Foreign Donations Bill Could be in Breach of Constitution

The Human Rights Law Centre is examining the legality of the government’s contentious foreign donations bill and said it was “likely” the bill would face a High Court challenge in its current form.

The proposed legislation is part of a federal government crackdown on foreign interests influencing Australian politics, but the social sector has attacked the bill for targeting charity advocacy.

Charities which have a “political expenditure” of $100,000 or more over the current or previous three years would be classified as “political campaigners”, and could not advocate on political issues using foreign donations.

HRLC executive director, Hugh de Kretser, told Pro Bono News that the legislation would suppress the ability for charities to advocate.

“The voices of charities are absolutely vital to Australian democracy because charities represent vulnerable groups in society and interests that can’t speak for themselves, like the environment,” de Kretser said.

“It’s critical that those perspectives are injected into public debate about laws and policies in Australia. And what this legislation does, is significantly suppress the ability of charities to speak out on these issues.

“It limits the way that international philanthropy can be used for advocacy and it also creates extremely burdensome disclosure requirements that will discourage charities from engaging in advocacy.”

He said the legislation would likely face a High Court challenge in its current form because it breached the implied right to political communication.

“Because of those restrictions on advocacy, we’re looking at the constitutional legality of the proposed legislation and we think there’s serious risks that the legislation in its current form would breach the implied freedom of political communication that the High Court has recognised as part of Australia’s constitution,” de Kretser said.

“That political freedom means laws that in broad terms unreasonably restrict political communication in Australia, will be invalid. So it must be for a legitimate purpose and the laws must be properly adapted to that purpose.

“We’ve seen previously the High Court, with the Aid/Watch case, say that charity advocacy is an indispensable part of Australian democracy.”

The HRLC wants charities registered with the Australian Charities and Not-for-profits Commission (ACNC) exempted from this legislation and de Kretser said they “strongly hoped” this change could be made before a High Court challenge becomes necessary.

“We think the bill is misconceived and badly drafted as it relates to charities. We’re working hard with engaging with the ALP, the Greens and the crossbench on trying to secure their support so the bill doesn’t pass in its current form,” he said.

“So looking at those cases and looking at the ways these proposed laws would restrict charity advocacy, that’s where we think there’s serious risks that legislation in its current form would be invalid.

“There’s been cases around restrictions on donations to political parties before, and there’s been cases, like Aid/Watch, around the importance of charity advocacy to Australian democracy.”

This comes only two days after the St Vincent de Paul Society released a briefing paper condemning the bill for burdening charities with “complex, cumbersome and costly administrative requirements”.

“The ostensible reason for introducing this bill is to deal with the threat of foreign powers interfering with our elections. There is no evidence that our major charities are a vehicle for foreign powers,” St Vincent de Paul Society National Council CEO Dr John Falzon said.

“Rather, this bill is aimed at muting the voice of charities and others who have been critical of the government. It is dangerous legislation that is not only a threat to charities, but to democracy itself.”

But Finance Minister Mathias Cormann defended the bill in a press conference in December, labelling it a “very important piece of reform”.

“It does not prevent charities from engaging in political activities in Australia, as long as the political expenditure incurred to fund that political activity is raised from Australians, Australian businesses and Australian organisations,” Cormann said.

“If you are involved in political campaigning, then you can only rely on political donations from Australian citizens, from Australian businesses and Australian organisations. That is the intent of this reform and this is deliberately the intent of this legislation.”