Operational Procedure: Information Gathering and Monitoring Powers

This Operational Procedure 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.

Procedure

1. This Operational Procedure sets out when and how the ACNC will use its:
   1. information gathering powers under Division 70 of the Australian Charities and Not-for-profits Commission Act 2012 (Cth) (ACNC Act)
   2. monitoring powers under Division 75 of the ACNC Act.
2. It should be read together with the ACNC’s Regulatory Approach Statement and the Commissioner’s Policy Statement on Compliance and Enforcement.

Legal context

3. It may be necessary for the ACNC to ask a charity or third party:
   1. to provide us with information or documents, or
   2. to attend and give evidence before the ACNC under Division 70 of the ACNC Act, to ensure the effective administration of the ACNC Act or Australian Charities and Not-for-profits Commission Regulations 2022 (Cth) (ACNC Regulation).
4. The ACNC may need to enter premises to monitor a charity’s compliance with its obligations under the ACNC Act and Regulation. Under section 75-15 of the ACNC Act, ACNC officers can enter premises and exercise ‘monitoring powers’. The ACNC can enter premises only with the occupier’s consent or using a monitoring warrant.

How the ACNC gathers information

5. The ACNC may seek information about a charity through either a voluntary request or the use of the ACNC’s information gathering powers. We choose the method to use based on our regulatory approach and the facts and circumstances of the case. The recipient of a voluntary request may decline to respond and advise that they would prefer to be formally compelled to provide information. Where this is the case, the ACNC will use information-gathering powers in section 70-5 of the ACNC Act.
6. Under section 70-5, the Commissioner may require an 'entity’ (as defined in the ACNC Act) to:
   1. give information to the Commissioner
   2. attend and give evidence
   3. provide documents to the Commissioner
   4. make copies of documents and provide them to the Commissioner.
7. The Commissioner can only use section 70-5 to obtain information if they reasonably believe that the entity has information or a document that the ACNC needs to assess a charity’s compliance with the ACNC Act or ACNC Regulation.

Section 70-5 notices to give information or evidence to the Commissioner

8. The ACNC gives entities a reasonable period to comply with a notice. This period must be at least 14 days after the notice is given. The time period allowed is at the ACNC’s discretion and is dependent on the nature of the request and the circumstances of the case. Where appropriate the ACNC may request, in the same notice, for information to be provided at different times.
9. The notice must set out the rights and responsibilities of the entity receiving it. This includes:
   1. the manner and form in which the Commissioner requires the information or documents to be provided, or time and place the entity (if the entity is a person) must attend to give evidence
   2. the timeframe for compliance with the notice
   3. the effect of failing to comply with the notice (the penalties that apply to non-compliance, as well as those for providing false or misleading information or documents)
   4. informing the recipient of their right to claim legal professional privilege.
10. The notice may request data and files stored electronically. If this is the case, the ACNC may help the entity provide such information (for example, by providing storage devices such as a USB key, or by copying relevant material contained on a hard drive).

Section 70-5 notices to attend and give evidence

11. The ACNC has the power to compel a person to attend and give evidence to the Commissioner (or a person authorised by the Commissioner). The Commissioner may require that the evidence be given under oath or affirmation, and either verbally or in writing.

Variation of notices

12. ACNC requests for the voluntary disclosure of information or documents can be varied in scope and in timing. Decisions to vary a voluntary notice will be made on a case-by-case basis.
13. While the ACNC Act does not specifically provide that a notice issued under section 70-5 can be varied or withdrawn, section 33(3) of the Acts Interpretation Act 1901 (Cth) does allow the Commissioner to vary or withdraw a notice that is issued under section 70-5 of the ACNC Act. This includes the power to amend the timeframe for a response to a notice.
14. If the recipient of a notice wants the ACNC to vary a notice, they must submit this request in writing.

Application of information gathering powers to third parties

15. The ACNC’s information gathering powers are not limited to charities. However, when exercising the use of these powers on a third party, the information or documents requested must relate to a registered charity.
16. The potential penalties for not complying with a notice apply to third parties.

