This Policy Statement is issued under the authority of the Commissioner and should be read together with the ACNC Policy Framework, which sets out the scope, context and definitions common to our policies.
This Policy Statement sets out the principles that the Australian Charities and Not-for-profits Commission (ACNC) will consider and follow during our work developing and publishing de-identified registration decision summaries.
Context
- ACNC secrecy provisions are outlined in Chapter 7, Division 150 of the Australian Charities and Not-for-profits Commission Act 2012 (Cth) (the ACNC Act).
- Relevant de-identification guidance is outlined by the Office of the Australian Information Commissioner (OAIC) in its online guide De-identification and the Privacy Act.
- Extensive information about individual registered charities is available on the ACNC Charity Register.
- The ACNC prepares guidance and education materials in line with its Commissioner’s Policy Statement: Guidance and Education.
Principles
- Principle 1: That cases chosen demonstrate an educational benefit for the charity sector and/or the public and contribute towards greater transparency about the ACNC's work.
- Principle 2: That summaries published are based on actual cases handled by the ACNC, and comprise an accurate summary of those cases.
- Principle 3: That there is adequate de-identification of charities whose cases are summarised to comply with the ACNC’s secrecy provisions.
Introduction
In the 2023-24 federal budget, the ACNC received additional ongoing funding to publish information about our regulatory activities within the sector, including information relating to registration decisions.
Doing so provides the public with greater insight into our activities, as well as improving transparency and providing clear educational benefits to the charity sector.
This policy relates to the publication of de-identified registration decision summaries (DRDs).
Principle 1: That cases chosen demonstrate an educational benefit for the charity sector and/or the public, and contribute towards greater transparency across the ACNC's work.
- The ACNC was established in 2012 to achieve the following objects:
- maintain, protect and enhance public trust and confidence in the Australian not-for-profit sector
- support and sustain a robust, vibrant, independent and innovative not-for-profit sector
- promote the reduction of unnecessary regulatory obligations on the sector.
- Education is a key part of achieving our objects, and helps:
- charities understand and meet their obligations, as well as maintain and improve their governance
- the public understand the work of the charity and not-for-profit sectors
- charities and the public better understand the work of the ACNC, including how charities are registered.
- Using the statements outlined in points 1 and 2 as a guide, we will select suitable, actual cases to use as de-identified registration decision summaries.
- In addition, transparency about the ACNC’s work is enhanced by public and charity sector understanding of our processes and decision-making. This further the ACNC’s object of ‘maintaining, protecting and enhancing public trust and confidence in the Australian not-for-profit sector.’
- Summaries published as part of this project should provide transparency and insight into the ACNC’s registration process, with aspects including but not limited to:
- what the ACNC encounters in charity’s registration applications, including common issues that might arise
- the factors the ACNC examines when making a registration decision
- the relevant processes the ACNC implements during the decision-making process
- common questions the ACNC might ask applicants, including requests for more information, clarification or context
- how the ACNC interacts with applicants through the application process.
- Through this, charities and the public are provided with greater insight into our registration processes, generating confidence and trust in our work and, in turn, the charity sector.
- Summaries should also provide important context from charity registration applicants’ perspectives, including:
- key information charity applicants must include in their applications
- common errors or problems that occur, along with how applicants can address them before they apply
- the types of interactions applicants can expect to have with us in relation to an application.
- Through this, applicants and the public are provided with greater insight into the registration process.
- It is important to note that our audience is predominantly members of the public unfamiliar with aspects of the charity registration process, or potential applicants or others involved with organisations who might not be as fully informed about charity registration processes as those with access to advisors or other external expertise.
- Our main audience as outlined in paragraph 9 means that a corresponding percentage of our summaries should appeal to that audience. However, this does not prevent us from occasionally preparing case summaries illustrating more complex issues if there is a benefit to be derived.
Case complexity not necessarily a reflection of educational value
- In choosing cases, it should be remembered that seemingly simple or straightforward cases can have as much educational value as those that are more complex – particularly if the straightforward cases involve aspects of registration commonly encountered by organisations wishing to become charities.
