ALP concerned by push to boost ACNC enforcement powers

But the Morrison government denies it is increasing the scope of the commissioner’s powers 

Labor has slammed the Morrison government’s plan to make it easier for the charity commissioner to revoke an organisation’s charity status, warning this would stifle the sector’s ability to publicly criticise government policy. 

The government is trying to change the governance standards for charities to make clear that a registered organisation must not engage in summary offences such as trespassing, theft, vandalism or assault, or use their resources to promote or support these activities.

As part of the proposal, the Australian Charities and Not-for-profits Commission (ACNC) commissioner could use their enforcement powers – including revoking charity status – if they reasonably believed it was “more likely than not that the entity will not comply with a governance standard”.

This means it is not necessary for a charity to be charged or found guilty of an offence for the commissioner to take enforcement action.

After sector leaders argued last week that this went against “every principle of justice, fairness and procedural transparency”, ALP Senator Louise Pratt came out and voiced her opposition to the proposal in the Senate.

Pratt told Pro Bono News that the charity sector was rightly concerned that these changes would have a chilling effect.

She said this was especially the case with Dr Gary Johns at the helm of the commission, given he had been a vocal critic of charities prior to his appointment as commissioner.

“Extending the commissioner’s powers to summary offences while he can also act in anticipation of what a charity might do greatly expands the powers of a man who has spent most of his life criticising charities,” Pratt said.

“An expansion of the commissioner’s powers of this nature would stifle and shut down protest and public criticism of government policy.

“The charity sector being able to speak freely about issues is integral to Australian democracy.”

Pratt said the failure of some charities to participate in national child abuse redress scheme showed there could be an ACNC role for removing the privileges of charities that don’t act in charitable ways.

But she said it was clear the Morrison government’s actual motivation in considering these changes was based on shutting down criticism of the government. 

“No one is here arguing that charities should be allowed to cause injury or property damage,” she said.

“But the last thing charities need is for Gary Johns to have more power to deregister them based on him anticipating summary breaches.”

Government responds to sector backlash

The Morrison government has denied that the proposed amendments expand the scope of the commissioner’s powers.

It said under the existing law, the commissioner can already take enforcement action if they reasonably believe a charity will not comply with the governance standard.

A Commissioner’s Policy Statement on the ACNC website states that action may be taken against an organisation “when the commissioner reasonably believes a charity has contravened the ACNC Act or has not complied with a governance standard or an external conduct standard (or is more likely than not to contravene or not comply in the future)”.

But sector leaders note this is an enforcement policy whereas the proposal would change regulations. They also believe the changes would shift the dynamic of decisions from being based on what has already occurred, to a belief that some unlawful action may be promoted or supported by a charity some time later. 

Assistant Treasurer Michael Sukkar, the minister responsible for the ACNC, told Pro Bono News that charities do vital work in the community and receive special status because of this.

But he said some organisations were “using their privileged position as charities to engage in, promote and condone criminal activities that are not legitimate charitable acts”.

“The Morrison government strongly supports the right to peacefully protest and engage in political discourse as key pillars of our democracy,” Sukkar said.

“However, political activists and organisations condoning criminal activities, while masquerading as charities, undermine Australians’ trust in the sector overall and do not deserve this privilege.”