LBW Not-for-Profit Quarterly Newsletter
March 2021
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Aged Care
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Elderly to come first
The final report of the royal commission into aged-care quality Care, Dignity and Respect has called for fundamental reform of the aged-care system.
The recommendations are among 148 that range widely over the sector.A new act to enshrine the elderlies' rights should replace its present counterpart by mid-2023, the report recommends. A new Aged Care Commission should be established by the same date.
Financial-Reporting Insights
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Increasing financial-reporting thresholds for ACNC-registered charities
The Council on Federal Financial Relations has asked that a framework for increasing harmonised financial-reporting thresholds for charities registered with the Australian Charities and Not-for-profits Commission be announced by 30 June.
A consultation paper Increasing financial reporting thresholds for ACNC-registered charities provides a snapshot of present regulatory arrangements, outlines the proposed new reporting thresholds, and sets out key issues for consideration during consultations.
The proposal arises from an independent review of the ACNC, Strengthening for Purpose: Australian Charities and Not-for-profits Commission Legislative Review 2018, which recommended increasing financial-reporting thresholds for ACNC-registered charities.
The recommendation read: 'Registered entities be required to report based on size with thresholds of less than $1 million for a small entity, from $1 million to less than $5 million for a medium entity and $5 million or more for a large entity'.
Current thresholds for financial reporting for ACNC-registered charities are:
| Charity size |
Current annual revenue threshold |
ACNC Reporting requirements |
| Small |
Less than $250,000 |
ACNC Annual Information Statement |
| Medium |
$250,000 or more and less than $1 million |
Annual Information Statement and reviewed or audited financial report |
| Large |
$1 million or more |
Annual Information Statement and audited financial report. |
Proposed thresholds for financial reporting for ACNC-registered charities:
| Charity size |
Proposed annual revenue threshold |
Minimum ACNC Reporting requirements |
| Small |
Less than $500,000 |
ACNC Annual Information Statement |
| Medium |
$500,000 or more and less than $3 million |
Annual Information Statement and reviewed financial report |
| Large |
$3million or more |
Annual Information Statement and audited financial report. |
The proposed thresholds are lower than those recommended by an ACNC review panel.
In proposing the thresholds, commonwealth and state governments seek to balance a reduction in regulatory red tape while maintaining transparency to promote accountability, public trust, and confidence in the sector.
A claimed benefit for charities of the reform is that it will decrease professional-service expenses for almost 6800 charities that will move to a lower threshold (representing more than 10 per cent of the sector).
About 3300 charities would move from the medium to small category and no longer be required to produce reviewed financial reports. It would save the charities around $2400 in professional costs annually.
Nearly 3500 charities would move from the large to the medium category and no longer be required to produce audited financial reports. These charities would annually save around $3000 in professional costs.
While the federal government can increase ACNC reporting thresholds with relative ease (through changes to regulations), most jurisdictions will need to change legislation or regulations for incorporated associations to ensure that harmonisation continues or to ensure that reporting thresholds for ACNC-registered incorporated associations and other incorporated associations in their jurisdictions remain harmonised.
ACNC-registered charities that are incorporated associations in South Australia, Tasmania, and the Australian Capital Territory would immediately benefit from increases in ACNC reporting thresholds via changes to Commonwealth regulations. This is because state legislation provides that an ACNC-registered entity is exempt from state reporting requirements (including thresholds) as long as the charity is meeting its ACNC-reporting requirements. Victoria also has an exemption in place via a legislative instrument that would also ensure immediate relief to ACNC-registered associations incorporated in Victoria.
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Charities filing incomplete financial reports
The ACNC's annual review of almost 300 medium and large charities' financial reports has revealed that almost a third of them were incomplete. The survey showed that 20 per cent failed to disclose the government revenue they had received, and some 5 per cent of those surveyed had inconsistencies in corresponding information in their annual information statements and financial reports.
While reporting had improved, the commission said, there remained areas of concern.
Around 30 per cent of annual financial reports reviewed were missing one or more necessary components. While many charities disclosed government revenue in their financial reports, they failed to do likewise in information statements.
ACNC commissioner Gary Johns urged charities and their accountants, auditors and reviewers to check carefully financial information they submitted to ensure it was correct and met requirements.
'Increasingly, potential supporters, donors and the public are looking at information on the charity register to inform their charitable giving. Having a full record of AISs and accurate annual financial reports is an important way for a charity to present itself.'
Medium-sized and big charities are required to submit annual financial reports with their information statements. The reports should include full sets of financials, notes on the statements, a responsible person's declaration, and a signed audit or 'review' report.
