Morrison’s ‘unconstitutional’ crackdown on charities
Asked about the Morrison government’s latest bid to nobble Australian charities, the Reverend Tim Costello begins with an anecdote, one set eight years ago and 15,000 kilometres from Canberra.
Held coincident with the 2013 G20 summit of leaders of the world’s biggest economies, hosted in St Petersburg by Russian President Vladimir Putin, was a so-called C20 summit of civil society groups. And as leader of the C20, Costello secured a meeting with Putin.
“Putin was trying to shut down – indeed did shut down – Russian charities,” Costello recalls.
But in his meeting with the Russian autocrat, Costello tried to get him to change his mind: “I said, ‘Look, you only have one word in Russian for two words in English: politics and policy.’ Civil society will always advocate and speak out on policy. That’s what civil society does. It doesn’t make them a political danger.”
Putin said he would consider reviewing his decision, but never did. The distinction between policy and politics was lost on him. All critics were enemies who must be silenced.
The relevance of the anecdote for Australia in 2021, Costello says, is that it echoes the current federal government’s approach to its civil society critics – that advocacy, particularly where it involves an element of protest or civil disobedience, is seen as “a political danger to their whole order”.
If the comparison seems a bit hyperbolic, consider the submission by one of Australia’s big law firms, Arnold Bloch Leibler, to the government’s proposal for harsh new sanctions against charities that violate even the most minor laws.
What is being proposed, the firm said, was unjustified, ultra vires (that is, beyond legal power), unconstitutional, would have an unquantifiable negative impact on the sector, would add administrative burden to charities, did not address any uncertainty in legislation and was “fundamentally inconsistent with our democratic system of government”.
The changes “are a clear fetter on freedom of political communication and on dissent by civil society. They … must not be made law.”
A number of other legal firms have made similar criticisms of the government’s overreach. As has the Law Council of Australia. More than 200 charities now are in the process of drafting an open letter, detailing their deep concerns. The church- affiliated charities have been sent in to lobby MPs who share their particular faith. Representations have been made to the prime minister.
The proposal that has so agitated them would change the way the behaviour of Australia’s 59,000-odd charities is governed by the sector’s regulator, the Australian Charities and Not-for-profits Commission (ACNC).
Under the changes, registered charities could be held responsible for summary offences – minor legal breaches – committed by their members or supporters. They could lose their charitable status and consequent preferential tax treatment, have their board directors suspended, or be shut down.
This would build upon existing regulations that controversially hold charities accountable for more serious, indictable offences.
The charities and their legal advisers say the changes would see charities held responsible for how other groups use their reports or materials. They would also make them subject to sanction on suspicion that they are merely “likely” to commit a breach because a similar group has done so.
It would not matter, either, if the charity, its staff, volunteers or supporters were actually charged by police with a summary offence or not. If they did something that the ACNC deems could be dealt with as a summary offence, they would be vulnerable to action, including deregistration.
Across the sector, heads of charities are both angry and fearful about the potential consequences. They offer various worrying hypotheticals.
Toby O’Connor, the chief executive of St Vincent de Paul’s national council, points to the rallies that churches organise every Palm Sunday to advocate for Christian charity towards asylum seekers and refugees.
“If there are people who are branded with the Vinnies logo, for instance on a T-shirt, they’re asked to move on and they don’t move on, then that will be a summary offence,” he says. “And that will provide an opportunity for the commissioner to review the charity.”
In holding a whole organisation responsible for the actions of individuals, O’Connor says, the government would apply a wildly different standard to charities than it does to other organisations.
“Businesses, corporations aren’t treated like this,” he says.
Tim Costello, now chair of the peak charitable body, the Community Council for Australia, and formerly chief executive of World Vision, makes the same point – that it is unreasonable to hold an organisation responsible for the minor infractions of an individual.
“I had nearly 600 staff at World Vision. If someone committed a summary offence, how was I meant to know?” he says.
The wide-ranging effects of these proposed changes come back, again and again, to the intersection of charity, politics and protest.
Take another hypothetical posited by a range of charitable organisations: there is a rally at the Aboriginal tent embassy in Canberra, perhaps related to Indigenous deaths in custody, at which a representative of a charity is a speaker.
