Operational Procedure: Referrals and information exchange

This Operational Procedure is issued under the authority of the Assistant Commissioner Charity Services 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 how the ACNC refers matters to other government bodies and agencies in its compliance and enforcement work, including how information is exchanged between them. It should be read together with the Commissioner’s Policy Statement on Compliance and Enforcement and the Operational Procedure - Protected ACNC Information.

Cooperative approach

2. The ACNC works with other government bodies and agencies (Commonwealth, state and territory and local government) to ensure an appropriate whole-of-government approach is taken to compliance and enforcement matters. The level of interaction can range from information sharing to joint operations. As set out in the ACNC regulatory approach, where our regulatory responsibilities overlap with those of other agencies we work cooperatively with the other regulators to achieve the most appropriate regulatory outcome.
3. The ACNC has developed relationships with a number of international and Commonwealth agencies, and state and territory and local government regulators to facilitate information sharing and referrals. This procedure will be revised as Memoranda of Understanding are signed with relevant agencies and departments. ACNC Memoranda of understanding.

Referrals to another government agency

4. When receiving a complaint or referral, the ACNC will determine which agency or agencies have jurisdiction and the likelihood of involvement by, or contact with, appropriate international, Commonwealth, state, territory or local government regulators, funding bodies and law enforcement agencies.
5. A referral to another government agency may occur in the following circumstances:
   • when the ACNC receives a complaint or information that is outside its jurisdiction or responsibility;
   • when it becomes apparent, either at the beginning of a case or during a case, that the matter falls more appropriately within the jurisdiction of another agency or department, or that a discrete issue(s) falls most appropriately within the jurisdiction of another government agency.
6. In these circumstances, the ACNC will first consult with the identified government agency and if it involves ‘protected ACNC information’ (as defined in s.150-15 of the ACNC Act) – follow the Operational Procedure - Protected ACNC Information to determine if the disclosure is authorised – before referring the matter or issue to it as well as agreeing the format for the referral.
7. Where a referral is made and the ACNC considers that the outcome of that referral is relevant to its work, the ACNC will explain to the other government agency that the ACNC needs to be advised of that outcome in a timely manner (subject to the other government agency’s legislative framework).
8. Where the ACNC has referred a matter to another agency, the ACNC may:
   • continue to work on the case with the agency
   • continue to monitor the case to see if any further involvement is warranted
   • facilitate coordination between all agencies involved
   • operate as the lead agency when multiple agencies are involved, or
   • close our file.
9. Should the ACNC identify potentially criminal activity, the ACNC will require evidence from the charity that such matters have been referred to the relevant authorities. Alternatively, the ACNC will directly report criminal matters to relevant law enforcement partners, such as the AFP, and will work with prosecuting agencies as appropriate.
10. Where an investigation discloses criminal activity that relates to another regulator’s activities or programs, we will report the matter to that agency, subject to the Privacy Act 1988 (Cth) and the secrecy provisions under the ACNC Act. ACNC officers will be familiar with those obligations and the ACNC’s Privacy Policy and Information Handling Policy.

Exchange of information

11. The ACNC may need, either before or during an investigation or compliance review, to contact a relevant government agency to discuss matters if:
    • the other government agency is already investigating the same or related entity or issue(s)
    • it is necessary to gather case information related to a particular charity, or an issue more generally related to the sector, or
    • it is necessary to assess whether an issue raised or any action taken regarding a case may raise other issues or have wider ramifications.
12. Any requests for confidential information must be made in accordance with relevant legal obligations including under the secrecy provisions of the ACNC Act and the Privacy Act 1988 (Cth). Generally, any exchange of information will need to be made in the format approved by the other agency or department.

Case referrals to police

13. An ACNC investigation may identify alleged offences that fall under the responsibility and jurisdiction of a specific police service. Such matters will be referred to the relevant state or territory police service as appropriate.
14. The AFP is the primary law enforcement agency of the Commonwealth. If a matter involves a serious crime or complex criminal investigation, it must be referred to the AFP in accordance with the Australian Government Investigations Standards (AGIS) and the AFP referral process published on the AFP’s website.
15. The ACNC’s investigations include:
    • a contravention of the ACNC Act that would constitute an offence, e.g. record keeping offences, or
    • criminal offences that directly relate to the ACNC Act (for example, the charity makes a false or misleading statement to the ACNC in its application for registration which is an offence under the Criminal Code (Cth)).

What happens when the police do not accept a referral?

16. If the AFP declines a referral, the ACNC must resolve the matter in accordance with internal and external requirements, such as ACNC strategic priorities and the AGIS.
17. If a state or territory police agency declines a referral, the ACNC may consider a referral to another appropriate government agency, or may decide to close the case with no further action taken.

References

Australian Charities and Not-for-profits Commission Act 2012 (Cth)