ACNC Activities
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ACNC releases new best-practice disclosures guide
The ACNC has published a new best-practice guide for charities reporting on government revenue they receive. Donors, funders, supporters, and the public want to know whether a charity receives funds from government, their size, and who provides them. Nearly half of charity-sector revenue comes from governments, and increasingly people are viewing financial details on the ACNC's charity register, often to inform decisions on charitable giving. Annual Financial Report Disclosures – Best Practice helps charities provide useful, consistent information, enhancing transparency and accountability across the sector. The ACNC recommends using disclosures to ensure that annual financial-report supplements and matches information in annual information statements. The commission believes that the move might lead to more cuts to red tape.
Three recommended disclosures of government funding in a charity's annual financial report are:
| Recommendation |
Description |
| Disclose information about the sources of government revenue
|
For a charity that received 10 per cent or more of its total revenue from the government, it should disclose the following information about the sources of its government revenue:
|
| Disclose economic dependency on government revenue |
For a charity dependent on the government for significant revenue or financial support, it should include an economic-dependency note in its financial statements. |
| Disclose funding received from the government but not yet recognised as revenue |
For a charity that prepares special-purpose financial statements and does not make the disclosures required by AASB 15 and AASB 1058, the ACNC recommends disclosing funding from the government that has been received but not yet recognised as revenue. |
To ensure that financial statements are clear and easy for users to read and understand, the commission recommends making most disclosures in notes to financial statements rather than in statements themselves.
Recommended disclosures are not intended to replace existing disclosure requirements under Australian accounting standards. For some charities, the recommended disclosures are already required. Rather, they provide the ACNC's view of best practice in disclosing this kind of financial information and encourage charities to adopt this approach.
Consider the recommendations when preparing your charity's annual financial report.
Take a look at detailed examples and further information in the guide Annual financial report disclosures - best practice | Australian Charities and Not-for-profits Commission (acnc.gov.au).
New standard pushes charities towards child-sex redress scheme
A new governance standard aims to incentivise charities to join the national redress scheme for victims of institutional child-sexual abuse.
Governance standard 6 Maintaining and enhancing public trust and confidence in the Australian not-for-profit sector requires a registered charity to take all reasonable steps to join the scheme if a redress claim has been or is likely to be made against it.
The standard came into effect on 25 February via an amendment to the Australian Charities and Not-for-Profits Commission Regulation2013.
Fine religious distinctions
A Basic Religious Charity (BRC) is an ACNC category for a particular type of religious charity.
Not all charities that are registered with the charity subtype of 'advancing religion' are Basic Religious Charities.
Six criteria must be met to be endorsed as a BRC:
- It cannot be entitled to be registered as any other charity subtype (for example, it cannot also be registered with the subtype 'advancing education')
- It is not a body corporate registered under the Corporations Act 2001 (including a Registrable Australian Body), an Indigenous corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006, a corporation registered under the Companies Act 1985 of Norfolk Island, or an incorporated association in any state or territory (including an entity incorporated under Associations Incorporation Act 2005 of Norfolk Island)
- It is not endorsed as a deductible-gift recipient (but it can be endorsed to operate DGR funds, institutions and authorities as long as their total revenue is less than $250,000 for the particular reporting period)
- It has not been approved to report to the ACNC as part of a group
- It has not received more than $100,000 in government grants in the current reporting period and either of the previous two reporting periods, and
- From March 17, it has joined the National Redress Scheme for Institutional Child Sexual Abuse if it has been identified as being involved in the abuse of a person either in an application for redress under the scheme's section 19 or in response to a request for information from the scheme's operator (Department of Social Services) under section 24 or 25 of the Redress Act.
A BRC must notify the ACNC of certain changes and submit an annual information statement. It is not required to answer the statement's financial questions, submit annual financial reports, or comply with governance standards.
The ACNC does not have the power to suspend or remove a member of a BRC's governing body (what the ACNC calls a 'a responsible person').
Related-parties policies are worthwhile
Registered charities must comply with ACNC governance standards to maintain their eligibility for registration (apart from basic religious charities).
Governance standard 5 Duties of Responsible Persons says that a charity must take reasonable steps to ensure that its responsible persons meet certain duties, including:
- To act honestly and fairly in the best interests of the charity and for its charitable purposes
- Not to misuse their position
- To disclose any actual or perceived conflict of interest, and
- Ensure that the charity's financial affairs are managed responsibly.
A responsible person governs a charity. Generally, he or she is a board or committee member, or a trustee.
Conflicts of interest (whether actual or perceived) may arise where a related party has an interest that might conflict with the best interests of the charity. Where a responsible person has an actual or perceived interest with a related party, it might be difficult to demonstrate a duty to act in the charity's best interests.
