The election campaign is now in full swing and charities have some three weeks before the election to get their message across.
Charities are often closely scrutinised when they take part in political debate and we don’t expect this election campaign to be any different.
To avoid getting themselves into hot water, charities should make sure they are familiar with their legal obligations when it comes to political advocacy.
Swim between the ACNC flags
A charity is perfectly within its rights to campaign and advocate on certain issues if these activities will further its charitable purpose. (In fact, a charity’s right to engage in public debate about charitable issues is protected by the Australian constitution).
To advance its charitable purpose, a charity can do things like:
- compare and critique the policies of various parties
- debate or seek explanation of proposed laws or policies
- publish information or research on current or proposed laws or policies
- meet with candidates or elected politicians to promote the charity’s purpose
- host, promote or participate in public debates.
However, a charity will lose its charity registration if the ACNC finds that it has a prohibited purpose of:
- promoting or opposing a political party or a candidate for political office
- engaging in or promoting activities that are unlawful or contrary to public policy (meaning the rule of law, our constitutional system, the safety of the public, or national security)
In charity law there is a distinction between an activity and a purpose. The same activity (for example, critiquing the policy of a party) can be permissible if it is done to promote a charitable purpose, and impermissible if it is done to promote a prohibited purpose. Generally speaking, a ’one-off’ activity is unlikely to be enough to demonstrate that a charity has a prohibited purpose.
This area of the law can get tricky, but the ACNC website contains some useful guidance.
Don’t overlook electoral laws
Last year the government passed amendments to the Commonwealth Electoral Act which may affect a charity that campaigns on election issues.
If a charity spends more than $13,500 in the 2018-19 financial year for the purpose of influencing the way people vote in an election (“electoral expenditure”):
- it will need to report to the Australian Electoral Commission
- it must not use a donation from a foreign donor to incur electoral expenditure.
If a charity spends more than $100,000 in the 2018-19 financial year on electoral expenditure it may also need to report to the AEC as a “political campaigner”. Political campaigners are also restricted in the way they can use foreign donations.
More information can be found on the AEC website.
Charites should also be aware of the laws regulating electoral advertising and which prohibit a person from:
- publishing an advertisement, pamphlet, video or other material containing matter relating to an election without also publishing the name and address of the person who authorised it;
- publishing anything that is likely to mislead or deceive a voter in relation to the casting of a vote; and
- claiming or suggesting that a political candidate supports the activities of a particular association or charity unless the candidate has provided written authorisation to that effect.
Consider any contractual limitations
In 2013 the Gillard government outlawed “gag” clauses in federal funding contracts. However, funding contracts may still require money to be spent on frontline services and some may even prohibit spending on government lobbying.
Recent media coverage also suggests that the federal government is relying on legal advice to claim that it is unconstitutional to provide funding to charities to engage in advocacy work. A number of peak bodies have been affected.
If your charity has any doubts about what kinds of political advocacy it can legally engage in, please let us know and we can navigate the grey areas with you.