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December 30, 2013

The regulatory schedule for 2014

2014 begins with some uncertainty: in addition to its legislation repealing the carbon tax and the mining tax, the Government has indicated it will be changing FOFA and conducting a Financial System Inquiry. Its charities changes have also been held up in the Senate.

It will also be "cleaning up" announced but unimplemented tax and superannuation changes. The Superannuation Guarantee charge percentage increase from 9.25% to 9.5% scheduled for 1 July 2014 has been postponed. The rate will remain at 9.25% until 30 June 2016.

But some significant changes will definitely commence in 2014, particularly the privacy changes commencing on 12 March.

1 January 2014

Anti-bullying law: anti-bullying legislation comes into effect on 1 January 2014 and will enable victims of workplace bullying to apply directly to the Fair Work Commission for an order that the bullying stop.

Small businesses will be apply to apply for External Dispute Resolution for disputes on loans up to $2 million

Risk management: New APRA standards for ADIs requiring a chief risk officer commence.

The Financial Claims Scheme single customer view commences.

The National Regulatory Scheme for Community Housing will also start in January.

The new statutory definition of charities will commence, notwithstanding the Government's proposed changes to the sector.

Other key dates

Personal Property Securities Act transition ends on 31 January 2014: pre-30 January 2012 securities must be registered on the PPS Register to retain priority.

National Gambling Reforms (including daily ATM limits in gambling venues) commence on 1 February 2014.

The Co-operatives National Law commences in NSW and Victoria on 3 March and later in the year in other States and Territories.

The Privacy Amendment Act commences on 12 March 2014 including changes to credit reporting.

Gender equality: from 1 April 2014 businesses with 100 or more employees will be required to lodge reports each year containing information relating to various gender equality indicators.

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Posted 30th December 2013 by David Jacobson in Charities, Compliance, Corporations Act, Financial Services, Privacy, Superannuation, Tax, Workplace

Charities Act to commence on 1 January 2014

The Government's Bill to delay the commencement of the Charities Act 2013 by nine months, from 1 January 2014 to 1 September 2014 has not been passed by the Senate.

The Charities Act will commence on 1 January 2014: Background.

It will apply a new definition of "charity" which will be used for income tax, GST and fringe benefits tax concessions.

The Australian Charities and Not-for-profits Commission (the ACNC) will apply the statutory definitions when determining whether to register an entity as a charity and whether a registered charity is still eligible to remain registered.

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Posted 30th December 2013 by David Jacobson in Charities

December 9, 2013

Charities Act delayed

The House of Representatives has passed the Social Services and Other Legislation Amendment Bill 2013. The Bill has been sent to the Senate for passage.

The Bill delays the commencement of the Charities Act 2013 by nine months, from 1 January 2014 to 1 September 2014. The delay will allow for further consultation on the legislation in the broader context of the Government's other commitments in relation to the sector.

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Posted 9th December 2013 by David Jacobson in Charities

November 27, 2013

The future of the ACNC

Amidst ongoing speculation about the future of the ACNC, the ACNC Commissioner has announced that she has met with both the Assistant Treasurer, Senator Arthur Sinodinos AO, and the Minister for Social Services, Hon Kevin Andrews MP to discuss the Government’s pre-election commitments, the work of the ACNC and ongoing plans for the future.

While the Assistant Treasurer has portfolio responsibility for the ACNC Act, the Minister for Social Services has policy leadership for the NFP sector.

The Minister for Social Services intends to conduct formal consultation with the NFP sector on how the Government’s election commitments would be implemented prior to finalising the Government’s NFP plans.

The Commissioner has also announced that for charities with a 1 July to 30 June financial reporting period, the date for submission of the 2013 Annual Information Statement has been extended from 31 December 2013 up until 31 March 2014.

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Posted 27th November 2013 by David Jacobson in Charities, Not-for-profit sector

October 10, 2013

What are the reporting obligations of companies that are also registered with the ACNC?

ASIC has clarified when Australian Charities and Not-for-Profits Commission (ACNC) registered companies cease to have reporting obligations to ASIC.

As a registered charity with the ACNC:

  • A public company (such as a company limited by guarantee) no longer needs to lodge changes to its constitution with ASIC or tell ASIC of the adoption or repeal of a constitution.
  • A company is no longer required to send a copy of its constitution to members who request a copy.
  • A company is no longer required to notify ASIC of a change of their address details, including their registered office address, principal place of business address or contact address. The ACNC will advise ASIC of changes to the registered office address of a company.
  • A company is no longer required to notify ASIC of the appointment, resignation or retirement of directors, secretaries and alternate directors or submit personal details of directors and secretaries.
  • A company will not be sent an ASIC annual statement each year (on the company’s review date) and will not have to review their details or pay the annual review fee. However, if the last annual review date was before registration with the ACNC, the company must pay the annual review fee to ASIC.

For the 2012–13 reporting period, companies that are required to lodge financial reports with ASIC must still do so, even if they are registered with the ACNC.

For the 2013-14 Financial period onwards companies that are registered with the ACNC do not need to lodge financial reports for years commencing on or after 1 July 2013 with ASIC.

Instead, medium and large charities registered with the ACNC will be required to provide annual financial reports to the ACNC.

This continues for as long as a company or registered body remains a registered charity. If it is deregistered with the ACNC, its obligations to ASIC will resume.

The Corporations Act contains a table of provisions that will no longer be applicable to bodies corporate registered under the ACNC Act (see section 111L(1)).

