Promoting certainty, trust and independence Bill

Charity isn’t just about helping people in need – it’s also about trying to address the root causes of social problems. This includes advocating for the policy interventions best placed to solve the issues we work on. Whether it relates to protecting the environment, eliminating poverty, advancing First Nations justice, or any other issue our communities are facing, advocacy is a core part of our work.

Historically, advocacy has come under attack from the Australian Government and other parties who feel threatened by public discourse on an issue or oppose certain policy solutions. While the current government has expressed a wish to empower and collaborate with charities, formal protections around charitable advocacy remain weak. It is crucial that we pass legislative protection for the sector so that future governments cannot undermine the right and ability of charities to advocate. 

That's why we're launching critical legislation to protect the sector’s right to engage in advocacy. The Alliance, in collaboration with leading charity experts, has developed a Bill that would resolve urgent issues facing the sector. 

The Charity legislation amendment: Promoting certainty, trust and independence Bill 2024 contains three reforms that would resolve the most urgent issues facing the charity sector regarding its rights to advocate. The reforms are common-sense, uncontentious legislative updates with a budget neutral impact, and we call on the Parliament to pass them as soon as possible.

What's in the Bill?

This is an “omnibus” Bill which amends the Charities Act 2013 (Cth)(‘Charities Act’), the Australian Charities and Not-for-profits Commission Act 2012 (Cth)(‘ACNC Act’), and the Not-for-Profit Sector Freedom to Advocate Act 2013 (‘NFP Advocate Act).

Future-proofing the role of charitable advocacy

While the Charities Act recognizes advocacy as a charitable purpose, the public benefit of charitable advocacy has been challenged. Successive governments have argued that advocacy does not have a public benefit and that charities should focus on purposes with more tangible outcomes that directly benefit the public, such as providing health and education services. This has created significant legal and political challenges for charities participating in advocacy.

In 2010, in Aid/Watch Inc v Federal Commissioner of Taxation (the Aid/Watch case), the High Court of Australia determined that political advocacy performed by charities is of public benefit due to its role in “information dissemination” in Australia. Despite this recognition in case law, challenges to the advocacy role of charities have continued, sometimes leading to uncertainty about organisations’ charitable status and leading many charities to self-silence to avoid any legal issues. 

The proposals in this Bill would amend the Charities Act to provide that political advocacy engaged in by charities is presumed to have a public benefit. Unless there is evidence to rebut the presumption of public benefit, the amendment will provide certainty for charities in being able to undertake advocacy without fear of reprisal or risk to their charitable status. This important proposed amendment to the Charities Act would clarify the common law on this point and reflect contemporary Australian law and values.

Merit based appointment for the ACNC Commissioner

The Australian Charities and Not-for-profits Commission (ACNC) is the national regulator of charities and plays a powerful role in the operation of our sector. 

The ACNC Act currently does not require a transparent, merit-based appointment process for the ACNC Commissioner, which is instead subject to ministerial discretion. This enables political appointments to the role, as seen in the case of a notable critic of charitable advocacy Gary Johns. Without legislation ensuring an appropriate and objective process, the position remains vulnerable to misuse in future.

The Bill inserts a process consistent with other recent amendments to federal appointment processes, such as the appointment of non-judicial members of the reformed Administrative Review Tribunal and Commissioners to the Human Rights Commission. To ensure a proper recruitment process for this role, the Bill proposes following: 

  • Merit-based criteria which require an assessment of candidates' skills, experience and qualifications against the skills, experience and qualifications needed to perform the ACNC Commissioner's role.  
  • Transparency in the appointment process by requiring public advertisements for the job in national media and on government websites.
  • An Assessment Panel, including at least one charity sector representative, to assess applications and make recommendations to the Minister. 
  • A reappointment process that is merit-based and transparent. Currently, the ACNC Act allows the Minister to reappoint the incumbent Commissioner.
  •  The term limit to be capped at ten years. Currently, there is no cap on the maximum term limit.
  • An extension of the term for up to one year to allow an incumbent Commissioner to complete outstanding matters that have been commenced.

Requiring the Commissioner to be selected through a merit based and open process maintains the ACNC’s essential institutional independence, creates greater coherence and consistency in federal appointment processes and promotes transparency and integrity in government. 

Preventing 'gag clauses'

The NFP Advocate Act was intended to address the problem of restricting or preventing the sector from publicly debating Commonwealth policy by prohibiting the use of ‘gag clauses’ in Commonwealth agreements. 

However, independent and anecdotal research indicates that government officials are still employing gag clauses in attempts to prevent not-for-profit entities that are party to Commonwealth agreements from engaging in charitable purpose advocacy.

To better prevent the silencing of charitable advocacy, the Bill proposes amendments that will stop such indirect prohibitions and better clarify charitable advocacy as a legal principle.

We acknowledge the brilliant work of our legal drafting team, Associate Professor Jennifer Beard (Melbourne Law School, The University of Melbourne) and Jonathan Green (Senior Associate NFPs, Human Rights & Social Impact, Mills Oakley Law Firm).

Representatives from Baptist Care, Oxfam Australia, and Australian Democracy Network take the Bill to Australian Parliament House.