By Elizabeth Shalders, Special Counsel and Katelyn Thierry, Associate

Until recently, any investigations undertaken by the ACNC were subject to strict secrecy rules that prevented the ACNC from commenting publicly on any investigations that it was undertaking.  However, in December 2025 amendments were made to the Australian Charities and Not-for-profits Commission Act 2012 (Cth) (ACNC Act) which created exceptions to these strict secrecy rules.

The ACNC Commissioner is now able to authorise the public disclosure of certain protected ACNC information relating to investigations – including to disclose that the ACNC is investigating a charity.   It appears that this is intended to enable the ACNC Commissioner to respond to media enquiries relating to charity investigations.

If the only information disclosed to the public by the ACNC Commissioner is:

• the name of the charity, and
• the fact that it is under investigation, and
• any information that is already in the public domain,

then the ACNC Commissioner does not need the consent of the charity to make the public disclosure.

However, if the ACNC Commissioner wishes to disclose more information than that, the ACNC Commissioner must give the charity advance notice, and the charity can object.  There is then a process for reviewing the decision, and if the charity still is not satisfied, the charity can appeal the decision to Court.

In all cases, the ACNC Commissioner must consider:

• whether the disclosure is necessary to prevent, or minimise the risk of significant harm to public health, public safety or an individual; and
• the harm that a disclosure might cause to the charity or individuals (such as those working or volunteering for the charity); and
• the seriousness of the suspected contravention of the ACNC Act by the charity.

The ACNC can only make disclosures under these amendments relating to new or ongoing investigations.

What you should do in light of these changes?

• If your charity is under investigation by the ACNC, be aware that the ACNC Commissioner is empowered to disclose certain information, including to reveal that an investigation is underway. Consider what steps you would take if this information is made public. You may wish to seek legal advice as to the steps you can take to protect the people in your organisation.
• If you are being investigated – we can help. At Mills Oakley, we assist charities who are under the microscope of the ACNC. We can assist you to navigate communications with the ACNC, and any proposed compliance actions.