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6 2009

Charities Act 2009

PART 2

Charities Regulatory Authority

Establishment Day.

12 .— The Minister shall, by order, appoint a day to be the establishment day for the purposes of this Act.

Establishment of Charities Regulatory Authority.

13 .— (1) There shall stand established on the establishment day, a body which shall, subject to subsection (2), be known as an tÚdarás Rialála Carthanas or in the English language the Charities Regulatory Authority (in this Act referred to as the “Authority”), to perform the functions conferred on it by this Act.

(2) The Authority may, for operational purposes, describe itself as An Rialálaí Carthanas or in the English language the Charities Regulator.

(3) The provisions of Schedule 1 shall have effect in relation to the Authority.

Functions of Authority.

14 .— (1) The general functions of the Authority shall be to—

(a) increase public trust and confidence in the management and administration of charitable trusts and charitable organisations,

(b) promote compliance by charity trustees with their duties in the control and management of charitable trusts and charitable organisations,

(c) promote the effective use of the property of charitable trusts or charitable organisations,

(d) ensure the accountability of charitable organisations to donors and beneficiaries of charitable gifts, and the public,

(e) promote understanding of the requirement that charitable purposes confer a public benefit,

(f) establish and maintain a register of charitable organisations,

(g) ensure and monitor compliance by charitable organisations with this Act,

(h) carry out investigations in accordance with this Act,

(i) encourage and facilitate the better administration and management of charitable organisations by the provision of information or advice, including in particular by way of issuing (or, as it considers appropriate, approving) guidelines, codes of conduct, and model constitutional documents,

(j) carry on such activities or publish such information (including statistical information) concerning charitable organisations and charitable trusts as it considers appropriate,

(k) provide information (including statistical information) or advice, or make proposals, to the Minister on matters relating to the functions of the Authority.

(2) The Authority shall have all such powers as are necessary or expedient for the performance of its functions.

(3) Subject to this Act, the Authority shall be independent in the performance of its functions.

(4) The Authority may perform any of its functions through or by any member of the staff of the Authority duly authorised in that behalf by the Authority.

Directions of Minister.

15 .— (1) The Minister may, in relation to the performance by the Authority of its functions, give a direction in writing to the Authority requiring it to comply with such policies of the Government as are specified in the direction.

(2) The Minister may, in relation to the performance by the Authority of its functions under section 39 , give a direction in writing to the Authority requiring it to comply with such matters specified in the direction relating to—

(a) the maintenance of the register,

(b) the collection and collation of information for the purpose of maintaining the register, or

(c) the entry into agreements with persons, other than charitable organisations, for the purpose of obtaining such information.

(3) The Minister may, by direction in writing, amend or revoke a direction under this section (including a direction under this subsection).

(4) The Authority shall comply with a direction under this section.

Grants to Authority.

16 .— In each financial year, the Minister may, after consultation with the Authority, advance to the Authority out of moneys provided by the Oireachtas such sums as the Minister may, with the consent of the Minister for Finance, determine.

Borrowings by Authority.

17 .— The Authority may, with the consent of the Minister and the Minister for Finance and subject to such conditions (if any) as they may specify, from time to time, borrow money (whether on the security of the assets of the Authority or not).

Recovery of expenses of Authority.

18 .— Any costs or expenses incurred by the Authority in the management or administration or for the preservation or recovery of any property vested in the Authority or otherwise in the execution of this Act may be borne and deducted by the Authority from the estate and funds of the charitable organisation in respect of which those costs and expenses were incurred.

Chief executive.

19 .— (1) There shall be a chief executive officer of the Authority (in this Act referred to as the “ chief executive ”).

(2) Subject to subsections (4) and (5), the chief executive shall be appointed by the Authority with the consent of the Minister.

(3) The chief executive may be removed from office by the Authority for stated reasons.

(4) The Minister may, before the establishment day, designate a person to be appointed to be the first chief executive of the Authority.

(5) If, immediately before the establishment day, a person stands designated by the Minister under subsection (4), the Authority shall appoint that person to be the first chief executive.

