Advocacy and campaigning are important to the work that many of Australia’s registered charities undertake.
Not only are they legitimate and effective ways of furthering the charitable purposes of a charity, but the ability for charities to advocate and campaign robustly on issues central to their purpose remains an important part of this country’s democracy.
However, with a federal election looming, it is important that charities and their Responsible People ensure any advocacy or campaigning complies with ACNC guidelines and does not threaten the charity’s registration.
Just this week we wrote to a charity over some material they were distributing which was likely to be construed as opposing a political candidate or party.
Charities are allowed to engage in advocacy or campaigning if these efforts:
- further their charitable purpose – what they are set up to achieve – and,
- are allowed under their governing document – for example, constitution or rules.
Also, any advocacy or campaigning charities conduct must not have a purpose to:
- promote or oppose a political party or a candidate for political office,
- engage in or promote activities that are unlawful, or
- engage in or promote activities that are contrary to public policy.
These three purposes are what the ACNC calls disqualifying political purposes. Any charities that participate in them risk losing their registration with the ACNC.
So, for example, it is fine for registered charities to advocate for or against a change to the law, make a submission to a public consultation or inquiry where changes to the law are being considered, or even produce material comparing the policies of political parties.
But in undertaking any of these actions, charities must ensure that doing so furthers their charitable purpose, is allowed under their governing document, and does not risk behaviour that constitutes a disqualifying political purpose.
In addition to these ACNC rules, charities and their Responsible People should be familiar with obligations they may have to the Australian Electoral Commission (AEC) if they spend money on campaigning or undertaking political advocacy.
Organisations, including charities, that spend money while campaigning or advocating on what are known as ‘electoral matters’ – communicating on issues with the dominant purpose of influencing how people might vote at the next election – may incur ‘electoral expenditure’.
Depending on the level of electoral expenditure an organisation incurs, it will either:
- be classed as a ‘third party’ and need to comply with certain obligations, including submitting an annual return to the AEC, or
- be classed as a ‘significant third party’ and have to comply with more stringent obligations, including a formal registration process with the AEC.
The expenditure threshold to be classed as a third party is $14,000 for the 2021/22 financial year.
The threshold to be classed as a significant third party has recently changed and is now $250,000 for a single financial year. The need to register with the AEC as a significant third party also applies if an organisation’s electoral expenditure exceeds $250,000 in any of the previous three financial years.
Since last July, registered charities that have reported political donations and electoral expenditure to the AEC have seen their ACNC Charity Register listing updated to include links to the AEC’s Transparency Register.
What is important to note here is that charities that comply with ACNC rules on advocacy and campaigning may still need to meet the requirements of other regulators.
The ACNC is not the only regulator in this space, so charities and their Responsible People must be aware of their responsibilities to all regulators whenever they undertake advocacy and campaigning – especially political campaigning.
Charities should also be conscious of how campaigning activities might affect their reputation. This is especially true in an election year, where there is an increased risk that the public could see these activities as promoting or opposing a particular political party or candidate.
Both the ACNC and AEC have useful guidance to help charities understand their obligations around issues of advocacy and campaigning. I recommend charities’ Responsible People take the time to read this guidance and ensure they understand their requirements.
The Hon Dr Gary Johns