Non-government schools in NSW that receive State and Commonwealth funding are required to comply with the Education Act 1990 (NSW) (Act) and the Education Regulations 2017 (NSW) (Regulations). The Department of Education has also published Guidelines to help schools understand their obligations under the Act and Regulations.

Earlier this year (March 2024) the Regulations were updated and a new set of Guidelines were published. We briefly summarise the changes below.

Changes to the Regulations

On 1 March 2024, a new clause 10B was introduced into the Regulations. This clause provides that schools will not be considered to be operating for profit if they use their assets and income, as far as they relate to the school, to provide a “recognised education and care program” (program) for children that attend the school or children who are eligible as set out in the Guidelines. Examples of an eligible program include a preschool program, long day care and out of school hours care.

However, schools would be considered to be operating for profit if:

(a) they use the financial assistance they receive from the Minister for the recognised education and care program, i.e. the school must use funds for the program from other sources;

(b) they make a payment for property, goods and services, at more than reasonable market value, if the payment is not for the operation of the program, or in circumstances the Minister considers to be unreasonable; or

(c) the income the school receives from the operation of the program is used for a purpose other than the operation of the program or the school.

Updated Guidelines

The March 2024 Guidelines replace the previous June 2019 Guidelines. The main change to the Guidelines is the introduction of a new section 9.2, which replaces the previous section on “ancillary services”. In summary, section 9.2 set outs:

(a) the additional criteria to determine the categories of children that a program may care for, including the recognition that the children who attends the program may not end up attending the school;

(b) the matters that the Minister may consider in determining whether a program is for children who attend the school or who meet the specific criteria;

(c) the matters that the Minister may consider in determining whether a property, good or service is required for the operations of the program; and

(d) examples of records or policies to be kept by the school in relation to the program.

The Guidelines also remind relevant schools that clause 10B of the Regulations only deals with the use of school assets and income for the provision of programs by the proprietor of the school. It does not apply to programs provided by a third party or related entity. Other sections of the Guidelines and section 83C(2) of the Act generally deal with use of school income and assets (e.g. leasing of school buildings to third parties).

Non-government schools that rely on State and Commonwealth funding and who operates or is considering operating a service that may fall into the definition of a program will need to consider the provisions of clause 10B of the Regulations and section 9.2 of the Guidelines carefully. We recommend that legal advice tailored to the specific circumstances of such be obtained by such schools as part of the governance and risk management process.

Authors: Belinda Marsh, Partner and Monisha Lazarus, Associate


The ACNC has recently published a new registration decision summary, which provides guidance on the appropriate charitable subtype for organisations seeking registration as a charity, with a charitable purpose of relieving necessitous circumstances.

Summary of ACNC registration decision
The ACNC decision summary relates to an organisation that applied for charity registration under the subtype “advancing health”. The organisation aimed to alleviate financial distress for individuals experiencing necessitous circumstances because they were unable to afford what they needed to have a modest standard of living due to the cost associated with managing their health conditions.

The ACNC reviewed the application and took the following approach:

  • As the purpose of the organisation was not aimed at preventing or relieving sickness, disease or human suffering or advancing health generally, it would not be entitled to be registered with the charity subtype of “advancing health”.
  • However, the organisation did qualify for registration as the subtype of “advancing social or public welfare”, as its purpose aligned with relieving those in necessitous circumstances.

The organisation then withdrew its original application and applied instead to be registered with the subtype “advancing social or public welfare.” The ACNC registered the organisation with that subtype.

Key determinations
In the decision summary, the ACNC noted:

  • “Advancing social or public welfare” is a charity subtype that encompasses providing relief to people experiencing poverty, distress, or disadvantage, including people in necessitous circumstances.
  • The term “necessitous circumstances” refers specifically to financial necessity rather than other needs, for instance, sickness, incapacity or aging needs. Commonly, the method of relieving an individual in necessitous circumstances is by giving money or goods directly to that individual.
  • If a charity has a charitable purpose of relieving necessitous circumstances, it must only provide, via funds or goods, assistance to people who would otherwise lack what they need to have a modest standard of living in the Australian community.
    This decision published by the ACNC gives helpful guidance to applicants as to the regulator’s determination of what is and isn’t considered “necessitous circumstances” from the perspective of registration as a charity.

