Charities, elections and advocacy

‘Advocacy’ and ‘campaigning’ are terms that in everyday use can have very broad meanings. For the purposes of this guidance these terms have particular meanings.

When the ACNC talks about 'advocacy' and 'campaigning' we mean activities which are aimed at securing or opposing any change to a law, policy or practice in the Commonwealth, a state or territory, or another country. Such activities can include:

• involvement in the development of public policy
• promotion of, or opposition to, particular laws, policies, practices or decisions of governments, and
• awareness-raising.

In the minds of the public, ‘advocacy’ can sometimes include political party activity. This is not included in the ACNC’s use of this phrase, as registered charities cannot have a purpose of promoting or opposing a particular political party or candidate.

‘Campaigning’ in this guidance is used by the ACNC to mean activities undertaken to educate the public, raise public awareness, change public behaviour and/or mobilise public support. It can include ensuring that existing laws, policies or decisions are either maintained or changed.

Throughout this guidance, we refer to a charity’s purpose as distinct from its activities. Although it may seem like these terms refer to the same thing, they are different in a subtle but important way, and it is worth making the distinction clear.

A charitable purpose is what a charity has been set up to achieve. It is the overarching object or goal of the charity – some people may refer to it as a ‘mission’. There are 12 charitable purposes listed in the Charities Act 2013 (Cth), and charities may have more than one charitable purpose. Charities cannot have a non-charitable purpose unless that purpose is incidental to or in aid of a charitable purpose.

Charity activities are the activities that a charity undertakes in support of its overarching purpose. This may include direct work with beneficiaries (for example, providing temporary accommodation to homeless people or providing education services) or more indirect work (for example, selling goods to raise funds for a homeless shelter or holding a conference to educate people about research into a disease).

It is important to remember that a charity may only conduct activities that further its charitable purposes.

In determining whether a charity has a disqualifying political purpose, the ACNC will consider all the relevant circumstances of the charity, including its governing rules and its activities. Assessment of these matters will be a question of fact and degree.

For an organisation to be a charity it must be established for charitable purposes which are for the public benefit. An organisation will not be charitable if it has disqualifying political purposes.

Advocacy and campaigning can be a legitimate and effective way of furthering the charitable purposes of a charity. However, it is important that charities do not cross the line into having a disqualifying political purpose and that they maintain independence from party politics.

A charity’s policy position on a matter of concern may be similar to, or align with that of, a particular political party. In such a situation it is okay for the charity to continue to campaign on that issue, provided that this does not amount to the charity having a purpose of promoting or opposing a particular political party or candidate.

It would also be prudent for members of a charity’s governing body to consider the independence of their charity and any potential effects of particular campaigning activities on the charity's reputation, including online activities through social media. Public perception is important and members of a charity’s governing body should be aware of the perception of any advocacy or campaigning.

In the lead-up to an election there are increased risks that, in the minds of the public, charity advocacy or campaigning can be associated with a particular political party.

It’s okay for a charity to:

• have a purpose of advancing public debate – including promoting or opposing a change in law – where this furthers or aids another charitable purpose.
• have a purpose to promote or oppose a change to a law, policy or practice in the Commonwealth, a state or territory or another country where this furthers or aids another charitable purpose

It’s not okay for a charity to:

• have a purpose to promote or oppose a political party or a candidate for political office.
• have a purpose to engage in or promote activities that are unlawful.
• have a purpose to engage in or promote activities that are contrary to public policy (which, in this context, means the rule of law, our constitutional system, the safety of the public or national security).

Each of the three listed as being not okay are ‘disqualifying political purposes’.

This means that a charity can campaign if it is satisfied that:

• what it is doing is advancing its charitable purpose
• its governing document (its constitution or rules) does not prevent the activity
• it does not have a purpose of advancing a particular political party or candidate or campaigning against a particular party or candidate
• it does not have a purpose of engaging in or promoting activities that are unlawful, and
• it does not have a purpose of engaging in or promoting activities that are contrary to public policy (i.e., the rule of law, our constitutional system, the safety of the public or national security).

The ACNC has an established process for receiving concerns about charities from the public. Before you raise a concern with the ACNC about a registered charity, make sure you have read this guidance including the FAQs below – these may resolve your concern. You can also try to resolve it by speaking with the charity directly. If you are unable to resolve the issue, you can talk to the ACNC. Read more information about raising a concern about a charity.

The following questions and answers give examples to assist a charity in making decisions about advocacy and political campaigning.

Does a charity need to be registered with a subtype of advancing public debate to carry out advocacy activities?
No. A charity may undertake advocacy activities without having a specific subtype of advancing public debate, as long as the advocacy is in line with its charitable purposes.

