Anglicare Australia, St Vincent de Paul Society National Council of Australia, The Benevolent Society, Baptist Care Australia, UnitingCare Australia and Catholic Social Services Australia are signatories to the letter, which expresses broad condemnation of the proposed changes from the sector.

“These new rules undermine the legitimate and lawful advocacy that is at the core of what we do,” the letter reads. “They will silence the voices of the people we represent and stifle our mission to create a just society where all Australians can live their lives with dignity.”

“These new rules undermine the legitimate and lawful advocacy that is at the core of what we do” – Open Letter to Senate

The proposed amendments expand possible scenarios where a charity might lose its registration, going beyond indictable offences to include summary offences.

Not only could charities face deregistration if their staff or volunteers engage in minor offences like trespassing or vandalism, but also if the charity can not provide evidence to show they have taken reasonable steps to ensure their resources are not used to promote or support unlawful conduct.

“Our work is driven by our mission. But these new rules would make it harder for us to advocate for our mission,” said Rt Rev Dr Chris Jones, Chair of Anglicare Australia, one of Australia’s largest not-for-profits, with over 20,000 employees and 9000 volunteers in its network 

“We could be targeted if our staff or volunteers commit minor offences. We could be held responsible for how other people use our materials. We could even be shut down if the Commissioner thinks it’s ‘more likely than not’ that we’ll do something wrong,” said Jones.

Under the proposed changes, the ACNC commissioner would have the power to deregister a charity if they reasonably believed it was “more likely than not that the entity will not comply with a governance standard”. This means the commissioner could deregister a charity that was neither charged nor found guilty of an offence.

“Baptist Care Australia are concerned that these proposed changes limit the capacity for charities to undertake legitimate and lawful advocacy. The breadth of their application to include such subjective measures as a ‘belief’ that they ‘may’ commit a minor offence is totally unreasonable,” said Nicole Hornsby, Executive Director of Baptist Care Australia.

Charity leaders say the proposed changes will increase their workload and add no value to Australians.

“The administrative burden of monitoring all our activities is enormous and not warranted. Unlawful acts are already covered by existing criminal law. These changes increase red-tape for no good reason,” said Toby oConnor, CEO of the St Vincent Paul Society National Council of Australia.

“They will damage our charities and the people we support,” Gordon Ramsay, CEO of the Alliance for Gambling Reform, said. “They tighten red tape and controls when we need to focus our energy on working for a stronger community.”

Anglicare Australia’s Executive Director Kasy Chambers said, “All of this will make it harder for us to do our work – and throw up more red tape when we’re trying to respond to emergencies and disasters.”

“In fact, no charity has had their registration revoked due to ‘illegal activities undertaken in an activist context'” – ACNC Commissioner Gary Johns

So why is the Australian Government proposing such unprecedented changes to the not-for-profit sector?

In a statement released June 25, Assistant Treasurer Michael Sukkar said that the new governance standards would reinforce Australians’ trust and confidence in the charities sector.

“The 59,000 registered charities in Australia do exceptional work in our community supporting society’s most vulnerable, and their efforts are recognised through their status,” Minister Sukkar said.

“However, Australians support charities through donations and tax concessions with the expectation that a charity’s resources are directed towards charitable works. By making these regulations, the Government is ensuring 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.

“Charities that engage in unlawful activities infringe on the rights of law-abiding Australians conducting their business and going about their everyday lives. This undermines public trust and confidence in the charities sector.”

Legal experts dispute both the government’s premise and the proposed solution.

In fact, as the Law Council’s submission to Treasury notes, the government’s own review of charities legislation called for a complete repeal of the standard the government now seeks to broaden.

“The Review Report recommended that governance standard three be repealed on the following basis: Governance standard 3 is not appropriate as a governance standard. Registered entities must comply with all applicable laws. It is not the function of the ACNC to force registered entities to enquire whether they may or may not have committed an offence (unrelated to the ACNC’s regulatory obligations), advise the Commissioner of that offence, and for the ACNC to advise the relevant authority regarding the offence,” the Law Council’s submission reads, referring to Commonwealth of Australia ‘Strengthening for Purpose: Australian Charities and Not-for-profits Commission Legislation Review (2018), Recommendation 9.

ACNC Commissioner Gary Johns confirmed that “…no charity has had their registration revoked due to ‘illegal activities undertaken in an activist context’.”

“It’s about creating a country where poverty doesn’t exist. That’s why we need to be able to stand up for the people we work with,” – Kasy Chambers, Anglicare Australia

Tim Costello, chair of charity peak body, the Community Council for Australia, told ABC Radio National‘s Fran Kelly yesterday that when the Commissioner was asked in the Senate whether he needed these increased powers, he said no. Costello noted that offences like trespass were already covered under criminal laws, which apply equally to all sectors, including business and unions.

“Why pick out charities, particularly in a pandemic?” he asked.

With no clear evidence that charities are undertaking illegal activities and given that current law already covers such activities, Costello is just one of several not-for-profit sector leaders who have suggested an alternative motive for the government’s proposed amendments.

“Its intent is a chilling effect on advocacy,” Costello said. He suggested the real target of the legislation was environmental charities.

He said the government might be trying to “blur in the public’s mind” the Extinction Rebellion movement, which is actually not a registered charity, and registered environmental charities that the commissioner already has the powers to regulate. (Extinction Rebellion is unpopular with some members of the public because of the movement’s direct action that blocks public roads).

Costello argued that environmental charities have the right to freely express the “mortal and terminal cost of inaction” freely. He warned that the proposed regulation changes would tie up charities – most of which do not have in-house lawyers – with extra compliance costs, requiring donor’s dollars to be spent on work that is “utterly needless because we already have the laws”.

Anglicare’s Kasy Chambers also believes the proposed changes aim to stifle advocacy – a vital aspect of charity work. Anglicare was one of 12 leading Australian charities that asked the United Nations to urgently intervene against the government’s proposed legislation in an open letter. Other co-signatories included UnitingCare, BaptistCare, Amnesty, Oxfam and the Fred Hollows Foundation.

“It’s about creating a country where poverty doesn’t exist. That’s why we need to be able to stand up for the people we work with,” Chambers explained.

“But these rules are designed to stop organisations like Anglicare Australia from speaking up for our communities and our country by punishing us – and shutting us down for arbitrary reasons. They are not just an attack on charities. They are an attack on democracy.”