Australia’s charities regulator has falsely claimed legislative “secrecy provisions” are preventing it from commenting on the legality of political advertisements featuring charity bosses spruiking Josh Frydenberg.
In moves directly benefitting the Federal Treasurer – just weeks out from a Federal Election – the Australian Charities and Not-for-profits Commission (ACNC) has repeatedly made the claims to media outlets since the scandal broke two weeks ago.
The ACNC has publicly claimed the “secrecy provisions” under the act which governs it, the ACNC Act 2012, mean it is legally prevented from commenting on the matter, or from ever identifying any individual charities.
A detailed review of the Act – and every other act and legislative instrument governing the ACNC – reveals this is demonstrably false.
The revelations raise huge questions for the ACNC and the Federal Government, with the ACNC’s refusal to comment appearing politically motivated.
The ACNC initially, repeatedly, told The Klaxon it could not comment on the scandal enveloping charities Guide Dogs Victoria and Inclusion Foundation because of the alleged secrecy provisions.
The charities regulator has refused to respond since Monday, when The Klaxon provided it with irrefutable evidence that its claims were false.
His appointment was labelled “bizarre” by the charities sector.
Johns has publicly argued welfare recipients should be required to take contraception, criticised mental health advocacy group BeyondBlue for campaigning for marriage equality and described Aboriginal mothers as “cash cows”.
He made headlines in late 2020 after it emerged he had charged taxpayers around $250,000 in travel expenses in just three years.
“That old charity case”, the AFR reports on ACNC boss Johns in 2020. Source: AFR
Two weeks ago Frydenberg was forced to pull a series of political advertisements – which he had legally authorised – after it emerged they were almost certainly in breach of charities laws.
The laws (strongly advocated by the Federal Coalition, and by Johns when he was head of the IPA’s anti-charity “NGOWatch”) prevent charities from “promoting or opposing a political party or candidate for political office”.
Both Guide Dogs Victoria CEO Karen Hayes and Inclusion Foundation founder Cate Sayers appeared in Frydenberg’s advertisements – under their professional titles and speaking expressly about their charities – and strongly promoted Frydenberg for political office.
(Hayes has been “stood down” by her board pending an internal “investigation”. Sayers has been “cleared” by the chair of her organisation, although he has provided no evidence supporting his decision – and happens to be Sayers’ husband).
A Frydenberg political advertisement featuring Cate Sayers. Source: Josh Frydenberg.
Despite the clear breach of the law, the ACNC and Johns have refused to say whether or not the law has been broken, telling media it was legislatively prevented from doing so.
Last Friday ACNC spokeswoman Sharon Lee told The Klaxon “we can’t legally comment, it’s in our legislation”, citing “secrecy provisions” in the ACNC Act.
She said the ACNC was unable to even identify any specific charity.
Since Monday Johns has repeatedly refused to comment when asked whether he stands by the ACNC’s claims that it is legally prevented from commenting.
He has also refused to comment when asked whether the advertisements by Frydenberg, who is down in the polls, were legal.
The matter is particularly concerning given it involves a highly-controversial Coalition appointee, the Federal Treasurer, illegality, and is occurring just weeks out from a federal election.
The ACNC laws regarding political endorsements. Source: ACNC
The ACNC Act was introduced by the ALP Gillard government in 2012.
Like the acts governing most agencies, it has provisions governing the release of confidential or personally sensitive information regarding members of the public.
They are covered within “Chapter 7, Miscellaneous” and fall under “Part 7-1, Secrecy”.
The provisions in no way prevent the ACNC from identifying individual charities, as it claims, rather they are relatively standard protocols “to protect confidential and personal information”.
Frydenberg’s political advertisements are, by nature, public.
So too are the laws preventing charities “promoting or opposing a political party or candidate for political office”.
Gary Johns: Anti-charity activist turned ACNC boss. Source: ABC
Whether or not a charity has broken those laws in an advertisement is not “confidential and personal information”.
Further, the legislation relates specifically to “protected ACNC information”, which it defines as information that “was disclosed or obtained under or for the purposes of this Act”.
The public Frydenberg advertisements are not “protected ACNC information” and were not “disclosed or obtained under or for the purposes of this Act”.
Source: ACNC Act
In any event, even if this information were somehow “protected ACNC information” – which it isn’t – there are clear “exemptions” provided in the Act.
The ACNC can disclose protected information with ACNC officers permitted to do so “in the performance of his or her duties under this Act”.
Source: ACNC Act
The Act clearly states that the duties of the ACNC and its officers are to “promote good governance, accountability and transparency for not-for-profit entities” and to “maintain, protect and enhance public trust and confidence in the not-for-profit sector”.
Further, the role of the ACNC Commissioner (Dr Gary Johns) is, specifically, to “provide information to help the public understand the work of the not-for-profit sector and to support the transparency and accountability of the sector”.
Source: ACNC Act
We went back to the ACNC on Monday raising concerns that their claims were false, and that the “secrecy provisions” had no bearing on them talking about the Frydenberg advertisements
ACNC spokeswoman Lee repeated her earlier claims.
Then Lee sent us the information below.
Yesterday we wrote (below) to the ACNC and Johns again, explaining that if the ACNC (which last year received $19.7m from taxpayers and has a media “team”) had misinterpreted the ACNC Act accidentally, then the public would expect it to come out and immediately rectify that error.
If the ACNC refused to do so, it was extremely strong evidence that the ACNC had deliberately made false claims about its “secrecy provisions” – that is, it had lied, in a move directly benefitting the Coalition and the Federal Treasurer, Frydenberg.
“We strive to be an innovative leader in charity regulation,” it states.
“We believe in good governance, honest respectful relations and transparent administration.”
Johns was paid $342,976 last financial year as ACNC Commissioner.
Johns was a Federal ALP Minister from 1987 to 1996. In November 2020 veteran investigative journalist Neil Chenoweth revealed that since being appointed ACNC boss in 2017, Johns had charged taxpayers around $250,000 in travel expenses.
“That old charity case Gary Johns has rung up an estimated $250,000 for travel expenses since 2017,” wrote Chenoweth in The Australian Financial Review.
“Johns was a Federal Labor minister until 1996, after which his politics drifted to the right, into Institute of Public Affairs territory.
“In December 2017, Malcolm Turnbull decided this made him the perfect choice to head the Australian Charities and Non-Profits Commission (ACNC),” he wrote.
When the Coalition appointed Johns as ACNC boss in 2017 it was met with “outrage”, Guardian Australia reported at the time.
Guardian Australia reports on the appointment of Johns in 2017. Source: Guardian Australia
“It’s bizarre, absolutely bizarre,” said David Crosbie, the chief executive of peak not-for-profit body the Communities Council of Australia.
“Why you would appoint a well-known anti-charities campaigner to head up the charities regulator is beyond me, even if you are trying to close down advocacy by the charities sector.”
Johns is now doing the opposite, effectively covering up advocacy by the charities sector – it’s just that the advocacy in this case favours the Coalition Government.
The revelations come as Prime Minister, who promised to introduce a Federal Integrity Commission in 2018 – but failed to deliver – today launched a new attack against introducing the new accountability measure.
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