The Coalition Government’s war on charities began in 2017 when Liberal MP for Cook Scott Morrison was Treasurer and hiding behind his Assistant Treasurer Michael Sukkar began to introduce certain amendments to the Income Tax Assessment Act 1997 and regulations.
This war continued under Scott Morrison as Australian Prime Minister, with the passing of Electoral Legislation Amendment (Political Campaigners) Bill 2021 which appears intended to apply a 'chilling effect' on advocacy by registered charities as "significant third parties" and is incorporated in the Commonwealth Electoral Act 1918 where advocacy by charities apparently falls under provisions 4AA Meaning of electoral matter.
Also in 2021, again through Michael Sukkar, Morrison introduced the Australian Charities and Not‑for‑profits Commission Amendment (2021 Measures No. 3) Regulations 2021 in order to alter certain governance standards relating to charities' engagement in or promotion of what Morrison & Co characterised as "unlawful activities". This move was unsuccessful when the Senate baulked.
However, it appears that Morrison found a 'workaround'. He uses the Australian Charities and Not-for-profits Commission as his arm's length bully boy.
The Saturday Paper, 14 May 2022:
On March 11 [2022], an email landed in the inbox of Carolyn Frohmader, the longstanding chief executive of Women with Disabilities Australia. The email was from the Australian Charities and Not-for-profits Commission (ACNC). It indicated the commission was conducting a “review” of charities that were registered to receive tax-deductible donations.
The commission demanded extensive information from the charity to determine whether it “meets the requirements” to be listed as a public benevolent institution, a particular subtype of charity whose main purpose is to relieve poverty, sickness, suffering or disability. The commission warned that “an organisation that provides awareness raising, research and advocacy services to the whole or part of the community may not meet the requirements for a PBI as these types of activities may not be considered to be the provision of relief”.
The email contained an interesting take on the law that applies to a public benevolent institution’s ability to conduct advocacy, recently clarified in a ruling by the Administrative Appeals Tribunal. The statement from the regulator was at best misleading and at worst wrong.
More worryingly, the email gave the charity 14 days to meet the commission’s demands, stating that failing to do so “may have consequences for your charity’s registration and its eligibility for tax concessions” and “we can also issue penalties for failing to comply with obligations”.
Frohmader didn’t know it at the time but her organisation had been caught up in the Morrison government’s war on charities – a war designed to intimidate them into silence by prosecuting the incorrect claim that certain charities in receipt of tax-deductible donations cannot engage in “advocacy”.
“ Advocacy is the heartbeat of change for the better in our world. The idea that we would silence voices because they are connected to a charity is incredibly destructive, not only for our democracy, but for the country.”
The latest front in this war has been a series of reviews carried out into the operation of individual charities, requesting large amounts of compliance material with extremely short time frames for response. These reviews are arbitrary and are not based on any suspicion of a violation. Some argue their purpose is to discourage charities from even considering advocacy, for fear of being tied up in an audit…..
Most recently, in 2021, the Morrison government introduced new regulations that would have given the Australian Charities and Not-for-profits Commission sweeping powers to deregister charities for speaking out on behalf of the communities they serve. This was despite unanimous opposition from the charity sector and a confirmation from the charities commissioner himself, Dr Johns, that the laws addressed an issue that did not exist. A report in Pro Bono Australia noted that, “amid the Morrison government’s push to crackdown on the issue of ‘activist’ charities, the charities commissioner says current data does not suggest this is a problem”.
“It was an attack on civil society, free speech and our democracy. And charities fought back,” says Ray Yoshida, co-ordinator of the Hands Off Our Charities alliance. “The alliance co-ordinated a multifaceted response that put a spotlight on the issue in the media and galvanised charities and their supporters to call on federal politicians on all sides to oppose the regulations.”
On November 25 the senate voted 24-19 in favour of independent Senator Rex Patrick’s disallowance motion, meaning that the regulations would never come into effect. But that hasn’t stopped the commission from pursuing the same objectives through more surreptitious means.
Speaking on background because they are not authorised to discuss individual cases, charity lawyers tell The Saturday Paper that Women with Disabilities Australia is not alone. They are assisting numerous organisations that have received similar “belligerent” and “over-reaching” letters.
They argue the regulator is not acting according to its own principles and is not following a hierarchy of enforcement actions. It is possible the commission is running against the principles of the 2013 Charities Act, which calls for “regulatory necessity”, “reflecting risk” and “proportionate regulation”.
Lawyers in the sector have told The Saturday Paper that many charities have simply complied with the letters, fearing repercussions from the regulator if they speak out or rock the boat. This week, however, Women with Disabilities Australia filed a formal complaint with the commission about its treatment.
One eminent charity law expert told The Saturday Paper the fact that the commission accepted $1 million a year from the Morrison government to undertake these reviews as part of the government’s “reform” program could be seen to put the regulator’s independence at risk as it suggests the government is “directing” its activities.
Krystian Seibert, one of the architects of the commission’s regulatory framework and a charities regulation expert at Swinburne University, says the correspondence he’s seen makes him “very concerned” about what the commission is doing. “It’s inconsistent with the intent of the ACNC legislation and the objects of the ACNC Act.”
Seibert says the commission was never intended to be an “overbearing regulator” and the objects in the act were specifically drafted to make this clear. In these cases, that appears not to have been followed. “There are no allegations of misconduct, however the charity is having demands put to it to provide very detailed breakdowns of spending on its activities in very short time frames, the bare minimum amount of time required under legislation.”
“I can certainly understand how this would be intimidating,” Seibert adds. “There’s real potential for such a compliance approach to have a ‘chilling effect’ on advocacy, with charities being less willing to undertake legitimate advocacy activities for fear of being reviewed in such a manner.”…..
Read the full article at: https://www.thesaturdaypaper.com.au/news/politics/2022/05/14/new-front-coalition-war-charities/
