In Australia, new bill has charities fearing a war on advocacy

CANBERRA — December 7 was meant to be a day of celebration in Parliament House with legislation finally passing in support of marriage equality. But for Australia’s NGOs, celebrations were muted with the release of a bill with stiff new rules for charities working abroad — an unexpected consequence of efforts to limit foreign influences within Australian politics. And the mood turned even more sour with the surprise appointment of a figure who has argued strongly against political advocacy of NGOs as the new head of the Australian Charities and Not-for-profits Commission.

The new bill released late Thursday confirmed previous concerns from Australia’s NGOs that there would be no exemptions provided for charities, posing a risk to their ability to advocate for better aid programs, support for developing countries and issues of global concern.

But the unexpected appointment of Dr Gary Johns as the new commissioner for the ACNC during an early morning press conference — the author of titles including The Charity Ball: How to dance to the donors’ tune and No contraception, no dole: Tackling intergenerational welfare — had NGOs questioning whether government had declared war on charities.

What the new foreign donation bill proposes for Australia’s NGOs

Under the proposed legislation, two new classes of political campaigners are being created — political campaigners such as GetUp, and political campaigners who are also charities and unions. The new classification applies to groups that have spent more than $100,000 Australian dollars ($75,121) on political advocacy during a single year over the past three years.

For these organizations, donations from foreign sources in excess of $250 Australian dollars ($187.80) will need to be declared to the Australian Electoral Commission within a six-week period. This includes donations received from international banks, accepted while overseas and any donations where donor details cannot clearly determine international or Australian status.

NGOs involved in political advocacy will have to allocate a financial controller as the person responsible for all actions associated with reporting, report on staff employed in campaigning roles, affiliations of senior staff with registered political parties, report discretionary benefits from state or federal governments, supply an annual auditor’s report as well as a signed statement that the organization complies with sections related to political donations for registered charities.

Being found in breach of the proposed laws could see NGOs face fines of up to $210,000 Australian dollars ($158,000) as well as 10 years imprisonment for the identified financial controller.

A second proposed legislation for transparency of foreign influences could require NGOs to register under the scheme if they receive funding to assist foreign governments in advocating Australia for change and face additional reporting requirements — this proposed bill provides exemptions for NGOs operating in a humanitarian role or on behalf of the United Nations.

Under the new legislation, some charities may still be able to advocate for political change, as long as they are a registered charity with the ACNC, keep foreign donations and funds in a separate account from Australian sources of income and only use Australian funding for political advocacy. But a broadened definitions of what political expenditure and political purpose mean is still expected to reduce the ability for NGOs to advocate.

The definition of political expenditure is being expanded from expenditure on an election issue during the four-week election period. Under the new law, it would instead apply to any issue that is or is likely to be before electors, regardless of whether a writ has been issued for a campaign. This means that any time a charity speaks on an election issue — which is likely to include environment, refugees, poverty, education and housing — they have to count any expenditure on that as advocacy, not just in the four weeks every three years of an election but on an ongoing basis. And if an issue such as abortion becomes an election issue, NGOs will need to look over and report on any advocacy associated with this cause.

It is expected that medium and large NGOs who campaign for their causes will easily fall under the requirement of this legislation, but legal teams are still poring over the bill to understand what the full effects could look like for the sector.

An additional hit to NGOs

The announcement of Johns as the new commissioner for the ACNC was an added layer of concern for Australia’s NGO sector.

Johns, a former member of parliament representing the Australian Labor Party from 1986 to 1997, was announced by Assistant Minister to the Treasurer Michael Sukkar as the new “independent regulator” with Sukkar citing his strong regulatory public service and policy experience, extensive experience in the nonprofit sector and role as director of the Australian Institute for Progress as reasons for the appointment.

“The knowledge and experience Dr Johns brings to the role as the independent commissioner will ensure the Australian Charities and Not-for-profits Commission will remain a strong and independent national regulator of charities,” Sukkar told media.

His appointment was met with outrage. Since leaving politics, Johns has made a career out of criticizing charities and NGOs, including their rights to advocate. He was head of the now defunct NGOWatch for the Institute of Public Affairs and as recently as August, in an opinion piece for The Australian, Johns hit hard at charities concerned that the foreign donation bill would impact advocacy of charities.

“Remember, many of these charities, which operate under the guise of public benefit, may find that some members of the public do not consider campaigns against coal as in their interest; or campaigns to give aid to Third World kleptomaniacs as in their interest; or campaigns to lock Aborigines on to collectives and out of the economy as in their interests; or campaigns to increase welfare dependence as in their interests,” he wrote. “All these and most other charity matters are contestable. One man’s public benefit is another man’s public enemy.”

