Regulator of Charities
The 2009 Charities Act established the Charities Regulatory Authority. The functions of the pre-existing Commissioners of Charitable Donations and Bequests were transferred to the Charities Regulatory Authority. The former Commissioners played a function in relation to receipt of charitable gifts in wills and otherwise and made applications to Court to reorganise charitable gifts to which direct effect could not be given.
The legislation preserves the pre-existing definition of a charity as set out otherwise. It clarifies that certain gifts for religion which have the principal objective of making a profit or employing psychological manipulation are not deemed charitable.
The 2009 Act specifically clarifies that the following are charitable:
- Advancement of community welfare including relief as those in need by reason of youth, age, ill health or disability;
- Advancement of community development rural or urban generation;
- Promotion of health including prevention of sickness, disease or suffering;
- Promotion of civic responsibility or voluntary work;
- Promotion of religious or racial harmony and harmonisation of commuter relations;
- Protection of the natural environment;
- Advancement of environmental sustainability;
- Advancement and sufficient effective use of charitable organisations property;
- Prevention of or relief of suffering of animals;
- Advancement of art and culture heritage of scientists;
- Integration of disadvantaged and promotion of their participation in society.
The Charities Regulatory Authority establishes and maintains a register of charitable organizations. It may defray its expenses through fees charged to charities as may be decided by the Minister. Charities intended to carry on any activities in the State must apply to the authority to be registered.
Existing charitable organisations were obliged to make applications within a certain period. Applicants for registration must give details in relation to a broad category of matters including particular details of activities and proposed activities, proposed money raising steps, funding plans, details of professional fund-raising agents or other consultants account.
The Charities Regulatory Authority may only register an organisation if it qualifies as a charitable. Organisations which prior to the legislation were registered by the Revenue Commissioners under either of the above categories are deemed registered.
It is an offence for an unregistered charitable organisation to carry out activities in the State. Any advertising, invitation to give money, or acceptance of gifts constitutes an offence.
Refusal or Removal of Registration
The authority may refuse to register certain names on the basis that they are similar to existing names, misleading in relation to the purposes or activities or likely to cause the public to believe there is a collection of the government or official body or are offensive.
The Authority may remove a charitable organisation from the register for various reasons including that their purposes are unlawful contrary to public policy, contravene the legislation or cease to qualify. It may consult with an Garda Siochana. Due process provisions apply
There is provision for appeal against a refusal to register. The Minister for Justice may appeal a decision to register to the appeals body.
It is an offence to hold a body as having charitable status if is not registered. This includes a reference in any promotional literature, notice or advertisement.
Records and Accounts
Charities must keep books of account to record and explain all transactions and enable the financial position to be determined with reasonable accuracy, enable the trustees to ensure accounts comply with regulation and enable accounts to be audited.
Charity trustees must prepare accounts in a format as may be prescribed. Where the gross income or expenditure is less than €100,000 per annum, an income and expenditure account and statement of assets and liabilities suffices.
There are certain exemptions from the obligation to prepare accounts including that for companies (where accounting exemption already exist for certain charities with an income below certain thresholds).
Generally, charitable organisations accounts must be audited unless their gross income or total expenditure falls below a minimum threshold.
Charity trustees must produce an annual report in respect of its activities which must be submitted to the regulatory authority. The authority generally makes the reports available for inspection by the public.
Disqualifications and Disclosure
Certain persons are disqualified from being charitable trustees including bankrupts, persons convicted of an indictable offence, persons sentenced to prison, persons restricted or prohibited from being company directors, persons removed or disqualified from being charitable trustees by Court.
Certain persons have obligations to report offences to the charities regulatory authority. These cover, in particular, an auditor, charity trustee, certain investment adviser or persons involved in the preparation of the annual report. There is whistleblowing protection.
The authority may take steps to investigate the affairs of charitable organisations. It has powers to require the production of documents, require persons to attend and give all assistance required for the investigations. Persons holding relevant information may be required to produce it, attend before or give assistance to the inspector appointed by the regulatory authority.
The inspector has the power to examine trustees or staff and other relevant persons on oath. The inspector may make a report to the authority. The authority may furnish the report to various bodies including Revenue Commissioner, DPP. They may cause them to be published. The expense of the report can be charged on the authority if it is false.
The authority has powers generally to require organisations to produce books and documents as may be required. A direction may be given where there is a basis for investigating unlawful activities or wrongdoing. Copies may be taken of books and documents.
On the Application to a Judge of the District Court, a warrant may be issued to enter and search premises, inspect and take copies of documents and take steps to ensure the documents and records are preserved and not interfered with.
The authority may impose administrative sanctions where there have been contraventions of legislation and it would be reasonable and proportionate not to bring criminal proceedings if the trustees undertake to rectify the contravention, accept the sanctions and adopt an agreed course.
The Charity Appeals Tribunal hears appeals from certain decisions of the charity’s regulatory authority. The Tribunal includes former Judges, experienced barristers or solicitors or persons with expertise in the area of charity. The Tribunal shall consist of 5 members, of whom 2 shall be persons, each of whom hold or formerly held judicial office in the Superior Courts, or are barristers or solicitors of not less than 10 years’ standing, and 2 shall be persons who, in the opinion of the Minister, have experience in areas of expertise relating to charities.
The members of the Tribunal shall be appointed by the Minister. The chairperson of the Tribunal shall be appointed by the Minister from among the members of the Tribunal.
A member of the Tribunal shall hold office for such period, not exceeding 5 years from the date of his or her appointment, as the Minister shall determine. A member of the Tribunal whose term of membership of the Tribunal expires shall be eligible for reappointment as a member of the Tribunal.
Determination of appeals by Tribunal.
An appeal to the Tribunal shall be brought not later than 21 days from the date of the decision that is being appealed. The Tribunal shall hold one or more hearings for the purpose of determining an appeal.
Proceedings before the Tribunal shall be conducted in public. The Tribunal may, where it considers that in the particular circumstances of a case it is appropriate to so do, make an order directing that the identities of all or one or more of the parties to an appeal shall not be disclosed.
The procedure to be followed in relation to an appeal to the Tribunal shall be such as shall be determined by the Tribunal by rules made by it with the consent of the Minister.
Appeal from the Tribunal.
A party to proceedings before the Tribunal may appeal a decision of the Tribunal to the High Court on a point of law.
An appeal under this section shall not be brought without the permission of the Tribunal, or if the Tribunal refuses permission, the High Court.