With the referendum for the Indigenous Voice to Parliament (Voice Referendum) occurring this year, charities and their members will increasingly start to consider whether their charity will have a stance on the referendum and if so, whether and how they will demonstrate that stance. While charities may undertake advocacy activities it is important charities can demonstrate how these advocacy activities further their charitable purpose.

Advocacy and charities

As we have explored in our previous article ‘Let’s get political: when can charities partake in advocacy and campaigning activity?’, charities have long used advocacy to increase awareness of their purpose(s) or cause, and to support or oppose a change to law, policy or practice. In fact, many charities are registered with the subtype of ‘Promoting or opposing a change to any matter established by law, policy or practice in the Commonwealth, a state, a territory or another country’, also known as ‘advancing public debate’, which is one of the 12 charitable purposes under The Charities Act 2013 (Cth).

The ACNC’s Political Campaigning and Advocacy by Registered Charities – What You Need To Know Guidance (ACNC Advocacy Guidance) refers to ‘advocacy’ as activities which are aimed at securing or opposing any change to a law, policy or practice, whether based in Australia or another country.

Whether charities can undertake advocacy activities is, as a general principle, not in question. However, care must be taken to ensure advocacy activities do not jeopardise a charity’s registration with the Australian Charities and Not-for-profits Commission (ACNC).

Generally speaking, a charity is permitted to engage in advocacy or campaigning activities if:

• these activities are undertaken to further the charity’s charitable purpose (i.e. the reason why it exists);
• the charity’s constitution does not prevent such activities; and
• the charity’s activities do not give rise to a disqualifying purpose (e.g. a purpose of promoting or opposing a particular party or candidate).

The ACNC Advocacy Guidance has provided the following examples of advocacy:

• encouraging public debate about or requesting explanation of current or proposed laws, government policies or practices;
• developing and publishing research on current or proposed laws, government policies or practices; and
• hosting, promoting or participating in public debates on law or policy matters.

Advocacy and the Voice Referendum

In the context of the Voice Referendum the ACNC has released Charities, Advocacy and the Planned Referendum on an Indigenous Voice to Parliament Guidance (ACNC Referendum Guidance) clarifying what is permissible and how advocacy is to be conducted. ACNC Commissioner Sue Woodward in a media release acknowledged charities may want to contribute to the conversations taking place about the Voice Referendum and can make a valuable contribution on these issues.

The purpose of the ACNC Referendum Guidance is to provide clarification on permissible activities in the lead-up to the Voice Referendum. Importantly, a charity must be able to demonstrate how its advocacy activities related to the Voice Referendum are in furtherance of its charitable purpose. As a matter of good governance charities should appropriately document any decisions to engage in advocacy on the Voice Referendum in Board meeting minutes, policies or likewise clarifying or demonstrating how the activities will further its purpose(s), how the charity will advocate and what can be said and done in the name of the charity.

The ACNC encourages charities to support their workers, whether paid or volunteer, who want to express their views on the referendum to make it clear they are sharing their personal views and not those of the charity.

Regardless of whether a charity wishes to support a ‘yes’ or ‘no’ vote, it is important for the advocacy to be lawful, respectful and fair as this helps ensure the charity (and its Responsible People) meet their obligations under the ACNC Governance Standards.

The ACNC Referendum Guidance provides an example of a permissible advocacy activity whereby a charity may make a simple statement of support for either the ‘yes’ or ‘no’ case by the way of a message of support in the charity’s email signature block. Such an activity would not jeopardise its charity registration with the ACNC.

How we can help

As the Voice Referendum draws closer it is crucial that charities demonstrate how their advocacy activities further their charitable purpose.

For more information and guidance on undertaking advocacy in a compliant manner, please get in touch with our specialist Charities + Social Sector lawyers.