It's as cold as charity for Australian not-forprofits facing the Coalition's hostility – Lexology

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The Morrison government's war on charities rages unabated and proposed legislation gives it more firepower. But what's really behind its wrath?
The Coalition's love-hate relationship with the not-for-profit sector continues.
Love for religious charities, of course, and appropriately minded "research and advocacy" groups like the opaquely funded Institute of Public Affairs.
Hate for GetUp! and the ever-proliferating environmental and social justice organisations that argue for such tedious notions as the continued existence of the planet, the equal human dignity of asylum seekers and Indigenous people, and that 10-year-olds are incapable of forming criminal intent.
Having tried unsuccessfully to kill the sector's regulator, the Australian Charities and Not-for-profits Commission (ACNC) in Tony Abbott's early deconstructive phase, the Coalition decided to co-opt it, installing Gary Johns as commissioner in celebration of his well-known disdain for charities being involved in policy advocacy (as Labor said, it was "like putting Dracula in charge of the bloodbank".)
Johns got straight on to the important business of regulatory oversight, questioning ACNC staff over including an acknowledgement of traditional owners in their email signatures, which he said could suggest that the ACNC had a "bias" towards Indigenous charities. Not that he has a negative attitude on that subject, although he has never disavowed what he said to Andrew Bolt in 2015: that Indigenous women were being "kept pregnant and producing children for the cash". Delightful.
Anyway, that's the kind of even-handed guy to whom you want to be giving extremely wide discretionary powers over the registration and deregistration of charities, right? So no cause for concern with the government's latest attempt to shut pesky advocacy groups up: the ACNC Amendment (2021 Measures No 2) Regulation coming before federal parliament for approval this week.
Under the ACNC's governing act, one of the hoops through which registered charities must jump — and keep jumping — is a set of "governance standards" established by regulation. Mostly these are sensible and boring, the kinds of standards to which you'd expect a charity to have to conform in order to maintain the special benefits that registration can unlock for it — in particular, tax exemptions.
Among those governance standards is a requirement that registered entities not commit any indictable offences under Australian law. Fair enough. They probably shouldn't be committing serious crimes and expecting to stay registered.
The government now proposes to expand that to also include a wide range of summary offences relating to entering or remaining on property, destroying, damaging or taking property (of any kind), or causing or risking personal injury to others.
The difference between summary and indictable offences is like the difference between failing to make your bed and setting fire to your bed. The kinds of petty crimes that could, if this regulation is made, bring charities and not-for-profits within reach of the ACNC's punitive powers, include trespassing, graffiti, failing to comply with a move-on order while protesting, sleeping out in Martin Place (yep, that's a crime), whatever the cops decide constitutes offensive behaviour and, for sure, chaining yourself to a tree or the fence at Parliament House.
The provisions pick up not just direct conduct but accessory offences as well, so if officers or members of an organisation commit a minor offence in the course of protesting, for example, the whole organisation cops the heat.
Organisations will also be required to "maintain reasonable internal control procedures" to ensure its "resources" aren't used "to actively promote another entity's" actions that may constitute an offence. So the Koala Foundation will need to divert resources to making sure its members don't — while wearing its T-shirts — get caught up in some minor illegality while joining in a protest march put on by a coalition of environmental groups. As just one example of a billion.
The issue, however, isn't with the hypotheticals of how this new layer of regulation may be used to monster advocacy groups into silence. The issue is why this has been contemplated at all, and what it says about those promoting its necessity.
Australia, you probably haven't noticed, does not have a major problem with criminal activity by ACNCregistered organisations in the course of their advocacy work, including when they are protesting. The most violent public demonstrations in recent Australian history had nothing to do with charities or not-forprofit groups.
There has been and is no scourge of property damage, vandalism, theft, sabotage or injury to people. There are occasions when (particularly) environmental advocates such as those protesting against Adani resort to acts of disobedience that may be illegal, but the existing law remains more than adequate to deal with that.
No case has been made, or attempted, to justify this extrajudicial punishment regime, nor to explain what appropriate social purpose it will serve. It obviously infringes basic human rights; even our pathetically weak implied constitutional freedom of political communication has been accepted by the courts as encompassing protest action.
As American courts frequently intone, democracy flourishes in the marketplace of ideas, necessarily including exercises of free expression that drift into the messy and counterproductive (but not January 6level counterproductive; violent insurrection is a different beast altogether).
It is odd that the Coalition parties, supposed inheritors of the spirit of liberalism, are so constantly keen to find new mechanisms, including draconian powers, to manipulate the public discourse.
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