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!





Since the announcement of the National Redress Scheme for Institutional Child Sexual Abuse, many NSW non-government schools have been uneasy about whether they may inadvertently breach Section 83C of the Education Act if required to make a funding contribution (Funding Contribution) under the National Redress Scheme for Institutional Child Sexual Abuse Act (2018) (Cth).

From 11 October 2019, the Education Regulation 2017 (NSW) was amended to allow non-government schools to make redress payments without contravening Section 83C provided they can demonstrate that they did not use government financial assistance to make a Funding Contribution.

The new Regulation 10A provides as follows:

“10A School does not operate for profit because of funding contributions to National Redress Scheme for Institutional Child Sexual Abuse

  1. For the purposes of section 83C(3) of the Act, a non-government school is not taken to operate for profit because of a funding contribution made by or on behalf of the school to the National Redress Scheme for Institutional Child Sexual Abuse, if the school demonstrates, to the Minister’s satisfaction, that the funding contribution does not comprise any money provided by the Minister as financial assistance in respect of the school.
  2. For the purposes of this clause, a funding contribution means a funding contribution for a participating non-government institution under the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 of the Commonwealth.”

As a result, a non-government school which is required to make a Funding Contribution will not be in breach of S83C so long as the funds used to make that Funding Contribution do not include any government funding. Non-government schools should be careful to keep clear records in respect of the source of funds used to make a Funding Contribution.

In recent years, many charities and other NFPs have found themselves in a position where they need to consider restructuring.

Common reasons we have seen for this are:

  • the charity or NFP may now be operating outside of the state or territory in which it was originally incorporated
  • the charity or NFP may have increased its activities and outgrown its original structure
  • the charity or NFP may have been originally set up incorrectly (for example, as a proprietary company rather than a public company limited by guarantee)
  • the structure of the charity or NFP may no longer be suitable in light of the objects and purpose of the charity or NFP
  • the charity or NFP may wish to merge its activities with another charity or NFP.

We would suggest that a charity or other NFP familiarise itself with the potential issues it faces in respect of a proposed restructure and the steps required before it commences this process rather than attempt to overcome hurdles after it has already started down the path to restructuring.

Some important factors that a charity or other NFP should consider are:

  • what steps will need to be taken on the restructure – for example, when will meetings of members need to be called to approve the proposed restructure
  • what resolutions will members be asked to pass
  • will the restructure result in the creation of a new entity
  • if so, how will property owned by the original entity be transferred to the new entity (and what steps will need to be taken to minimise any transfer duty (stamp duty) that may be payable on that transfer)
  • will regulators such as the ACNC recognise the change of structure or will the new entity need to re-register as a charity
  • will a new governing document need to be prepared
  • will the restructure result in a change to the objects and purpose of the charity or NFP.

Charities and other NFPs are also reminded that there is no one size fits all structure and that planning ahead means that they will be able to put in place a structure that works best for their individual needs.

For registered charities operating overseas or working with a third party overseas, there is a new set of standards that they must comply with in addition to the existing ACNC Governance Standards in this new financial year.

This set of new standards commonly referred to as “External Conduct Standards” are contained in the Australian Charities and Not-for-profits Commission Amendment
(2018 Measures No. 2) Regulations 2018 that were tabled in the Parliament late November 2018.

On 22 July 2019, the External Conduct Standards officially came into effect and became the new Division 50 of the Australian Charities and Not-for-profits Commission Regulation 2013 (ACNC Regulation).

What are the External Conducts Standards?

The External Conduct Standards are a set of standards that govern how a registered charity must manage its activities and resources outside Australia.

They are intended to support registered charities in fulfilling their objectives, by providing a minimum level of assurance that they meet public expectations in relation to their conduct when they undertake activities and send resources (including funds), or otherwise support activities, outside Australia.

It is well recognised that when operating outside Australia or working with a third party outside Australia, a registered charity may face risks that will vary according to its particular circumstances, such as its size, the sources of its funding, the nature of its activities (including the extent and importance of its activities outside Australia and resources given to parties outside Australia) and the needs of the public (including members, donors, employees, volunteers and benefit recipients of the registered entity).

