.
7. Most policy documents, except Work Instructions, may be published on the ACNC website. Some policy documents are not published if they relate to purely internal operational matters. The FOI Contact Officer is responsible for decisions about publishing policy documents under the ACNC’s Information Publication Scheme Plan.

Ownership and Responsibility

8. Each directorate is responsible for drafting the policy documents relevant to its business requirements. Directorates should create, update and review their policies, procedures and forms in accordance with the two operational procedures that sit below this Framework. The operational procedures set out who needs to be consulted in drafting a policy document.

9. All policy documents, except for work instructions, must be approved by the Commissioner. All approved forms require an Instrument of Approval. Work Instructions may be approved by the Director with responsibility for the business area, however they should be approved by the Commissioner if they represent a risk to the ACNC. The retirement of a policy document should be approved at the same level.

Definitions

10. The following terms are used consistently throughout ACNC documents. For ease of reference these terms have been defined below and any reference to them in any ACNC documents should be read with the following meaning:
    • ACNC – Australian Charities and Not-for-profits Commission
    • ACNC Act – Australian Charities and Not-for-Profits Commission Act 2012 (Cth) and regulations made under that Act
    • ACNC officers – delegates and authorised officers lawfully exercising the powers of the Commissioner
    • APS – Australian Public Service
    • ATO – Australian Taxation Office
    • Charities Act – Charities Act 2013 (Cth)
    • Commissioner – the Commissioner of the Australian Charities and Not-for profits Commission, including any Acting Commissioner
    • Division – Division of the ACNC Act, unless otherwise specified
    • Part – Part of the ACNC Act, unless otherwise specified
    • Register or Charity Register – the register mentioned in section 40-5 of the ACNC Act, a publicly available, electronic register of the details of all charities registered under the ACNC Act
    • Registered charities – charities registered under the ACNC Act, known in the ACNC Act as registered entities
    • Schedule – Schedule of the Australian Charities and Not-for-profits Commission (Consequential and Transitional) Act 2012 (Cth), unless otherwise specified
    • Section – section of the ACNC Act, unless otherwise specified
    • Responsible Person (known in the ACNC Act as a responsible entity (s 205-30)) – a legal person who is responsible for directing a charity:
      1. a member of the charity’s governing body (including directors or committee members)
      2. a trustee (where the registered charity is a trust)
      3. a trustee in bankruptcy, receiver, administrator, liquidator, or trustee administering a compromise or arrangement
11. Other terms may be defined the first time they are used in a Policy Document, or if those terms are specific to that Policy Document.

Principles

12. Commissioner’s and Corporate policies always contain a set of principles. The guiding principles of each document provide information to ACNC staff about the rationale for the document. ACNC staff must consider and comply with these guiding principles when performing their duties.

13. A failure to act consistently with ACNC policy documents may demonstrate a breach of the APS Code of Conduct or relevant legislation.

14. The following are the principles which guide the application of the Policy Framework.

Principle 1: Policy documents will align with APS and ACNC values

15. When developing ACNC policy documents, ACNC staff will ensure these documents align with the APS and ACNC values.

Principle 2: ACNC staff will follow policies and procedures in carrying out their duties

16. Subject only to the following paragraph, ACNC policies and procedures will be followed by all ACNC staff.

17. Some ACNC policies provide guidance on the making of certain administrative decisions under the ACNC Act. Policies are not law. Unlike legislation, the Commissioner and the Commissioner’s delegates must not apply policies inflexibly when making administrative decisions and must be prepared to consider whether it is appropriate to depart from the policy in an individual case. This approach is based on guidance from the Administrative Review Council; Best practice guide 1, pp 7-9.

18. Contractors, officers, and other employees will also follow all ATO and ACNC policies and procedures when specified in their contracts.

19. Where the ACNC is bound by ATO policies, these policies cannot be amended or changed by the ACNC. A list of the ATO policies and Chief Executive Instructions the ACNC must follow is available to ACNC staff and contractors.

Principle 3: Policy documents will be consistent and clear

20. ACNC policy documents will be consistent and clear. Policies will be written in plain English and in accordance with the ACNC Style Guide. Information will not be duplicated in multiple policies or procedures. Instead, links will be provided to reference the existing policy or procedure.

21. All ACNC policy documents will be consistent with the ACNC Act and other relevant legislation. Where an ACNC policy document is found to be inconsistent with relevant legislation, the document will be amended.

Principle 4: Each policy document will receive the appropriate approval

22. ACNC documents will be approved at the level outlined in this policy and in accordance with the process outlined in the two operational procedures.

Principle 5: Policy document owners will ensure documents remain current

23. ACNC policy documents will be reviewed at least every three years. However, more frequent reviews may be required, for example if the operating environment changes. Policy documents should be reviewed wherever there is reason to believe they are no longer effective, accurate, or fit for purpose

24. Directorates will maintain their own policy documents and ensure they remain current.

25. Policy documents which no longer fulfil a need will be retired.

Principle 6: ACNC staff will have access to and use Policy Documents appropriately

26. All ACNC policy documents will be easily accessible by ACNC staff. Current versions of all ACNC policy documents will be stored in the “Policy Library” on the ACNC SharePoint, which will be accessible to all staff.

27. Policy owners will ensure that all staff are aware of the policy documents relevant to their role. This includes training staff and assessing adherence to policy documents in quality assurance processes.

28. The ACNC will ensure that all policy documents that require it are published on the ACNC website in a timely manner. The ACNC will ensure the website remains current, with new versions of policy documents published as required.

Principle 7: Supporting documentation will maintain the intent of the policy document

29. If supporting documentation is developed for policies, the intent of the policies must be maintained. All supporting documentation must include links to the relevant overarching policy. Forms should refer to any relevant policies that are available to the public.

References

• Public Service Act 1999 (Cth)
• Australian Charities and Not-for-profits Commission Act 2012 (Cth)
• Public Governance, Performance and Accountability Act 2013 (Cth)
• Archives Act 1983 (Cth)
• Freedom of Information Act 1982 (Cth)
• ACNC Information Publication Scheme Agency Plan