Related parties are not defined in the ACNC legislation. The term 'related party' is defined by the Australian Accounting Standards Board in AASB 124 Related Party Disclosures.
By having a related-party policy or procedure, charities reduce the risk that their decisions might be influenced by others' interests. A policy might also help to ensure that related-party transactions do not occur without responsible persons' approval.
Charity-activity bans broadened
Changes to the ACNC's governance standard 3 will expand banned activities for registered charities.
The amendments say that, in addition to current governance standards, registered charities:
- Must not engage in conduct that may be dealt with as a summary offence relating to real property, personal property or persons under an Australian law, and
- Must take reasonable steps to ensure that their resources are not used, nor continued to be used, to promote or support entities engaging in unlawful activities prohibited under the standard.
The changes respond to recommendation 20 of Strengthening for Purpose: Australian Charities and Not-for-profits Commission Legislation Review 2018.
The purpose of standard 3 is to give the public confidence that a registered charity is governed in a way that is sustainable and consistent with its purposes, and that it protects its assets, reputation, and the people it works with. The amendments are intended to ensure that the standard is more consistent with disqualification as set out in the Charities Act 2013.
Program details allowed
Charities that operate on a calendar year have until 30 June to submit their 2020 annual information statements. For the first time, you may provide details of up to 10 programs demonstrating what your charity does.
Fraud
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Steps towards minimising fraud
The Institute of Internal Auditors in Australia has released 11 steps towards minimising fraud and corruption risks. They are:
Step 1 – Implement a fraud-and-corruption-control policy
Step 2 – Have 'zero tolerance' for fraud – and mean it
Step 3 – Assign fraud-control responsibilities
Step 4 – Perform regular fraud-risk assessments
Step 5 – Develop a fraud-control plan
Step 6 – Implement fraud awareness
Step 7 – Ensure that there is adequate fraud-detection capability
Step 8 – Ensure that there is adequate fraud-investigative capability
Step 9 – Establish fraud-reporting mechanisms
Step 10 – Schedule annual reporting on fraud, including performance measures, and
Step 11 – Commission periodic independent reviews of an organisation's culture, fraud control, and investigative capability
Drug-and-alcohol counsellor jailed
The Victorian County Court has sentenced Anthony Dieni to 14 years' jail with a nine-year non-parole period for misappropriating government funds.
He has been ordered to pay $448,805.76 as part of a pecuniary penalty order.
Mr Dieni misappropriated government funds while employed as a drug-and-alcohol counsellor and coordinator at St Paul's Prevention Rehabilitation, a Strathmore-based charity.
Sentencing follows an investigation (Operation Murano) by the Independent Broad-based Anti-corruption Commission into allegations that Mr Dieni deliberately misled the court in bail applications and sentencing hearings in exchange for cocaine and other drugs of dependence.
IBAC's Operation Murano resulted in 20 people being charged with a range of offences, including attempting to pervert the course of justice, trafficking in a drug of dependence, and fraud offences.
Childcare director accused of huge fraud
A Canberra childcare-centre director has been accused of defrauding the centre of as much as $500,000.
Police have charged Weston Creek Children's Centre director Emma Morton with 23 counts of obtaining property by deception, amounting to $160,000 in stolen funds.
Following a raid of Ms Morton's home in Campbell, a Canberra suburb, officers said they believed that Ms Morton may have taken more than $480,000 from the charity.
In a statement of facts tendered to the court, police alleged that Ms Morton transferred dozens of payments from the childcare centre's bank account into her own.
Ms Morton, who has been centre director for more than 20 years, allegedly 'disguised' $162,753 worth of payments as operating costs.
Police are investigating the loss of another $310,846.
Several transactions in the police submission described personal purchases allegedly made by Ms Morton, including almost $4000 spent at JB Hi Fi, a $3000 chaise longue, and a stay at Hotel Realm in Barton.
Police also alleged that Ms Morton made several transfers worth a total of $130,000 in March and April of last year into a 'COVID account' opened in her name.
They are liaising with federal regulators to ensure that the centre, which is a registered charity, can continue operating.
School principal stole $23,000
The principal of a disadvantaged state school in outer-suburban Melbourne has pocketed almost $23,000 in school funds, spending the money on gambling and an overseas family holiday, an ombudsman's report has revealed.
Victorian Ombudsman Deborah Glass has exposed the theft in the report Investigation of protected disclosure complaints regarding the former Principal of a Victorian public school.
Ms Glass said the theft highlighted 'systemic weakness in the financial governance of our schools', rather than a simple theft by a senior staff member.
