The holiday season is over, everyone’s back at their desks and we’ve already completed the first month of 2019. It can be scary how time flies.

As with all years in recent times 2018 was a busy year for charities and other not-for-profits and with the start of the new year we thought this was a good opportunity for us to look at what may be in store for charities and not-for-profits during 2019.

We have summarised some of the changes and issues that will confront the sector this year.

  • The ACNC review – we expect the Government to provide its response to the review in the first half of this year.
  • The “in Australia” draft ATO Ruling will be finalised.
  • The ACNC External Conduct Standards will commence on 1 July 2019 (unless disallowed by Parliament).
  • DGR reforms are slated to come into effect from 1 July 2019: with non-government organisations with DGR status to be registered as charities with the ACNC, and the ACNC to administer the registration of harm prevention charities, cultural organisations and overseas aid funds.
  • The federal election is likely to bring up a number of issues which may impact upon charities and not-for-profits. Already the Labor Party platform denying cash refunds for excess dividend imputation credits may have an impact upon tax exempt entities.
  • Will this be the year that there is some significant fundraising reform? Perhaps the Australian Consumer Law may be expanded to include charitable fundraising? This would provide consistency in approach throughout all jurisdictions in Australia and a welcome relief from administrative burdens to NFPs across the country.
  • Meanwhile the NSW Government is busy drafting new charitable fundraising guidelines for public consultation later this year.
  • The Royal Commission into Aged Care Quality & Safety is underway and it will no doubt impact significantly on a number of charity and not-for-profit aged care providers, (click here to read our Royal Commission into Aged Care Quality and Safety brochure).
  • The National Redress Scheme is well underway after a slow start. We can expect the number of claims to increase as more organisations agree to enter the Scheme.
  • The new FBT Ruling will come into effect.
  • The legislative package containing the Government’s response to the Ruddock Religious Freedom Review should be tabled in Parliament.
  • Hopefully there will be further state or territory take-up of ACNC reporting and further cutting of red tape.

These are just some of the things that may come across our desk in the next 12 months … and of course there’s always the unknown!

Please don’t hesitate to contact us if you need assistance in navigating your way through any of these changes in the coming year.

Two notable developments in the NSW retirement villages sector have recently taken place – the first being the passage of new retirement village amendment legislation in November 2018 and the second being the appointment of a retirement village ambassador in December 2018.

Retirement Village Reforms

The Retirement Villages Amendment Act 2018 was assented to on 28 November 2018 following the completion of the Inquiry into the NSW Retirement Village Sector in 2017.

The Amendment Act will amend the Retirement Villages Act 1999 and its associated regulations. Below is a summary of the main changes:

  • Emergency plans and safety inspections – an operator of a retirement village must ensure that an emergency plan is prepared and maintained and that residents and staff are made familiar with the plan. Furthermore, the operator is required to undertake a safety inspection at least once a year and report on such findings to residents.
  • Annual emergency evacuation exercises – an operator of a retirement village must ensure that an evacuation exercise for residents is carried out at least once a year. Key safety information must also be displayed and provided to residents.
  • Meeting to explain village contract information to residents – a resident may request, once a year, a meeting with the operator for an explanation of certain information about the resident’s village contract. The operator must provide the resident with a written summary at the meeting of the explanation.
  • Rules of conduct for operators – the regulations associated with the Act may be amended to prescribe rules of conduct for operators with respect to professionalism, training, competencies, performance and behaviour of management.
  • Asset management plans – operators will be required to prepare and maintain an asset management plan for the items of capital within the village.
  • Other – other changes relate to the appointment of auditors and enabling the regulations to make provisions for mediations of disputes and what information about the retirement village might be required to be made available to the Office of Fair Trading and other government agencies.

The provisions of the Amendment Act are not yet in force at the date of this article and there is no current set date for when the changes will commence. However, the Office of Fair Trading has suggested that the changes will commence on 1 July 2019.

Many of the above mentioned provisions come with significant penalties should an operator fail to comply with them. We recommend that operators start preparing for the enactment of the changes sooner rather than later. The Amendment Act should be carefully reviewed and further advice may need to be obtained by operators to ensure that compliance can be achieved.

Retirement Village Ambassador

On 10 December 2018, the Department of Finance, Services & Innovation announced the appointment of Kathryn Greiner AO as the NSW Retirement Village Ambassador. Ms Greiner had led the Inquiry into the NSW Retirement Village Sector in 2017.

According to the Office of Fair Trading, the Ambassador role will involve informing residents about the changes to the retirement village laws, listening to and advocating for residents and monitoring and reporting on issues facing the sector. The terms of reference for the NSW Retirement Village Ambassador Program are now available for consideration.

