Introduction
Charities dissatisfied with a decision made by the Australian Charities and Not-for-profits Commission (ACNC) have a formal pathway for reviews and appeals under the Australian Charities and Not-for-profits Commission Act 2012 (Cth). The process requires that certain decisions must be internally reviewed first, leading to what is known as an ACNC objection decision before any further action can be taken.
If your organisation disagrees with the outcome of an ACNC objection decision, you have the right to have that decision reviewed by the Administrative Review Tribunal (ART). This guide explains the essential steps for applying to the ART, from adhering to strict time limits to understanding the potential outcomes, and underscores why a lawyer is essential to effectively manage the complex appeals process.
Understanding ACNC Objection Decisions & the Internal Review Prerequisite
Identifying which decisions are internally reviewable under the ACNC Act
Under the Australian Charities and Not-for-profits Commission Act 2012 (Cth), certain ACNC decisions are classified as ‘internally reviewable decisions’. This means that, if requested, the ACNC must reconsider the case on its merits before any other reviews and appeals can be initiated.
The specific types of ACNC decisions that must be internally reviewed include:
| Decision Category | Description |
|---|---|
| Registration decisions | Covers situations where the ACNC decides not to register an entity as a charity or refuses to register it as a specific subtype. |
| Revocation decisions | Applies to decisions where the ACNC chooses to revoke a charity’s registration or decides against revoking it. |
| ACNC direction decisions | Formal directions given to a charity for ACNC compliance, including decisions to issue, vary, or not change a direction. |
| Decisions relating to Responsible People | Involves actions taken against a person on a charity’s governing body, such as a decision to suspend or remove them. |
| Administrative penalties decisions | Concerns a refusal by the ACNC to remit all or part of an administrative penalty that exceeds two penalty units. |
The requirement to seek an internal review before applying to the ART
Before your charity can apply to the ART, it is mandatory to first request an internal review of the ACNC decision you are unhappy with. This initial step is a formal prerequisite in the appeals process for any of the internally reviewable decisions.
When a charity or a Responsible Person requests this review, an ACNC officer who was not involved in the original decision will assess the matter and issue a new decision. This outcome is formally known as an ‘objection decision’.
Only after receiving this ACNC objection decision, a critical point in handling an ACNC compliance review, can an entity that is still dissatisfied apply for a review by the ART. Given the complexities of the appeals process, it is often advisable to consult a not-for-profit lawyer to understand your options after receiving an objection decision.
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Types of ACNC Decisions Eligible for Review by the ART
Reviews of decisions regarding charity registration & revocation status
Your charity can seek a review by the ART if you are dissatisfied with an ACNC objection decision concerning your organisation’s registration. This process is available for specific outcomes that directly affect your charity’s legal status and ability to operate.
The types of registration and revocation decisions that can be reviewed after an internal review include:
- A refusal by the ACNC to register your organisation as a charity, a key step in the NFP & charity set up process, or as the specific subtype of charity you applied for, under section 30-35 of the Australian Charities and Not-for-profits Commission Act 2012 (Cth).
- A decision to revoke your charity’s existing registration.
- A decision not to revoke your charity’s registration, as outlined in section 35-20 of the Australian Charities and Not-for-profits Commission Act 2012 (Cth).
Reviews of decisions concerning the suspension or removal of Responsible People
Decisions made by the ACNC that directly impact the individuals governing your charity can also be the subject of an appeal. If a Responsible Person is affected by such a decision, they are entitled to seek a review of the ACNC objection decision at the ART.
Specifically, a Responsible Person can lodge an objection for an ACNC decision that involves:
- Suspending them from their position on the charity’s governing body, or changing the duration of that suspension, as per section 100-10(10) of the Australian Charities and Not-for-profits Commission Act 2012 (Cth).
- Removing them from their position entirely, a power granted under section 100-15(7) of the Australian Charities and Not-for-profits Commission Act 2012 (Cth).
Reviews of decisions regarding administrative penalties & ACNC directions
Your charity can also apply to the ART to review objection decisions related to certain compliance and enforcement actions. These actions include formal directions issued by the ACNC and the imposition of administrative penalties.
The specific decisions in this category that are eligible for review are:
| Action Type | Specific Decisions Eligible for Review |
|---|---|
| ACNC Directions | A decision to issue a formal direction, to vary an existing direction, or a refusal to change or remove a direction after 12 months. |
| Administrative Penalties | A refusal to remit part or all of an administrative penalty, provided the remaining penalty is more than two penalty units. |
Given the complexities of the appeals process, it is often beneficial to seek legal advice from a lawyer experienced in not-for-profit law to assess the strength of your case.
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The Process for Your Charity to Apply to the Administrative Review Tribunal
Adhering to the 60-day time limit for lodging an application
When your charity decides to appeal an ACNC objection decision, it is crucial to act within strict timeframes. You must:
| Application Type / Concern | Deadline for Lodging with the ART |
|---|---|
| Review of an ACNC objection decision | Within 60 days of being given the objection decision. |
| Review of an inadequate statement of reasons | Within 28 days of receiving the statement of reasons from the ACNC. |
Completing the application for review of a decision form
To initiate the appeals process, you must complete an application for review of a decision form. This document requires you to:
- Explain all the reasons you are applying to the ART to review the ACNC objection decision.
