Government looks to broaden ACNC’s powers amid crackdown on unlawful activity

Some in the sector say the push is reminiscent of “Stalinist Russia”       

The charities commissioner could be given discretion to take enforcement action against charities even if they have not been charged with an offence, under proposed changes that sector leaders say go against “every principle of justice, fairness and procedural transparency”.   

The federal government is looking to change the governance standards for charities to make clear that a registered organisation must not engage in offences such as trespassing, theft, vandalism or assault, or use their resources to promote or support these activities.

It follows a decision last November to strip the charity status of animal rights group Aussie Farms, which staged several animal welfare protests across the country and published an online map and directory of slaughterhouses and farms across Australia. 

Charity sector warns it will not accept the changes

But these changes – which are part of a government push to crack down on “activist organisations masquerading as charities” – have been slammed by the community sector.

Charity leaders are particularly concerned by a move to increase the powers of the Australian Charities and Not-for-Profits Commission (ACNC) commissioner. 

The legislation’s explanatory statement reveals that the ACNC commissioner could use their enforcement powers – including revoking charity status – if they reasonably believed it was “more likely than not that the entity will not comply with a governance standard”. 

“This means it is not necessary for a registered entity to be charged or found guilty of a relevant summary offence for the ACNC commissioner to take appropriate enforcement action,” the statement said. 

Community Council for Australia CEO David Crosbie told Pro Bono News that allowing this kind of “subjective anticipation” to be a reason for deregistering charities would not be accepted by the charity sector.

“Any suggestion that the ACNC commissioner can act against a charity because he or she believes they may do something wrong – even when there is no evidence they have done something wrong – seems at best to be against every principle of justice, fairness and procedural transparency, all of which should be fundamental values for any regulator,” Crosbie said.

“Imagine if ASIC could de-register any company it wanted to just because as a regulator they thought the company might do the wrong thing?  

“Would business sectors in Australia accept that as a governance standard?”

Some in the sector believe the changes are more akin to an authoritarian society than a democracy.   

“When I first read the proposed changes to governance standards I honestly started thinking about Stalinist Russia and other countries where judgements about which groups can or cannot not operate freely are taken solely to protect the powerful,” CCA chair Tim Costello said.

“I think Australia is better than this, and I struggle to understand any rationale for extending this kind of discretion to a charities regulator.”

Australian Council for International Development (ACFID) CEO Marc Purcell told Pro Bono News that he was “really alarmed that there’s moves to criminalise the work of charities”.

He said the changes were not good for Australia’s democracy.

“At a time when we’ve got military juntas shutting down civil society in Myanmar, Thailand and China… Australia needs to be supporting diverse opinions, the right of free speech, citizens’ right to protest and certainly not muzzling charitable organisations,” Purcell said. 

Debate over ACNC commissioner’s power 

The federal government said it was making these changes to address uncertainty around what kinds of activities could place a charity’s registration at risk, which was raised as an issue by the ACNC Legislation Review panel.

This panel also looked at the scope of the commissioner’s powers and said that the “commissioner’s powers are adequate and do not need to be increased”.

Dr Matthew Turnour is chair of Neumann and Turnour Lawyers and was a member of the review panel.

He told Pro Bono News he was aware of concerns in the sector about the powers of the commissioner.

Treasury is seeking submissions on the draft legislation and Turnour encouraged charities to make their voice heard.

“We discussed [the commissioner’s powers] in our report and the government has agreed to consult further in relation to how the powers should be used,” Turnour said.

“People should raise these issues as a part of the government consultation process and with their parliamentarians.

“Charities should however ensure that they comply with the law at all times.”