CANBERRA — Australia’s NGOs concerned that proposed legislation to curtail foreign political influence would have dangerous knock-on effects for their advocacy made their opinions known to lawmakers during public hearings this week.
Held in Canberra, Melbourne, and Sydney between Jan. 30 and Feb. 2, the hearings investigated the new legislation as part of three parliamentary inquiries — an inquiry and report on the 2016 Federal Election and related matters, Review of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 and the Review of the Foreign Influence Transparency Scheme Bill 2017.
Despite the committees being made up of representatives of the sitting government, opposition and other political parties, the views of the government were apparent in the engagement with NGOs and supporting witnesses. And Australian NGOs have good reason to believe their concerns will not be addressed in recommended amendments.
Calls for charity exemptions
Australia’s charities were clear that they wanted total exemption from the proposed legislative changes — a view supported in recommendations from the Law Council of Australia.
In Canberra last Tuesday, the chief executive officer of the Community Council for Australia, David Crosbie, explained to the Parliamentary Joint Committee on Intelligence and Security that existing regulatory frameworks surrounding charities and not-for-profits already prevented them from crossing the line from advocacy into telling people how to vote. The Australian Charities and Not-for-profits Commission both regulates nonprofits and mandates transparency.
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According to evidence from Crosbie, the proposed legislation already provides exemptions for a range of organizations. He explained that, from his understanding, an international company such as Diageo was still entitled to seek to influence Australian alcohol policies but if an organization such as the Foundation for Alcohol Research and Education received funding from the Bill & Melinda Gates Foundation to support their research, they would have to register under the new act and provide political expenditure reports.
But others said more controls were needed. Peter Jennings, executive director of the Australian Strategic Policy Institute but providing evidence in a private capacity, suggested at hearings that exempting charities and not-for-profits could leave them open to foreign influence.
“If I ran a foreign intelligence organization it would be a green light to me that here was a bunch of organizations that we might find useful to infiltrate, if it was made legislatively clear that they were not going to be subject to the strictures of this legislation,” Jennings said. “To my eyes I think the legislation sets out appropriate safeguards for the interests of the community which should be sufficient reason to conclude that potentially everyone in the country should be subject to the effect of these laws but at the same time also understand that they have appropriate protections in place to look after their civil and political rights.”
His organization has previously published commentary on the risk of charities financing terror.
Only 12 charities will be affected
The biggest concern for Australia’s NGOs is the uncertainty the new legislation provides — knowing whether their work could become an election issue and thus be perceived as campaigning is one of the largest unknowns. The laws also feature broad terminology that could be interpreted in many ways.
It is also unclear how many NGOs would be impacted, and the cost it will create in implementing organization-wide changes. Not to mention the potential loss of income in charitable donations.
But Linda Reynolds, a Liberal MP and chair of the committee, was angrily dismissive, saying charities needed to “explain their situation beyond a vibe and into legal fact.”
According to Reynolds, only 12 charities in Australia would be required to adhere to the new legislative requirements out of approximately 55,000 registered nationally. These were based on the charities that provide a political expenditure return with the Australian Electoral Commission for the 2015-16 financial year — including the Australian Conservation Foundation, GetUp, Greenpeace and World Vision Australia.
Following ACFID was evidence given by Krystian Seibert, advocacy and insight manager with Philanthropy Australia, suggesting the existing legislation and confusion meant it is was likely more than 12 charities were required to submit political expenditures but were not aware — and the changes would see the requirements catch out more.
Ben Morton, also a Liberal MP, pounced on this, suggesting Australian charities were acting unlawfully, while Seibert suggested an updated budget outlook put aside a large sum of money to support the implementation of the proposed legislation, suggesting they were getting ready for a large compliance activity.
On the whole, Seibert felt the legislation was “highly flawed and shouldn’t be progressed.”
How influential are NGOs in Australian politics?
With the cuts the sitting government has made to Australia’s foreign aid budget, it is easy to assume that NGOs are not the biggest influencer for politics today. But at the hearings, there were certainly accusations that they are more influential that they appear.
Scott Buchholz, representing the Liberal Party, questioned Purcell on whether charities encouraged the public to vote for or against a political party during elections. Purcell emphasized the role of the ACNC in providing guidance and support to limit campaigning.
“We would not go out and hand a how-to-vote card,” Purcell said.
But the response was expected with Buchholz delivering a “gotcha” moment, presenting a tweet from the Campaign for Australian Aid suggesting volunteers were handing out how-to-vote cards as part of the last election — with support of the campaign. The tweet was tabled as part of the day’s events.
Morton also delivered his own gotcha moment, asking if ACFID and its members seek to influence policy outcomes at elections.
“We seek to raise public awareness and get better public policy because we believe in a democracy — yes,” Purcell responded.
