Some charities under investigation to face public scrutiny

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The Australian Charities and Not-for-profits Commission will get increased powers to disclose information about charities it is investigating to give the public confidence it is actively pursuing misconduct. File picture

CHARITIES that are being investigated by the regulator could have information about any action taken against them made public under changes the federal government has agreed to adopt.

Once adopted the changes will allow the Australian Charities and Not-for-profits Commission (ACNC) via its commissioner the discretion to disclose information about regulatory activities (including investigations) when it is necessary to protect public trust and confidence in the sector.

At present the secrecy provisions of the Australian Charities and Not-for-profits Commission Act prevent the commissioner from making information public about ACNC regulatory activities except to respond to or clarify issues that have already been raised in the public domain by a charity.

If you raise concerns about a charity now you will be told the secrecy provisions prevent the commission from providing you with any information about what action it may take in relation to a charity.

This means it is not able to inform you of what actions it takes in relation to the concerns or information you have provided.

These secrecy provisions extend even after the conclusion of an investigation and prevent the ACNC from giving an account of its findings.

This makes it difficult for the ACNC to show journalists and the community any action it may have taken.

On Friday March 6 the Morrison Government released its response to the 2018 Australian Charities and Not-for-profits Commission Legislative Review, which had recommended that

an expansion of the powers to disclose information would increase public confidence that the regulator was actively pursuing misconduct and also provide salutary guidance to other charities about poor behaviour.

In its response the government said the change would allow the commissioner to release information about ACNC regulatory activities in the public interest.

“It will strengthen public trust and confidence in both the sector and the regulator,’’ the government response said.

“The government will consult on the detail of the change, including the triggers for and bounds of the commissioner’s discretion.

“The government will implement this recommendation by changes to legislation.’’

Another recommendation the government agreed with was that the ACNC commissioner should be authorised to collect the personal details of responsible persons involved in unlawful activity after the panel found the ACNC should be able to request details on the criminal records of responsible persons to allow it to detect unlawful behaviour and contraventions of the ACNC Act.

“The government supports the recommendation as it will enhance the ACNC’s capacity to detect breaches of its governance standards and external conduct standards,’’ the government response said.

The government also adopted the review panel’s recommendation that the ACNC’s regulatory approach to high-risk registered entities should be further developed in partnership with the Australian Criminal Intelligence Commission (ACIC), the Australian Transactions Reports and Analysis Centre (AUSTRAC) and other Commonwealth departments and agencies.

“The ACNC was recently listed as a ‘designated agency’ for the purposes of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), which will provide it with direct access to AUSTRAC information,’’ the government response said.

Changes to legislation so that the ACNC was able to disqualify a person from being a responsible person of a charity if they had a conviction for terrorism, terrorism financing, money laundering, fraud, importation or distribution of illicit drugs or a child sexual offence under Commonwealth, state or territory law was another recommendation the government said it would adopt.

The government’s full response is available at https://treasury.gov.au/sites/default/files/2020-03/p2020-61958-govt-response.pdf