According to the investigation, the principal asked his staff several times in 2017 and 2018 to counter-sign cheques for school purposes. He then took the cash.
Employed on an annual salary of more than $143,000, the principal had financial problems, including a heavy gambling habit, and significant personal expenses, including rent on inner-city apartments, private-school fees, and the costs of several investment properties in Queensland.
He had a history of financial problems that he did not disclose when he was appointed, including a period of bankruptcy.
Compliance
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Breakthru back-pays more than $2.7m
Disability services provider Breakthru Ltd is back-paying employees more than $2.7 million and has entered into an enforceable undertaking with the Fair Work Ombudsman.
The registered charity, which operates in NSW, Victoria, and Queensland self-reported underpayments to the workplace regulator in March last year.
During new enterprise-agreement negotiations, Breakthru became aware that it had incorrectly classified several employees under applicable awards and industrial agreements, resulting in underpayment of base rates.
In total, Breakthru is back-paying 649 current and former employees $2.75 million (including interest and superannuation) after underpaying them between 2014 and 2020. Individual back-payments range from less than $1 to more than $34,000.
As of 19 February, the company had back-paid 616 workers, less than $47,000 still owing to 33 former employees who had to be back-paid by 31 March.
Fair Work Ombudsman Sandra Parker said that an enforceable undertaking was appropriate as Breakthru had demonstrated a strong commitment to rectifying underpayments.
'Under the enforceable undertaking, Breakthru has committed to implementing stringent measures to protect the rights of its workforce. These measures include engaging, at the company's own cost, audits of its compliance with workplace laws over the next two years', said Ms Parker.
'This matter demonstrates how important it is for companies to check that they have classified every employee correctly. Any employer who needs help meeting their workplace obligations should contact the Fair Work Ombudsman for free advice and assistance.'
Breakthru is required to display an online notice detailing its workplace law breaches, apologise to workers, commission workplace relations training for human resources, recruitment, and payroll staff, and provide evidence that it has developed systems for ensuring future compliance.
ASIC adopts 'no-action' position
The Australian Securities & Investments Commission has temporarily adopted a 'no-action' position on convening and holding virtual meetings.
Modifications to the Corporations Act 2001to facilitate convening and holding meetings using virtual technology were in place under the Corporations (Coronavirus Economic Response) Determination (No.3) 2020.
The determination, which temporarily removed impediments to the use of virtual technology and permitted the dispatch of notices of meetings by electronic means, ceased to have effect on 21 March.
The government has proposed to extend it in the Treasury Laws Amendment (2021 Measures No. 1) Bill. The House of Representatives passed the bill on 17 March and it is awaiting debate in the Senate.
To provide a degree of certainty during COVID, ASIC's 'no-action' position:
- Supports the holding of meetings using appropriate technology
- Facilitates electronic notice of meetings, including supplementary notices, and
- Allows more public companies an additional two months to hold their AGMs.
A position on convening and holding meetings using virtual technology applies to meetings held between 21 March and the earlier of:
- 31 October, and
- The date that any measures are passed by parliament on using virtual technology in meetings of companies or managed-investment schemes.
A position on the two-month deferral of AGMs applies to entities with financial years ending up to 7 April.
Public Benevolent Institutions
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AAT upholds ACNC ruling
An Administrative Appeals Tribunal decision has endorsed the ACNC's approach to determining charities' eligibility for registration as public benevolent institutions.
Previously, the ACNC declined to register Women's Life Centre as a PBI. Women's Life got the decision reviewed by the AAT, which in March confirmed the ACNC's ruling.
Charities in the PBI subtype receive federal tax concessions and may be endorsed as deductible-gift recipients. This, in turn, means that donations to them are tax-deductible.
ACNC assistant commissioner general counsel Anna Longley welcomed the ruling.
'While all registered charities help our community in one way or another, it was central to the AAT's decision that services provided by charities registered as a PBI need to be targeted towards those people in our community experiencing serious poverty, distress or misfortune, and for whom the relief provided by a PBI may be vital,' said Ms Longley.
'Women's Life Centre continues to be registered as a charity under two other subtypes.'
There are more than 58,000 charities on the ACNC register, and about 13,800 of them are PBIs.
A 22-page Commissioner's Interpretation Statement: Public Benevolent Institutions (CIS 2016/03) provides guidance on the meaning and scope of the PBI subtype.
Please note: This newsletter has been produced by LBW & Partners as a service to clients. It is also available to interested persons for reference. The material contained in this publication is of general comment only and does not purport nor is it intended to be advice on any particular matter. We recommend formal advice is sought before acting on any areas contained in this newsletter.
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