On 17 October 2023 the AICD made a submission on proposed changes to the Australian Charities and Not-for-profits Commission (ACNC) secrecy provisions under the ACNC Act.
The AICD supports targeted measures to improve the transparency of decision-making by the ACNC. However, the AICD has significant concerns with the proposed changes that would provide the ACNC Commissioner (Commissioner) with broad discretion to disclose new and ongoing investigations.
In particular, the AICD considered that the proposed changes could prejudice a charity’s access to natural justice, pose serious long term reputation risks and result in negative impacts on the viability of charity that has been subject to disclosure. The changes would also limit an impacted charity’s access to procedural fairness and has few checks on the Commissioner’s discretion.
To address these concerns the AICD recommended:
- the public harm threshold be amended to specifically account for the impact of a disclosure on the financial viability of the charity and its related parties;
- the Commissioner must consult with the relevant charity on the proposed disclosure, including to obtain information on the impact on the financial viability of the charity from any disclosure;
- consideration be given to establishing an independent oversight mechanism where the Commissioner must consult with an external panel or body on a pending disclosure decision; and
- the Commissioner’s decision to disclose should be subject to an independent merits review.
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