Advocacy, Politics and Mowing the Lawn
Charities in Australia currently enjoy some of the strongest legal protections in the world to engage in advocacy, but we should never take these protections for granted, writes David Crosbie in Pro Bono News, 25 May 2017.
The definition of charity that was passed into legislation in 2013 reflected the decisions of the High Court of Australia that engaging in advocacy for changes to benefit society can be a charitable purpose.
As the then assistant treasurer David Bradbury stated in the second reading speech supporting the Charities Bill 2013 when it was introduced into our Parliament: “The bill reflects the Aid/Watch decision that charities may have a purpose to generate public debate about a charitable purpose. It allows for an entity to have a charitable purpose, including a sole purpose, of promoting or opposing a change in the law or government policy relevant to another charitable purpose.”
I was sitting in the Senate gallery when the Charities Bill of 2013 passed in the Senate. There was no major celebration, no fanfare, but those with an understanding of how charity law can be applied to restrict the voice of civil society realised how significant this legislation was.
Around the same time, the Harper conservative government in Canada was enacting an agenda to shut down charity advocacy, particularly in relation to environmental organisations. They initiated audits of the activities of targeted charities, drawing on legislation that restricted the level of policy advocacy any charity could engage in.
The current Trudeau Canadian government has adopted a different approach to the charities sector. To inform their deliberations about the role of charities in public policy and political decision making, a panel of experts was appointed and a report prepared. The Report of the Consultation Panel on the Political Activities of Charities, released a month ago, makes some salutary points about the role of advocacy and the difficulty of excluding what are termed “political activities”.
In framing their report, the authors clearly set out the benefits of charities playing an active role in public policy: “Charities have long played a critical role in our society. Along with providing much-needed programs and services, they serve all Canadians by pressing for positive social and environmental change. Charities bring commitment and expertise to the formulation of public policy, develop innovative solutions to issues and engage a diverse group of stakeholders, many directly affected by the matters under discussion. This is particularly valuable in an era of complex social and environmental challenges and constrained government budgets, where all informed perspectives and ideas are vital.”
To enable and maximise the contributions of charities, we need a regulatory environment that respects and encourages their participation in public policy dialogue and development. This is not currently the case. The legislative framework for regulating charities in Canada is outdated and overly restrictive. It is, in the words of one submission, “antiquated, subjective, arbitrary and confusing” – denying Canadians the right to have their voices heard through the charities they support.
The four recommendations in the report include lines like: “To enable charities to fully engage in public policy dialogue and development… to allow charities to fully engage, without limitation, in non-partisan public policy dialogue and development, provided that it is subordinate to and furthers their charitable purposes.”
Perhaps most importantly, the Canadian report sought to focus on ensuring charities were working towards their charitable purpose rather than focusing on their activities.
The Coalition government in Australia has previously indicated it would like to restrict advocacy by charities. Their attempt to delay the implementation of the new definition of charities was blocked in the Senate, as were their attempts to disband the Australian Charities and Not-for-profits Commission.
This blocking of the government’s agenda was the consequence of considerable lobbying and advocacy by CCA and others. It was achieved through strategic action, informed by shared information (often through Pro Bono Australia), and supported by charities themselves allocating time and resources to the task. I have no doubt that without this collective effort to resist the government’s agenda for charities, Australia would have followed the Canadian path with increased restrictions on advocacy backed up by audits of activities.
The charities sector continues to face pressure from governments to restrict any advocacy that might be interpreted as critical of government policy. This pressure is sometimes applied through inferred threats to funding, exclusion of input into policy formulation, refusal to meet or consult with organisations, or ongoing attempts to impose new restrictions.
There are no easy answers to the issue of how charities can continue to exercise their right to actively campaign and participate in the development of public policy. CCA continues to work with all political parties and the Senate cross-bench to highlight the importance of a strong civil society voice. We know that we are much more likely to be able to defend the legal right to advocate within our charitable purpose if we join together and act collectively.
As a respected colleague pointed out to me at a CCA board meeting, when it comes to attempts by governments and political parties to restrict the advocacy of charities, the grass will keep growing, and we will need to keep mowing.
Australian Progress is running a special session duringProgress2017 (6 June Melbourne Town Hall) focusing on defending advocacy – David Crosbie is a speaker at this forum.
About the author: David Crosbie is CEO of the Community Council for Australia. He has spent more than 20 years as CEO of significant charities including five years in his current role, four years as CEO of the Mental Health Council of Australia, seven years as CEO of the Alcohol and other Drugs Council of Australia, and seven years as CEO of Odyssey House Victoria.
View original article in Pro Bono News.