Commissioner's Policy Statement: Withholding or removing information from the ACNC Register

This Commissioner’s Policy Statement is issued under the authority of the Commissioner and should be read together with the ACNC Policy Framework, which sets out the scope, context and definitions common to our policies.

Policy statement

1. This Commissioner’s Policy Statement gives guidance on the circumstances in which the Commissioner may withhold or remove information from the ACNC Register (Register) under section 40-10 of the ACNC Act, and must withhold or remove information from the Register under section 40.10 of the ACNC Regulation.
2. However, this policy does not cover the removal or withholding of information under section 40-10(2)(da) of the ACNC Act, which deals with the withholding of the details of a warning given to a registered entity. This is covered in the Commissioner’s Policy Statement: Compliance and Enforcement

Principles

• Principle 1: Publication generally in public interest
• Principle 2: Justification must be provided for withholding or removing information
• Principle 3: Restrict publication only to extent necessary
• Principle 4: Consistency in approach
• Principle 5: Publication and rectification of errors

Summary

3. Under section 40-10(2) of the ACNC Act, the Commissioner has power to withhold or remove information that is required to be published on the Register if any of the following circumstances exist:
   • the information is commercially sensitive and has the potential to cause detriment to the charity, or former charity, to which it relates, or to an individual
   • the information is inaccurate, likely to cause confusion or likely to mislead the public
   • the information is likely to offend a reasonable individual
   • the information could endanger public safety
   • the information is details of a warning given to a registered entity, subject to certain conditions being satisfied
   • any other circumstances that are prescribed by regulations.
4. Each of these circumstances is explored in more detail below.
5. However, the Commissioner may include the information on the Register or decline to remove the information from the Register if the Commissioner considers that the public interest in including the information on the Register outweighs the likely adverse effects of the relevant circumstances (section 40-10(3)).
6. If a charity requests that the ACNC withhold information from the Register, the relevant information will be withheld while the ACNC considers the request. The charity’s entire record will be withheld in cases where that action is necessary to ensure that the relevant information is not displayed while the ACNC considers the request.
7. A charity registered with the ACNC may request to have specific information withheld from the Register. One example of this is where a charity requests that its financial report be withheld from the Register on the ground that it contains commercially sensitive information which, if published, may cause detriment to the charity or any individual. The Commissioner may decide that the public interest in publishing the information outweighs the potential detriment to the charity or any individual. These decisions will be made on a case-by-case basis taking into account all of the relevant considerations.
8. Another example is a request from a charity to withhold the name and position of one of its Responsible People because the disclosure of this person’s name in connection with the charity might expose them an unreasonable degree of risk.
9. When making a request to withhold information, a charity needs to:
   • specify the information it would like to be withheld
   • identify the circumstance (or circumstances) in section 40-10(2) of the ACNC Act that it believes applies to its information
   • explain how the circumstance identified applies to its situation.
10. The level of evidence required to support a request to withhold information will depend upon the information that the charity is seeking to have withheld or removed from the Register. Each request will be considered having regard to the specific situation of the charity. As the ACNC favours transparency, the Commissioner will generally only withhold the minimum amount of information necessary to address the risk that has been identified.
11. If the Commissioner removes information that has been published on the Register, the ACNC cannot guarantee that the information was not accessed prior to its removal. The information may also still be accessible through web archive sites, over which the ACNC has no control.

Information about warnings (section 40-10(2)(da))

12. As set out in the Summary on page one, section 40-10(2)(da) of the ACNC Act allows for the withholding or removal of information about warnings issued to a charity by the Commissioner under certain circumstances.

Commercially sensitive information (section 40-10(2)(a))

13. The ACNC may withhold or remove commercially sensitive information from the Register if the publication of the information has the potential to cause detriment to the charity or formerly registered charity to which it relates, or to an individual.
14. While the ACNC Act does not define 'commercially sensitive information', the ACNC generally understands this to be any information of a confidential nature which has commercial value that would be reduced if the information were published.
15. If the information is already in the public domain, the ACNC will generally not consider that information to be commercially sensitive.
16. For further information on the ACNC's approach to withholding or removing information due to commercial sensitivity, refer to the Commissioner's Interpretation Statement: Commercially sensitive information

Information that is inaccurate, likely to cause confusion or likely to mislead the public (section 40- 10(2)(b))

