With the federal election fast approaching, charities should be mindful of how best to advocate for their charitable purposes and activities – keeping in mind the complex legal and regulatory frameworks in which they operate.
Whilst charities may advocate for and support policies and measures that advance their interests, charities should not go so far as to support or oppose candidates or parties – this would result in the charity concerned having engaged in a ‘disqualifying political purpose.’ Were a finding of that nature to be made by the Australian Charities and Not-for-profits Commission (ACNC), the charity concerned may be the subject of regulatory action or, in extreme cases, deregistered.
HWL Ebsworth Lawyers’ experienced charity and Not-for-Profit legal team has assisted many charities to identify what is permissible, what activities may be impermissible or carry risks, and (where required) engage and respond to ACNC queries and reviews to protect the ongoing activities, operations and endorsements of charities concerned.
The complex regulatory environment
Charities exist and operate in a complex regulatory and legal environment. Much of that framework is relevant to charities that seek to engage in political advocacy, including:
- the governing document of the charity – including its express objects and powers;
- the limitations on charitable purposes set out in the Charities Act 2013 (Cth);
- the registration and compliance obligations imposed on charities by the Australian Charities and Not-for-profits Commission Act 2012 (Cth) (and its regulations);
- guidelines issued by the ACNC itself; and
- the general requirements regulating political activities set out in the Commonwealth Electoral Act 1918 (Cth) (and its State and Territory equivalents).
Given the above, it is critical that charities (including their employees and spokespeople) are cognisant of where the line must be drawn in each case of political advocacy or activity.
Where individuals intend to support a candidate or party, it is also critical that it is clear that this is done in a private capacity – without the use of charitable resources, branding or support.
We discuss further below.
What CAN charities do?
With respect to advancing or promoting their charitable purposes, charities may engage in political advocacy by:
- being involved in the development of public policy by making submissions or giving evidence in relation to existing or proposed laws, policies or practices;
- initiating public discussion about or seeking explanation of current or proposed laws, government policies or practices;
- raising awareness by distributing information, analysing or comparing party policies related to a charity’s purposes;
- publishing research on current or proposed laws, policies or practices;
- directly promoting the charity’s purpose, or the interests of their beneficiaries, to candidates, elected representatives and public officials; and
- organising, promoting or engaging in public debates and inviting members and candidates representing a range of political parties to discuss law or policy matters.
What CAN’T charities do?
Charities may be considered as having a ‘disqualifying political purpose’ if they engage in:
- supporting (or opposing) a particular political party or candidate – including where a board member or employee uses the identity of the charity in making a statement of support or endorsement;
- distributing how–to–vote cards on election day for a particular candidate or party;
- producing material asking its members or supporters to vote for a particular candidate or party;
- donating money to a particular candidate or political party during an election campaign; and/or
- attending events organised by a political party which:
- do not further the charity’s charitable purpose;
- may raise funds for the political party or candidate for office; and/or
- may allow the public to perceive the charity as partisan and as having a purpose of promoting that particular party or candidate.
Considerations
If charities intend to engage in any political activities or advocacy, we recommend that advice is sought in advance as to the appropriateness of that activity.
We also recommend that charities consider implementing a policy framework and education process that ensures all board members, employees and stakeholders clearly understand their obligations in this regard.
Finally, should the ACNC come knocking, a proactive and collaborative approach is often best – and the ACNC are generally open to having discussions regarding matters of concern and seeking to rectify them at first instance, before proceeding to enforcement action.
HWL Ebsworth Lawyers is also able to assist with this engagement process.
This article was written by Timothy Stokes, Partner and Rosa Mulalem Maru, Law Graduate.
