Legal Environment: ACNC Report - Regulatory Framework and Risk

This report provides a comprehensive analysis of the legal environment surrounding the Australian Charities and Not-for-profits Commission (ACNC). It begins with an executive summary and table of contents, followed by an introduction outlining the ACNC's role in regulating charities. The report then delves into legal governance, management, and relationship issues affecting the ACNC, including compliance with Australian laws, management challenges, and government collaboration. It examines relevant legislation, such as the Australian Charities and Not-for-profits Commission Regulation 2013 (Cth) and the Australian Charities and Not-for-profits Commission Act 2012 (Cth), and highlights areas of high legal risk, particularly money laundering and terrorism financing. The report also explores strategic options for management, considering costs and benefits, and concludes with recommendations to improve the ACNC's operations. The report draws on various academic sources to support its findings and recommendations.

Running head: LEGAL ENVIRONMENT
Legal Environment
Name of the Student
Name of the University
Author Note

1LEGAL ENVIRONMENT
Executive Summary:
The report intends to demonstrate upon the existence of the legal and regulatory environment in
relation to the chosen organization. In this regard, the report highlights the issues regarding legal
governance, management and relationship issues that widely affect the organization. The
intention of the report is to emphasize upon the general and specific legislation and the areas of
high legal risk in both short-run and long-run. Lastly, the report is commissioned to examine
various recommendations in terms and costs and benefit to the organization.

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Table of Contents
Introduction:..................................................................................................................................3
Legal governance, management and relationship issues affecting the (ACNC):.....................4
Issues regarding legal governance:...........................................................................................4
Issues regarding management:.................................................................................................5
Relationship issues:....................................................................................................................5
Legislation in relation to the regulation of the organization:....................................................6
Areas of high legal risk for the organization:.............................................................................8
The reasons and implications of terrorism financing in the short and long-run:.................11
Strategic options for the management in terms of cost and benefit to the ACNC:...............13
Recommendations and Rationale:..............................................................................................14
References:...................................................................................................................................16

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Introduction:
From the very beginning, the Australian Charities and Not-for-profits Commission
(ACNC) has been regulating as an independent organization by focusing upon the operations of
charities throughout Australia. In this regard, it is worth mentioning that, for the purpose of
maintaining and protecting public trust by enhancing its confidence throughout the sector, the
Australian Charities and Not-for-profits Commission (ACNC) has emphasized in increasing the
transparency and accountability in the process ("Australian Charities and Not-for-Profits
Commission", 2018). However, the Australian Charities and Not-for-profits Commission
(ACNC) has been working as a statutory body and the national regulator as well for the purpose
of regulating the day to day operations of the voluntary sectors, non-profit organizations and
charitable organizations. The Australian Charities and Not-for-profits Commission (ACNC) has
been supporting and sustaining strong, prosperous, active and independent decisions in order to
regulate the activities of the non-profit sectors ("Australian Charities and Not-for-Profits
Commission", 2018). However, the most important activity in which the ACNC is involved is
regarding the promotion of other regulatory activities and at the same time enhancing reduction
of superfluous regulatory obligations within such sector.
In order to achieve the aims and objectives, the Australian Charities and Not-for-profits
Commission (ACNC) has been involved in the registration of various organizations as charities.
In this regard, it is worth examining that, the Commission has been providing active support to
the charities in order to make them aware of the kind of work they are involved in. in such
process, the ACNC has been assisting the charities in meeting the obligations arising in their way
by providing appropriate information, advice, guidance and constant support. In this regard, it is