Part of the Ambassador’s role is the conduct of a “Retirement Village Roadshow” that will involve visiting retirement villages and speaking to residents. The Roadshow will also involve talks and information sessions at retirement villages, RSL clubs and local centres around NSW. Members of the public can contact the Office of Fair Trading to request a visit from the Retirement Village Ambassador.

When Joanne joined Makinson d’Apice eight years ago, Bill d’Apice quickly recognised Joanne’s legal skills, positive attitude and impeccable client relationship skills.  Since that day the two of them have worked together and with the rest of the Charities and Not-For-Profit team they have built the practice it is today.

As Bill states:  Joanne’s appointment as a Partner is a fitting recognition of the leadership role she has grown into within our practice group. Her skills particularly in the property and the charities and not-for-profits areas and the strong relationships she has developed with clients within our practice group have played a vital role in the success of my team and the firm. I am delighted to announce the promotion and welcome Joanne to the Partnership.

Joanne is looking forward to joining the Partnership and continuing to grow her practice and reputation as a specialist in the property and Charities and Not-For-Profit areas together with Bill and their team.

Joanne’s promotion was effective from the 1st of January 2019.

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With effect from 1 October 2018, associations incorporated under the Associations Incorporation Act 2009 (NSW) which are registered charities will no longer have to submit annual financial reports to NSW Fair Trading as well as the Australian Charities & Not-for-profits Commission (ACNC).

The annual financial reports which these charities lodge with the ACNC will be securely shared with NSW Fair Trading and will be accepted for the purposes of complying with the NSW legislative requirements.

This new arrangement is welcomed as it will cut some more red tape for NSW charities who are also incorporated associations and it will bring NSW into line with Victoria, South Australia, Tasmania and the ACT.

It would be of even greater assistance for all State and Territory Governments to adopt the Federal definition of a charity under the Charities Act 2013 (Cwth) and to accept registration with the ACNC as evidence of charity status for the purposes of local legislation.

Should you require any advice in relation to this, please do not hesitate to contact our office.

Bill d’Apice, Partner | +61 2 9233 9013 | wdapice@makdap.com.au

Belinda Marsh, Senior Associate | +61 2 9233 9083 | bmarsh@makdap.com.au

The ACNC legislation passed in 2012 allowed for the creation of minimum external conduct standards that are required to be met by registered charities.

To date, this issue seems to have been in the government’s too hard tray but Treasury has now issued draft external conduct standards and is seeking submissions on them.

The draft regulations are intended to be a principles based set of minimum standards of conduct, governance and behaviour that ACNC-registered charities must comply with when operating outside Australia. There is no exception for basic religious charities (unlike the exception that exists for basic religious charities in respect of governance standards).

Details of the draft external conduct standards can be found at the Treasury website. And interested parties can submit responses up until 21 September 2018. In addition, Treasury is proposing to hold meetings with interested parties and should you wish to be involved you can express your interest via email to externalconductstandards@treasury.gov.au by 17 August 2018.

We expect that these external conduct standards may have some significant practical implications for charities operating outside Australia. We recommend that you carefully review these to see whether they will have any implications for your charity and, if so, whether it would be appropriate to lodge a submission.

Treasury seems to be focusing on the activities of charities and other NFPs operating or controlled outside Australia with the release of a draft ruling on the “In Australia” requirements in July 2018.

Should you have any questions or should we be able to assist please don’t hesitate to contact Bill d’Apice of our office.

The Second Edition of the Church Administration Handbook is now available to purchase online.
The handbook outlines how the complex institution that is the Catholic Church in the modern world
is structured and functions.

Written by experts in ecclesiastical and civil law, the Church Administration Handbook is an invaluable resource for:

  • managers of the church’s temporal affairs
  • administrative staff in parishes, schools, hospitals and other church institutions
  • members of finance councils and boards
  • seminarians and others preparing for leadership roles in the church
  • professional advisers to church bodies, civil lawyers and accountants
  • journalists and members  of the media who write about the church.

About the Authors:
Fr Brian Lucas is the National Director of Catholic Mission (the Pontifical Mission Societies in Australia).
Fr Peter Slack is Parish Priest of St Mary’s Parish, Casino, in the Diocese of Lismore.
Mr Bill d’Apice is our firm’s chairman of partners and has experience acting as an adviser to
the Australian Catholic Bishops Conference, various dioceses and religious congregations.

Order the Church Administration Handbook (2nd Edition) online at www.stpauls.com.au for $49.95.