(6) The chief executive shall hold office upon and subject to such terms and conditions (including terms and conditions relating to remuneration, allowances and superannuation) as may be determined by the Authority with the approval of the Minister given with the consent of the Minister for Finance.

(7) The chief executive shall not hold any other office or employment or carry on any business without the consent of the Authority.

Functions of chief executive.

20 .— (1) The chief executive shall carry on and manage, and control generally, the administration of the Authority and perform such other functions (if any) as may be determined by the Authority.

(2) The chief executive shall perform his or her functions subject to such policies as may be determined from time to time by the Authority, and shall be accountable to the Authority for the efficient and effective management of the Authority and for the due performance of his or her functions.

(3) The chief executive may make proposals to the Authority on any matter relating to its functions.

(4) The Authority may designate a member of the staff of the Authority to perform the functions of chief executive in the absence of the chief executive or where the position of chief executive is vacant, and a member so designated shall in such absence or upon such position being vacant perform those functions.

Delegation of functions of chief executive.

21 .— (1) The chief executive may, with the consent of the Authority in writing, delegate any of his or her functions to a specified member of staff of the Authority, and that member of staff shall be accountable to the chief executive for the performance of the functions so delegated.

(2) The chief executive shall be accountable to the Authority for the performance of functions delegated by him or her in accordance with subsection (1).

(3) The chief executive may, with the consent of the Authority in writing, revoke a delegation made in accordance with this section.

(4) In this section “functions” does not include a function delegated by the Authority to the chief executive subject to a condition that the function shall not be delegated by the chief executive to anyone else.

Accountability of chief executive to Public Accounts Committee.

22 .— (1) The chief executive shall, whenever required in writing to do so by the Committee of Dáil Éireann established under the Standing Orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptroller and Auditor General (in this section referred to as the “Committee”), give evidence to that Committee in relation to—

(a) the regularity and propriety of the transactions recorded or required to be recorded in any book or other record of account subject to audit by the Comptroller and Auditor General that the Authority is required by this Act to prepare,

(b) the economy and efficiency of the Authority in the use of its resources,

(c) the systems, procedures and practices employed by the Authority for the purpose of evaluating the effectiveness of its operations, and

(d) any matter affecting the Authority referred to in a special report of the Comptroller and Auditor General under section 11 (2) of the Comptroller and Auditor General (Amendment) Act 1993 , or in any other report of the Comptroller and Auditor General (in so far as it relates to a matter specified in paragraph (a), (b) or (c)) that is laid before Dáil Éireann.

(2) In the performance of his or her duties under this section, the chief executive shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy.

Accountability of chief executive to other Oireachtas Committees.

23 .— (1) In this section “ Committee ” means a Committee appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas (other than the Committee referred to in section 22 or the Committee on Members’ Interests of Dáil Éireann or the Committee on Members’ Interests of Seanad Éireann) or a subcommittee of such a Committee.

(2) Subject to subsection (3), the chief executive shall, at the request in writing of a Committee, attend before it to give account for the general administration of the Authority.

(3) The chief executive shall not be required to give account before a Committee for any matter which is or has been or may at a future time be the subject of proceedings before a court or Tribunal in the State.

(4) Where the chief executive is of the opinion that a matter in respect of which he or she is requested to give an account before a Committee is a matter to which subsection (3) applies, he or she shall inform the Committee of that opinion and the reasons for the opinion and, unless the information is conveyed to the Committee at a time when the chief executive is before it, the information shall be so conveyed in writing.

(5) Where the chief executive has informed a Committee of his or her opinion in accordance with subsection (4) and the Committee does not withdraw the request referred to in subsection (2) in so far as it relates to a matter the subject of that opinion—

(a) the chief executive may, not later than 21 days after being informed by the Committee of its decision not to do so, apply to the High Court in a summary manner for determination of the question whether the matter is one to which subsection (3) applies, or

(b) the Chairperson of the Committee may, on behalf of the Committee, make such an application,

and the High Court shall determine the matter.

(6) Pending the determination of an application under subsection (5), the chief executive shall not attend before the Committee to give account for the matter the subject of the application.