Additional considerations
A public fund established to relieve individuals in the Australian community in necessitous circumstances may be endorsed by the Australian Taxation Office (ATO) as a deductible gift recipient (DGR).

Registration of an organisation or entity as a charity by the ACNC is a separate process from registration with the ATO to obtain DGR status. We strongly recommend that charities or persons interested in establishing funds to assist persons in “necessitous circumstances” carefully consider the requirements of both the ACNC (for registration in the correct charity subtype) and the ATO (for eligibility for registration as a DGR) before submitting the relevant applications, to avoid delays, requisitions or rejections from the relevant authorities.

Authors: Belinda Marsh, Partner and Merisa Raic, Special Counsel.

The ACNC has published its first decision summary which is part of the new ACNC Secrecy Reforms Project (the Project).

The ACNC received funding in the 2023-24 Budget for the project with the aim of improving transparency and providing more information to the charity sector relating to the ACNC’s regulatory and compliance activities.

The first published de-identified decision from the Project relates to an application for registration as a charity of an organisation which was legally structured as a proprietary company limited by shares i.e. Pty Ltd.

The ACNC determined that the organisation’s structure may be that of a proprietary company limited by shares provided it operates on a not-for-profit basis and its shareholders do not to receive private benefits. The ACNC guided the organisation in making changes to its governing document in order to achieve registration as a charity.

The ACNC was satisfied that the organisation’s purposes being for the public benefit were charitable.

In order to comply with the ACNC governance standards and achieve registration as a charity, the organisation’s constitution was required to be amended in a number of ways, including but not limited to the following:

  • in order to satisfy the not-for-profit requirement, the shares of the company could not be more than the issue price, and that governing document would override the replaceable rules so that the ACNC Act and ACNC regulation would apply; and
  • in order to satisfy the conflict-of-interest requirement, only the responsible persons who did not have a conflict of interest could determine if a person may participate in discussion on matters for which they had a conflict of interest. Also, responsible persons with a conflict of interest were to be precluded from voting on a matter and executing contracts and agreements.

The organisation, after amended it governance document, achieved registration and charity status with the ACNC.

It had been the case to date that a proprietary company is generally not a suitable structure to operate a registrable charity in Australia. However, this decision demonstrates that, provided that the governing document of a proprietary company complies with the requirements of the ACNC and relevant charity legislation, such structures are not prohibited from operating and being registered as a charity. This required considerable changes to be made to the governing document, changes that are not usually seen in the constitutions of proprietary companies.

Organisations considering operating a charity through a proprietary company should take utmost care and obtain advice beforehand or otherwise consider operating though more commonly accepted structures instead (for example, companies limited by guarantee).

This first decision published by the ACNC as part of the Project has provided useful insights to how the ACNC assesses charity structures. We look forward to seeing more decisions published in the future under this Project.

Authors: Belinda Marsh, Partner and Ellysia Joannidis, Associate  

From 9 November 2023, there will be a change to the unfair contract terms regime which will mean that Courts will be able to impose significant penalties on businesses that include unfair terms in their standard form contracts.  The changes will also give the Courts more powers including the power to issue injunctions and make orders to address or prevent harm caused by unfair contract terms.

The changes arises under the Treasury Laws Amendment (More Competition, Better Prices) Act 2022 (Act) which will introduce several updates to the provisions of the Competition and Consumer Act 2010 (Cth) (CCA) which will affect standard form consumer contracts and small business contracts: 

(i) entered into from 10 November 2023; or 

(ii) renewed or varied from 10 November 2023.

Charities and not-for-profits are not exempt from the regime, therefore all charities and not-for-profit organisations that issue standard form contracts that will be captured by the regime (and which may not previously have been so affected) are strongly encouraged to review their standard form contracts to ensure compliance.

Summary of the changes

The regime will apply to standard form contracts issued by an organisation in circumstances where at least one party to the contract (that is, either the customer or the supplier): 

  • employs fewer than 100 persons (part time employees will be included as an appropriate fraction of a full-time equivalent employee); or
  • has an annual turnover during the previous financial year of less than $10 million.