“I’m going to seek to table a tweet,” Morton responded. “‘I just sent a special message to our Australian Aid campaigners for helping us secure a 224 million [Australian dollars, $177,8 million] pledge from the ALP. It’s your win’. So that’s a success — your organization has been successful in lobbying a political party in relation to the policies they take to an Australian election.”
The tweet came from a member of the public and not ACFID or its members, as was clarified by Labor MP Milton Dick.
The influence of Australian NGOs, Purcell explained, was in a bipartisan role — they were willing to congratulate and criticize the policies of any party depending on how they influenced their sector.
Australian elections mean Australian dollars
Liberal representatives as part of the sessions continued to push the idea that proposed changes to the legislation would not impact existing practices — just prevent them from taking foreign dollars for it.
“Why isn’t it that only Australian money be used?” Milton asked. From the outside, it looked like they were trying to get charities and NGOs to get caught agreeing to their position.
But the impacts were too large to agree — being required to note the location of any donor providing 250 Australian dollars ($198.5) or more, keeping Australian and international donors together and identifying an organization representative that could face prison time would be too much for charities, who would instead choose to say silent and make less impact.
For the philanthropy sector, Seibert suggested in the globalized environment international support was important — and the changes would see less philanthropy in Australia and not more.
Does the ACNC provide enough oversight?
From members of the government, there were accusations that the ACNC was not achieving proper oversight of charities — and that charities were running riot when it came to political advocacy.
Liberal MP Julian Leeser, who acknowledged he was not aware of the ACNC requirement or process, questioned on the role of the ACNC to require and report on foreign donations.
“This particular piece of legislation is looking at the influence of foreign organizations,” he said to Crosbie. “You mentioned foreign foundations earlier. The Rockefeller Foundation was famously involved in an anticoal advocacy paper a few years ago. That just happened to be disclosed on the particular document that was produced. But had that not been disclosed, the public would have been none the wiser. There is nothing that the ACNC does to effect that disclosure of foreign donation sources of the sort the Rockefeller Foundation was making in that anticoal advocacy paper.”
“If the Rockefeller Foundation were registered with the ACNC they would not have to disclose the nature of their advocacy activities,” Crosbie explained. “My focus would be — is the charity pursuing the purpose for which it has been registered? And if it's not, it's in danger of being deregistered. So, the Rockefeller Foundation cannot come to CCA and say, 'We want you to advocate against coal' because if I advocated against coal it would not be part of my charitable purpose and I would be deregistered.”
“But they could give money to Greenpeace to advocate against coal?” Lesser responded.
The criticism towards the existing charities framework continued from Senator David Bushby, also representing the Liberal Party.
“There is a mischief that currently exists,” Bushby said accusingly to Crosbie. “Certainly most people seem to accept that. This bill is designed to address that mischief. You're saying that in respect of charities or not-for-profits it is not required because there is another path to deal with that. How does that other path actually address that mischief?”
Continuing, he emphasised the views of Jennings that charities could be used by “a foreign principal.”
“If that's the case, lodge a complaint with the ACNC,” Crosbie urged with frustration. “If they're not pursuing their purpose, they will be deregistered.”
The proposed negative impacts go beyond NGOs and charities
The hearings identified that the impact of the proposed legislation will extend beyond NGOs and advocacy. With the definitions so broad, including definitions of political and public interest, whistleblowers may be prevented from coming forward or journalists unwilling to reporting on their information with the risk of 15 years in prison for receiving and distributing classified government documents.
The legislation could also see Australian media that sources material from international news outlets required to register and report on foreign activity as well as restrict international reporting and views.
The work of NGOs continue
A number of not-for-profit CEOs, including Maree Nutt from RESULTS, are set to descend on Canberra from Feb. 5 to take meetings highlighting the many pitfalls and challenges the legislation creates for the sector.
“Given that it is the first week back in parliament, now is time to put ourselves in front of critically the Australian Labor Party, Greens and the crossbenchers,” Nutt explained to Devex. “Our position is to recommend for a dumping of legislation as it is currently drafted because there are just too many things that are too major — and it needs major work.”
The hearing suggested that in interacting with members of the government, charities and not-for-profits will be facing an uphill battle.
“It’s really sad,” Nutt said. “Charities, their members and the volunteers should not have been treated in such an aggressive manner with all of the good work being done across the country and beyond our borders. It is disappointing. I thought there were some deliberate attempts to unnerve charities around their compliance of the existing legislation — and that may be a taste of what is in store for us.”
The coming weeks will see critical work being undertaken to change minds, with voting on the proposed legislation potentially taking place in March. But the clock may be running on the ability for NGOs to be vocal on interests of Australian politics.
Read more Devex coverage on Australian aid.