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noteworthy to mention here that, the Commission has been providing appropriate information to
the general public so that they could gain sufficient knowledge regarding the nature of the work
in which the non-profit organizations are involved in. It is worth noting that, in order to provide
better access to the general public in regard to collection of appropriate information, the
Australian Charities and Not-for-profits Commission (ACNC) has been maintaining a register
which can be easily accessed by the general public for the purpose of obtaining relevant
information regarding the activities of the registered charities (Arshad et al., 2015). Since its
establishment, the (ACNC) has been operating in collaboration with the agencies of the state and
territorial governments for the purpose of developing appropriate reporting structure for the
charitable activities.
Legal governance, management and relationship issues affecting the (ACNC):
It is evident that any organization, while operating the day to day activities might face
issues regarding legal governance, management and relationships (Artiach et al., 2016).
Therefore, for the purpose of outlining the kinds of issues related to legal governance,
management and relationships, it is worth examining the standards of governance, its activities
and relations.
Issues regarding legal governance:
The most important issue faced by the Australian Charities and Not-for-profits Commission
is regarding the compliance with the Australian laws. In this regard, it is worth noting that,
according to the standards of legal governance, it is important on the part of the charities to act in
the way as prescribed by the Commonwealth, state and territorial laws (Barnes & Howson,
2017). Therefore, it can be stated that the issues faced by the ACNC in relation to legal

5LEGAL ENVIRONMENT
governance can be emphasized as a serious criminal offence which has been decided by a trial
judge (Bennett et al., 2015). The issues regarding legal governance can be emphasized as the
breach of civil laws comprising of penalty having 60 penalty units. In this context, it is
worthwhile to refer here that, it is important on the part of an organization to gain sufficient
knowledge regarding the existing legal obligations within the charity and also regarding the
obligations which the concerned organization has with the ACNC (Chai-Aun, Hooy & Zulkafli,
2016). In such process, it is worth noting that, any breach of the standards of legal governance
and failure to comply with the existing laws, the organization may end up being reviewed by the
regulators of ACNC.
Issues regarding management:
The functioning of any non-profit organizations often faces significant issues in relation to
management. In this regard, mention can be made about the concept of private benefit, in which,
most of the resources are utilized for the purpose of benefiting the ones close to the charitable
organization other than that of the beneficiaries. In such process, the purpose of charity ceases to
exist (Chelliah, Boersma & Klettner, 2015). The managerial issues can create unfavorable impact
upon the financial structure and strategies of the charity. Therefore, it can be noted that, it is
essential on the part of the charities to gain sufficient knowledge regarding the existence of
certain standards and at the same time needs to be aware of the issues in relation to private
benefit (Furneaux & Ryan, 2014). However, it is required on the part of ACNC to take part in
the process of implementation of policies and procedures for the purpose of managing them.
Relationship issues:
One of the main relationship issue faced by the ACNC is regarding its collaboration with the
departments of government. Most of the time, it can be observed that, the government authorities

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do not provide active support in organizing funds for chartable purpose. However, in order to
address this issue, the ACNC has been delivering training to charities in free of cost. In recent
era, the ACNC has laid emphasis in supporting improved governance and the regulation of
financial management (Chelliah, Boersma & Klettner, 2015). It is worthwhile to refer here that,
over the last few years, the ACNC faced media scrutiny in relation to government issues, and
cost of administration, fundraising and legal issues (Furneaux & Ryan, 2014). As a result of
such problems, the potential damage to public trust and confidence increased considerably in the
charitable sectors of Australia.
Legislation in relation to the regulation of the organization:
The Australian Charities and Not-for-profits Commission Regulation 2013 (Cth) has been
regulating the functioning of the ACNC for a long time. It is noteworthy to mention here that, the
Australian Charities and Not-for-profits Commission Regulation 2013 legislation has been
presenting opportunities for the stakeholders from time to time for the purpose of presenting
views regarding the role of the ACNC in relation to the regulation of the charitable sectors within
the nation (Heesh & Lobow, 2015). In this context, the Australian Charities and Not-for-profits
Commission Regulation 2013 (Cth) has taken into consideration that how the regulatory
provisions can be improved by modifying the existing legislations. In this regard, the Australian
Charities and Not-for-profits Commission Regulation 2013 (Cth) has provided active support
towards the incorporation of the ACNC. In such process, the legislation helped to shape the
ACNC as a national regulator for charitable purposes (Jones, 2018). The legislation has proved
to be beneficial in creating favorable effects upon the functioning of the charitable sectors and
increasing the scope of public confidence within it (Khanna & Irvine, 2018). It is worthwhile to
refer here that, the Australian Charities and Not-for-profits Commission Regulation 2013 (Cth)