For example:

• A charity with the purpose of advancing education can advocate and campaign on education issues. However, if it engages in partisan advocacy, it runs the risk of being found to have a purpose of promoting or opposing a political party or candidate (see the example below).

Can a charity advocate a change to government policy directly to elected representatives and public officials?
Yes, provided the advocacy is to promote the charitable purpose of the charity, or the interests of its beneficiaries.

For example:

• A charity that also has the charitable purpose of advancing social or public welfare and delivers services to victims of violence can promote a change to the law which would increase criminal penalties for perpetrators of family violence.

It can do this in a variety of ways – such as meeting with elected representatives or officials or making written submissions. In doing so, the charity should remain neutral on any party views. If board members are open and transparent about such engagement, this can help ensure public perceptions of neutrality.

Can a charity carry out activities which advocate a change in government policy or law?
Yes, as long as the activities are carried out to promote the charitable purpose of the charity. However, if the activities explicitly support or endorse a particular political party or candidate, the charity runs the risk of being found to have a disqualifying political purpose.

For example:

• A charity with the purpose of advancing education should take care when producing and distributing flyers. A flyer that states ‘Vote (named party) first to support local schools’ may be perceived as explicitly supporting a particular party which may indicate a disqualifying political purpose.
• A charity with the purpose of advancing education can produce and distribute a flyer that states a party’s policies in relation to education and allows readers to draw their own conclusions.

Can a charity make a submission to a public consultation or enquiry where legislative changes are being considered?
Yes. A charity can make a submission to a public enquiry into an issue that aligns with its charitable purpose or affects its beneficiaries.

For example:

• A charity with the purpose of advancing social or public welfare that provides services for homeless people can make submissions in relation to existing or proposed laws, government policies or practices dealing with housing and homelessness.

Can a charity have a purpose to carry out activities which are illegal to advocate a change in government policy or law?
No. A charity cannot have a purpose to engage in or promote activity that is illegal.

For example:

• A charity with a purpose of advancing the natural environment cannot have a purpose of encouraging its members to engage in illegal methods such as intimidation, trespassing or assault to promote a change to the law regarding logging.

Should a charity support (or oppose) a particular political party or candidate?
No, because the charity will run the risk of being found to have a disqualifying political purpose, and therefore not being a registered charity. However, a charity can have a purpose of supporting (or opposing) a specific policy or law that is relevant to another charitable purpose.

For example:

• A charity that has the charitable purpose of advancing religion can’t have a purpose of promoting a particular candidate because that candidate’s views are consistent with the religious faith the charity promotes. If it promotes a particular candidate, it runs the risk of being found to have a disqualifying political purpose. But the charity can publish material advising of the candidate’s views on issues that have implications for people of that faith.

Should a charity distribute how–to–vote cards on election day for a particular candidate or party?
No, because the charity will run the risk of being found to have a purpose of promoting or opposing a political party or candidate for political office, which is a disqualifying purpose.

Should a charity produce material asking its members or supporters to vote for a particular candidate or party?
No, because the charity runs the risk of being found to have a disqualifying purpose of promoting a political party or a candidate for political office.

Can a charity produce material which compares and ranks the policies of political parties?
Yes. Assessing, comparing or ranking the policies of political parties or candidates as part of carrying out a charitable purpose is acceptable, as long as the material is related to the charity’s purpose. However, the charity cannot have a purpose of explicitly promoting or opposing a political party. If the material produced explicitly tells members or supporters which party to vote for based on this ranking, the charity runs the risk of being found to have a disqualifying political purpose.

Charities should also ensure that they comply with requirements in electoral legislation (for example, sections 328, 328B, 329, 351 of the Commonwealth Electoral Act 1918 (Cth)).

For example:

• A charity with the purpose of advancing social or public welfare can produce and distribute flyers that compare the key features of the paid parental leave policies of various political parties.
• The website of a charity with the purpose of advancing the natural environment can state its policy on the development of renewable energy and compare it to the current policies of several political parties.

Can a Responsible Person of a charity such as a director or committee member support a particular outcome in an election?
Yes – providing it is solely in a personal capacity and not on behalf of the charity. It would not be prudent for officers and employees of a charity to use their position in a way that would imply that the charity itself endorses a particular candidate. Extra care should be taken with social media to ensure that the individual does not give the impression that they are speaking on behalf of the charity. Otherwise the charity runs the risk of being found to have a disqualifying political purpose of supporting a political party.

