Other issues to consider
Charities and COVID-19
Temporary regulatory changes have been implemented to assist charities to navigate the challenges imposed by the COVID-19 pandemic.
For more information about these changes, see:
- Not-for-profit Law: www.nfplaw.org.au/covid19
- Australian Charities and Not-for-profits Commission: www.acnc.gov.au/node/5781959.
Registering as a charity
What is a charity?
According to the Charities Act 2013 (Cth) (‘Charities Act’), a charity:
- is a not-for-profit organisation;
- has purposes that are charitable and for the public benefit (i.e. achieving its purposes benefits the public generally or a section of the public);
- does not have any disqualifying purpose;
- is not an individual, political party, or government entity.
The Charities Act is relevant for Commonwealth law purposes. There may be slightly different definitions of ‘a charity’ for state law purposes.
Who regulates charities?
The Australian Charities and Not-for-profits Commission (ACNC) regulates charities and is responsible for determining whether an organisation’s purposes are charitable and for the public benefit.
What are charitable purposes?
A list of charitable purposes is set out in the Charities Act; these include:
- advancing health, education, social and public welfare, religion, culture;
- promoting reconciliation, mutual respect and tolerance between groups of individuals in Australia;
- promoting and protecting human rights;
- advancing the security and safety of Australia or the Australian public;
- preventing or relieving the suffering of animals;
- advancing the natural environment.
A purpose that is analogous (i.e. corresponds to) to one of the charitable purposes listed in the Charities Act may also be considered to be a charitable purpose.
A purpose of promoting or opposing a change to the law, or to a policy or practice (i.e. advocacy), where that promotion or opposition furthers one of the charitable purposes listed in the Charities Act, is itself a charitable purpose.
Registering with the Australian Charities and Not-for-profits Commission (ACNC)
The ACNC registers charities in Australia. Registering as a charity is free and carries no annual fees. Registration as a charity is required to access federal government charity tax concessions and other benefits (discussed further below).
To register as a charity, an organisation must have an Australian Business Number (ABN) (see ‘Australian Business Number’, below).
If eligible, another advantage of registering as a charity is increased public trust in an organisation as it will be listed on a public register of charities maintained by the ACNC. Through the register, the public (including potential donors, members and volunteers) can access information about an organisation, including its activities, finances, the places it operates, and the people on the governing body.
As noted above, if a company limited by guarantee registers with the ACNC, many of its obligations under the Corporations Act are ‘switched off’ and replaced by obligations under the ACNC legislation and the governance standards.
Charities’ reporting requirements
Charities are required to report to the ACNC each year. The type of reports that must be submitted vary according to the size of the charity:
- small charities (annual revenue of less than $250 000): annual information statement and (optionally) annual financial report;
- medium charities (annual revenue of more than $250 000 but less than $1 million): annual information statement and a financial report that is either reviewed or audited;
- large charities (annual revenue of $1 million or more): annual information statement and audited annual financial report.
Proposed new thresholds for charities’ reporting requirements
The federeal government intends to increase the reporting thresholds for charities, to take effect from 1 July 2022 (reporting against the 2021–2022 financial year).
The proposed new thresholds are:
• small charities: annual revenue of less than $500 000;
• medium charities: annual revenue of more than $500 000 but less than $3 million;
• large charities: annual revenue of $3 million or more.
For more information about reporting requirements (including more details about the new thresholds), see the ACNC’s website.
Charities also need to notify the ACNC when certain things change, such as the organisation’s name, address, governing documents (e.g. the constitution) or when the ‘responsible persons’ (e.g. board members) in the organisation change.
Charities also have obligations regarding record-keeping, compliance with governance standards, and compliance with external conduct standards (for more information about these obligations, see www.acnc.gov.au).
Community organisations, unless exempted, must pay tax on income and money received from people who are not members. Income from members (e.g. membership fees) is exempt from income tax on the basis of what is called the mutuality principle. Examples of money received from non-members include where an organisation holds functions, raffles or street stalls, or operates a shop or canteen, or otherwise raises income from the public. If, after expenses and deductions, there is net income from non-member sources, many types of community organisation can obtain an exemption from income tax for that income.
The categories of income tax exempt organisations are registered charities, and organisations in the community service, cultural, education, employment, health, resource development, science or sport sectors.
For more information about income tax exemptions, see the Australian Tax Office’s website and Not-for-profit Law’s website.
Deductible gift recipient status
There are other tax concessions that might be relevant for community organisations; in particular, the ability for those who donate to the organisation to claim a tax deduction for their donation. This is called deductible gift recipient (DGR) status. This status is only available to a limited group of organisations that are specifically listed in – or are endorsed by the Australian Tax Office as a DGR because they fall within a DGR category under – the Income Tax Assessment Act 1997 (Cth).
