Pushing back: The role of charities in strengthening our democracy

If proposed amendments to the powers of the ACNC are passed by the Parliament, there would be major consequences – it’s not going to make our government stronger, writes David Crosbie.

“It could scarcely be denied, these days, that it may be necessary for organisations, whose purposes are directed to the relief of poverty or the advancement of education to agitate for change in the policies of government or in legislation in order to best advance their charitable purposes.” – Aid/Watch Incorporated v Commissioner of Taxation of the Commonwealth of Australia High Court Decision (2010)

Advocating for changes that will benefit communities is often a core part of the work of charities. This is why so many of us worked so hard for so long to ensure protections for advocacy were written into the Charities Act 2013. Under that act, the sole charitable purpose can include: “promoting or opposing a change to any matter established by law, policy or practice in the Commonwealth, a state, a territory or another country”. This is also why the explanatory notes included as part of the Charities Act 2013 refer specifically to the 2010 High Court judgement in relation to the Aid/Watch case (see above). 

We know some people in government do not like the Charities Act. They tried to delay its implementation. They have expressed concern that charities can publicly campaign and oppose government policies, or even seek to change the behaviour of government and business through public action. 

There are charity critics inside and outside of government who believe charities should exist primarily to pick up the pieces, offer support, clean things up, not to agitate for reform. The charity that removes all the dead fish out of the poisoned river is a good charity. But charities should not champion change, seek to make policy or restrict business or government in any way. The charity that goes upstream and prevents the factory poisoning the river and killing all the fish in the first place is not a good charity. 

These may be minority views, but they can be powerful, and every now and then they work their way into proposed government legislation. And so it is now. 

The Treasury has just released proposed amendments to the ACNC Governance Standards set out in Exposure Draft Australian Charities and Not-for-profits Commission Amendment (2021 Measures No. 2) Regulations 2021.

These amendments significantly expand the range of offences charities cannot be involved in to include basic property offences and summary offences like blocking a footpath. As the proposed amendments currently read it is sufficient to say a potential breach of governance standards has occurred if the charity supported actions that “could be dealt with as a summary offence”. No actual charges of unlawful behaviour need to have been laid or pursued.

The amendments also expand the ways in which a charity will be considered to have engaged in such activities including if its employees, websites or social media accounts promote or support such actions. The charity does not have to be directly involved. 

These amendments significantly shift the emphasis in determining enforcement action onto the activities of a charity rather than whether or not the charity is pursuing its purpose. 

Perhaps most importantly the proposed amendments provide the ACNC commissioner with the discretion to find that if he or she “reasonably believes that it is more likely than not that the entity will not comply with a governance standard” they can take enforcement action. 

Having a belief that a charity could through its website or social media be supportive of unlawful actions that may be covered under summary offences is a ridiculously low bar for initiating action against a charity. I know of no other regulator that operates to this kind of standard of justice or fairness or due process. A belief that some unlawful action may be promoted or supported by a charity at some time in the future should not be grounds for enforcement action. 

If these amendments to the powers of the ACNC are passed by the Parliament, there would be two major consequences. The first is that demonstrations and protests (most of which involve some form of unlawful behaviour that could be prosecuted under summary offences) could not be supported by any charity unless the charities involved are prepared to face enforcement action. 

The second is that these amendments would have a chilling impact on the public campaigning of many charities. Should your charity in any way support or promote the actions of protestors standing outside a refugee prison hotel calling for their release (blocking the footpath), or a local community group seeking to oppose a liquor license by protesting at a proposed building site (trespass), or a group of concerned people campaigning outside a pokies venue against an increase in the number of poker machines, or a local historical society seeking to block the destruction of a heritage building, your charity could be seen to be supporting unlawful activities, thereby breaching governance standards and potentially losing its charitable status. 

Many of the world’s major achievements have been started by protest – by some form of civil action that contravened laws and regulations like trespass or blocking footpaths. From the establishment of the Magna Carta and our Parliamentary systems to the tearing down of the Berlin Wall, the civil rights movement in the US, even the recent Black Lives Matter protests that have led to the widespread banning of choke holds and other positive policing initiatives across the US, change often happens because people are prepared to push back against established rules and ways of operating, to speak up for those who have not been heard. 

Emmeline Pankhurst said of the Suffragette protests: “We are here not because we are law breakers; we are here in our efforts to become law-makers.”

Democracy is in a delicate state around the world. Misinformation, hyper-partisan politics, the loss of trust in our institutions, short-term self-serving approaches to national and global issues have all contributed to its decline.

No one agrees with every protest. Few people believe charities should actively encourage serious or sustained law breaking. But the ACNC already has the power to address these issues. 

Trying to silence those seeking change by threatening increased enforcement action against charities is not going to make our government stronger, quite the contrary. Not enabling charities to be involved in any way in protest actions will feed an increase in inequality, disaffection, and apathy, all of which will reduce our nation and our communities. It will diminish our democracy. It will diminish us.

 The Treasury Consultation on the proposed amendments including where you can make your submission is here.