ACNC Election Guide Warning on NFP Advocacy and Campaigning

Australia’s charity regulator has warned charities not to “step over the line” when it comes to advocating and campaigning in the coming federal election.

The warning comes as the Australian Charities and Not-for-profits Commission (ACNC) released a new guide for charities to follow when advocating during the 2016 election campaign.

The charities, elections and advocacy guide is targeted towards charity boards and committee members to ensure that they “keep within the green zone to the kind of advocacy that is respectable”, according to ACNC Commissioner Susan Pascoe AM.

“We had identified the gap in the knowledge base and [we] were keen to get it out before the election campaign. We have had concerns raised about activities of charities in the absence of any guidance and we were not in a position to take any action,” she told Pro Bono Australia News.

The ACNC took on the board the recommendations made by its expert advisory council and referred to its own legislation and the guidance published by other Commonwealth countries in drafting the guide.

Pascoe said that the ACNC had tried to make the guidelines as clear as possible about what is permitted during the election, and to ensure that charities avoided the risk of having a disqualifying purpose and putting their registration at risk.

“There is a law in this area but it’s not been tested a lot. What we have done is sort the views of respected charity lawyers as we have been framing the advice we have got there,” Pascoe said.

“What we want to do is try and make it as clear as possible to the charities [about] what’s clearly in in terms of the activities that they can take and what’s clearly out, and what are the areas where they might be putting themselves at risk and pause and think.

“For example, there are charities that have a purpose that is related to advocacy. And if they are advocating in relation to that purpose, they can do things like compare the policies of political parties in the lead-in to an election. But they step over a line if they give direction on how to vote.

“Sure, you can compare the policies and you can identify which policies are closest to the mission and purpose of that charity but you step over a line if you were to then say: ‘Don’t vote for x party or y candidate.’”

Pascoe said that some concerns were raised about the activities of certain charities but that they weren’t a major area of worry. She emphasised the use of education and guidance in bringing misbehaving charities to heel but warned of the revocation of their registration in serious cases.

The ACNC has deregistered 14 charities since its establishment more than three years ago for reasons that were unrelated to a breach of advocacy common law.

“We handle these matters in the same way as we will handle any allegation of a breach of the legislation. All of the investigations that we do when complaints are raised, we look at the context of the charity, we look at whether the behaviour has been persistent, we look at whether there is a willingness in that capacity to change their behaviour once the breach has been brought to their attention,” she said.

“We take all of those factors into account and prefer to provide education and advice and then monitor the activities of the charity than to deregister. However, if the action is serious or persistent, or where we can’t see any willingness or capacity to improve, then we will move to revocation.”