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/