In summary, a term of a standard form consumer or small business contract is unfair if it:

  • would cause a significant imbalance in the parties’ rights and obligations; 
  • is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by such term; and
  • would cause detriment (financial or otherwise) to a party if the term were to be applied or relied on.

The Act does not change the unfairness test.  Rather, it expands the class of contracts that are covered by the unfair contract term protections under the CCA and establishes a civil penalty regime prohibiting the proposal, use of, or reliance on unfair contract terms in standard form consumer and small business contracts.

The new maximum penalty for breach by a body corporate will be the greatest of $50 million (or $2.5 million for non-body corporate); if the court can determine the value of the benefit obtained—three times the value of that benefit; or if the court cannot determine the value of the benefit obtained—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence, act or omission.

School enrolment form case 

A recent example of the application of the unfair contracts regime in the charities and not-for-profits space involved the issue of enrolment contracts by a school in Queensland.

In Brindabella Christian Education Ltd ACN 100 229 669 v Respondent XD 561 of 2021 (Civil Dispute) [2022] ACAT 37, the ACT Civil and Administrative Tribunal found that a standard school enrolment contract was a consumer contract for the purpose of the Australian Consumer Law. The contract had been drafted by the school and was offered to parents on a take it or leave it basis.

The provision in question provided that the child’s parents would have to pay an extra term’s fees if they did not give a full term’s written notice of their intention to withdraw the child from the school. The notice would have needed to have been given to the school by the first day of the term, which the parents did not do. As a result, a claim was brought against the parents by the school for a full term’s worth of fees.

The Tribunal considered that the notice term, in the context of the contract, allowed the school to unilaterally vary fees without prior notice and without giving parents an opportunity to withdraw their child from the school, without any penalty. The Tribunal was satisfied that the provision put the parents at “a significant disadvantage” and did not think the notice term was “sufficiently transparent”. The school’s arguments that the notice term was necessary for forward planning and budgeting purposes was disregarded. Ultimately, the notice term clause upon which the school’s claim was founded was determined to be unfair and the application was dismissed.

As the decision concerns consumer laws that apply across Australia, it acts as an important reminder to all schools, as well as other institutions, which use standard form contracts as part of their operations. Now with the upcoming changes to the unfair contract terms regime, such businesses should review their standard form contracts and ensure they are compliant to avoid potentially facing substantial penalties and enforcement action.

Authors: Belinda Marsh, Partner and Dylan Anderson, Paralegal 

Update on 2 November 2023 – the case referred to in this article is subject to an appeal to the Full Federal Court. We will provide a further update to the case and the response from ACNC as the matter develops.

The updated Commissioner’s Interpretation Statement has further clarified the criteria as to what kind of charity and charitable activities could qualify for registration as a “Public Benevolent Institution” (PBI), which provides more certainty for the charity sector. 

Furthermore, it has left the door open to a wider variety of charities with differing activities that now may be eligible for PBI registration.

The recent Administrative Appeals Tribunal (AAT) Decision in Equality Australia Ltd v Commissioner of The Australian Charities and Not-For-Profits Commissioner [2023] AATA 2161 sought to interpret the meaning of PBI to determine:

  1. whether an entity, Equality Australia Ltd (EAL), with the objective to “relieve distress experienced by persons who identify as LGBTIQ+”, meets the definition of PBI; and
  2. if so, does EAL’s engagement in advocacy (particularly legal advocacy), education and campaigning function to relieve this distress experienced by LGBTIQ+ people in Australia meet the criteria that apply to PBIs.

Since the term PBI is not expressly defined within legislation, there is significant reliance on the interpretation of the term by the Court, Tribunals and the Australian Charities and Not-for-profits Commission (ACNC). The ACNC defines a PBI as ‘an institution that is organised, conducted or promoted for the relief of poverty, sickness, destitution, helplessness, suffering, misfortune, disability or distress’ (1). 