17. The ACNC may withhold or remove information from the Register that is inaccurate, confusing or misleading. The Register is a public resource that enhances the transparency and accountability of the charity sector, and it is important for the ACNC to protect the integrity of the information displayed. Where it is possible for the charity to correct inaccurate or misleading information the charity has a duty to notify the ACNC of the change under section 65-5. The ACNC will not withhold incorrect information if it is in the charity’s power to correct it, for example, if the charity’s Address For Service has changed.
18. An example of where the ACNC might withhold information on this ground is an animal welfare charity that requests that its street address be withheld because it does not have animal care facilities at that address. If the public believe they can drop sick or vulnerable animals on the doorstep of the street address published on the Register, but the charity does not always staff the office, or does not have facilities to treat and care for vulnerable animals, then the publication of this address could cause confusion or mislead the public. Therefore the ACNC might withhold the street address to reduce the likelihood of animals being left at that address when no one will be there to receive them.
19. Another example is where a charity is experiencing an internal dispute which has led to some of its members alleging that the people who are named on the Register as the Responsible People are not the true Responsible People of the charity. The ACNC may decide to withhold this information until the charity resolves the dispute, on the grounds that its inclusion on the Register is likely to confuse or mislead the public. Further information on internal disputes is available in the Commissioner's Policy Statement: ACNC's approach to internal disputes within charities.

Charities with names that could mislead the public

20. The ACNC expects charities to be aware of and adhere to their obligations in relation to their legal name in their relevant jurisdiction including incorporated associations legislation, the Business Names Registration Act 2011 (Cth) and Australian Consumer Law. The ACNC also expects charities to ensure that they could not be accused of holding themselves out as being a different entity or exploiting the name and good reputation of a different entity.
21. If the ACNC becomes aware that a registered charity or an organisation applying for charity registration has a legal or trading name that is likely to confuse or mislead the public because it is identical or very similar to the name of:
    • a different entity, including a different registered charity, or
    • a Commonwealth or State government body

    we will take appropriate action to prevent the public from being misled.

22. The action we will take will depend on the circumstances of the particular case. We will raise our concern with the entity which we consider has the misleading name. The entity will be given an opportunity to explain how it ensures that members of the public do not mistake it for the other charity, entity or government body. Depending on the explanation, we may also recommend that the entity discuss the matter with the entity it could be mistaken for.
23. If, after considering the entity’s explanation and any other relevant matter, we conclude that publication of its name on the ACNC Register would be likely to mislead the public, the Commissioner may exercise his discretion to withhold the name from the ACNC Register. The public will still be able to access the entity’s record on the ACNC Register by searching for its ABN, or any other name the entity has told the ACNC it is known by, but not by the name which has been withheld from the Register.

Information that is likely to offend (section 40-10(2)(c))

24. The ACNC respects the diversity of the charity sector and the right of charities to express their views lawfully. The ACNC will therefore require strong justification before removing information on the ground that is likely to offend a reasonable individual.

Information that could endanger public safety (section 40-10(2)(d))

25. There may be situations where publishing information on the Register could endanger public safety, including the safety of individuals. For example, publishing the physical address of a charity that provides shelter to victims of domestic violence could endanger those seeking this service.
26. In these situations, the ACNC may decide that minimising this risk to public safety is more important than the public interest in publishing the information. Using the same example above, the ACNC would withhold the charity's physical address from the Register but the charity’s email address would remain on the Register.

Other circumstances prescribed by regulations (section 40-10(2)(e))

27. The Australian Charities and Not-for-profits Commission Amendment Regulation 2013 (No. 2) (Cth) (ACNC Regulation) requires certain information to be withheld from the Register in specified circumstances mainly relating to the identification of individual donors. The provisions mostly relate to and affect information about private ancillary funds (PAFs).
28. Under section 40.10 of the ACNC Regulation, the ACNC must withhold or remove specific types of information from the Register upon request by a registered charity, if the information is likely to result in the identification of an individual donor. As detailed in the Explanatory Statement, Australian Charities and Not-for-profits Commission Act 2012 (Cth) (Explanatory Statement) and ACNC Regulation, the purpose of these provisions is to protect the privacy of donors.
29. For clarity, it should be noted that items 1 to 4 in section 40.10 of the ACNC Regulation only apply to PAFs. Items 5 and 6 in section 40.10 apply to all registered charities (including PAFs). These items are discussed further below.
30. The following types of information can be withheld or removed from the Register if the charity is a PAF and the publication of the information is likely to result in the identification of an individual donor:
    • the name and Australian Business Number (ABN) of the PAF
    • a contact detail of the PAF, including the Address For Service
    • the governing rules of the PAF
    • the name of a Responsible Person.
31. In addition, information in a registered charity’s Annual Information Statement or financial report, audit or review report can be withheld or removed if it would be likely to result in the identification of an individual donor (see items 5 and 6 in section 40.10 referred to in paragraph 26).
32. Under item 2(ii) of the table in section 40.10(1) of the ACNC Regulation, a PAF can also request withholding or removal of its contact details if publication would create an unreasonable administrative burden. This provision is most commonly used by PAFs that are concerned they will be overwhelmed by requests for financial assistance (see paragraph 45 for more detail).
33. The Register is an important way in which the ACNC promotes transparency, accountability and the object of the ACNC Act of maintaining, protecting and enhancing public trust and confidence in the not-for-profit sector. The information on the Register also contributes to public understanding of charities and policy development relating to charities. The ACNC therefore encourages PAFs and other charities to make information available to the public on the Register.

