The Charities Act 2009, represents a very significant milestone for community and voluntary activity in Ireland. The purpose of the Act is to reform the law relating to charities in order to ensure greater accountability and to protect against abuse of charitable status and fraud and to enhance public trust and confidence in charities and increase transparency in the sector.
Key aspects of the Act
Key aspects of the Act provide for:
- a definition of charitable purposes for the first time in primary legislation
- the creation of a new Charities Regulatory Authority to secure compliance by charities with their legal obligations and also to encourage better administration of charities
- a Register of Charities in which all charities operating in the State must register
- the submission of annual activity reports by charities to the new Authority
- updating the law relating to fund-raising, particularly in relation to collections by way of direct debits and similar non-cash methods
- the creation of a Charity Appeals Tribunal;
- the provision of consultative panels to assist the Authority in its work and to ensure effective consultation with stakeholders.
The Act, together with the Charities Acts 1961 and 1973, and the Street and House to House Collections Act 1962, provides for a composite regulatory framework for charities through a combination of new legislative provisions and retention of existing charities legislation, with updating, where appropriate.
Summary of the Main Implications
Summary of the main implications of the Charities Act –
There is now a Charities Regulator that maintains a Register of Charities that will be available to the public.
All charities have to secure inclusion in the Register of Charities.
Existing Charities (those currently recognised by the Revenue Commissioners) were deemed to be charities by the Regulator and were included in the Register. In time, the Regulator will verify the continuing bona-fides of these charities.
Any other organisations that present themselves to the public as being charities, or fundraise for charitable purposes, will have to apply for, and secure inclusion in the Register.
It is an offence for an organisation that is not a registered charity to describe itself in terms that would cause the public to believe that it is a charity.
The Regulator will have discretion to reduce the amount of documentation required from a charity when registering (if it thinks that supplying all the specified information would be unduly onerous to the charity concerned).
There will be no automatic entitlement to the tax relief schemes operated by the Revenue Commissioners who will continue to determine eligibility for tax reliefs for charities registered with the Charity Regulator.
Charities will be able to advocate for political causes that are directly related to the furtherance of their charitable purposes.
All charities will have to submit an Annual Activity Report to the Charities Regulator. The Minister will consult with the sector on what the content of Annual Activity Reports should be.
Charities that are Companies Limited by Guarantee will continue to be bound by the requirements of Company Law in relation to submitting accounts to Companies Registration Office.
Companies Registration Office will automatically forward Annual Returns by Charities that are companies to the Charity Regulator (to minimise the demands made by dual reporting).
Financial Reporting Requirements:
Charities that are not companies will face the following financial reporting requirements: –
- Organisations with income above a yet to be prescribed threshold of up to a maximum of €100k per annum will be required to submit audited accounts to the Regulator
- Charities with income less than the yet to be prescribed threshold may submit examined accounts (less demanding and expensive to produce).
- Charities with income/expenditure of less than €10,000 per annum will not be required to submit audited or examined accounts, but will have to include a summary of their finances in their Annual Activity Report.
Similar general requirements will apply for all fundraisers/collectors whether they are collecting cash or non-cash (direct debits, standing orders etc.) donations – and will include such things as the wearing of garments and the display of charity details.
Charities will have to show their charity name and number on collector’s garments and on collection boxes. Cash collection boxes will have to be sealed but the Regulator will have the discretion to make exceptions to the sealed collection box rule to enable those charities that offer fixed-price tokens to make change for donors.
The Regulation of Fundraising
There will be a three pronged approach to the regulation of fundraising:
- Garda Permits will be required for all types of fundraising including non-cash collections.
- Requirements are set out for the conduct of both cash and non-cash collections.
- Details of fundraising activity and income will be required in the Annual Activity Report/Annual Returns
The operational and administrative fundraising issues are to be regulated by means of agreed codes of practice to be developed with the sector. If this approach proves ineffective the
Minister has reserved the power to legislate on the issue.
Remunerating a Trustee/s
A charity will be permitted to remunerate a trustee/s for providing a service for it – as long as that service does not relate to the performance of their duty as a Trustee. Charities will now be able to indemnify their trustees out of charitable funds for any act done, or omitted from being done, in good faith and in the performance of his or her functions as a charity trustee.
Relief from Personal Liabilities
The High Court will be able to grant relief from personal liabilities for trustees where in the opinion of the court a trustee has acted in good faith and in line with their fiduciary responsibilities
Foreign Based Charities
There will be no requirement for foreign-based charities to have a registered place of business in Ireland prior to their registering with the Regulator.
Charity Appeals Tribunal
A Charity Appeals Tribunal will be established to enable organisations to challenge decisions made by the Regulator.
There are huge implications – will sports clubs be included? how about religious bodies, they are not keen to publish Accounts for some of their trusts. You may learn much from the disclosures made in compliance with the Act – how much your local priest is paid, how much the bishop is paid and how much the rector gets in comparison. There will be field days for the press.