Chartered Accountants Australia and New Zealand (CA ANZ), CPA Australia, Institute of Public Accountants and The Tax Institute (collectively the Joint Bodies) appreciate the opportunity to comment on Treasury Laws Amendment (Measures for Consultation) Bill 2023: ACNC Review Rec 17 – Secrecy Provisions (exposure draft legislation). The exposure draft legislation seeks to empower the Australian Charities and Not-for-profits Commissioner (the Commissioner) to make increased disclosures regarding new and ongoing investigations.
The exposure draft legislation proposes that the Commissioner will be able to authorise the disclosure of protected ACNC information if the Commissioner reasonably suspects that a registered entity has contravened the Australian Charities and Not for Profit Commission Act 2012 (ACNC Act), a governance standard, or external conduct standard, and the Commissioner is satisfied that the disclosure is necessary to prevent or minimise the risk of significant:
- harm to public health, public safety or an individual; or
- mismanagement or misappropriation of funds or assets of the entity or contributions to the entity; or
- harm to the public trust and confidence in the Australian not for profit sector or part thereof.
In addition, the Commissioner needs to be satisfied having regard to the above matters, the seriousness of the contravention, and the strength of evidence, that any harm likely to be caused to the registered entity or the registered entity’s employees, contractors, volunteers, service providers by the disclosure would not be disproportionate.
Paragraph 1.23 of the exposure draft explanatory materials to the Bill states that “if the suspected contravention or non-compliance is very severe, the Commissioner may consider that the harm likely to be caused to the registered entity or an individual is not disproportionate to the public harm that disclosure would avoid, and therefore authorise disclosure even where there is limited evidence” (emphasis added).
As drafted, there is no requirement that the Commissioner give notice to the registered entity of the proposed disclosure of protected ACNC information. Nor is there any mechanism for a registered entity to have such a decision reviewed. Paragraph 1.14 of the exposure draft explanatory materials states that “any decision made by the Commissioner or an ACNC officer in relation to the disclosure of information about a new or ongoing recognised assessment activity about a registered entity’s suspected contravention or non-compliance is not subject to merits review. This is appropriate given the decision relates to an ongoing or proposed investigation into an enforcement matter. Additionally, disclosures will only occur if necessary to avoid public harm, so any delay caused by a merits review process could lead to public harm.”