Identifying an individual donor

Name

34. If the name of a PAF includes the full name of a donor – for example, ‘Henry Ford Foundation’ - it would be likely to result in the public identifying that Henry Ford is a donor to that PAF. This is an example of when the name can directly result in identifying an individual donor.
35. If the name of a PAF is more generic, publication may not be likely to result in the public identifying an individual donor. For example, the ACNC would be unlikely to withhold the name of a PAF called the ‘Ford Foundation’ as it is unlikely that publishing this name would result in the public identifying any ‘individual donor’.
36. However, there may be cases where the name of a PAF contains only a surname, and a person in the community could likely deduce the name of an individual donor in combination with other resources. This is an example of when a name can indirectly result in identifying an individual donor, and the ACNC must withhold the name of the PAF in such a case. In determining whether publication is likely to result in the identification of an individual donor, the ACNC must look at whether the name can either directly or indirectly result in identifying a donor.
37. Further, these provisions only apply where publication is likely to result in identifying an individual donor. The names of many trusts identify the families that are behind them, but they do not directly identify individual donors. For these reasons, we would refuse to withhold the name of a PAF that contains a surname, but not a full name, unless someone can use the PAF’s name along with other publicly available information to find out who an individual donor is. This is an example of when the name can indirectly result in identifying a donor. Even with the use of other publicly available information, it must be the likely identification of an individual donor and not just someone involved with the PAF’s corporate trustee. For example, a director of a corporate trustee is not necessarily an individual donor of the PAF. There may be very rare cases where a nickname, pseudonym or surname alone is so synonymous with a high-profile person that publication is likely to identify that donor. In these exceptional cases, the PAF would need to provide sufficient evidence to the ACNC to enable the ACNC to conclude that publishing the name of the PAF on the Register is likely to lead to the identification of an individual donor.
38. The name of the PAF will only be withheld or removed if a description can be substituted that is:
    • unlikely to result in the identification of an individual donor, and
    • would not mislead the public as to the nature and characteristics of the PAF, and
    • would not reasonably be regarded as identifying a different registered charity, and
    • would make it clear that the charity’s name has been withheld.
39. In order to meet these requirements in an efficient and consistent manner, where technically possible the ACNC will, unless the charity has a reasonable objection, substitute the name with an alternative description.
40. Section 40.10(2) of the ACNC Regulation provides that items 1, 2, 3, 5 and 6 of the table in s 40.10 continue to apply if the identified individual donor has died within the previous two years, or a Responsible Person of the entity is an ‘associate’ (generally, a relative) of the individual donor.
41. PAFs that make requests for information to be withheld or removed pursuant to s 40.10 should know that some details will remain published on the Australian Business Register (ABR). PAFs seeking to have particular information withheld from ABR should contact the ABR directly via www.abr.gov.au.

Contact details, including Address For Service

42. Contact details must be withheld or removed if they are likely to result in the identification of an individual donor (for example, the contact details provided are for the home address of the donor) or if publication would create an unreasonable administrative burden on the PAF.
43. Under the ACNC Act, a charity's address can be a postal address or an email address. The ACNC does not require a residential address. Rather than applying for a contact detail to be withheld or removed from the Register, the ACNC encourages PAFs to provide an email or postal address (for example, a Post Office Box) that will not identify an individual donor.
44. A PAF may request that a contact detail be withheld or removed on the basis that it would create an unreasonable administrative burden.
45. As explained in the Explanatory Statement, an ‘unreasonable administrative burden’ means that the PAF ‘is inundated by donation requests from not-for-profit entities and faces a substantial and unmanageable strain on the entity’s resources in dealing with the requests and associated administrative processes’.

Name of Responsible Person

46. A PAF can request that the name of a Responsible Person be withheld or removed from the Register only if that name is likely to result in the identification of an individual donor (for example, if the name is that of the donor or a family member of the donor).
47. A PAF cannot request to withhold or remove the name of an individual or individuals 'with a degree of responsibility to the Australian community as a whole’ who acts as a trustee, as required by the Private Ancillary Fund Guidelines 2019 made under section 426-103 in Schedule 1 to the Taxation Administration Act 1953 (Cth) ('the PAF Guidelines'). These individuals generally perform a public function or belong to a professional body, such as school principals, judges, religious practitioners, and doctors. These individuals cannot be a founder, a donor to the fund who has contributed more than $10,000, or an associate of a founder or such a donor. As these individuals have a responsibility to the public for the independent and accountable management of a PAF, their names should not be removed from the Register as detailed in the ACNC Regulation and Explanatory Statement.