The appointment of Johns is in stark contrast to former commissioner Susan Pascoe — now president of the Australian Council for International Development. In an interview with Devex, Pascoe spoke of her admiration for Australia’s charities, including those who work in international development.

“I personally think the work overseas aid organizations do is extraordinary in altruism,” she said. “It is empathetic in its concern for others, it recognizes that we are a global family and we are not bounded by national borders, and it is also compassionate for the circumstances of others.”

A war on charities?

Gareth Beyer, government relations adviser for the Australian Council for International Development, explained to Devex that new legislation would see NGOs reassessing their public-facing programs to determine and limit advocacy to not fall into the category of political campaigner.

In response to the both the bill and appointment, shadow assistant treasurer Andrew Leigh suggested that the government was declaring war on charities

“They've tried to take charities law back to the 1600s,” he told media on Thursday. “They've tried to get rid of the charities commission, they've tried to shut down the ability of environmental and legal charities to advocate. They put gag clauses in social services agreements. There's no wonder that we've seen two open letters from the sector calling on the government to stop their war on charities. Only last week, 25 charities heads were here in Canberra calling on the Turnbull government to stop attacking charities.”

In a statement released by 11 organizations including ACFID, Campaign for Australian Aid, Human Rights Law Centre and RESULTS Australia, the events of Thursday were considered a “worrying trend of governments seeking to silence charities”. Emily Howie, director of legal advocacy with the Human Rights Law Centre, told Devex that bill went too far with its potential impact to stymie free, informed and robust public discussion.

“Charities have enormous expertise to contribute, drawn from the work they do, whether it’s running a homeless shelter or protecting the environment,” Howie said. “When you sideline charities from public discussion, you silence the voices of the most marginalized people, undermine good policy making and, ultimately, diminish our democracy.

“Philanthropy, whether from Australia or overseas, has long provided crucial resources to Australian charities who have made Australia a better and fairer place to live. Instead of stifling the good work of charities, and preventing them from speaking out on the causes they were established to address, the government should be facilitating and encouraging debate.”

For RESULTS Australia chief executive officer, Maree Nutt, there was deep concern for what the legislation would mean for her organization which is reliant on international funding and support to educate parliamentarians on a range of global issues including immunization, tuberculosis, nutrition, and education.

“If this legislation got through, we would have to be very careful about what we did,” she said. “Is tuberculosis an election issue? Or is it considered part of a broader aid context? And is aid a political issue? It would have a major impact on what we are currently able to do if it meant that we would be risking being identified as a political campaigner.”

With so many questions and ways to interpret the language in the bill, Nutt believes Australia could see a repeat of the United Kingdom where charities choose not to speak up.

“On the other side is how burdensome the reporting and administration would be for organizations like ours -- ours is a tiny organization,” Nutt said. “This would add just another huge layer of administration onto our work and as people becry how much money is spent on administration in charities, this would just increase that.”

Urgent action is now required

There appears little NGOs can do about the appointment of Johns who will head the ACNC over the next five years regardless of who is governing, but they are gathering forces to prevent the bill’s passage.

While parliament is on leave until Feb. 5, NGOs are combining their knowledge and resources to ensure action takes place sooner rather than later to protect their rights for advocacy. Discussions this week between Tim Costello, chief advocate for World Vision Australia, and various politicians including opposition leader Bill Shorten have set a strong groundwork for support from the Greens, Labor and a number of independents. There is concern, however, that mounting pressure on Labor to be strong on foreign donations will see them side with the government in the end.

Moving forward, Costello explained to Devex that the message needs to be that NGOs are not against transparency of the sector or foreign political donations, just the silencing effect it may have on charities.

“Any charity not advocating why it exists cannot do its job,” he said. “The lifeblood of charities is trust and transparency and it’s why we fought to save the ACNC when the Abbott government were going to destroy it. We believe in transparency, but we don’t believe in ridiculous gagging clauses with a general definition of political that allows the Act and commissioner [of the ACNC] to close down any debate.”

The message is being heard widely and is making an impact — and keeping the message impactful for another two months, enough to stop the bill or send the government back to drawing board, is now the priority. And the target is specifically the politicians who will vote to understand the legislation is overreach.

“Unfortunately, this announcement is consistent with a broader, undemocratic trend of government attempting to silence the not-for-profit sector, through gags in funding agreements and threats to hamstring advocacy groups’ ability to fundraise,” Howie said. “All governments find criticism of them inconvenient or uncomfortable, but that’s part and parcel of a good democracy.”

Read more Devex coverage on Australian aid.