Proposed law changes put charities at risk

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The COVID-19 pandemic has delivered electoral victories to incumbent governments across Australia, most recently in Tasmania. The Morrison government will be hoping that it too will benefit from incumbency when it goes to the polls in the coming 12 months.

Main image: Palm Sunday march

The Morrison government will use the federal budget to set an agenda which will focus on those policies which will deliver it victory at the next election and reconnect — at a policy level — with its traditional supporter base. The reconnection with parts of its base could spell trouble for charities that undertake advocacy activities.

The relationship between governments and charities is often mixed. Governments are willing and positive partners of charities when charities are delivering vital social and community services. The relationship becomes more fraught when charities use their extensive community connections and goodwill to advocate for matters which the government opposes. For some in our society the prevailing attitude toward the charity sector is that they should be seen but not heard.

Regulatory changes outlined in a Treasury exposure draft issued on 16 February 2021 seek to make it easier for the Charities Commissioner to deregister a charity for failing to meet Governance standard 3 — which requires charities to abide by the law. The driver for the proposed changes appears to be linked to the advocacy activities of a handful of charities that promote or use resources which result in a summary offence, such as trespass, being committed.  

The proposed law changes will allow the Charities Commissioner to deregister a charity where a person associated with that charity has, may have, or is likely to commit a summary offence. It would be the equivalent of the Australian Electoral Commissioner having the power to deregister the Liberal Party because of what their parliamentary members have done or may have done.

To put these powers into some context neither ASIC nor the Australian Electoral Commission have equivalent powers to deregister an entity under their regulatory supervision. More telling is the fact that the provision this new regulation is relying on was recommended to be repealed by the government panel, which reviewed the ACNC legislation in 2018.

Laws already exist to deal with charities that engage in or promote activities that are unlawful or contrary to public policy. The fact the regulator might find it difficult to prove that a few charities are no longer acting in accordance with their purpose should not, in and of itself, be a reason to make the other 55,000 law abiding charities vulnerable to deregistration.

 

'The proposed powers under this new regulation represent significant government regulatory overreach, the implications of which will go beyond the life of this government and those who are the target of these changes.'

 

Despite the stated intent, the proposed changes have less to do with ensuring compliance with the law and more to do with making it easier to rid the sector of certain charities.

The proposed powers under this new regulation represent significant government regulatory overreach, the implications of which will go beyond the life of this government and those who are the target of these changes. Church groups including Vinnies have recently expressed their opposition to the proposed regulatory changes and for good reason.

The Church’s traditional Palm Sunday Refugee Rally may trigger action against any Catholic charity that promotes or participates in the rally. While it may not be the intention of the government to include such events, the reality is that the framing of the proposed regulatory changes may capture Catholic charities simply exercising their rights to assemble and advocate for causes which matter to them.

If these proposed regulations are passed, there will be nothing to stop future governments targeting those charities which, for example, support protests in favour of religious freedoms or campaigns against abortion and euthanasia. Once passed, the government cannot offer a credible guarantee that the new laws won’t be used against charities undertaking these types of activities.

While the mining and farming lobby might well support tougher sanctions against certain charities, they might want to think about whether the proposed regulations will serve their interests and those they support over the longer term.

There is an old saying that the enemy of my enemy is my friend. In today’s political climate my friend today may become my enemy tomorrow. What then for the new enemy of the government if that enemy happens to be a charity.

 

 

Joe ZabarJoe Zabar is a charity advisor and former deputy CEO of Catholic Social Services Australia.

Main image: Palm Sunday march

Topic tags: Joe Zabar, COVID-19, charity, charities, auspol, budget, Morrison government

 

 

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Existing comments

Thanks for drawing attention to this policy change that will have a significant and very worrying impact on any charity that is engaged in advocacy. Any social justice or environmental charity could be affected - and potentially de-registered. It will have a silencing affect and prevent us speaking up for the voiceless. What can we do to stop this change from happening?


Cath | 11 May 2021  

Look, all the government is asking for is that you trust them. Like the extreme penalties for returning from India, it's extremely unlikely that they will be used. ' Just trust me'....


Ginger Meggs | 11 May 2021  

As Andrew Wilkie MHR says, “and then one morning you wake up and you are in East Berlin.”


Peter Downie | 11 May 2021  

And this is another example of an administrative act, where the executive is prosecuted, judge, jury and executioner. There is no judicial officer involved in the process, no need to argue and prove a case in public.


Ginger Meggs | 12 May 2021  

Creeping over-reach of government is one of the major risks to our democracy. When a charity can be cautioned, fined or wound up because its advocacy work upsets the government of the day, the social action of its members and supporters is blocked. Democracy is not just about the right/obligation to vote; it must include the right to advocate for people/animals/the environment, all of which are sometimes disadvantaged in Australia.


Ian Fraser | 12 May 2021  

Cath - thanks for your comments. A couple of things you might do - if you are part of a church community let them know about it, particularly your local priest/reverend. Your local member might have some interest in this issue as well. As I mention in the article if this goes through, even if slightly amended, it will have potential implications for all charities not just those being targeted.


Joe Zabar | 12 May 2021  

Ian - well said. For most of my career I have been pushing back against policies such as these and worse such as gag clauses in government funding contracts. Freedom of expression cuts both ways - we have to accept that there will always be differences of opinion, thoughts and even values. Its how we deal with these differences which makes our democracy stronger or in some cases weaker.


Joe Zabar | 14 May 2021  

Its doubtful that we now live in a democracy, Mr Zabar, when we witness the dictatorial behaviours of most governments in this country, behaviours that serve the parties and the individual pollies rather than the people.


john frawley | 14 May 2021  

A central problem is that we have no requirement for parliamentarians to act in the common good. They may act so that we come to harm, as is the case with climate change denial, which pays the government's debt to bribery by the Minerals Council.


John Bryson AM | 14 May 2021  

Joe, litigation funding may well fall foul of the proposals contemplated. Especially where social justice issues and religious freedoms are concerned. Servegate run by Coleman of Hillsong, is a charity though no mention of that on its website. Hillsong has received significant Government grants and Coleman is a friend of Scomo. Servegate has won $43m worth of tenders mainly from Defence and pays hefty salaries to its Directors while purporting in its objectives to assist Indigenous homeless. Current high flying pastor Houston was also historically reprimanded by the RC for failing to report child sex abuse within his organization, in particular by his father who founded this "Pentecostal" church. You say "The Church’s traditional Palm Sunday Refugee Rally may trigger action against any Catholic charity that promotes or participates in the rally", is that because it goes against the hardline border protection policy so beloved of Our Home Affairs ministry now led by Karen Andrews? I see the policy of turn back the boats has moved to the ABF protecting the North from Covid threats. So now instead of blaming people smugglers we blame covid 19.


Francis Armstrong | 12 June 2021  

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