EAL is an advocacy organisation that applied to the ACNC in 2021 to be recognised as a PBI but its application was rejected by ACNC on the grounds that it did not meet the criteria that apply to PBIs. EAL then appealed this decision to the AAT. The AAT accepted that LGBTIQ+ people in Australia are part of a particular group which experiences distress that gives rise to a need for relief, and that this distress fits into the category relevant for a PBI. The majority also acknowledged that an organisation needs not be directly involved in the provision of relief or aid for PBI purposes but could play a role as part of a larger process of funding, administering, and delivering that assistance (2). 

The key determinant was whether there was sufficiency of connection between the activities of the entity and the benevolent ends it pursues. The majority of the Tribunal ultimately found in favour of the Commissioner of the ACNC in determining there to be insufficient connection between EAL’s primarily advocacy activities and the benevolent ends it pursues and thus did not meet the criteria to be a PBI.

Implications 

Shortly following the AATs decision on 30 June 2023, the ACNC issued an updated Commissioner’s Interpretation Statement including a new section titled ‘Advocacy and Benevolent relief’. This section incorporates a summary of the above decision of the AAT, highlighting the ‘sufficiency of connection’ rule as a key determinant as to whether a charity would fit into the sub-type of PBI. The section notes that the ACNC accepts that a PBI can in some circumstances engage in some advocacy that is ancillary to the delivery of benevolent relief. The reference to advocacy groups as a potential PBI is a departure from the previous Commissioner’s Interpretation Statement, which took the general approach that an advocacy group did not fit into the charity sub-type of PBI.

If you have any queries in relation to these changes, please do not hesitate to contact us.

Footnotes: 
(1) Perpetual Trustee Co Ltd v Federal Commissioner of Taxation (1931) 45 CLR 224, 232 (Starke J); 233 (Dixon J); 235-6 (Evatt J); 241 (McTiernan J).
(2) Global Citizen Ltd v Commissioner of the ACNC [2021] AATA 3313. 

Since 2017, the NSW Government has progressively mandated the use of electronic conveyancing (eConveyancing), which is an efficient and secure way of conducting settlement and lodgement transactions within the digital environment.

Abolition of Certificates of Title

On 11 October 2021, New South Wales will complete its transition to 100% eConveyancing following new mandates by the NSW Government. In completing this transition, we will see two key changes to the NSW Land Titles system as we currently know it:

  1. the abolishment of paper Certificates of Title (CTs); and
  2. the requirement of all Real Property Act dealings to be lodged electronically.

Taking effect from 11 October 2021, CTs will no longer be considered legal documents and any existing CTs will be cancelled. If you currently hold a CT for your unencumbered property (i.e. no mortgage registered on title), or if you have a mortgage, you will not be required to do anything in response to this change. However, the change will mean that you will no longer receive a CT when you purchase a property without a mortgage or if you pay off your mortgage from 11 October 2021. A title search, which can be electronically obtained for a small fee, will show the most current status of the title of a parcel of land in NSW, including the name of the registered proprietor and what dealings encumber the title.

In addition to CTs, as of 11 October 2021 the NSW Land Registry Services will no longer be accepting paper Real Property dealings presented for lodgement. All dealings (excluding Determination of Title Boundary) will need to be lodged electronically through an Electronic Lodgment Network Operator by a Subscriber, such as a law firm or conveyancer. The Office of the Registrar General has published a full schedule of these electronic dealings, click here to view the schedule.

What does this mean for charities and NFPs?

Many charities and NFPs own land from which their organisation operates. If your organisation does not have any immediate plans to deal with property then the take away message is that the original CTs your organisation holds or a third party holds for the organisation will become obsolete on and from 11 October 2021. A positive consequence to this change is that you will no longer need to worry about (or spend resources on) securing original CTs from theft or loss on and from 11 October 2021 as they will no longer have any legal effect.

We do not recommend that you immediately attend to destroying original CTs once 11 October 2021 has passed as there may be the rare cases where the original CT may be required (for example, the CT may be required if the land in question is part of a bigger development that commenced prior to 11 October 2021). We are of the view that it would be prudent to hold onto original CTs for 1 or 2 years before they are destroyed.

Going forward, registration of dealings that affect the title of land (for example the transfer of land or the registration of a new lease) will need to be organised through an authorised Subscriber. Makinson d’Apice has been a registered Subscriber since commencement of electronic conveyancing in NSW and most lawyers and conveyancers in NSW would be registered by now or would have access to agents that are registered.