Governing rules

48. A PAF may request to withhold or remove information that identifies an individual donor in its governing rules.
49. In this case, the ACNC will require the PAF to provide both a full version of the governing rules and a redacted version which omits the information to be withheld or removed from the Register. The PAF should declare that the redacted version only omits information that is permitted to be withheld or removed, and be aware that the ACNC may audit the information to ensure compliance.

Annual Information Statements and financial reports

50. Items 5 and 6 of section 40-10 allow registered charities to request to have information that identifies an individual donor in its Annual Information Statement or financial reports withheld or removed. However, section 40.10(5) states that information in an Annual Information Statement or financial report that relates to a breach of the ACNC Act or associated regulations, or taxation laws cannot be withheld on these grounds.
51. In this case, the ACNC will require the charity to provide both a full version of the statement or report, and a redacted version which omits the information to be withheld or removed from the Register. The charity should declare that the redacted version only omits information that is permitted to be withheld or removed, and be aware that the ACNC may audit the information to ensure compliance.

Principles

52. These principles apply when the ACNC is making a decision about withholding or removing information from the Register, where that information falls into one of the circumstances in section 40-10(2) of the ACNC Act, except under subsection (2)(da).

Principle 1: Publication generally in public interest

53. The ACNC Act makes clear that there is a general public interest in favour of publication as transparency and accountability contribute to public trust and confidence in charities. The ACNC Act also limits the circumstances of information that can be withheld or removed. The starting point is that publication is in the public interest with limited exceptions.
54. As the purpose of the Register is to ensure transparency and accountability, information that is inaccurate, likely to mislead or confusing will not further the public interest.

Principle 2: Justification must be provided for withholding or removing information

55. The charity must provide justification for withholding or removing information. The level of evidence that must be provided will depend on the information the charity requests to be withheld.
56. For example, the risk of danger to the clients of a domestic violence refuge if the address is published is apparent. On the other hand, it is not enough that publication of a piece of information would embarrass the charity.
57. The ACNC will give charities an opportunity to put their request into context.
58. The ACNC recognises that the public interest in ensuring a charity can carry out its work effectively may outweigh the public interest in transparency or accountability, and will take this into account when considering whether requests to withhold information are justified. For example, the ACNC may decide not to publish the names and positions of Responsible People if this would endanger public safety.

Principle 3: Restrict publication only to extent necessary

59. The ACNC will limit the amount of information withheld or removed, and the period for which the information will be withheld or removed, to the extent necessary in the circumstances.
60. The ACNC will not generally withhold or remove information from the Register permanently. The ACNC will consider how long the information should be withheld, taking into account all of the relevant circumstances. The ACNC will advise the charity how long the information will be withheld from the Register. At the end of that period, the ACNC will not automatically renew the arrangement – as circumstances can change, the Charity will need to demonstrate that withholding is still necessary.
61. The ACNC will consider the extent to which the information is already publicly available when making a decision about withholding or removing that information from the Register. Generally, the ACNC will not withhold information that is already published elsewhere.

Principle 4: Consistency in approach

62. Each decision will be made on a case-by-case basis, and the ACNC will ensure that there is a consistent decision-making process for withholding or removing information. If the ACNC decides to refuse all or part of the withholding request, the ACNC will provide the charity with written reasons for its decision.

Principle 5: Publication and rectification of errors

63. The ACNC will take all reasonable steps to prevent publication of information on the Register where that information has been approved for withholding or removal from the Register. However, if the information is inadvertently published, the ACNC will alert the charity and any affected individuals and rectify the error as soon as is practicable.

References

• Commissioner's Interpretation Statement: Commercially sensitive information
• Commissioner's Policy Statement: ACNC's approach to internal disputes within charities
• Australian Charities and Not-for-profits Commission Act 2012 (Cth) s 40-10
• Explanatory Memorandum, Australian Charities and Not-for-profits Commission Act 2012 (Cth)
• Australian Charities and Not-for-profits Commission Amendment Regulation 2013 (No. 2) (Cth)
• Explanatory Statement, Australian Charities and Not-for-profits Commission Act 2012 (Cth) and Australian Charities and Not-for-profits Commission Amendment Regulation 2013 (No. 2) (Cth) (Explanatory Statement to F2013L00793)