There are over 50 DGR categories, which include:
- public benevolent institutions;
- health promotion charities;
- harm prevention charities;
- environmental charities; and
- animal welfare organisations.
Each category has specific requirements.
Public benevolent institutions
The most common organisations to be endorsed as deductible gift recipients are public benevolent institutions (PBIs). Generally, to gain PBI status, an organisation must be mainly engaged in assisting people to relieve their poverty, sickness, suffering, destitution, distress, misfortune or helplessness. Such an organisation usually has to address this purpose in its constitution, which also has to contain a not-for-profit clause, a DGR revocation clause, and a suitable winding-up clause. PBIs must be registered with the ACNC as a prerequisite for Australian Tax Office endorsement as a DGR or to access Fringe Benefits Tax exemptions and other federal government concessions. For more information, visit www.nfplaw.org.au/tax, or contact the Australian Tax Office.
Organisations may be eligible for tax concessions under state laws (e.g. on stamp duty, payroll and land tax).
For more information about state-based tax concessions, contact the State Revenue Office Victoria.
Fringe Benefits Tax
The Fringe Benefits Tax (FBT) is a tax an employer pays when it provides a non-salary benefit to its employees. An example is where an employee chooses to have part of their salary paid directly to their landlord or car loan provider.
Community organisations are only liable to pay FBT on benefits provided to an employee or an associate of an employee in respect of their employment. Generally, benefits provided to volunteers or contractors do not attract FBT as they are not employees.
The FBT rate (for the year ending 31 March 2018 and later years) is 47 per cent. This rate is paid by the employer, based on the value of the non-salary benefits provided to its employees. FBT must be recorded on employees’ PAYG payment summaries (formerly called group certificates).
There are two main types of FBT concessions provided by the Australian Tax Office:
- FBT rebate;
- FBT exemption.
Fringe Benefits Tax rebate
The FBT rebate is a rebate on the tax (i.e. a tax discount) that employers pay on non-salary benefits. As at 1 July 2021, employers that are entitled to the fringe benefit rebate can have their FBT liability reduced by a rebate equal to 47 per cent of the gross FBT payable. The rebate for each employee can be claimed until the total grossed-up taxable value of the fringe benefits provided to an employee exceeds $30 000.
Fringe Benefits Tax exemption
The FBT exemption is a more extensive tax concession that is available for certain not-for-profit organisations, including PBIs, health promotion charities, public and non-profit hospitals, and public ambulance services. The fringe benefit exemption completely exempts employers from having to pay FBT on non-salary benefits up to a certain limit per employee, and therefore makes it financially viable to offer salary packaging to employees. As with the fringe benefit rebate, each employee can access the fringe benefit exemption until the total grossed-up taxable value of the fringe benefits provided to an employee exceeds $30 000.
More information about the FBT is available from the Australian Tax Office.
Goods and Services Tax
Generally, not-for-profit organisations with a turn-over of $150 000 or more per year must register for the Goods and Services Tax (GST). Not-for-profit organisations with a turnover of less than $150 000 per year may choose to register for the GST. If an organisation is not registered, it does not collect or remit the GST to the ATO. However, it still pays the GST on purchases. If an organisation is required to register for the GST, then it needs to have an ABN.
An organisation registered for the GST can generally claim input tax credits for the GST it has paid. An input tax credit is basically a refund of the GST paid. However, an organisation that is registered for the GST also has to collect the GST. There are significant reporting and accounting requirements attached to GST registration.
If an organisation registers for the GST, then generally GST is payable on supplies made by the organisation, unless those supplies fall into certain categories (e.g. GST-free supplies). However, there are GST concessions available for not-for-profit community organisations. These concessions usually relate to particular activities (e.g. sales relating to raffles, bingo, fundraising events, sales of second-hand goods or uncommercial transactions and volunteer expenses) and mean that the GST is not payable on supplies relating to those activities.
An organisation should obtain professional advice about whether it should register for the GST, the effect of the GST on funding sources, and the best way of maintaining cash flow for the organisation in light of GST remittance obligations.
For more information about the GST, call the ATO’s not-for-profit organisation telephone enquiries line (1300 130 248).
Not-for-profit Law has published resources that explain the different tax concessions for community organisations (see https://www.nfplaw.org.au/tax).
Community organisations may obtain funds through fundraising, donations, government funding and philanthropic grants.
