New rules on offences that can cause charities to be deregistered are ‘unprecedented’ and could stop them speaking out, critics say
Last modified on Sun 27 Jun 2021 18.35 BST
Australian charities fear a looming crackdown on the sector could silence their advocacy work, despite the Morrison government watering down several elements of its initial plans.
Labor accused the Coalition of seeking to “shut down dissenting voices” after the government introduced new regulations to expand the types of offences for which charities could be deregistered.
The government said the new regulations, announced on Friday after months of controversy over the proposed changes, would reinforce trust and confidence in the sector.
They would empower the regulator to investigate charities engaging in or promoting serious unlawful acts of trespass, vandalism, theft or assault and threatening behaviour.
This will apply regardless of whether they are classified as an indictable offence or the less serious category of summary offences under state and territory laws.
The government made several changes to its original proposal after facing a backlash from the sector, including narrowing the scope of the summary offences that are captured.
The regulations will also prohibit charities from using their resources – including social media accounts – to “actively promote” others to engage in unlawful activities.
This replaces the wording in the original proposal that charities must not use their resources “to promote or support” such activities.
Last month a group of not-for-profit and philanthropy experts warned that the planned crackdown would muzzle the charities sector, restrict dissent and stifle political advocacy.
Charity sector insiders who have examined the latest version of the regulations told Guardian Australia the regulations could empower the regulator to deregister charities for encouraging people to attend peaceful protests, including protests on public land.
They cited the example of a rally being unauthorised and blocking traffic, or if people remain on the site after being asked to move on.
Sources said both situations were common, and rally authorisations often came at very late notice, meaning it would make it more difficult for charities to promote attendance at a rally or permit their staff to attend.
The sector also fears the proposal could be used to shut down charities that fail to police community members that use a charity’s Facebook page to organise a peaceful protest, such as a sit-in at an MP’s office.
Alice Drury, a senior lawyer at the Human Rights Law Centre, said the government’s proposal would “silence important advocacy by Australian charities”.
“This treatment of charities is punitive and unprecedented – no business or political party faces deregistration for minor breaches of the law,” Drury said. “Nor are other entities pre-emptively punished because of what the regulator thinks they might do in the future.”
The government’s explanatory notes say the commissioner of the Australian Charities and Not-for-profits Commission can consider action if they reasonably believe that a registered entity has not complied with the new provisions, “or it is more likely than not that a registered entity will not comply with these provisions”.
Drury said the move came at a time when charities had worked to support communities through unprecedented crises, from bushfires and floods to an economic recession and a pandemic.
“The Morrison government should be supporting charities and welcoming our advocacy, not threatening us with new rules that could shut us down for speaking out,” Drury said.
The assistant treasurer, Michael Sukkar, said the nation’s 59,000 registered charities performed exceptional work supporting society’s most vulnerable – but the new governance standards “[ensure] charities that misuse and take advantage of their status to take part in or actively promote illegal activity can be stripped of tax concessions and other benefits.”
The government argues the regulations “do not impose a new burden on charities that are already complying with Australian laws”.
It says charities “will still be able to participate in advocacy activities provided they are consistent with their charitable purpose and conducted lawfully”.
But the acting chief executive of the Victorian Aboriginal Legal Service, George Selvanera, said the proposed changes would “jeopardise Aboriginal and Torres Strait Islander communities’ self-determination”.
“Already marginalised communities will be cut off from vital support because charitable organisations will not be able to provide the full extent of their services out of fear that the government will weaponise the proposed charity regulations,” Selvanera said.
“Aboriginal community-controlled organisations would be silenced, [with] their engagement in public debate curtailed.”
The opposition’s spokesperson for charities, Andrew Leigh, said the Coalition had “waged a war on charities” over the past eight years, including a failed past attempt to scrap the charities commission altogether.
Leigh said the Coalition wanted charities to be “seen and not heard”.
“When the government first introduced these governance changes, they claimed they were cracking down on criminals masquerading as activist charities,” Leigh said.
“Yet in the past four years, just two out of 59,000 charities have been disqualified for breaking the law. There is no charity crime wave that needs an urgent solution.”
Leigh said charities that broke the law could already be deregistered, and the new regulation “merely gives Liberals a new set of tools to shut down dissenting voices”.
The government’s explanatory notes argue the changes are needed because under Australia’s system of government, the states and territories determine whether unlawful activities are classified as indictable or summary offences.
“This has resulted in potentially serious offences, such as trespass, vandalism, theft, assault and threatening harm to persons, being defined as summary offences in some jurisdictions,” the notes say.
Sukkar’s office said charities would “be required to maintain reasonable internal controls over their resources, such as their funds, social media accounts and employees, to ensure they do not use them to actively promote others to commit offences”.