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ACNC responds to media backlash

The ACNC Commissioner, Gary Johns, has responded to media accusations the Commission would impose criminal sanctions

The Australian Charities and Not-for-profits Commission (ACNC) has responded to public criticism and allegations it is “picking on the Catholic Church.”

The Catholic archbishop has plans to raise concerns with the Prime Minister about a regulatory investigation over the Catholic Education Melbourne’s political misconduct activities, receiving backing from Opposition Leader Bill Shorten and former Prime Minister Tony Abbott.

ACNC Commissioner, Gary Johns, said of its investigation into the Catholic Education Melbourne: “We are undertaking this investigation because of the activities and statements made on behalf of this one charity during the recent by-election for the Federal seat of Batman.

“We’re commenting on the investigation to clarify matters about the conduct of this investigation that have recently arisen in the public arena.”

The public arena refers primarily to an article written in The Weekend Australian in which the ACNC were reported to be an independent but government entity that was “threatening” the church with criminal sanctions for its alleged role in the by-election.

However, the Commissioner clarifies: “The ACNC is a regulator independent of government direction. The ACNC is not directed by government to investigate charities, or to reach specific outcomes following an investigation.”

The investigation comes after a robocall was put out by the Executive Director of the charity, Stephen Elder, in which he said: “Malcolm Turnbull has slashed funds from low-fee local Catholic and independent schools and our state school system.

“In contrast, Labor believes that local Catholic schools are an essential element of our education system. Labor will restore hundreds of millions in school funding cut by the Liberals to both Catholic and state schools.”

Elder then finished the computer-generated phone call with: “Education is vital for our future – and the future of our schools depend on who you support on Saturday.”

According to ACNC guidelines, charities should not cross the line into a “disqualifying” political purpose and should maintain independence from political parties.

A charity is able to have a purpose of advancing political debate, including promoting or proposing a change in law, and to have a purpose to promote or oppose a change to law, policy or practice in the Commonwealth where this aids a charitable purpose.

It is not, however, able to “have a purpose to promote or oppose a political party or a candidate for political office”, which the charity will be investigated for.

According to The Australian, Elder said he received an email from the ACNC informing him he was under investigation and could be jailed for up to one year.

“We are required by the ACNC Act to include in such notices an alert to the charity about potential penalties under the Commonwealth Criminal Code for providing false or misleading information or documents,” Johns clarifies.

“The ACNC itself does not have any powers to determine criminal matters.”

In a follow-up article, Shorten said it was a “very disturbing and un-Australian trend” for the ACNC to investigate the charity for critiquing government policies.

“If the government or people are asserting that there is a rule which says that representatives of schools, representatives of the education sector, can no longer criticise cuts to school funding, that is a stupid rule and it needs to be changed.”

Abbott also questioned the probe, adding: “In a country under the rule of law, being critical of a government policy should never be the catalyst for official investigation.

“The charities commission should stop picking on the Catholic Church.”

Johns said the outcomes of an investigation could simply include a letter providing the regulatory outlines to a charity on the requirements expected of them but could be as serious as a revocation of their status as an ACNC-regulated body.

“In the course of an investigation, charities are usually invited to provide information and documents voluntarily. The ACNC may also require information or documents from the charity by a formal notice.”

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