Therefore, the External Conduct Standards do not mandate detailed procedures and requirements that registered charities must follow.

Instead, the External Conduct Standards are principles-based minimum standards and only require registered charities to take reasonable steps to ensure appropriate standards of behaviour, governance and oversight in relation to:

  • controlling their activities, funds, goods and other resources sent overseas
  • conducting an annual review of overseas activities and keeping necessary record;
  • taking anti-fraud and anti-corruption measures; and
  • taking measures aimed at protecting vulnerable individuals
Is your charity affected by the External Conduct Standards

Before you go through the trouble of assessing the implications of the External Conduct Standards that might have on your charity, we recommend that you first determine if the External Conduct Standards apply to your charity.

The External Conduct Standards apply to all registered charities that either:

  • operate outside Australia; or
  • work with a third party operating outside Australia,

regardless of the size, scale or significance of their work or operations outside Australia.

It is also worth noting that registered charities that are exempted from the ACNC Governance Standards for being Basic Religious Charities will also be subject to the External Conduct Standards if they operate outside Australia or work with a third party operating outside Australia.

What is “operating outside Australia”?

Pursuant to reg 50.4(1) of the ACNC Regulation,
“…a registered entity, or a third party, operates outside Australia if it operates outside Australia in whole or in part.”

The term ‘operate’ is not given a legal definition in the ACNC Regulation and is intended to have its ordinary meaning.   In context, the term ‘operate’ has the eleventh meaning given in the Macquarie Dictionary, namely “to bring about, effect, or produce, as by action or the exertion of force or influence”.   For a registered charity or a third party to operate outside Australia, it means taking actions to fulfill its objects, including but not limited to:

  • carrying out activities outside Australia; and
  • sending resources (including funds) to be used outside Australia.

In accordance with the guidelines published on the ACNC website, activities that may be considered operating outside Australia include:

  • sending money overseas
  • sending resources overseas
  • sending staff, volunteers, members or beneficiaries overseas
  • conducting activities or working overseas
  • buying goods and services from overseas suppliers (including online purchases) in some circumstances
  • working with individuals or organisations located overseas

This list is definitely not intended to be exhaustive.  We have observed the vast complexity and diversity in our charity clients’ activities. There are numerous borderline cases such as conducting activities purely online that are open to both people in and outside Australia.  We encourage you to contact us for detailed advice if you are unsure whether all or part of your charity’s activities are captured by the External Conduct Standards.

What is “working with a third party operating outside Australia”?

Pursuant to reg 4 of the ACNC Regulation,

“A third party, in relation to a registered entity, means an entity (other than a registered entity) that formally or informally collaborates with the registered entity for the purpose of advancing the registered entity’s purpose or purposes, and includes:
(a)    an entity with which the registered entity has some form of  membership, association or alliance; and
(b)    an entity that has an arrangement with the registered entity.”

An arrangement means any arrangement, agreement, understanding, promise or undertaking, whether express or implied, and whether or not enforceable (or intended to be enforceable) by legal proceedings.

A third party is required to collaborate with a registered charity for the purpose of advancing the charity’s purposes.  This means certain types of service provision to a registered charity will not be sufficient to make that entity a third party.  For example, if an entity provides information technology support to a registered charity, the entity is not collaborating with the charity to advance its charitable objects, and is therefore not a third party.

A registered charity working with a third party outside Australia must comply with the External Conduct Standards for its own activities overseas.  The extent of oversight and responsibilities the charity has over the activities of the third party is a question that will be addressed when we look further into the specific requirements of each individual External Conduct Standard in our upcoming article “Risk Based Approach – a reasonable starting point to comply with the External Conduct Standards”.

The only exemption is overseas activities that are directly related to the charity’s purposes in Australia, namely beneficiaries in Australia and these activities also need to be merely incidental to its operations in Australia.

