2011 Charities Act 2009 and Electoral Acts 1997

Report
CHARITIES ACT 2009
ELECTORAL ACTS 1997 – 2002
PRESENTATION BY
JOE O’MALLEY
Partner
At OPEN on 29 June 2011
driven by knowledge and experience
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1
Existing Legal Framework
• Revenue Commissioners;
– Tax Exemption
– Pemsel judgment
– Continue in parallel to new regime
• Commissioners for Charitable Donations and Bequests for Ireland
– Advisory and Facilitative
- Dissolved and transfer of functions to Charities Regulatory Authority
• A need for reform
2
Principal Features of the Charities Act 2009
•Charities Regulatory Authority
• Charities Register
• Definition of Charitable Purpose
• Excluded Bodies
• New obligations on applicant and registered charities
• Improved Enforcement Measures
• Modernisation of fundraising regulation
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Principal Features of the Charities Act 2009
IMPORTANT DEFINITIONS
•“Charitable Organisation” means trustees of a charitable trust or a body
corporate or an unincorporated body of persons that promotes a charitable
purpose only.
•“Charitable Purpose” means (a) the prevention or relief of poverty or
economic hardship (b) the advancement of education (c) the advancement of
religion (d) any other purpose that is of benefit to the community. Subject to
public benefit requirement.
•“Excluded Body” includes bodies with a principal object to promote a
political party, candidate or cause.
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Principal Features of the Charities Act 2009
IMPORTANT DEFINITIONS
•“Purpose of Benefit to the Community”
•Community Welfare
•Community Development
•Civic Responsibility/Voluntary Work
•Promotion of Health/Relief from Illness
•Conflict Resolution
•Religious/Racial Harmony
•Environmental Protection
•Relief of Suffering for Animals
•Advancement of Arts, Culture and Science
•Integration of the Disadvantaged into Society
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Principal Features of the Charities Act 2009
CHARITIES REGULATORY AUTHORITY
•Regulatory and Supportive
•Inherited functions and powers
•Composition
•Main functions under the Bill– (i) establishment of Register of Charities
(ii) monitor compliance with the Bill
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Principal Features of the Charities Act 2009
CHARITIES REGULATORY AUTHORITY – (Continued)
• Independent in the performance of its functions?
• Obtaining and disclosing information with other state bodies
• Strategy Statement
• Annual Report
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Principal Features of the Charities Act 2009
CHARITIES REGULATORY AUTHORITY – (Continued)
•The Charities Register
•Application for Registration
•Charity Name Protection – Early registration
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Principal Features of the Charities Act 2009
CHARITIES REGULATORY AUTHORITY – (Continued)
•Removal from Register
• Appeal of CRA Decisions – Charity Appeals Tribunal and The High Court
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Principal Features of the Charities Act 2009
KEY OBLIGATIONS IMPOSED ON CHARITABLE ORGANISATIONS
•Keep proper books of account
•Annual Statement of Accounts
•Annual Audit or Examination of Accounts
•Annual Report
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Principal Features of the Charities Act 2009
DISQUALIFICATION OF TRUSTEES
• Insolvency
• Convicted for an indictable offence or sentenced to imprisonment
• Disqualified as a company director or trustee of a pension scheme
• Removed by the High Court
• NB. Duty on other trustees or members of staff to report – section 57
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Principal Features of the Charities Act 2009
INVESTIGATIONS
• Investigators to be appointed by CRA
• Powers to compel production of documents and summons the attendance
of witnesses to be examined on oath
• Seek the involvement of An Garda Síochána
• Offence not to comply with direction of an Investigator
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Principal Features of the Charities Act 2009
PENALTIES FOR OFFENCES
• Summary conviction attracts a fine of €5K and/or 12 months
imprisonment
• Indictment conviction attracts a fine of up to €300K and/or 5 years
imprisonment
•Prosecutions must be brought within two years
•Personal Criminal Liability is very broadly defined
•CRA may prosecute summary offences
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Principal Features of the Charities Act 2009
FUNDRAISING
•
Current regime under the Street and House-to-House Collections Act
1962
•
Revised definition of “collection”
•
New Permit Regime for non-cash collection
•
Codes of Practice
•
Specific requirements for money collection boxes
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Principal Features of the Electoral Acts 19972002
•
Donations for Political Purposes – Most Relevant Definitions
1. To present, directly or indirectly, the policies or a particular
policy of a political party,
2. To promote or oppose, directly or indirectly, the interests of a
third party in connection with the conduct or management of
any campaign conducted with a view to promoting or procuring a
particular outcome in relation to a policy or policies or functions
or the Government or any public authority.
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Principal Features of the Electoral Acts 19972002
•
Practical Implications for NGOs
1. Limits on the amounts that can be donated from a single donor
(€6,348.69) and requirement to declare and separately account
for donations above €126.697 to Standards of Public Office
Commission,
2. Effects upon charitable advocacy,
3. Modus Vivendi reached with Standards in Public Office
Commission,
4. Electoral Amendment (Political Donations) Bill 2011,
5. Position in England and Wales – Is it a legitimate means of
furthering the charitable purposes of the relevant charitable
entity?
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Principal Features of the Electoral Acts 19972002
•
Compatibility with ECHR and Bunreacht Na hÉireann
1. Freedom of Expression/Association – Article 40.6.1 of the
Constitution and Article 10 of the ECHR,
2. Legitimate and proportionate.
THANK YOU
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