New AEC Guidelines Leave Charities ‘Confused and Uncertain’

New guidelines from the Australian Electoral Commission (AEC) on political expenditure has left the charity sector “confused and uncertain”, with fears that charitable advocacy is again under threat.

A new clause in the Commonwealth Electoral Act – which came into effect on 15 March – defines political expenditure as: “The public expression of views on an issue that is, or is likely to be, before electors in an election (whether or not a writ has been issued for the election) by any means.”

In the AEC’s Financial Disclosure Guide for Third Parties incurring Political Expenditure, released this week, the commission said there were a number of things organisations needed to consider in assessing “what issues are before electors”.

“In the absence of an actual election being called, to determine whether or not a matter is likely to be before electors involves assessment of how topical the issue is and the difference, if any, between the policy platforms of each party,” the guide said.

“An assessment is required to ascertain the subjective purposes behind a specific public expression of the relevant issue.

“The nearer in time the public expression to the possible date for holding an election, the more likely that the views will meet the subjective intention of placing an issue before electors in an election.”

In a statement, the St Vincent de Paul Society National Council said these guidelines had “failed to resolve the ambiguity of poor legislation which will result in over 1,000 charities having to register as third parties in an election”.

New AEC guidelines on political expenditure highlight how unworkable is Govt legislation on third parties in an election. https://t.co/kjeQavYZKU "A nightmare for the AEC to administer and it will produce pointless administrative burden." @ACOSS

— @VinniesAustralia (@VinniesAust) May 31, 2018

Frank Brassil, a spokesperson for the national council, said the new clause in the Commonwealth Electoral Act was completely unworkable.

“It is vague, tendentious and open to a wide range of interpretations,” Brassil said.

“It may seriously limit the ability of apolitical organisations such as the St Vincent de Paul Society to properly speak on behalf of the most vulnerable in our community.

“It will be a nightmare for the AEC to administer and it will produce a pointless administrative burden. It is not appropriate for such a subjective clause to be in the Electoral Act.”

In a submission to the Senate Select Committee into the Political Influence of Donations in April, the national council said the consequences of these changes had not been well thought through.

“It will result in difficulties in differentiating real third parties in an election from organisations who are making comments on public policy as part of their mission or purpose,” the submission said.

“It will also result in needless red tape and extra costs to charities… And critically, it will have a chilling effect on the public expression of social, economic and environmental concerns by charities, thereby undermining rather than strengthening the integrity of our democratic political system.”

The AEC has released its Financial Disclosure Guide for Third Parties incurring Political Expenditure – includes guidance on the definition of 'political expenditure' https://t.co/9TvuR9s9on pic.twitter.com/VOehSB4ode

— Krystian Seibert (@KSeibertAu) May 31, 2018

The Community Council for Australia (CCA) has also criticised the new guidelines.

CCA CEO David Crosbie told Pro Bono News the guidelines did not really help when working out if a charity has incurred political expenditure above the $13,500 threshold requiring them to make a declaration of expenditure to the AEC.

“[CCA] have spent more than the threshold $13,500 on advocating for policies that may end up before the electorate – like fundraising reform which is in the ALP policy platform – or defending the capacity for charities to receive overseas donations – so should we make a declaration or not?,” Crosbie said.

The AEC guidelines state that: “The above guidance should not be used as a substitute for specific legal advice on what does or does not constitute political expenditure for the purpose of the Electoral Act.

“Users of this guide are urged to seek their own independent advice where necessary.”

Crosbie said charities would be unfairly burdened if they had to seek out legal advice.

“Legal advice to CCA members seems somewhat counter to the implied narrowing of the definition of political expenditure in the AEC guide,” he said.

“Some legal advice has suggested that under the relevant section all staff time and resources used to advocate particular policies that may end up before the electorate during an election will have to be declared in an annual return to the AEC.

“We cannot afford to get our own legal advice – neither can most charities – and my experience is that lawyers tend to favour a cautionary approach that covers off all possibilities.”

Crosbie added that changes in the Commonwealth Electoral Act extending the definition of political expenditure had made “an already unclear electoral act unworkable”.

He said this would again put charitable advocacy under threat.

“The biggest losers will be charities, left confused and uncertain about what is political expenditure and whether they need to make a return,” he said.

“Does this mean we stop advocating to be absolutely safe, or continue advocacy and make a return just in case, or continue advocacy and risk not making a return?

“The one thing we can say for certain is that it means more of our limited time and resources wasted in compliance and uncertainty. This situation is totally unacceptable. Surely our Parliament can do better than this.”