Liberal-led committee rails against government advocacy crackdown

The committee believes a proposal to change governance standards may infringe on a charity’s implied freedom of political communication 

Charity advocates are pushing to have the federal government’s contentious changes to charitable governance standards withdrawn or disallowed at the soonest possible opportunity, after a Liberal-led committee recommended the amendments be scrapped.  

The government is trying to amend the Australian Charities and Not-for-profits Commission’s (ACNC) governance standard 3, which would expand the reasons a charity can be deregistered beyond serious offences to include more minor offences such as trespassing, theft, or vandalism.     

The sector has long argued the proposal – which is part of a government crackdown on “activist organisations masquerading as charities” – could lead to charities being deregistered for something as simple as a staff member blocking a footpath at a public vigil.

Read more: ‘There’s no need for these regulations’ – Charities fear changes to governance standards will have a negative effect

But the government argues these regulations are needed to punish “charities that misuse and take advantage of their status to take part in or actively promote illegal activity”. 

On Thursday, the Senate Committee for the Scrutiny of Delegated Legislation – chaired by Liberal Senator Concetta Fierravanti-Wells – revealed it will give notice of a disallowance motion for the amendments on 18 October. 

The committee first raised concerns around the amendments in July, with Fierravanti-Wells writing a letter to Assistant Treasurer Michael Sukkar stating the government had provided insufficient detail around how the changes will affect the sector.

While Sukkar did respond, the committee said it was still not convinced the plan complied with the implied constitutional freedom of political communication.

“While appreciating his responsiveness to the committee, the committee does not consider that the assistant treasurer has provided a sufficient explanation for why the instrument as a whole does not impermissibly limit the implied freedom,” the committee said. 

The committee also raised concerns about giving the ACNC commissioner power to deregister a charity if they reasonably believed it was “more likely than not” that the charity would not comply with a governance standard.

Given the “broad discretionary powers” provided to the commissioner, the committee argued there should be a “clear explanation of the factors that must be considered in exercising this power and the safeguards in place”.    

Advocates look to consign changes to the scrapheap

After the committee gives notice of a motion to disallow the amendments on 18 October, a vote will be held 15 sitting days later, on the fourth sitting day next year. 

Ray Yoshida, a coordinator for the Hands Off Our Charities alliance, told Pro Bono News the sector still has to fight to ensure the changes are scrapped.

He said it remained to be seen whether Sukkar would withdraw the regulations or put his Coalition colleagues in the committee in the awkward position of either crossing the floor or voting against the recommendations.

But advocates believe it is unlikely Coalition committee members would cross the floor on the issue, meaning crossbench support for the vote is needed.

Senator Rex Patrick also gave notice of a disallowance motion on the amendments in August, and this could be voted on as early as 18 October.

If either of these motions are successful, it would mean the government could not introduce identical regulations for the next six months. 

The government could introduce differently drafted regulations that provide a similar outcome, but this could also be subjected to a disallowance motion.

Yoshida said the alliance was hopeful the government would scrap the regulations.

“It’s entirely possible that the government will choose to withdraw the regulations, partly because the committee has recommended it, but also because they can see the writing’s on the wall regarding the vote in the Senate,” Yoshida said. 

“If they’re not feeling confident that they’d be able to win the vote, they might seek to avoid the embarrassment and withdraw the regulations themselves.

“So the alliance will seek to have these regulations either withdrawn or disallowed at the soonest possible opportunity.”

Yoshida added that the alliance would continue to engage with members of government in good faith and put forward the case that these regulations should be disallowed. 

“I think an even stronger case will be able to be made now given the committee’s findings and recommendations,” he said. 

“But the alliance will also engage with members of the Senate crossbench in case a vote is necessary so a vote for disallowance can be successful.”