Reg 50.4(2) of the ACNC Regulation sets out the only exemption from the External Conduct Standards:

“However, a registered entity does not operate outside Australia only because it carries out activities outside Australia (including providing funds to be used outside Australia) that are directly related to the pursuit of the registered entity’s purposes in Australia and merely incidental to its operations in Australia.”

To qualify for the incidental exemption, the activities outside Australia must be:

  • ‘directly related’ to the pursuit of a charity’s purposes in Australia, for example, beneficiaries located in Australia; and
  • not more than incidental when those activities are compared to the charity’s operations in Australia.

These requirements render the incidental exemption only applicable under very limited circumstances.  If you are unsure whether your charity’s overseas activities fall under this exemption, please contact us for detailed advice.

The ACNC regulates the External Conduct Standards in a similar way to their regulatory approach for the ACNC Governance Standards.  If your charity is already complying with the ACNC Governance Standards and also conducts or intends to conduct activities outside Australia or work with a third party outside Australia, the External Conduct Standards might mean additional compliance obligations for your charity as well because the External Conduct Standards specify some unique requirements to regulate overseas activities.

All registered charities operating outside Australia or working with a third party operating outside Australia should take time to understand the External Conduct Standards and how they affect their operation, and devise and implement an action plan to ensure they comply with the External Conduct Standards. This is likely to be a challenging and whole new experience for all registered charities, in particular, Basic Religious Charities that are used to being exempted from the ACNC Governance Standards.

To assist your charity to be External Conduct Standards ready, we will be publishing more articles on the External Conduct Standards and their compliance requirements shortly.

In the meanwhile, if you require further information or specific advice in relation to your charity’s activities and operation outside Australia, please do not hesitate to contact us.

When an existing lease expires, a tenant may have the “option” to renew the lease. Essentially a tenant has the right to have a new lease granted to them on the same terms as the existing lease. However, the rent will be reviewed in accordance with the rent review terms of the existing lease.

So, what should a landlord be aware of when the initial term of a lease is coming to an end?

Here is a handy checklist for landlords:

  1. Option Notice Period: It is important to ensure that you have entered into your calendar the correct dates the tenant is required to exercise their option to renew the lease. Usually, there will be a window (for example, a window of 3 to 6 months before the terminating date of the initial term) when the tenant can provide notice exercising their option to renew the lease. If the tenant misses this window, then the option period lapses and you may have cause to refuse the grant of a new lease.
  2. Validity of the Notice to Exercise the Option Term: The existing lease will usually mandate and set out the formal requirements for notice of the exercise of an option term by the tenant, such as the required method for service of the notice. As surprising as it may sound, a notice can be deemed invalid based on such a technicality, so it is important to seek legal advice in this regard, if you are unsure.
  3. Ask Yourself – are there any Subsisting Breaches Under the Lease? A breach of an essential term of the lease can include, amongst other things, the tenant’s failure to pay rent, maintain the condition or permitted use of the property. If the breach is still subsisting at the time the tenant serves their notice to exercise the option, they may no longer have a right to a new lease term. In such an instance, you will be required to notify the tenant in writing of the breach within 14 days after the giving of a notice or within 14 days after the breach occurred if the breach occurred after the giving of that notice, in accordance with the relevant legislation. This is something worth considering in the lead up to an option term and certainly something worth seeking legal advice on.
  4. Acknowledgement of Notice and New Rent: It is important that you provide written acknowledgement to the tenant if you agree to grant the further term. You will then need to determine the new rent payable at the commencement of the option term, in accordance with the rent review terms. If, however, you decide that you do not wish to grant the further term to the tenant, then we would strongly suggest you seek legal advice, to ensure that the grounds for refusal are in line with the terms of the lease and any relevant legislation. This could potentially save you from any legal action by the tenant.
  5. Preparation of the Option Lease: It is essential that you engage your solicitor to prepare the lease for the new term, to ensure that the option lease terms are properly documented. Unless otherwise agreed to between the parties, the terms will be essentially the same as the existing lease.

In summary, the process for option leases can be a delicate and quite complex task for landlords. Ensure you are aware of all your legal rights and obligations by seeking legal advice prior to delving into the option lease process.