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been involved in the process in the reduction of unnecessary red tape. However, the government
authorities did not provide support in order to reduce the impact of red tape (Kordík &
Kurilovská, 2017). As a result of which the initiatives regarding red tape reduction were largely
affected.
The Australian Charities and Not-for-profits Commission Act 2012 (Cth) (ACNC Act), is
the general legislation that has been setting out the objectives and functions of the ACNC. The
legislation is also involved in the process of development of framework for registration and in
regulating the charities (McDonald et al., 2015). It is known to all that, the regulation of charity
requires balance however; it is important such regulation should ensure benefits to the
organization. Over-regulation is strictly restricted as it will bring discrepancies and uncertainty
within the sector. It is worth stating that, so far the process of regulation and reporting in relation
to the nature of complexity of charity has been a major issue as complained by the individuals of
the concerned sectors. However, the fundraising legislation has been a matter of concern till date.
The aim of the Australian Charities and Not-for-profits Commission Act 2012 (Cth) in regard to
the establishment of the ACNC is concerned with the promotion of the reduction of unnecessary
regulatory obligations in case of Australian non-profit organizational sectors (McGregor-
Lowndes, 2016). It is worthwhile to examine the significance of the Australian Charities and
Not-for-profits Commission Act 2012 (Cth) (ACNC Act), which has established a national
regulator for the purpose of regulating the activities of the non-profit entities. The regulator can
be termed as the Commissioner of the Australian Charities and not-for-profits Commission
(ACNC). The (ACNC) Act has been regulating the day to day functioning of the Australian
Charities and Not-for-profits Commission in regards to its registration formalities of the non-
profit entities (McGregor-Lowndes & Crittall, 2015). This Act has created favorable impact upon

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the operations of the Commission and its cooperation with the other government authorities in
order to emphasize upon a simplified and streamlined regulatory structural framework.
Areas of high legal risk for the organization:
It can be emphasized that, the risk of money laundering and misuse of terrorism financing
has posed to be the major legal risks for the organization. It can be observed that, the threat of
money laundering in regard to criminal misuse in the non-profit sectors of Australia has been
evaluated as high (Michaelsen & Goldbarsht, 2018). Therefore, it can be rightly commented that,
the key legal risks faced by the organization is associated with fraud and theft of resources which
is often concerned with tax evasion (Omar et al., 2015). In this regard, in-depth analysis would
be conducted for the purpose of determining the extent of the illicit activity involved.
One of the areas of high legal risk to the Australian Charities and Not-for-profits
Commission (ACNC) involves money laundering. Money laundering has been identified as the
major risk to the ACNC because from the very beginning, it posed as a key risk to the economic
structure and tax revenue in Australia (Phillips & Blumberg, 2016). It is evident that the process
of money laundering entrusts rights upon criminals for the purpose of legitimizing proceeds from
committing crimes. In this regard, the process of money laundering has been enabling offenders
to engage themselves in the accumulation and hiding of wealth by avoiding prosecution, evading
taxes, increasing profits with the process of reinvestment. In this way further criminal activities
are encouraged (Rice & Rahman, 2015). In this context, it is worth emphasizing that, the process
of money laundering involves three stages-
 Placement: The process takes place with the introduction of the illicit funds or assets into
the formal financial system.