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Posted 10th October 2013 by David Jacobson in Charities, Corporations Act, Not-for-profit sector

September 24, 2013

No changes at ACNC

The Australian Charities and Not-for-profits Commission (ACNC) has responded to media speculation about its future following the election of the new Government.

According to the Commissioner:

The ACNC is very much alive and implementing its statutory obligations.

The ACNC was created by an Act of Parliament, and unless and until that Act is amended or repealed, the Commissioner is expected to implement the Act. What this means is that the ACNC continues to deliver on its statutory responsibilities such as registration; reporting, advice and guidance. We will continue our work on reducing red tape for the sector, in keeping with the third object in the ACNC Act. Charities will continue to meet their obligations such as completing the Annual Information Statement and notifying the ACNC of any significant changes.

In addition the Commissioner noted that:

  • the ACNC and the ATO are working co-operatively.
  • Once the 2013 Annual Information Statement is received, current data gaps will be completed and the ACNC will be able to provide pre-populated forms in the future, thereby saving time and cost for charities.
  • the number of open complaints cases under review with the ACNC is 0.062 percent of registered charities.

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Posted 24th September 2013 by David Jacobson in Charities, Not-for-profit sector

September 2, 2013

APRA continues religious charitable development funds exemption

The Australian Prudential Regulation Authority (APRA) has released revised proposals on changes to the exemption order under the Banking Act 1959 for religious charitable development funds (RCDFs).

APRA will extend the RCDF Exemption Order from 1 July 2014, but subject to additional conditions.

RCDFs will continue to be able to raise funds from retail investors, but not on an at-call basis, to minimise the risk that investors in RCDFs confuse their investments with products provided by ADIs.

In particular, any product offered to a retail investor will have to have a minimum term or notice period of 31 days and the use of terms ‘deposit’ and ‘at-call’ will not be allowed in relation to retail products or in marketing to retail investors.

Notwithstanding the minimum term of 31 days, RCDFs would not be precluded from releasing funds from retail investments in cases of an investor’s exceptional circumstances that may lead to hardship. RCDFs will need to develop their own procedures for determining genuine investor hardship.

These proposed conditions would not relate to funding from wholesale investors. RCDFs may continue to offer at-call products to wholesale investors.

APRA will continue to allow RCDFs to use BPAY to transact between affiliates of the RCDF and to offer BPAY to wholesale investors.

RCDFs must ensure that advertising and marketing material of the RCDF contains clear and prominent disclosures to the effect that:
• neither the controlling entity or the Fund is prudentially supervised by APRA;
• contributions to the RCDF do not obtain the benefit of the depositor protection provisions of the Banking Act;
• the Fund is designed for investors who wish to promote the charitable purposes of the Fund; and
•an investment in an RCDF is not covered by the Financial Claims Scheme.

RCDFs would need to comply with the additional conditions from 1 January 2015. There will be no grandfathering of existing accounts if those accounts do not meet the conditions in the new Exemption Order.

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Posted 2nd September 2013 by David Jacobson in Charities, Financial Services

July 3, 2013

Charities regulation update

Charities Bill passes Parliament

The Charities Bill 2013 was given Royal Assent on 29 June 2013.

The statutory definition of charity will commence on 1 January 2014.

Background

Charities governance standards

Australian Charities and Not-for-profits Commission Amendment Regulation 2013 (No. 1) specifies governance standards which registered entities must comply with in order to become registered under the ACNC Act and to remain entitled to be registered under the Act.

Background

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Posted 3rd July 2013 by David Jacobson in Charities

June 5, 2013

Charities governance standards update

The Australian Charities and Not‑for‑profits Commission Amendment Regulation 2013 (No. 1) is due to commence on 1 July 2013 [Background].

The regulation specifies governance standards for registered charities.

A Motion to Disallow the regulation has been proposed but it is not due to be debated until 20 June 2013. The Regulation will only commence on 1 July if the motion is defeated.

The ACNC has published a governance guide for charity board members.

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Posted 5th June 2013 by David Jacobson in Charities

June 3, 2013

Administration of charitable trusts

CAMAC has released its report Administration of charitable trusts which deals with administrative arrangements for charitable trusts managed by licensed trustee companies.

CAMAC has recommended that:

  • the Australian Charities and Not-for-profits Commission conduct, or coordinate, Stewardship audits of a cross-section of charitable trusts administered by LTCs. The purpose of these audits would be overcome the present deficit of relevant and indisputable information on the state of administration of charitable trusts, including the extent to which each trustee has assumed its responsibilities and exercised its powers for the purpose of achieving the primary intent of the donor. These Stewardship audits could be initiated without delay, as they do not require legislative intervention.
  • the introduction of a statutory ‘fair and reasonable’ requirement for all fees and costs charged against a charitable trust. The proposed obligation on LTCs to file statements of compliance with this requirement would be consistent with promoting the primary intent of the donor .
  • changes to the judicial dispute resolution procedures to enhance access to the court, and to broaden the court’s remedial powers, including in regard to whether fees and costs charged against a particular charitable trust are excessive or whether an LTC should be replaced as the trustee of a particular charitable trust.

Depending upon the information obtained from the Stewardship audits, and any preliminary indications from the enhanced judicial dispute resolution process, CAMAC has recommended that consideration should be given to whether further regulatory or other initiatives are warranted.

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Posted 3rd June 2013 by David Jacobson in Charities, Corporate Governance, Corporations Act
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