Charities are furious about new regulations that could see them shut down over summary offences. The regulations, introduced by the Morrison government in February, and which come into force as early as next week, would give the Australian Charities and Not-for-profits Commission (ACNC) sweeping powers to deregister a charity or remove directors where a member has, or is believed to have, committed a summary offence.
Flagging the laws late last year, Assistant Minister for Finance, Charities and Electoral Matters Zed Seselja said the steps were “very reasonable”.
“Some organisations are using their position as charities to engage in, promote and condone activities that are not legitimate charitable acts and are, quite frankly, criminal.”
But it’s a move that has been pushed through with little consultation and transparency, despite strong condemnation from the charities sector, legal experts, and the opposition.
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Broad regulations anger sector
Currently, charities can’t engage in conduct that would constitute a serious indictable offence. The government’s new laws would broaden the ACNC’s power to crack down on charities by prohibiting them from engaging in summary offences. Those tend to be low-level stuff, generally dealt with by a magistrate, and differ from state to state.
Some are obscure things most people haven’t heard of — in New South Wales, for example, displaying a picture of the premier without authorisation is a summary offence. But the purpose of the regulations seems clear: the government wants to go after protesters. Summary offences include things like trespass and obstructing traffic, the thing people are often charged with at rallies.
But the broadness of the proposed regulations mean a charity could be de-registered if anyone wearing a t-shirt or holding a sign with its logo does something as innocuous as blocking a door during a protest, or not following the route directed by police.
And while no doubt conservative anger about groups like Extinction Rebellion blocking traffic animated these changes, it’s religious charities who are currently up in arms.
“We could be targeted if our staff or volunteers commit minor offences. We could be held responsible for how other people use our materials. We could even be shut down if the commissioner thinks it’s ‘more likely than not’ that we’ll do something wrong,” Anglicare Australia chair Chris Jones said.
It could also mean a charity would be in strife if an external group they supported engaged in any summary offences.
St Vincent de Paul Society CEO Toby O’Connor told Crikey the changes will make their every day operations all the more onerous.
“We’d have to do a risk assessment on pretty much anything that’s in the public area. The onus would then be on charities to ensure that at events in the public domain, our members don’t wear anything with our logo on it.”
Coalition’s war on charities continues
The sector is also unhappy with how the regulations have been introduced — with little transparency and turnaround time. There was just a month of consultation from Treasury after the changes were announced in February, and submissions have still not been made public.
But the whole process highlights the Morrison government’s broader attitude to the charities sector, according to Labor’s shadow assistant minister for the economy and charities Andrew Leigh.
“There isn’t a spate of lawlessness among charities that needs to be dealt with, this is the culture wars happening all over again,” he said.
In 2015, Morrison tried to shut down the ACNC. Two years later, the government put Gary Johns, a former Labor minister turned IPA sort and vocal critic of charities, in charge.
Johns has, in the past, slammed the sector for having too much “impure altruism”, and called Indigenous women on welfare “cash cows”. Now he will have extraordinary discretion to deregister charities or replace their board members.
“You’ve put Dracula in charge of the blood bank,” Leigh said.
Is it even constitutional?
On top of all that, the latest regulations might not even be constitutionally valid. According to a submission put together by law firm Arnold Bloch Leibler, the regulations might infringe the implied freedom of political communication drawn from the constitution, by burdening the ability of charities to engage in protest activity.
It may also be invalid under the constitution’s taxation power because it’s too tenuously connected to the key purpose of the power, the firm’s submission says.
Meanwhile, many in the sector are questioning why the government has placed such onerous restrictions on them compared to the relatively light-touch regulation of the private sector. The thought of ASIC deregistering a company over a director’s summary offence seems absurd. But that is effectively what’s happening to charities.
And on the whole, it could have a chilling effect on free speech and peaceful protest.
“We’re a democracy — this is about freedom of speech,” O’Connor said.