Can a charity spend money to publicly express its views on issues and policies of different political parties during an election?
Yes, as long as the spending is clearly tied to the charity’s purpose and would not be perceived as an independent purpose of explicitly promoting or opposing a particular party or candidate. The charity should also check that the spending is permitted by its governing rules.

Members of the charity’s governing body should also take care to comply with Australian electoral laws and refer to the Australian Electoral Commission’s guidance.

For example:

• A charity with the purpose of advancing culture can conduct an advertising campaign promoting the need for government to promote and support the work of artists in the community.

Can a member of a political party or a candidate standing for election appear at an event a charity is running?
Yes, provided that this would not amount to the charity having a purpose of promoting that candidate or party. It would be prudent for a charity to invite members of a range of political parties to attend the event to mitigate any risk of appearing to have a purpose of promoting a particular candidate or party. If members from a number of parties are invited or attending then the charity is unlikely to be found to have a purpose of promoting a particular party.

Can a charity hold an event to debate a matter of law or policy during the election campaign?
Yes, if the event is an open forum which promotes public debate on law or policy issues related to a particular charitable purpose.

For example:

• A charity with the purpose of advancing health by conducting research can host a public debate about government policies on major health initiatives. Inviting members and candidates representing a range of political parties and persuasions to the debate would mitigate any risk of the charity being found to have a purpose of promoting a particular political party or candidate.

Can a charity publish research on current or proposed laws, government policies or practices related to its charitable purpose?
Yes. However, if the charity explicitly tells its members or supporters which party to vote for based on the findings of the research, it runs the risk of being found to have a disqualifying political purpose.

For example:

• A charity with the purpose of advancing the safety and security of the Australian public that provides advice and support to victims of crime can produce research on the effects of current or proposed government policy on law enforcement and publish this research.

Should a charity donate money to a particular candidate or political party during an election campaign?
No, because the charity will run the risk of being found to have a purpose of supporting a particular candidate or party.

Can a charity accept donations or money from a particular candidate or political party during the election campaign?
Yes, but it should not accept a donation which requires the charity to promote the political candidate or party.

Can a charity provide accommodation space or other non-financial support to a particular candidate or political party?
It depends. If the support is outside of the charity’s ordinary provision of services, the charity runs the risk of being found to have a purpose of supporting a political candidate or party.

For example:

• If a charity provided its office space and equipment to assist a particular candidate’s campaign, it runs the risk of being found to have a disqualifying political purpose.
• A charity that owns a hall which it regularly allows organisations or individuals to hire for events may provide the same service on the same conditions to a particular candidate as long as the arrangement does not amount to having a purpose of explicitly supporting the candidate’s party or campaign.

Should a charity attend events organised by a political party?
A charity’s representatives should think carefully before deciding to attend an event organised by a political party.

There are a number of questions that charity representatives should ask themselves when considering this:

• What is the charity’s purpose for attending the event? Would attending the event further the charity’s charitable purposes?
• Are the charity’s representatives attending in their own personal capacity or as representatives of the charity? If the charity is funding the attendance fee, the latter will be assumed.
• How will attendance be perceived by the public? By attending, the public may infer that the charity is partisan and that it has a purpose of promoting a particular party or candidate.
• For the charity’s Responsible People, is allowing attendance at such events is in the best interests of the charity?
• Is the event raising funds for the political party or a candidate for office? If this is not clear, the charity should make enquiries about the nature of event.

Should a charity attend fundraising events for a political party or candidate for office?
Is the event a fundraiser for a political party or candidate? If so, the charity runs the risk of being found to have a purpose of promoting a political party or candidate.

Has the attendance fee been priced to include a surplus for political fundraising purposes? If so, the charity runs the risk of being found to have a purpose of promoting a political party or candidate.

If these matters are not clear, the charity should inquire about the nature of event.

Do things change when an election has been called?
Once an election has been called, charities should take extra care to ensure that their activities do not indicate disqualifying political purposes.

Does a charity have to vote in an election?
Some local government jurisdictions require incorporated entities to vote. This would apply to some charities in those areas.

If compulsory voting rules require a charity to vote in an election, it must do so. Voting, in this situation, would not be considered 'promoting or opposing a political party or candidate for political office'.

However, if a charity seeks to convince or encourage other voters to vote a particular way, it runs the risk of being seen as promoting or opposing a political party or candidate for political office. And this is a disqualifying purpose.

It is important for every charity to consider how a requirement to vote fits with its obligation to meet the ACNC’s Governance Standards. For example, a charity may need to ensure it has processes in place to ensure there is accountability to members and that Responsible People are acting properly in the best interests of the charity when considering the charity’s vote.

It is up to a charity to decide, and record, how it meets the Governance Standards if it is required to vote in an election.