(7) If the High Court determines that the matter concerned is one to which subsection (3) applies, the Committee shall withdraw the request referred to in subsection (2), but if the High Court determines that subsection (3) does not apply, the chief executive shall attend before the Committee to give account for the matter.

(8) In the performance of his or her duties under this section, the chief executive shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy.

Staff.

24 .— (1) The Authority shall appoint, with the consent of the Minister given with the consent of the Minister for Finance, such and so many persons to be members of the staff of the Authority as it may from time to time determine.

(2) The terms and conditions of service of a member of the staff of the Authority shall, with the consent of the Minister given with the consent of the Minister for Finance, be such as may be determined from time to time by the Authority.

(3) There shall be paid by the Authority to the members of its staff such remuneration and allowances as, from time to time, the Authority, with the consent of the Minister given with the consent of the Minister for Finance, determines.

Transfer of staff to Authority.

25 .— (1) Every person who immediately before the establishment day was an officer of the Minister and was exclusively engaged in the performance of functions on behalf of the dissolved body shall, on the establishment day, become and be a member of the staff of the Authority.

(2) Save in accordance with a collective agreement negotiated with any recognised trade union or staff association concerned, a person referred to in subsection (1) shall not, while in the service of the Authority, be subject to less beneficial conditions of service (including conditions in relation to tenure of office) or of remuneration than the conditions of service (including conditions in relation to tenure of office) or remuneration to which he or she was subject immediately before the establishment day.

(3) In relation to persons transferred to the Authority under subsection (1), previous service with the dissolved body shall be reckonable for the purposes of, but subject to any exceptions or exclusions in, the Redundancy Payments Acts 1967 to 2007, the Protection of Employees (Part-Time Work) Act 2001, the Organisation of Working Time Act 1997, the Minimum Notice and Terms of Employment Acts 1973 to 2005 and the Unfair Dismissals Acts 1977 to 2007.

Superannuation.

26 .— (1) As soon as may be after the establishment day, the Authority shall prepare and submit to the Minister a scheme or schemes for the granting of superannuation benefits to or in respect of such of its staff (including the chief executive) as the Authority shall think fit.

(2) Every such scheme shall fix the time and conditions of retirement for all persons to, or in respect of whom, superannuation benefits are payable under the scheme, and different terms and conditions may be fixed in respect of different classes of persons.

(3) The Authority may at any time prepare and submit to the Minister a scheme amending or revoking a scheme previously submitted and approved under this section.

(4) A scheme or amending scheme submitted to the Minister under this section shall, if approved by the Minister with the consent of the Minister for Finance, be carried out by the Authority in accordance with its terms.

(5) If any dispute arises as to the claim of any person to, or the amount of, any superannuation benefit in pursuance of a scheme under this section, such dispute shall be submitted to the Minister who shall refer it to the Minister for Finance whose decision shall be final.

(6) No superannuation benefit shall be granted by the Authority to or in respect of any of its staff (including the chief executive) who are members of a scheme under this section, nor shall any other arrangement be entered into for the provision of any superannuation benefit to such persons on their ceasing to hold office, other than in accordance with such scheme or schemes submitted and approved under this section or an arrangement approved by the Minister and the Minister for Finance.

(7) The Minister shall cause every scheme submitted and approved under this section to be laid before each House of the Oireachtas as soon as may be after it is approved, and if either such House within the next 21 days on which that House sits after the scheme is laid before it, passes a resolution annulling the scheme, the scheme shall be annulled accordingly, but without prejudice to anything previously done thereunder.

(8) Where, in the period beginning on the establishment day and ending immediately before the commencement of a scheme under this section, a superannuation benefit falls due for payment to or in respect of a person who was transferred to the staff of the Authority under section 25 , the benefit shall be calculated by the Authority in accordance with such scheme, or such enactments in relation to superannuation, as applied to the person immediately before the establishment day and, for that purpose, his or her pensionable service with the Authority shall be aggregated with his or her previous pensionable service and the said benefit shall be paid by the Authority.

