Concessionally taxed entities Charities Not-for-profits

Australian Charities and Not-for-Profits Commission (ACNC) secrecy provisions reform – re new and ongoing investigations

Published Date: 18 Oct 2023

 

Sorry, this is subscriber only content.

If you're not yet a subscriber, to gain access to this material and much more - Subscribe Now.

Already a Subscriber? Login now

Already a Subscriber? Login now

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.

Background

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.”

Author(s)

Details

The material is copyright. Apart any fair dealing for the purpose of private study, research criticism or review, as permitted under the copyright Act, no part may be reproduced by any process without written permission from The Tax Institute.

Unless expressly stated, opinions are not that of The Tax Institute, which accepts no responsibility for the accuracy of any of the information contained within it.

The Tax Institute
(ABN 45 008 392 372 (PRV14016))

("TTI")

The Tax Institute is a Recognised Tax Agent Association (RTAA) under the Tax Agent Services Regulations 2009. 

Copyright Statement

All materials provided on this site are protected by copyright and are owned by or licensed to TTI.

Except as expressly permitted by TTI or the copyright owner, any person or company who uses this site must not use, reproduce, redistribute, retransmit, publish or otherwise transfer, or commercially exploit, the materials or any information, software or other content, in whole or in part, which is available through this site.

Tags

Concessionally taxed entities Charities Not-for-profits

Share this page