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.
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 More telling is the fact that the provision this new regulation is relying on was recommended to be repealed by the government panel, which reviewed the ACNC legislation in 2018.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 Zabar is a charity advisor and former deputy CEO of Catholic Social Services Australia.
Main image: Palm Sunday march