When Charities Need to Break the Law

Occasionally charities need to break the law in order to meet their moral obligations, but it’s a minefield to manage, charity experts have said.

Ethical decision making in the boardroom was a key theme of the 2017 Australian Governance Summit last week.

The panel of directors, including author and NAB whistleblower Dennis Gentilin, Dattner Grant co-founder Fabian Dattner and Dr Simon Longstaff from The Ethics Centre, discussed business ethics and their impact on organisational culture and performance.

But Barry Rafe, director of Greenpeace Australia, revealed the vastly different ethical decisions advocacy organisations must make in their day-to-day work.

He said, as “a conservative bloke”, he struggled to draw a line between the law and ethics, but after working with Greenpeace he “fell in love” with the organisation.

“I was voted on as part of their need to get diversity. So me being male, pale and stale was their diversity,” Rafe said.

“The thing with activist organisations… is there is an element of endorsing illegal behaviour. And that’s an area I struggle with because we teach directors that if it’s illegal it’s unethical.”

However, he said it was a struggle he had to get over.

“You can’t be on the Greenpeace board and be timid,” he said.

“I’ve learnt that as humans we’ve got a human right to break the law, there are consequences but we’ve got a… right to break the law.

“And if you look at most of the rights that we’ve got, we’ve got those because people did that. People got the vote because they broke the law.”

He said Greenpeace had a non-violent, direct action approach.

“So we do break into things, we do stop businesses, we do blockades where business is stopped,” he said.

“You know, coal deliveries might be stopped. There are things that happen in bank branches where we put banners up.

“We don’t do criminal damage, we don’t do any violence.”

When it comes to managing advocacy activity, especially if it breaks the law, careful planning is required.

As an actuary for insurance company boards, Rafe is familiar with risk-appetite statements, which he said were quite complex.

“The risk-appetites that we do on Greenpeace are far more complex, so we are very careful about what we do,” he said.

“We have staff who want to be in harm’s way, and we’ve got to ease them back. We’ve got global protocols about who can go abseiling, we’ve got the Greenpeace SAS, we run sophisticated drones.

“I’ve sort of reconciled we do get very good legal advice on this.

“And you create enemies with people you don’t want to create enemies with.”

Rafe said there were consequences of advocacy, especially when it came to exposing the activities of some businesses.

“I’ve learnt stuff there that’s shocked me about what goes on in other organisations and levels of corruption,” he said.

“I’ll give you an example, I can’t mention any names, but we have a campaign against a major international organisation that wants to build a coal mine in Australia.

“Because we’ve done that, we’ve talked about potential corruption, our Greenpeace staff in the country where that person comes from have been threatened, we’ve had our tax status lost, and staff have had their bank accounts frozen.

“So we are threatened in another country by acts that we do here, and I think that’s shocking.”

He said, for directors of advocacy groups, nothing was black and white, but it was important to be guided by an ethical foundation, and a set of principles and values “you hold above potentially sometimes the law”.

“The issue is directors have a moral responsibility to be responsible citizens, so the organisation has to be a responsible citizen, it works within an environment of a society, and, as directors, we’ve got a responsibility to that society we’re in – and the fact that we don’t want to be closed down – so you just walk that fine line,” he told Pro Bono News after the panel.

“And the way you assess it is you primarily make sure you’re very clear what your vision statement is in your mission and values. It’s a value system that drives your process… it’s the values that drive how we behave.”

On this point, he said transparency with stakeholders, who may have expectations for an organisation to engage in illegal activity, was key.

“You’ve got a stakeholder group… people who contribute to your cause, and so part of what the director has to think through is what are the stakeholder expectations,” he said.

“And if we’re talking activist organisations for example, you don’t go out of your way to break the law… but sometimes there might be situations where you might need to make a point.”

Another consideration is the Australian Charities and Not-for-profits Commission requirements of registered charities, namely not advocating for a political group.

Breaching the ACNC’s criteria can result in a loss of tax deductibility status.

And making the situation more complex is a federal government inquiry into the tax deductibility of environmental groups.

The inquiry, revisited in November last year, recommended limiting the amount of advocacy work organisations can do, along with the introduction of sanctions and fines for engaging in any illegal activities.

“Environmental agencies generally, they’re a group that think advocacy has an important role to play, and they’re not going to change that,” Rafe said.

“Those sorts of organisations disagree fundamentally with that… inquiry, as a general comment.

“We don’t want to create a problem where our stakeholders aren’t able to get a tax deductible contribution made to us, we’re going to fight for that, but we’re not going to do anything that puts that at risk.”