Fundraising in Victoria
Groups fundraising in Victoria need to comply with the Fundraising Act 1998 (Vic) and the Fundraising Regulations 2019 (Vic) (‘fundraising laws’). The fundraising laws are regulated by CAV, and cover activities including telephone appeals, auctions, door-knock appeals, tin collections, and public appeals to support clubs, associations, causes or people. Compliance with the fundraising laws might include registering with CAV as a fundraiser.
An organisation does not need to register as a fundraiser in certain circumstances. These include if the organisation raises less than $20 000 in a financial year, if the organisation is not paid to conduct the fundraising, and if the organisation only uses unpaid volunteers to conduct its fundraising.
Following a change to Victoria’s fundraising laws (which came into effect on 1 September 2020), organisations that are already registered with the ACNC no longer need to also register as a fundraiser with CAV. Instead — in order to be considered to be a registered fundraiser — they only need to notify CAV of their intention to conduct a fundraising appeal in Victoria. Organisations can notify CAV by signing into myCAV and selecting ‘Notify of charity registration with ACNC’.
For more information about Victorian fundraising laws, visit Not-for-profit Law’s website.
Australian Consumer Law and other relevant laws
When fundraising, groups may also need to comply with the Australian Consumer Law (ACL). The ACL sets out standards of ethical fundraising practice; for example, not to mislead or deceive when running a fundraising campaign, and not to harass or coerce when seeking donations.
Organisations that engage in fundraising activities that involve the supply of goods or services, and organisations that continually fundraise in an organised or repetitive way have obligations under the ACL. For more information, see the ACCC’s publication, ‘Guide to the ACL for charities, not-for-profits and fundraisers’.
Other laws may apply when conducting fundraising. For example, the Telecommunications (Telemarketing and Research Calls) Industry Standard 2017 (Cth) sets out the rules for fundraising via telemarketing. Also, privacy laws are relevant to the collection, use and disclosure of personal information (see https://www.nfplaw.org.au/privacy).
There may also be specific local government requirements for door-knock appeals and face-to-face fundraising. Many local councils require permits for these activities.
Fundraising outside of Victoria
Each state and the Australian Capital Territory has its own rules for fundraising activities (there are no specific fundraising requirements in the Northern Territory). Organisations that are fundraising in more than one state or territory need to ensure they are complying with all relevant fundraising laws in those jurisdictions. There are some exemptions (which are different in each state) that can help – some types of groups are exempt and there are some exemptions depending on how much money is raised.
Online fundraising has raised new challenges for fundraising regulation and organisations should carefully consider the relevant laws before conducting an online fundraising appeal. This includes putting a donate button on a website. It can take weeks to get all the required approvals.
For more information about fundraising laws in different states and territories, see www.nfplaw.org.au/fundraising.
Other fundraising considerations
Some fundraising activities (e.g. door-knocking, lotteries, raffles, street collections, events, and the sale of alcohol) require other permissions, permits or licences. Information about permits and licences is usually available from local councils.
Receipts stating that donations of $2 or more are tax deductible cannot be given unless the organisation has been endorsed as a DGR by the ATO, or is specifically listed as a DGR (see ‘Deductible gift recipient status’, above).
For more information about raffles and minor gaming, see www.nfplaw.org.au/raffles. For further information about holding events, see https://www.nfplaw.org.au/events.
Other sources of funds
Organisations may apply for financial grants from government, philanthropic foundations, charitable trusts, private businesses and others. Information on how to make these applications is available from grant providers. Being endorsed as a DGR is a requirement of some grants.
If an organisation does not have DGR endorsement, it may be able to apply for funding via an arrangement with another organisation that does have DGR endorsement. This is known as an ‘auspicing arrangement’. For more information about auspicing arrangements, see https://www.nfplaw.org.au/auspicing.
Organisations should be aware that GST may apply to sponsorship and funding arrangements (‘sponsorship’ is defined very broadly). GST generally does not apply to donations. However, if something of value is provided (e.g. advertising, signage, or naming rights), this may be considered to be sponsorship, thus attracting GST.
Australian Business Number
A community organisation (regardless of whether it is incorporated or unincorporated) is not required to have an Australian Business Number (ABN) (unless it is a charity) but may need one for business purposes (e.g. registering for the GST).
An ABN is an identifying number for all Australian enterprises (the definition of ‘enterprise’ is very broad and encompasses businesses and most community organisations).
Community organisations may have to comply with other laws. This depends on factors including an organisation’s activities, funding arrangements, contracts, legal structure, and the kind of people involved in the organisation.
Some legal areas that may be applicable to community organisations include:
- health and safety;
- employment, workplace injury and superannuation;
- equal opportunity and human rights;
- working with children;
- intellectual property;
- planning and the environment.
For more information about these laws, see Not-for-profit Law’s website.