With a Federal Election looming, charitable and not-for-profit organisations may have started or be thinking about capitalising on the increased public debate to raise awareness of important issues or challenges facing Australian society. However, registered charities need to be aware of restrictions under the Charities Act 2013 (Cth) (Charities Act) because there is a fine line between what political activities are and aren’t permissible.
Many charities undertake advocacy and campaigning to help further a charitable purpose. Such activities can be very effective in driving change. As remarked by the Australian Charities and Not-for-profit Commissioner, The Hon Dr Gary Johns “not only are they legitimate and effective ways of furthering the charitable purposes of a charity, but the ability for charities to advocate and campaign robustly on issues central to their purpose remains an important part of this country’s democracy”.
While many charities use advocacy and campaigning as an effective way to further their charitable purpose(s), charities risk being deregistered by the Australian Charities and Not-for-profit Commission (ACNC) if they are found to have a purpose of promoting or opposing a particular political party or candidate. Charities must therefore be cautious when partaking in advocacy and campaigning to ensure these activities do not jeopardise their charitable status.
In this article we unpack the circumstances in which a charity may be permitted to undertake such activities, and the increased risks during an election year.
When can a charity undertake advocacy or campaigning activities?
The ACNC’s Political Campaigning and Advocacy by Registered Charities – What You Need To Know Guidance (the ACNC’s Guidance) refers to ‘advocacy’ as activities which are aimed at securing or opposing any change to a law, policy or practice. The law, policy or practice may be based in Australia, or another country and advocacy activities may include:
- involvement in the development of public policy;
- promotion of, or opposition to, particular laws, policies, practices or decisions of governments; and
For example, advocacy activities can include:
- encouraging public debate about or requesting explanation of current or proposed laws, government policies or practices;
- making submissions or giving evidence to a public consultation or inquiry in relation to existing or proposed laws, government policies or practices;
- developing and publishing research on current or proposed laws, government policies or practices;
- collating and publishing information on, analysing, or comparing party policies as they relate to a charity’s purpose(s);
- directly advocating to elected representatives and public officials for a change to government policy;
- directly promoting the charity’s purpose, or the interests of their beneficiaries, to elected representatives and public officials; and
- hosting, promoting or participating in public debates on law or policy matters.
Similar to advocacy, ‘campaigning’ refers to activities undertaken to educate the public, raise public awareness, change public behaviour and/or mobilise public support on the maintenance of or change to existing laws, policies or decisions.
Charities are permitted to engage in advocacy or campaigning activities if:
- these activities are undertaken to further the charity’s charitable purpose(s) (i.e., the reason why they exist);
- the governing document of the charity, such as its constitution, does not prevent such activities; and
- these activities do not give rise to a disqualifying purpose (e.g., a purpose of promoting or opposing a particular party or candidate).
When may a charity be crossing the line?
While charities can campaign or advocate in specific circumstances as outlined above, they cannot advocate or campaign for a specific political party or candidate, or otherwise show support for a political party or candidate.
Activities that are likely to lead to a determination that a charity has a purpose of promoting or opposing a particular party or candidate, and therefore activities charities should not undertake, include:
- delivering how-to-vote cards for a particular candidate or party;
- donating money to a particular candidate or political party’s campaign;
- attending fundraising events for a political party or candidate; and
- advocating or campaigning for a specific political party or candidate.
This means while a charity can advocate for a particular policy or law, it cannot advocate for the particular party or candidate which supports that policy or law.
For example, a charity with a purpose of advancing the environment using its website to publicise its preferred policy on reducing greenhouse emissions may be permissible if doing so aligns with its governing document. However, if that same charity also asked its supporters to vote for a specific political party which supported its preferred emission policy, the ACNC may determine it has a disqualifying purpose of promoting or opposing a particular political party or candidate and could potentially deregister the organisation as a charity.
The ACNC acknowledges while individual and isolated activities may not by themselves amount to a disqualifying purpose of promoting or opposing a particular political party or candidate, charities should not create a pattern of engaging in such activities. If a charity is engaging in individual or isolated activities which promote or oppose a particular political party or candidate, the ACNC’s further guidance on charity advocacy recommends the charity to consider:
- the extent to which the promotion or opposition of a political party or candidate aligns with the purpose(s) of the charity;
- whether the charity promotes or opposes a party or candidate generally or in relation to specific policies that are relevant to or align with its purpose(s);
- the extent to which the charity’s resources are directed at promoting or opposing the party or candidate for political office;
- the links between the charity and the party or candidate, (e.g., members in common, campaigns and publications); and
- the extent to which the charity’s expressed view of a party or candidate is based on reasoned policy argument or research.
Not all situations are clear cut and charities should think carefully about their purpose, how the activity will advance its purpose(s) and whether the activity (or collection of activities) will (or could be perceived as) indicating a purpose of promoting or opposing a particular political party or candidate.
Can representatives from charities attend political events?
Sometimes charities will be invited by political parties or political candidates to attend events, such as a gala or rally. Before representatives from a charity attend such an event, the ACNC’s Guidance recommends the charity’s representatives and responsible persons (i.e. directors, trustees or management committee members) consider the following questions:
- What is the reason or purpose for attending the event? Would attending the event further the charity’s charitable purposes?
- Are the people attending in their own personal capacity or as representatives of the charity? Where the charity is funding the attendance fee, the latter will be assumed.
- How will attendance be perceived by the public? Is there a risk by attending the event, the public may infer the charity is partisan and therefore has a purpose of promoting a particular party or candidate?
- Is attending such events in the best interests of the charity?
- Is the event raising funds for the political party or a candidate for office? If this is not clear, further enquiries should be made about the nature of the event.
While a one-off attendance at an event may not demonstrate a disqualifying purpose of promoting or opposing a particular political party or candidate, the considerations around any decision to do so should be documented to evidence that the activity is an appropriate action for the charity in pursuing its purpose, through advocating for a particular policy or law.
Charities and their responsible persons should remain vigilant of the public perception of their charity’s independence and should be mindful of any potential consequences of the charity’s activities on its reputation. The ACNC’s Guidance notes that in an election year there is an increased risk that the public could see advocacy and/or campaigning activities as promoting or opposing a particular political party or candidate, which could lead to reputational harm for the charity.
Additionally, both charities and other not-for-profit organisations should be familiar with obligations they may have to the Australian Electoral Commission. While the ACNC acknowledges that a charity may spend money:
- to publicly express views on issues, and/or the policies of different political parties relevant to its charitable purpose(s);
- on broadcasting on ‘political matters’; and
- to conduct research to critique the policies of different political parties,
if it undertakes any of these activities in relation to an election, it must comply with all electoral laws, including disclosure requirements.
For more information about charities and advocacy and campaigning see:
- the ACNC, Political Campaigning and Advocacy by Registered Charities – What You Need To Know Guidance; and
- the ACNC Podcast, Can Charities Get Involved in Advocacy?
How we can help
For more information regarding your charity undertaking advocacy and campaigning, please get in touch with our specialist Charities + Social Sector lawyers.