- Specify what decision, if any, you believe the ACNC should have made instead.
The ART may limit its review to the grounds you stated in your original objection to the ACNC. Because drafting a notice of appeal can be difficult, it is highly recommended that you seek legal advice from a not-for-profit lawyer to assess the strength of your case and ensure the application is prepared correctly.
Applying for a review of a decision regarding late lodgement
If you miss the deadline to apply for an internal review and the ACNC does not agree to grant an extension, your charity has another option. You can apply to the ART to have it review the ACNC’s specific decision to refuse the late lodgement.
Unlike other applications, there is no set time limit to ask the ART to review a decision about late lodgement. However, the ART will determine whether your application has been made within a reasonable time.
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Proving Your Case & the Review Process at the ART
The burden of proof required to change an ACNC objection decision
When you apply to the ART, the responsibility rests on your charity or Responsible Person to prove that the ACNC should have reached a different conclusion. You must demonstrate to the ART, based on the merits of the case, that the ACNC objection decision was incorrect.
The ART may limit its review to the specific reasons you provided in your original objection to the ACNC. This makes the initial application a critical part of the appeals process.
Because you have to prove your case, it is highly recommended that you seek legal advice from a not-for-profit lawyer to ensure your arguments are presented effectively.
How the ART reviews documents & requests further information
Once your charity applies for a review by the ART, the ACNC is required to provide the ART with all the documents it holds regarding the objection decision. The tribunal will then examine this information as part of its assessment.
The ART is not restricted to only the documents supplied by the ACNC. To assist in making its decision, the tribunal has the power to:
- request additional information or documents from your charity
- request additional information or documents from the ACNC
This ensures a thorough review of all relevant facts.
The operational status of the ACNC decision while the review is pending
Lodging an appeal with the ART does not suspend the ACNC objection decision. The decision remains in full effect while the review is underway and will only cease if the ART makes a different ruling.
This means your charity must continue to comply with the terms of the ACNC decision throughout the entire review process. For example, if a charity’s registration has been revoked, it remains revoked while the ART considers the appeal.
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Possible Outcomes Following a Review by the ART
Powers of the ART to affirm or vary the original ACNC decision
After a review by the ART, there are two possible outcomes regarding the ACNC objection decision:
- The tribunal may agree with the ACNC objection decision, meaning the original decision is upheld and no changes are made.
- Alternatively, the ART has the power to vary the ACNC’s decision. In this case, the tribunal may modify the original outcome, implementing changes it deems appropriate based on the merits of the case presented during the appeal.
The authority of the ART to set aside decisions & issue new directions
The ART also has the authority to completely set aside the ACNC’s objection decision. When this occurs, the tribunal can take one of two paths:
- Make a new decision: The ART can substitute its own decision for the one made by the ACNC, effectively resolving the matter itself.
- Require the ACNC to make a new decision: The ART can send the matter back to the ACNC with specific directions, requiring the ACNC to reconsider the case and make a new decision in line with the tribunal’s instructions.
Timelines for the ACNC to give effect to an ART decision
If the ART varies or sets aside an ACNC objection decision, the ACNC is generally required to implement the ruling within 60 days.
However, this timeline is subject to the ACNC’s right to appeal. The ACNC can choose to appeal the ART’s decision to a court on a question of law, which would affect the implementation process.
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The Importance of Consulting a Lawyer for Your Charity Appeal
Understanding the complexity of drafting appeals & identifying errors of law
Drafting a notice of appeal for an ACNC objection decision is a difficult task that requires specialised knowledge. Identifying specific errors of law, such as the ART incorrectly interpreting a statute, is a complex process best handled by a legal professional.
An appeal to a court from a decision of the ART must be based on a question of law. Because the success of your appeal depends on correctly identifying these errors, it is highly recommended to consult a not-for-profit lawyer to ensure your application is prepared effectively.
Assessing the benefits of legal advice versus self-representation
It is advisable to seek independent legal counsel before deciding to appeal an ACNC decision. A not-for-profit lawyer can assist you in several ways, including:
- Evaluating the strength of your application
- Helping you understand the appeals process
- Assessing the potential costs involved
Going to court can be expensive and time-consuming, and there are financial risks to consider. If your charity loses an appeal from a decision of the ART, it will usually be ordered to pay the other party’s legal costs. Obtaining legal advice can help you make an informed decision about whether to proceed with the appeal.
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Conclusion
Successfully appealing an ACNC objection decision requires a thorough understanding of the entire process, from the mandatory internal review to the strict application deadlines and the burden of proof at the ART. Charities must be prepared for the various potential outcomes of a review by the ART and recognise the complexities involved in proving their case.
Given the challenges of the appeals process, seeking professional guidance is a critical step. To ensure your application is strong and effectively presented, contact the experienced not-for-profit lawyers at LawBridge today for trusted legal advice and specialised assistance with your ACNC appeal.