Scope of information sought using the information gathering powers

17. The ACNC will only seek information it reasonably believes it requires to effectively administer its legislation. The ACNC may issue successive requests for information to the same entity where it believes it is necessary to obtain further information for this purpose.

When will the ACNC use its monitoring powers?

18. The ACNC will carefully consider the most appropriate and lawful method of gathering information and evidence, consistent with the ACNC's Regulatory Approach Statement and the Commissioner’s Policy Statement on Compliance and Enforcement.
19. In exercising the monitoring powers, the Commissioner and ACNC Officers will consider the matters outlined in section 15-10 of the ACNC Act, including the principles of regulatory necessity, risk, and proportionate regulation.
20. In most cases, monitoring activities will be conducted with the consent of the occupier of the property and will not rely on formal monitoring powers. However, the ACNC will consider seeking a monitoring warrant when there are reasonable grounds to believe access to the premises is essential to progress the investigation.

Entering premises with consent of the occupier

21. Section 75-15(2)(a) provides that the ACNC’s entry to a premises with the consent of the occupier relies on the occupier’s cooperation. Before obtaining the consent of the occupier, the ACNC officer must how their identity card if required by the occupier, inform the occupier that they may refuse consent and that they can withdraw consent at any time. It is not an offence for the occupier to refuse to consent to ACNC officers entering the premises, answer questions, or provide resources to an ACNC officer.
22. If ACNC officers rely on the consent of the occupier to enter premises, they must always abide by the terms of the consent. If an occupier withdraws consent at any stage, all ACNC officers (and any persons assisting them) must immediately leave the premises.

Entering premises under a monitoring warrant

23. ACNC officers may exercise monitoring powers under a monitoring warrant, as permitted by section 75-15(2)(b) and issued under section 75-85 . The ACNC may seek a monitoring warrant if:
    1. an occupier has refused consent to allow entry
    2. there is reason to believe that consent would not be given
    3. if consent was given and then withdrawn
    4. if it is unreasonable for the ACNC to seek consent in the circumstances
    5. it is necessary to obtain evidence that cannot be obtained in another way.
24. The ACNC will apply to a magistrate or Federal Circuit Court Judge for a monitoring warrant in the state or territory where the premises subject to the warrant application are located.
25. An occupier can observe the ACNC officers if the occupier does not impede them as they exercise monitoring powers. This does not prevent ACNC officers from being in more than one room simultaneously. The occupier or their representative must also provide ACNC officers with all reasonable facilities and assistance for the effective exercise of their powers.
26. ACNC officers do not have seizure powers, but they may copy documents and electronic files.
27. Alternatively, ACNC officers can ‘secure’ items found at the premises for up to 24 hours as long as the conditions in s 75-30 are met. ACNC officers can also secure electronic equipment on the premises to enable expert assistance to operate the equipment.

Self-incrimination

28. A person or organisation must comply with an information gathering notice issued by the Commissioner under section 70-5(2), even if it might tend to incriminate them or expose them to a penalty. Similarly, if an ACNC officer enters the premises under a monitoring warrant and asks a person on the premises to answer a question or produce a document, that person must comply even if it might incriminate the person or expose them to a penalty.
29. Any incriminating information or document that person provides cannot be used against them in a criminal prosecution or proceedings to impose a civil penalty, other than in Commonwealth criminal proceedings for:
    1. giving false or misleading information or documents
    2. obstructing Commonwealth public officials
    3. proceedings for non-compliance with section 70-5(2)
    4. proceedings for non-compliance with section 75-40(3).
30. However, an entity may have the right to claim legal professional privilege over any document or information.

Obstruction or hindering of investigations

31. A person who hinders, obstructs, intimidates, or resists an ACNC officer performing their official duties commits an offence under section 149.1 of the Criminal Code Act 1995 (Cth).
32. A person who may be committing that offence should receive a warning to that effect. If the person continues to hinder the investigation, the ACNC officer will withdraw from the situation and immediately report the matter to their senior manager.

References

Commissioner's Policy Statement: Decision-Making
Commissioner's Policy Statement: Reviews and Appeals
Australian Government Investigation Standards 2011

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