Who built the shadows?

The Herald's investigation into Andrew & Nicola Forrest's Minderoo Foundation, published last week, reads as a story about one man and one very large charity. It is more useful read as a story about a tool.

Forrest has a phrase for the former staff who criticise Minderoo in the article without giving their names. He calls it "sniping from the shadows". He is right that there are shadows. He does not say who built them.

Those staff are anonymous because they signed non-disclosure agreements. The shadows, and the complaint about them, come from the same hand. To be fair to Forrest, it is a hand that signs the same clause at almost every large charity in the country. That is the problem worth writing about.

Start with what Minderoo gets right, because it is a lot.

The Forrests have committed billions and built one of the largest foundations in the country. They have funded audacious things: putting out bushfires within the hour, ending ocean plastic, closing the Indigenous employment gap in a generation. That is philanthropy doing precisely what it exists to do.

Philanthropic capital is the only serious money in the country that is free to fail. A company cannot chase the moonshot for long, because its capital has to come back. A government cannot be seen spending public money on things that might not work, because the next election is always close. Philanthropy carries neither burden. It can fund the long shot, the unproven idea, the problem everyone agrees is too hard. If every project a foundation funds succeeds, the money was aimed too low. Minderoo aimed high, and some of it did not work. Good. That is what swinging hard produces, and Minderoo swings harder than almost anyone.

And when Minderoo explains itself, the system works exactly as designed. The foundation changed course on several fronts, backed specialist partners, and closed its plastics scheme after its own research found recycled plastic could harm health. Reasons given, a lesson named, the public able to judge. That closure is not a failure story. It is the best passage in the whole saga: a foundation funding research honest enough to kill its own program, and saying so. If everything were handled that way, there would be no investigation and no column.

The fault is only ever the part left dark. Reports thinned to totals. Projects gone from the website. Former staff bound to silence.

An NDA is an instrument of power. It lets the party with the money decide what the rest of us are allowed to know. Between two private companies, that is their business.

Charity money is different, because charity money is public money. A charity runs on tax the rest of us forgo: the deduction on the way in, the exemption on the earnings, the concessions all the way down. Minderoo's chairman has said the Forrests could have kept their fortune for personal use. True, and to their credit they did not. But they gave it and took a deduction, so the public helped pay.

You take the deduction, you owe the public account.

And taxpayers are not the only ones owed it. So is every donor to a charity, who gave on the strength of the story the charity told, including the ones who trusted it with the last gift they will ever make.

Concealment costs more in philanthropy than anywhere else. An audacious failure pays a dividend: the lesson. The trial that did not work shows the next funder where the wall is. That is how a sector learns, and how the next attempt starts further up the hill than the last. But the lesson only exists if the failure can be seen. Behind an NDA, the report shrinks to a total, the program disappears, and the failure teaches no one. Concealment keeps all the risk of being bold and throws away the one thing that made the risk worth taking.

Transparency is not a complaint about secrecy. It is the precondition for daring.

Founder-led charities face a particular temptation here. When a charity or foundation is synonymous with its founder, every NDA protects a private reputation as well as a strategy. That is true of every founder, everywhere. It is why the rule cannot be left to individual judgment.

This stopped being about Minderoo several paragraphs ago. Any charity in the country can ask an employee to sign their voice away. Whether it's whistleblowing or ordinary people, in ordinary jobs, holding knowledge the public paid to create. The clause does not ask which. It silences both.

Charities should not be permitted to use non-disclosure agreements to hide how they operate. Donor privacy, commercial terms and trade secrets can stay. Any clause whose effect is to stop a former employee describing how the charity itself behaved should go. Not curbed. Removed.

This is less radical than it sounds. From 1 July this year, Victoria became the first Australian state to restrict NDAs in workplace sexual harassment, after an inquiry found they were routinely used to guard reputations. The federal Respect at Work review urged the same. Britain and the United States are moving the same way. The principle is settled: a confidentiality clause should not bury conduct the public has a stake in seeing.

We should want a sector full of funders who swing as hard as the Forrests. That is the whole promise of money that answers to no market and no ballot. But daring only earns its subsidy if the misses come back as knowledge, and knowledge does not come back from behind an NDA.

So, who built the shadows? Not the critics. Not Forrest. The rules that permit NDAs in charities did, and the rules are ours. They should bend to one old principle: whoever takes public money owes a public account. No clause should be allowed to buy it back.

Death, taxes and generosity. I write about all three.