(9) (a) A scheme under subsection (1) shall, as respects a person transferred by section 25 to the staff of the Authority, provide for the granting to or in respect of him or her of superannuation benefits upon and subject to such terms and conditions as are not less favourable to him or her than the terms and conditions that applied to him or her immediately before the establishment day in relation to the grant of such benefits.

(b) Any period of service by a person as a member of the staff of the dissolved body which was a period of reckonable service for the purposes of a scheme for the granting of superannuation benefits to or in respect of members of the staff of the dissolved body shall be regarded as a period of reckonable service for the purposes of any scheme under subsection (1).

(10) In this section “superannuation benefit” means a pension, gratuity or other allowance payable on resignation, retirement or death.

Disclosure of information relating to offences under Act.

27 .— Notwithstanding any rule of law, information that, in the opinion of—

(a) a member of the Garda Síochána,

(b) the Director of Corporate Enforcement, or

(c) such other person as may, after consultation by the Minister with any other Minister of the Government appearing to him or her to be concerned, be prescribed,

may relate to the commission of an offence under this Act may be disclosed by that member, Director or other person to the Authority, or a member or a member of staff of the Authority.

Disclosure of information by Authority where it suspects commission of offence.

28 .— (1) The Authority shall provide any information obtained by it in the performance of its functions that causes the Authority to suspect that an offence has been committed by a charity trustee or a charitable organisation to—

(a) the Garda Síochána,

(b) the Revenue Commissioners,

(c) the Director of Corporate Enforcement,

(d) the Competition Authority, or

(e) any other person charged with the detection, investigation or prosecution of offences,

as may be appropriate, where it is not satisfied that the information has already been reported to a person specified in paragraph (a), (b), (c), (d) or (e).

(2) Information provided under subsection (1) may be used by the person to whom it has been provided for the purpose only of the detection, investigation or prosecution of an offence.

(3) The Authority may provide any information—

(a) obtained by it in the performance of its functions, and

(b) that causes it to suspect that an offence under the law of a state (other than the State) has been committed by a charity trustee of a charitable organisation,

to a person charged under the law of that state with the detection, investigation or prosecution of offences, if the person to whom it is provided gives an undertaking in writing that the information will be used only for the purpose of the detection, investigation or prosecution of the offence concerned.

Strategy statement.

29 .— (1) The Authority shall, as soon as practicable after the commencement of this section, and thereafter not earlier than 6 months before and not later than the expiration of each subsequent period of 3 years following that commencement, prepare and submit to the Minister a strategy statement in respect of the period of 3 years immediately following the year in which the strategy statement is so submitted.

(2) The Minister shall, as soon as practicable after a strategy statement has been submitted to him or her under subsection (1), cause a copy of it to be laid before each House of the Oireachtas.

(3) The Authority shall ensure that, as soon as practicable after copies of a strategy statement are laid before both Houses of the Oireachtas in accordance with subsection (2), the strategy statement is published on the internet.

(4) In this section “strategy statement” means a statement that—

(a) specifies the key objectives, outputs and related strategies, including use of resources, of the Authority, and

(b) is prepared in a form and manner that is in accordance with any directions issued from time to time by the Minister.

Accounts of Authority.

30 .— (1) The Authority shall keep in such form as may be approved by the Minister, with the consent of the Minister for Finance, all proper and usual accounts of all money received or expended by it and, in particular, shall keep in such form as aforesaid all such special accounts as the Minister may, with the consent of the Minister for Finance, from time to time direct.

(2) Accounts kept in accordance with this section shall be submitted, not later than 1 April in the year immediately following the financial year to which they relate or on such earlier date as the Minister may, from time to time, specify, by the Authority to the Comptroller and Auditor General for audit and, immediately after the audit, a copy of the accounts, and of such other (if any) accounts kept in accordance with this section as the Minister, after consultation with the Minister for Finance, may direct and a copy of the Comptroller and Auditor General’s report on the accounts shall be presented to the Minister who shall, as soon as may be, cause copies thereof to be laid before each House of the Oireachtas.