Where a dealing has to be registered on title, registered Subscribers will have an obligation to take extra precaution to ensure that their clients have a right to deal with property when lodging electronic dealings on their client’s behalf. This may mean that your property advisor may require your organisation to provide additional verification and authorisation (such as verification of identity of signatories and Client Authorisation Forms) in the course of assisting the organisation with registering land dealings.

Charity and NFP landowners can also take steps to protect their interest, including lodging a caveat over unencumbered property to prevent the registration of an incoming interest or dealing by other parties. Obtaining title searches will also reflect the most current status of the title of any given parcel of land and periodic searches may be prudent depending on the circumstances relating to the land in question. We recommend that you get in touch with your organisation’s property advisors to implement systems suitable to your organisation’s needs to ensure that the transition to 100% eConveyancing is as seamless as possible.

If you have any queries in relation to these changes, please do not hesitate to contact us.

 

The Treasury Laws Amendment (2021 Measures No 2) Bill 2021 (Bill) which amends the Income Tax Assessment Act 1997 (ITAA 1997) was passed by both Houses of the Parliament on 2 September 2021 and awaits assent. Schedule 1 of the Bill makes charity registration a precondition for DGR endorsement.

Current Law

The majority of the general DGR categories in Subdivision 30-B of ITAA 1997 currently have a special condition requiring that the fund, authority or institution be:

  • a registered charity; or
  • an Australian government agency; or
  • operated by a registered charity or an Australian government agency.

However, for the remaining 11 general DGR categories, these requirements do not need to be satisfied for the fund, authority or institution to be entitled to DGR endorsement. These categories are:

  • Health—public fund for hospitals (item 1.1.3 in section 30‑ 20);
  • Health—public fund for public ambulance services (item 1.1.8 in section 30‑ 20);
  • Education—public fund for religious instruction in government schools (item 2.1.8 in section 30‑ 25);
  • Education—Roman Catholic public fund for religious instruction in government schools (item 2.1.9 in section 30‑ 25);
  • Education—school building fund (item 2.1.10 in section 30‑ 25);
  • Education—public fund for rural school hostel building (item 2.1.11 in section 30‑ 25);
  • Research—approved research institute (item 3.1.1 in section 30‑ 40);
  • Welfare and rights—public fund for persons in necessitous circumstances (item 4.1.3 in section 30‑ 45);
  • Environment—public fund on the Register of Environmental Organisations (item 6.1.1 in section 30‑ 55);
  • Cultural organisations—public fund on the Register of Cultural Organisations (item 12.1.1 in section 30‑ 100); and
  • Fire and emergency services—fire and emergency services fund (item 12A.1.3 in section 30 102)

New Law

To give effect to these changes, Schedule 1 of the Bill amends the special DGR conditions for 11 general DGR categories in Subdivision 30-B of ITAA 1997 to require that such a fund, authority or institution be a registered charity or an Australian government agency, or be operated by a registered charity or an Australian government agency.

In practice, there will be a streamlined process to allow DGR applicants to lodge a single application with the ACNC seeking charity registration and indicating their intention to be endorsed as a DGR (or as a DGR for the operation of a fund, authority or institution). Once the ACNC is satisfied that the applicant is entitled to be registered as a charity, the ACNC will pass on the necessary information to the ATO to assess the applicant’s entitlement to DGR endorsement.

Transitional rules for existing DGRs

Under the transitional rules contained in the Bill, the amendments do not apply to the existing DGRs until after the earlier of the following:

  • when gifts or contributions to the fund, authority or institution become deductible under Division 30 as amended by Schedule 1 (that is, when the existing DGR becomes a registered charity or operated by a registered charity); and
  • the transitional application date, which is 12 months after the application date.

However, if an existing DGR needs additional time to become a registered charity or to be operated by a registered charity, it can request an extended application date. If the Commissioner either agrees to or does not refuse the request, the amendments do not apply to the DGR until after the earlier of the following:

  • the day the Commissioner refuses the request for an extended application date (if relevant); and
  • the extended application date, which is three years after the transitional application date.

