Charities commissioner issues election advocacy warning

But advocacy leaders say charities should not be afraid to speak out 

The head of the ACNC has been forced to clarify recent comments he made on charitable advocacy during an election period, with questions being raised around his understanding of the issue. 

In his February column, Dr Gary Johns said that charities should be conscious of how campaigning activities might affect their reputation. 

“This is especially true in an election year, where there is an increased risk that the public could see these activities as promoting or opposing a particular political party or candidate,” he said.

During Senate Estimates last week, Johns was questioned by Labor senator Anthony Chisholm on what the rules of charitable advocacy actually were. 

Chisholm said that there was a slight difference in the wording around when charities can advocate between what was on the Australian Charities and Not-for-profit Commission’s website, and what was published in the most recent Commissioner’s Column. 

In his column Johns said charities can advocate or campaign if their rules allow it, while the advice on the ACNC website is that they can advocate or campaign if their rules don’t prevent it, which Senator Chisholm said was a”more open and permissive frame”.

Johns confirmed there had not been a change to what was stated on the website, his column just reflected “a different statement”.

Johns responded that rather than there being any changes to the definition, it was just “a different statement”.

He went on to say he agreed that the ability for charities to advocate and campaign robustly on issues central to their purpose remained an important part of this country’s democracy.

Charities are already on edge 

Previous research has shown that many charities already avoid political advocacy and operate within a culture of “self-silencing” for fear of risking their financial security or attracting political retribution.

And over the past year, the charity sector has faced a number of threats on its right to advocate. 

For the majority of 2021, the sector fought against a plan to strengthen laws to ensure charities engaging in or using their resources to actively promote unlawful behaviour faced enforcement action.  

And more recently, charities were left shocked and angry after the controversial Electoral Legislation Amendment (Political Campaigners) Bill was rushed through the upper house. 

The bill lowers the threshold for entities such as charities to disclose political spending and will force charities to reveal their donors with retrospective effect, which many believe places unnecessary burden on charities that engage in issues-based advocacy at election times and makes it harder for Australians to participate in national debates on important issues.

Jolene Elberth, the Australian Conservation Foundation’s democracy campaigner, told Pro Bono News that these perceived threats meant charities were “on edge” coming into this election. 

“The recent changes, particularly to the political campaigner regulations, have really put the sector on edge and they are now grappling with what that means for them so close to an election,” Elberth said.  

“But as the sector knows, charities absolutely can and should participate in the political process.” 

She said that the commissioner’s comments reaffirmed the point that as long as charities were working within their charitable purpose, they had the right to campaign and advocate. 

“I think charities leading up to the election should be aware of the rules, but should not be afraid to speak out because charities being in the public debate is such an important part of our democracy and our political process,” she said. 

If you are unsure of what exactly the rules are, The Human Rights Law Centre has updated its guide to support advocacy and electoral compliance: Not-for-profits’ guide to complying with Commonwealth electoral laws and What to do if you’re a significant third party.