If some people in attendance subsequently block the entrance to Old Parliament House, that would be a summary offence. Again, the charity could be subject to judgement by the ACNC commissioner. As it might if a member of its staff tweeted in support of the action.
David Crosbie, chief executive of the Community Council for Australia, illustrates the wide net potentially cast by the proposed regulations.
“The Community Broadcasting Association is a member of ours,” he says. “Community radio stations, mostly run by volunteers, announce all kinds of things, like who’s rostered on for the Lock the Gate protest at a particular farm this Sunday.
“The head of the Community Broadcasting Association rang me, very concerned, [saying] it’s just information for our communities and doesn’t mean we’re actively supporting the protests. But we could be seen to be facilitating it.”
Crosbie says the charities’ concerns mostly highlight two aspects of the draft regulatory changes.
“Firstly, the scope of unlawful activities is very, very broad. A summary offence can be, like, blocking a footpath or other really minor indiscretions. If I put a sticker on a public sign at a protest, that’s a summary offence. So, if I’m part of a charity, and that charity is seen as in some way supporting me … then enforcement action could be taken against that charity.
“And the second thing is the whole process of how you determine that somebody has supported an action.”
Crosbie understands the goal of the change is to crack down on activist charities, particularly environmental ones.
“But we say, if they’re breaking the law, why can’t you do it under existing laws? What are you trying to achieve?” Crosbie says.
The answer, he suspects, is in what commonly happens when there are minor legal breaches committed in the course of civil disobedience.
“The standard practice when there’s a protest – it could be a student march for climate on Friday [where] a few people might block the entrance to a building, or link arms and refuse to move on, and are picked up – is they are taken down to a police station. They take the name and address, and say, ‘We are considering charging you. In the meantime, you can go home.’
“And the charges are never brought.”
Or charges are brought but dismissed by a magistrate.
Crosbie believes the proposed changes are driven by frustration within the Morrison government and its supporters that the legal system is too inclined to tolerate minor offences committed in pursuit of causes.
“What I actually said to the PMO [prime minister’s office] is, ‘Your issue is that the states aren’t charging anyone. It’s really hard then to establish what you want to establish at the moment – a pattern of unlawful behaviour or a pattern of supporting unlawful behaviour.’ ”
Thus, the government proposes to hand to the ACNC wide powers to go after charities. The intent is not just to prevent and punish minor acts of illegality but to deter the entire sector from advocating for politically inconvenient causes.
Dr Jacoba Brasch, president of the Law Council of Australia, says the proposed changes “leave registered charities, including faith-based charities, at grave risk of political interference”.
She says they “will ultimately have a disproportionate chilling effect on organisations which have an important voice in matters of public policy”.
Should the changes go through, the expectation in the charity sector is that action could be taken against a few of the more openly activist organisations as a warning shot to the rest to back off their public advocacy.
An interesting aspect of this latest attempt to silence policy critics is the choice to give the powers to the ACNC, a body whose establishment was vehemently opposed by the Coalition in 2012 when it was in opposition.
Kasy Chambers, executive director of Anglicare Australia, recalls: “When Tony Abbott was elected [in 2013], he said, ‘We’ve got the three priorities.’ One of them was to abolish the ACNC. I remember thinking at the time, ‘If you’re going to outline three things to do for the country, what on earth is that one doing in there?’ ”
The government failed to secure enough votes in the senate to abolish the ACNC. But in 2017, when its widely respected inaugural commissioner, Susan Pascoe, stepped down, she was succeeded by Gary Johns, a former Labor MP who took a sharp ideological turn post-politics – he joined the right-wing think tank, the Institute of Public Affairs, and became a vocal critic of charities.
As Andrew Leigh, shadow assistant minister for Treasury and Charities, describes events, when the government couldn’t abolish the ACNC, “they did the next best thing” and installed Johns. His appointment as commissioner, Leigh notes, was announced within hours of the passage of same-sex marriage legislation and thus attracted little media attention.
“He [Johns] has compared Indigenous women to cash cows, he has attacked Beyond Blue and Recognise, he has suggested that the sector is full of impure altruism. He made his name as a charities critic,” Leigh says.
Concerns about Johns’ record are widely held in the charity sector, although Chambers gives him credit for defending charities against efforts by some on the political right to discredit them over their disbursement of donations during the bushfire crisis.
