Important reform is being proposed to the ACNC Act, a reform aimed at providing greater transparency about ACNC investigations, both proposed and ongoing.
Why you ask? Because this change would mean that, for example, where there are very serious allegations about a charity widely reported in the media, I would as ACNC Commissioner have some ability to assure the public that we are looking into the matter.
In the draft legislative changes recently announced by Assistant Minister for Charities, The Hon Dr Andrew Leigh, there are strict criteria for how I could use those disclosure powers – criteria centred around a public harm test (more below). By having new powers of this nature, I believe it helps the ACNC support the sector by being better able to maintain public trust and confidence. Trust and confidence that is central to the public being willing to donate their time and money. Changes to our powers to disclose investigations were also recommended by an independent review panel and were consulted on in 2021.
To explain more about what the changes are, at the moment, the ACNC is not permitted to disclose whether or not we are conducting an investigation in order to protect the confidentiality of 'protected ACNC information'. When allegations of wrongdoing by a charity, its leaders or its staff are raised, we are not able to say publicly if we are looking into the allegations or, if we have looked, and decided the claims were baseless or there is insufficient evidence.
A review of ACNC legislation undertaken in 2018 that evaluated the performance of our legislative framework recommended the Commissioner be given discretion to disclose information about regulatory activities when it is necessary to protect public trust and confidence in the sector.
The changes currently proposed include a public harm test that aims to strike a balance between the harm likely to be caused by the disclosure with the harm the disclosure would prevent.
I have no doubt the overwhelming majority of charities do the right thing. They comply with the law, meet reporting obligations and act in the best interests of the people and causes they have a mission to support. In rare circumstances though, we see charities actually doing harm.
The changes help us maintain public confidence, and provide guidance to charities about what constitutes behaviour of serious concern. In circumstances where I, as Commissioner, decided to make a disclosure, a statement would be published on the ACNC website for the public to see.
You can contribute your views on the proposed reform. Consultation is open for submissions until 16 October 2023. The draft legislation and further information on the consultation process is available on the Treasury website.
Warm regards,
Sue Woodward AM