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EXCLUSIVE

ANTHONY KLAN

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.

The head of the ACNC is Coalition appointee Dr Gary Johns, who was formerly head of an anti-charity arm of the “Institute of Public Affairs”, a secretive US-style, dark money lobby group.

His 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”.

““Johns has argued welfare recipients should be required to take contraception 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.

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 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).

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 ACNC was unable to ever even identify any specific charity.

We considered this highly implausible.

The Klaxon has reviewed the ACNC Act, and ever other piece of ACNC governing legislation, and the ACNC’s claims are false.

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 matter involves a highly-controversial Coalition appointee, the Federal Treasurer, illegality, and is occurring just weeks out from a federal election””

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”.

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”.

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 “in the performance of his or her duties under this 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".

““The duty of the ACNC is to “promote transparency” 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".

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.

That email simply confirmed our earlier position - it is the exact legislation we were referring to, and which is detailed above. 

We went back to the ACNC, and to Johns, explaining this is detail (email below) and sought a response to this “very serious” matter.

The ACNC stopped engaging with us - and has refused to respond to any of our queries since.

Yesterday we wrote to the ACNC and Johns (below) 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 an entity to come out and immediately rectify that error.

If the ACNC refused to do so then it was extremely strong evidence that the ACNC had deliberately falsely made claims about its “secrecy act”, that is it had lied, in a move directly benefitting the Coalition and the Federal Treasurer, Frydenberg.

The ACNC and Johns did not respond.

ACNC’s latest annual report sets out “our vision and values”.

“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.

Dr Johns

Johns was a Federal ALP Minister from xx to 1996. In November 2020 veteran investigative journalist Neil Chenoweth revealed than 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.

“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 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.

Editor’s note: Much of the Australian media is controlled by vested interests. In recent years the media has let the public down by regularly refusing to publish certain stories - almost always in favour of the Federal Coalition. As such we have little to zero confidence Australia’s media will cover this extremely important story (just as it has failed to cover many others). We are taking our news straight to the public and will be delivering a physical copy of The Klaxon to every home in Kooyong (as well as some other locations) in the very near future.

This story will appear prominently.

Please help us get over the line and help fund this extremely important democracy project by donating generously here. 

Thank you, and thank you for reading.

Anthony Klan

About the author

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Australian journalism is under threat like never before. So too is the ability for us, the public, to make informed decisions. A disintegrating media is serving to further concentrate the already vast, unhealthy, power held by a few. That power is routinely abused, its attendant responsibilities wilfully ignored, and our democracy weakened.

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Anthony Klan

Editor, The Klaxon