Annual report.

31 .— (1) The Authority shall not later than 30 June in each year prepare and submit to the Minister a report on its activities in the immediately preceding year, and the Minister shall, as soon as may be after receiving the report, cause copies of the report to be laid before each House of the Oireachtas.

(2) The Authority shall arrange for a report laid before both Houses of the Oireachtas in accordance with subsection (1) to be published on the internet as soon as practicable after copies of the report are laid before each House of the Oireachtas.

Provision of information to relevant persons.

32 .— (1) The Authority may provide a relevant person with such information in the possession of the Authority as may reasonably be required for the purpose of enabling the relevant person to perform his or her functions.

(2) In this section “ relevant person ” means—

(a) the Garda Síochána,

(b) the Revenue Commissioners, or

(c) any other person charged under any enactment with—

(i) ensuring compliance with the provisions of any enactment, or

(ii) the detection, investigation or prosecution of any offence.

Administrative cooperation on regulatory matters.

33 .— (1) The Authority shall, in so far as is consistent with the proper performance of its functions, endeavour to secure administrative cooperation between it and relevant regulators, and for that purpose, the Authority may enter into one or more arrangements (whether in the form of a memorandum of understanding or otherwise) with relevant regulators for the purposes of—

(a) facilitating administrative cooperation between the Authority and the relevant regulators in the performance of their respective functions in so far as they relate to the regulation of charitable organisations or charitable trusts,

(b) avoiding duplication of activities by the Authority and any relevant regulator, or

(c) ensuring, as far as practicable, consistency between decisions made or measures taken by the Authority and relevant regulators in so far as any part of those decisions or measures consists of or relates to a determination of any matters concerning the regulation of charitable organisations or charitable trusts.

(2) An arrangement under this section shall not operate to bind the Authority or a relevant regulator.

(3) The Minister and any relevant Minister in relation to a relevant regulator concerned shall each be furnished by one of the parties concerned with a copy of an arrangement under this section and any variation thereof.

(4) The parties to an arrangement under this section may vary the terms of the arrangement.

(5) An arrangement under this section shall not operate to require the Authority to provide information to any relevant regulator if the disclosure of that information by the Authority is prohibited by law.

(6) In this section—

“ relevant Minister ” means, in relation to a relevant regulator, the Minister of the Government who performs functions in connection with that relevant regulator;

“ relevant regulator ” means—

(a) a body, or holder of an office, in whom functions are vested relating to the regulation of activities or persons for purposes other than the purposes of this Act (where the body or office is established by or under an enactment and is prescribed by order of the Minister), or

(b) a body, or holder of an office, in whom functions are vested under the law of a state (other than the State) relating to the regulation of activities or persons in that state for any purpose (where the body or office is prescribed by order of the Minister).

Administrative cooperation with foreign statutory bodies on law enforcement matters.

34 .— (1) The Authority may, with the approval of the Minister, enter into an arrangement with a foreign statutory body whereby each party to the arrangement may—

(a) furnish to the other party information in its possession if the information is required by that other party for the purposes of the performance by it of any of its functions, and

(b) provide such other assistance to the party as will facilitate the performance by that other party of any of its functions.

(2) The Authority shall not furnish any information to a foreign statutory body pursuant to an arrangement to which this section applies unless it requires of, and obtains from, that body an undertaking in writing by it that it will comply with the terms specified in that requirement, being terms that correspond to the provisions of any enactment concerning the disclosure of that information by the Authority.

(3) The Authority may give an undertaking to a foreign statutory body that it will comply with any terms specified in a requirement made of the Authority by the body to give such an undertaking where—

(a) those terms correspond to the provisions of any law in force in the state in which the body is established, being provisions which concern the disclosure by the body of the information referred to in paragraph (b), and

(b) compliance with the requirement is a condition imposed by the body for furnishing information in its possession to the Authority pursuant to an arrangement to which this section applies.

(4) The Authority shall inform the Minister concerning every arrangement for administrative cooperation entered into under this section.

(5) An arrangement under this section shall not operate to require the Authority to provide information to a foreign statutory body if the disclosure of that information by the Authority is prohibited by law.