Chambers suspects that Johns and the ACNC board “do not support the current overreach”.
The latest move, she and others say, is but part of an established pattern of attempts to “shut charities up”, which predates this conservative government. The Howard government also tried to silence charities, by tying funding to agreements not to engage in public advocacy.
And over the course of the current government, various methods have been employed to keep them at heel.
Matt Rose is the economy and democracy program manager at the Australia Conservation Foundation (ACF), an organisation whose original patron was the late Prince Philip, and on whose governing board the late prime minister Malcolm Fraser served. ACF has never engaged in civil disobedience.
Rose says environmental groups have been the particular focus of these efforts by government. He suggests this is largely at the behest of mining companies.
“In 2014, the Minerals Council called for environment groups to have our deductible gift recipient, or DGR status, revoked if we didn’t spend more time on environmental restoration, rather than advocacy,” Rose says.
It’s notable that at this time the chief executive of the Minerals Council was Brendan Pearson, who also championed the construction of new coal-fired power stations. He was forced from the job in 2017 because his views were considered too extreme even by other mining companies, among them Rio Tinto and BHP.
Pearson is now a senior adviser to Scott Morrison. Another former executive of the Minerals Council, John Kunkel, became Morrison’s chief-of-staff.
Rose says Pearson’s 2014 call to move against the environmental groups “was taken up by the conservative wing of the Liberal National Party, by people like George Christensen and Eric Abetz”.
“Then in the middle of 2014 the federal Liberal Party Council passed a motion along similar lines,” he says.
In 2015, at the instigation of then Environment minister Greg Hunt, there was an inquiry by the house of representatives standing committee on the environment into whether green groups should lose their DGR (tax deductibility) status if they engaged in advocacy or protest.
It recommended green groups spend at least 25 per cent of their resources on environmental restoration.
“But that’s not what we do,” Rose says of the ACF.
The foundation argued before that committee, and argues still, that it is better placed to advocate for environmental protection, rather than to work at cleaning up a damaged landscape.
But the government has persisted in its efforts to tie groups up in red tape, demanding details of where the money was spent – whether it was within Australia or offshore, how much went to campaigning and advocacy, how much to legal expenses, how much on “on-ground environmental remediation”.
“In July 2017, we saw the EFDR bill – the electoral funding and disclosure reform bill – which came alongside the foreign influence transparency bill and the National Security Legislation Amendment,” Rose says.
“The EFDR bill designated, essentially, that all advocacy is political, and so it should be subject to the same kind of restrictions as political parties.”
This would have impacted the advocacy efforts and funding of more than just green groups and provided a “transformative moment” for the charitable sector, Rose says.
Collectively, the charities succeeded in lobbying for major changes that ameliorated the effects on them.
And that brought a realisation that “banding together is a very efficient and effective way of … lobbying and seeking change, but also blocking bad reforms. Because we represent so many millions of Australians and we represent such a cross-sector of organisations with different interests,” Rose says.
Yet the government’s effort to stifle the policy advocacy of charities continues to hinder their operations, says Anglicare’s Kasy Chambers, such that they have to be permanently alert for new attacks by the government.
“It’s a difficult one to keep an eye on, because they are always cloaked in strange language. You know, we’ve had the electoral funding and disclosure reform bill. This current one masquerades under the words ‘preventing unlawful behaviour’.”
But what it’s really about, she says, is waging “war on critics”.
And although she has been told by some in government that charities such as hers need not worry about the latest changes, because “this isn’t to capture Anglicare”, she is still concerned. “The fact is, it could.”
She points to two of the “marks of mission” that guide the actions of her church.
“One is to respond to human need by loving service – providing aged-care services, disability services and caring for the homeless.
“But another one, which is of equal height, is to transform unjust structures of society and to challenge violence of every kind.”
She has no doubt the prime minister’s office is ultimately behind the latest effort to make that harder to do.
People like her are called, she says, to speak out.
Demagogues don’t understand this, as Tim Costello found in his meeting with Putin. But we might expect better of our government.
This article was first published in the print edition of The Saturday Paper on May 22, 2021 as "Morrison’s ‘unconstitutional’ crackdown on charities".
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