Impact of New Regulations on Charities

The activities of the approximately 56,000 registered charities in Australia will be significantly impacted by the new regulations recently announced by the Federal Coalition government. These regulations have widened the scope for the charity regulator, Australian Charities and Not-for-profits Commission (ACNC), to investigate and deregister a charity. Many organisations, such as Greenpeace and most Aboriginal Land Councils, are listed as charitable organisations and rely on the financial benefits of a registered charity for their ongoing work in our communities. 

A recent and controversial de-registration involved an animal rights group. In order to register as a charity an organisation must provide evidence that all the purposes of the organisation are “charitable”, as defined by the Commonwealth Charities Act 2013.  This Act lists 12 charitable purposes. Presumably, the activist group Aussie Farms was granted charity status under the purpose “preventing or relieving the suffering of animals”.

The Aussie Farms website contained photographs and details of farm practices, and an interactive map that listed the locations of farms, abattoirs and dairies. The Coalition accused the organisation of encouraging illegal behaviour, such as trespassing, and pressured the ACNC to investigate. The ACNC did not release the findings of its investigation into Aussie Farms and did not comment on its concerns, citing the secrecy provisions of the Act. But, in November 2019, it revoked the charity status of Aussie Farms. This decision was publicly endorsed by the National Farmers’ Federation. Aussie Farms claimed that the ACNC was influenced by “the very industry within which our charity has exposed extreme and at times illegal animal cruelty.” 

Less than two years later the Coalition government has ratified amendments to the Australian Charities and Not-for-profits Commission Regulation 2013 to further tighten the advocacy activities of charitable organisations.

In the regulations, of particular concern to charitable organisations is:

(aa)  as a summary offence under an Australian law, and the offence relates to:
1. entering or remaining on real or personal property;

And an addition at the end of section 45.15

(3)  A registered entity must maintain reasonable internal control procedures to ensure that its resources are neither used, nor continued to be used, to actively promote another entity’s acts or omissions that may be dealt with as described in paragraph (2)(a), (aa) or (b).
(4) For the purposes of subsection (3), a registered entity’s resources include:
(c) its websites, social media accounts and other publications;

A charitable organisation acting unlawfully has always been sufficient reason for review but these amendments broaden the legal liability of all organisations. Essentially any activity even non-violent, that the Commissioner deems does not comply with these regulations can result in charitable status being revoked. For example, being perceived to be connected with or supportive of “sit-ins”, an effective strategy of the US civil rights movement and the Aboriginal Tent Embassy established in 1972, could result in any charitable organisation being investigated and potentially deregistered. Even a mere expression of support, such as publicising a peaceful protest on public land where an offence occurs or is “likely” to occur, could result in deregistration. Organisations can be targeted for the material posted on their website, even if it is an independent party which chooses to use that information for alleged unlawful activity.

Additionally, in the accompanying notes to the new regulations, the Morrison government states that the ACNC commissioner can investigate if “it is more likely than not that a registered entity will not comply with the provisions”.

This expansion of the types of offences, both indictable and summary, for which charities could be deregistered has been met with wide criticism. Seventy seven organisations, such as Amnesty International, Anglicare Australia, CARE Australia, Caritas Australia, Oxfam, The Fred Hollows Foundation and UnitingCare, combined to place a full-page advertisement, in a national newspaper, protesting the regulations. Revoking an organisations charitable status renders it financially unstable and potentially un-viable as an entity. This would be a serious disincentive to organisations in terms of advocacy.

In the past three years only two out of over 50,000 charities have been deregistered for illegal behaviour. Yet, in the midst of a global pandemic, the Morrison government has pursued this amendment. There is some background to this. On entering office in 2013 the Coalition unsuccessfully introduced a bill to dismantle the Australian Charities and Not-for-profits Commission. In response the Turnbull government appointed Gary Johns as the commissioner in 2017. Since his appointment Johns has claimed $250 000 in travel expenses, mainly due to his refusal to move to Melbourne where the ACNC is based. Johns has been quoted as saying that “a lot of poor [Indigenous] women in this country…are used as cash cows” to obtain government benefits. He also wrote in 2015, that anyone whose “sole source of income is the taxpayer, as a condition of benefit, must have contraception.”This is the man who will oversee the implementation of these new regulations. It is little wonder the community of charitable organisations are deeply concerned.

Jules De Cinque
Melbourne Activist Legal Support

For more information

• ‘Australian charities say tough new restrictions are an attempt to ‘muzzle’ their advocacy work’, 2021, SBS News, 27 Jun, viewed 20 July 2021
• Hurst, D 2021, ‘Coalition accused of using charity crackdown to silence dissent’, The Guardian, 28 Jun, viewed 20 Jul 2021
• Martin, S 2019, ‘Animal activist group that publishes farm details for protests has charity status revoked’, The Guardian, 18 Nov, viewed 17 Jul 2021
• Probono Australia, ‘The average charity is about as likely to engage in illegal activism as the average person is to commit murder’, viewed 20 July 2021
• CounterAct, ‘Stop the attack on peaceful protest‘, 2nd July 2021
• Hands Off Our Charities Campaign