(6) In this section “foreign statutory body” means a person prescribed by regulations made by the Minister, in whom functions relating to charitable organisations or charitable trusts are vested under the law of a state other than the State.

Consultation with stakeholders.

35 .— The Authority may take such steps as it considers appropriate to consult with persons whom it considers may be affected by the performance by it of its functions.

Consultative panels.

36 .— (1) The Authority may, for the purposes of section 35 , establish a panel or more than one panel, consisting of such persons and such number of persons as it may determine, to perform such tasks as are specified in the terms of reference of the panel concerned.

(2) The Authority shall, in relation to a panel, determine—

(a) its terms of reference,

(b) the rules governing its meetings and procedures, and

(c) the date by which the tasks to be performed by it are to be completed.

(3) The Authority shall appoint the members of a panel for such period as it determines not exceeding 2 years.

(4) A member of a panel who has ceased to be a member of that panel by reason of the efflux of time shall be eligible for reappointment to that panel but may not serve more than 2 terms on that panel.

(5) The Authority shall appoint one of the members of a panel to be the chairperson of the panel.

(6) Without prejudice to the generality of subsection (1), the terms of reference of a panel may provide for the panel to make observations or proposals concerning—

(a) the effect of the performance by the Authority of its functions under this Act,

(b) any developments within the European Union or internationally that have implications for the Authority in the performance of its functions,

(c) initiatives which, in the opinion of the panel, the Authority could take with respect to the performance of its functions, together with an analysis of the likely cost of those initiatives,

(d) a policy or document, issued or proposed to be issued by the Authority,

(e) guidelines, issued or proposed to be issued by the Authority,

(f) a code of conduct, whether issued or proposed to be issued or approved or proposed to be approved by the Authority,

(g) the performance of the charities sector in any particular area or respect,

(h) an assessment of the effectiveness of the regulation of the administration and operation of charitable fund-raising through codes of conduct.

(7) Not later than 3 months, or such longer period as the Authority may specify, after the end of each year, each panel established under this section shall prepare and submit to the Authority an annual report providing details of its activities during that year.

(8) The Authority shall arrange for publication on the internet of the annual report of each panel established under this section in the year in which it is submitted to the Authority.

(9) The Authority shall arrange for publication on the internet of observations or proposals made by a panel established under this section in the year in which they are made to the Authority.

(10) The Authority shall provide, or arrange for the provision of, such administrative facilities as may be necessary to enable a panel established under this section to perform its functions.

(11) The following allowances and expenses are payable by the Authority:

(a) the travelling and subsistence allowances of panel members in accordance with such scales as may be determined from time to time by the Minister with the consent of the Minister for Finance;

(b) the administrative expenses of a panel.

(12) The Authority may at any time dissolve a panel established under this section.

Directions from Minister concerning consultative panels.

37 .— (1) The Minister may give a direction in writing to the Authority requiring it to establish a panel for the purposes of section 35 .

(2) The Minister shall determine—

(a) the terms of reference of a panel established pursuant to a direction under subsection (1) and may require the Authority to dissolve the panel at any time,

(b) the rules governing the meetings and procedures of such a panel, and

(c) the date by which the tasks to be performed by such a panel are to be completed.

(3) The Authority shall appoint the members of a panel for such period as the Minister shall determine not exceeding 2 years.

(4) Subsections (4), (5), (8), (9), (10) and (11) of section 36 shall apply with the necessary modifications in relation to a panel established pursuant to a direction under subsection (1).

(5) The Authority shall comply with—

(a) a direction under this section, and

(b) a requirement under subsection (2)(a).

Transfer of functions of Attorney General to Authority.

38 .— (1) All functions relating to charitable organisations or charitable trusts (or otherwise relating to charities) that, immediately before the establishment day, were vested in the Attorney General are transferred to the Authority, and references in any enactment in so far as it relates to charitable organisations or charitable trusts (or otherwise relates to charities) shall be construed as references to the Authority.

(2) This section shall come into operation on the establishment day.