If your DGR is affected by these changes or you have any queries in relation to charity registration, please do not hesitate to contact us.

 

Charities are required to file their Annual Information Statements (AIS) with the Australian Charities and Not-for-profits Commission (ACNC) each year. We have summarised the recent changes to Charities’ reporting obligations that you should be aware of.

Lifting Financial Reporting Thresholds for Small and Medium Charities

At the moment, small charities are classed as those with an annual revenue under $250,000 and are not required to submit financial statements to the ACNC, and medium charities have annual revenue of between $250,000 and $1 million and are only required to submit reviewed or audited financial statements to the ACNC.

These financial reporting thresholds are set to be lifted in a move the federal government says will cut red tape for thousands of charities.

From 1 July 2022, the new financial reporting threshold for small charities will increase to under $500,000 annual revenue. This will mean nearly 2,500 charities will no longer be required to produce reviewed financial statements, saving each charity around $2,400 in accounting expenses annually.

The new financial reporting threshold for medium‑sized charities will increase to under $3 million annual revenue, meaning over 2,700 charities will no longer be required to produce audited financial statements, saving around $3,000 in accounting expenses annually.

The new thresholds will take effect for the 2021‑22 financial year onwards in the AIS for 2022 and later years.

Additional Reporting Obligations for Large Charities

From 1 July 2022, large charities that have an annual revenue over $3 million and two or more key management personnel will be required to report remuneration paid to responsible persons (e.g. directors) and senior executives on an aggregated basis in their AIS for 2022 and later years.

In addition, from 1 July 2023, all charities will be required to report related party transactions in their AIS. This will increase transparency of transactions with related people or organisations that pose a higher risk of conflicts of interest. The impact of this in terms of record keeping, administration and compliance could be particularly significant for our Church based clients.

The ACNC is in the process of developing appropriate guidance and education resources to help charities to understand and meet the new requirements.

Reducing the red tape burden for charities fundraising in New South Wales

From 1 July 2021, charities registered with the ACNC can access a simpler application process when applying to NSW Fair Trading to receive or renew an authority to fundraise in NSW. Registered charities that are fundraising authority holders will not need to submit a separate annual return to NSW Fair Trading – they will only need to report to the ACNC.

This reporting arrangement applies from the 2021 AIS.

If you have any queries or request specific advice in relation to your charity’s reporting obligations after the reform, please do not hesitate to contact us.

 

 

 

 

 

Makinson d’Apice is very pleased to advise that Bill d’Apice has been awarded a Member of the Order of Australia (AM) in the Australia Day 2021 Honours List.

Bill was awarded the Member of the Order of Australia for his significant service to the law, to the legal profession, and to the Catholic Church of Australia.

That is a tremendous recognition for all that Bill has achieved for the legal profession and the Catholic Church over four decades.

Bill commented: “I must say that I was surprised to receive the award because there are so many others that are worthy recipients. Still, I am delighted to accept the award. The recognition is shared with the firm because much that I have been able to do in the legal profession (particularly in the Charities and Not-for-Profit space) and the Church has been made possible with the support of my Partners, our Charities and NFP team and our other staff in furtherance of our firm’s support for the Church, the profession and the broader Charities and NFP space.”

Joanne Grant and Belinda Marsh, Partners of the Charities & Not-for-Profits Practice Group, commented: “We would like to congratulate Bill on this very well-deserved award. Bill has tirelessly provided valuable advice, guidance and assistance to the Catholic Church, other religious organisations, charities and not-for-profit organisations for decades and this award recognises his efforts and work. We are proud and grateful to lead the Charities and NFP team as Partners, together with Bill as a Consultant to the team, to continue to provide first-class legal services to our valued clients and community for many more years to come.”

Click here to read the Governor-General’s announcement.

Makinson d’Apice is pleased to announce that Bill d’Apice has been recognised in Chambers and Partners’ Asia Pacific 2021 edition as a ranked lawyer in the area of Charities, for the fourth consecutive year.

With the assistance of other professionals within the firm’s Charities & Not-For-Profits team, Bill has been advising and representing hundreds of charities and not-for-profit organisations for decades. Congratulations Bill!