- An example of a straightforward case may be one where there is no or little technical or legal complexity involved in the application or decision, but which still provides identifiable educational value to our audience/s.
- Simple or straightforward cases can also be representative of common registration issues that we encounter, or common queries we receive from the public. Providing education on these issues can help applicants and the public understand our approach, as well as aiding understanding among a wider cross-section of our audience.
Principle 2: That summaries written and published are based exclusively on actual cases handled by the ACNC, and comprise an accurate summary of those cases.
- De-identified Reasons for Decision summaries published must be based on actual cases the ACNC has handled.
- We use actual cases because:
- It is not standard practice for regulators to fictionalise decisions that are published. Doing so would mean the information published would be a fictionalised case study rather than a decision summary based on an actual case.
- Publishing a summary that included information we did not consider when making our decision does not enhance the transparency of our decision-making processes, and has the potential to offer a distorted view of these processes.
- There is a risk of inefficiency because creating case studies where actual registration decisions covering the same issues exist duplicates effort. The ACNC's focus on summaries that cover common registration-related issues problems should mean there will usually be several relevant, actual decisions upon which to base a summary.
- The ACNC has stated publicly that the DRDs are registration decisions that the ACNC has de-identified.
- We will ensure that each summary is an accurate summary of an actual registration case, including the outcome.
Principle 3: That there is considered and adequate de-identification of charities whose cases are summarised as part of this project to comply with the ACNC’s secrecy provisions.
- When preparing a summary, de-identification should be approached and prepared in line with the ACNC’s secrecy provisions as outlined in the ACNC Act.
- Any de-identification process must also take into account:
- guidance from the Office of the Australian Information Commissioner, which acknowledges there is no single method of de-identification
- the information about individual registered charities available to the public on the ACNC Charity Register.
- The ACNC’s process of de-identification will focus on two areas:
- information that could reasonably identify an organisation that had applied for registration due to specific details about its location, area of focus, structure, beneficiaries or activities. That is, information about the organisation itself, and information that is likely to appear on the organisation’s Charity Register record if its registration application is successful
- specific information about the registration application that could, by extension, reasonably identify the organisation that had applied for registration. This information could include the circumstances of the application, the issues the ACNC raised and/or which the organisation addressed, communications between the applicant and the ACNC, and changes the applicant may have made to their application in response.
- For each proposed case summary, the Education and Public Affairs team will prepare a list of de-identification considerations which focus on the details of both the organisation and the application, while ensuring the substance of the summary remains accurate.
- The ACNC can use several de-identification techniques when preparing the summaries, including:
- Generalising the specific details about the organisation or its work that might allow it to be more easily identified – for example, organisation size, location or operating location/s, specific beneficiaries or activities, or other specific structural or operational details.
- Omitting details that are seen as extraneous or irrelevant to the decision made, to ACNC decision-making processes, or to the summary’s educational value, but that might help identify the charity. Details that fall under this heading will vary across each case, but will often involve specific information covering charity structure, objects or subtypes.
- Both of these approaches – generalising identifying information, and omitting identifying information – are supported by the OAIC’s guidance.
De-identified vs unidentifiable
- Case summaries developed through this project must progress through the rigorous de-identification process outlined above.
- The threshold for de-identification for this project is that there is either no ability, or an extremely limited ability, for the organisation at the centre of a de-identified case summary to be identified by members of the public or the wider community.
- For the purposes of this project, this is what we would describe as a reasonable or acceptable level of de-identification.
- However, this level of de-identification does not eliminate the possibility that those linked to the organisation – for example, members or people in positions of responsibility – or those with knowledge about the organisation and its work, might be able to identify the organisation.
- Removing from a case summary all the details that could possibly identify the organisation at its centre – in other words, making the case study unidentifiable – is likely to also remove or dramatically reduce the educational benefits it offers to the sector and public, and the benefits offered through increased transparency into the ACNC and its processes.
- It is important the ACNC balances a reasonable level of de-identification with the need for the case summary to provide those educational and transparency-related benefits. Because of this potential loss of educational benefit, it is preferable for us to achieve reasonable or acceptable levels of de-identification rather than making a case study unidentifiable.