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 Layering: The process is concerned with the movement and dispersion of illegal funds
and assets for the purpose of concealing the true source of origin.
 Integration: This process is associated with the movement of illegal funds back into the
original source i.e. the legitimate economy.
In case of Australian Charities and Not-for-profits Commission (ACNC), it can be observed
that the first two stages are involved i.e. the placement and the layering. In this regard, it can be
stated that, the resources of Australian Charities and Not-for-profits Commission (ACNC) has
been utilized for the purpose of placing illegal funds into the financial system and thereafter the
illegal funds are being layered with the application of multiple financial transactions (Romaniuk
& Keatinge, 2017). The concept of money laundering has been defined in the Division 400 of
the Criminal Code Act 1995.
The risk of terrorism financing in case of non-profit organizations is assessed to be
medium. This is due to the reason that, non-profit organizations have not been considered as a
major source terrorism financing (Simnett, Carson & Vanstraelen 2016). In few suspected cases,
it has been observed that, the non-profit organizations were involved in raising funds for the
purpose of promoting domestic terrorist activities within Australia (Seymour & Nehme 2015).
In such process, it has been observed that, non-profit organizations were also involved in
transferring offshore money for the purpose of providing active assistance to individuals engaged
in foreign conflict (Smith-Ruig, 2018). However, in case of Australian Charities and Not-for-
profits Commission (ACNC), is medium.
The concept of terrorism financing is associated with three different stages which can be
emphasized as-

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 The process of fund raising with the involvement of donations, self-funding activities and
legitimate business or criminal activities.
 The transfer of funds from an organization to any terrorist network.
 The individuals involved in the process of fund transferring and associated with terrorist
groups.
It is worthwhile to refer here that, the most serious consequences of terrorism financing are
directly experienced by the non-profit organizations and in such process the intended
beneficiaries do not receive any funds that has been raised because they are transferred to
criminal operations (Tweedie, 2016). It is worth noting that, in recent era, the security impact can
be emphasized as the most serious consequences of the misuse of terrorism financing. This is due
to the reason that, as a result of the practice of terrorism financing, revenues and diminished
which takes place through diversion of funds (Vaughan-Williams, 2016). In this way, the
operation of the Australian Charities and Not-for-profits Commission (ACNC) has been
disrupted to the large extent. In this regard, it can be observed that there has been serious flow of
impact on the part of the beneficiaries as they have not received any vital supplies or funds as a
result of the practice of terrorism financing (Wilkins & Gilchrist, 2016).
It can be rightly commented that, the possible threats of terrorism financing are higher than
that of money laundering as a result of the existing national and international security impacts. It
can be stated that the funds that has been utilized for the purpose of terrorism financing is
difficult to trace (Tweedie, 2016). In this regard, mention can be made about the existence of the
NPO funds, which ends up getting into terrorist activities and as a result of it, this forms the main
concern for conflict in the countries of Middle East where most of the funds are utilized for
military and operational activities. The ACNC also faced reputational harm with the occurrence

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of suspected or actual event of terrorism financing (Romaniuk & Keatinge, 2017). However, in
spite of all these, the ACNC has lessened the threat of money laundering and terrorism financing
in its sector because it has created unfavorable impact upon the reputation and the operations of
various other entities like financial institutions and banks which are closely associated with it.
The reasons and implications of terrorism financing in the short and long-run:
It is evident that, there is ability on the part of not-for –profit organizations to raise funds
for the purpose of transferring them to offshore. However, in such process, it is essential that the
not-so-profit organizations to ensure that they have developed strategies in order to mitigate risks
concerned with terrorism financing (Heesh & Lobow, 2015). It is true that charities can be
utilized as channels in order to raise and distribute funds for terrorism financing. It is essential on
the part of the charities to undertake reasonable precautions by exercising in due diligence for the
purpose of reducing risk especially in cases while working with non-profit organizations. In this
way, it can be ensured that the funds are not inappropriately used to promote terrorism financing.
Building appropriate governance structures will reduce the impact of terrorism financing in both
the short and long term.
It is worth mentioning that, various reasons and implications are associated with the risk
of terrorism financing which can affect the ACNC in the short term and long term (Furneaux &
Ryan, 2014). It can be rightly stated that, there are various ways in which the funds of the
charities are misused for the purpose of promoting terrorist activities. The reasons can be
emphasized as-
 Inappropriate use of funds and assets of charity: In most of the time, it can be seen
that organizations having a close relationship with a charitable organization often