ACNC calls for comment on their Regulatory Approach Statement

Charities have been invited to comment on the exposure draft of the “Commissioner’s Interpretation Statement on Withholding or Removing Commercially Sensitive Information from the ACNC Register” (Exposure Draft).

The key points contained in the exposure draft are:

• Charities registered with the ACNC can apply to have information withheld from the ACNC Register.
• Under the Australian Charities and Not-for-profits Commission Act 2012 (Cth) (Act), the Commissioner of the ACNC may decline to include on, or remove information from, the Register if the information is commercially sensitive or has the potential to cause detriment to the registered charity or to an individual.
• The Commissioner also has the discretion under the Act to decline to remove information from the Register if the Commissioner considers that the public interest in including the information on the Register outweighs the likely adverse effect of the information being commercially sensitive or causing detriment.
• The ACNC has interpreted the term ‘commercially sensitive’ to mean any information of a confidential nature, and which has commercial value that would be reduced if the information was disclosed.
   
• In considering whether information is commercially sensitive, the ACNC will look at a range of factors including:
  • whether the information is used in relation to the activities the charity undertakes;
  • the extent to which the information is known outside the charity;
  • the extent to which the information is known by the charity’s employees, members, volunteers and/or contractors;
  • the measures taken by the charity to guard the secrecy of the information;
  • the value of the information to the charity and its competitors, including whether the value can be measured or quantified;
  • the effort and money spent by the charity in developing the information;
  • whether the information remains current, or whether it is out of date; and
  • the ease or difficulty with which others might acquire or duplicate the information.
     
• In determining whether publication of the information may cause detriment, the ACNC will consider:
  •  whether the detriment claimed is real, actual or of substance;
  • whether there is a causal link between the public disclosure and the detriment claimed; and
  •  the timing of any publication.

Charities are encouraged to comment on the Exposure Draft. To access a copy click here. Feedback on this draft will be accepted by the ACNC until close of business on October 26 2015.  Send your comments to CIS@acnc.gov.au.

Charities should note that if a charity does not make an application to have information withheld from the Register, the information will be publicly available. Organisations that are concerned about this should consider seeking advice in relation to making an application.

For more information please contact:

Ashleigh Wall
Senior Associate
T: 03 5226 8559
E:awall@harwoodandrews.com.au

Dianne Sisak Penjalov
Senior Associate
T: 03 5226 8582
E: diannes@harwoodandrews.com.au

Ella Vines
Lawyer
T: 03 5225 5216
E: evines@harwoodandrews.com.au