The Senate has disallowed the Australian Charities and Not-for-profits Commission Amendment (2021 Measures No 2) Regulations 2021 after passing a disallowance motion moved by Senator Rex Patrick on 25 November 2021. This was because the new regulation exposed charities to deregistration, for advocacy – involving civil disobedience, even in pursuit of their charitable objects. The amending Regulations, previously registered on 28 June 2021, had sought to extend the scope of governance standard 3 of the ACNC Regulations by empowering the ACNC Commissioner to investigate registered charities in relation to unlawful activity that was merely punishable as a ‘summary offence’ (see related TT article).
The key amendment lowered the bar, for a registered entity governance requirement, from not committing an ‘indictable’ offence, down to a ‘summary offence’.
The explanatory statement, accompanying the regulation, explains the context:
An entity is entitled to registration under the Act if it meets specified requirements, including the requirement to comply with the governance standards set out in the Australian Charities and Not-for-profits Commission Regulation 2013. Registration under the Act is a necessary precondition for access to a range of exemptions, benefits, and concessions, including certain Commonwealth tax concessions.
Governance standard three currently provides that registered entities must not engage in conduct that may be dealt with as an indictable offence under an Australian law or by way of a civil penalty of 60 penalty units or more.
Specifically, the instrument added a new s 45.15(2)(aa) of the ACNC Regs which provides that a registered entity of the Australian Charities and Not-for-profits Commission (ACNC) must not engage in conduct if:
- the conduct may be dealt with as a summary offence under a Commonwealth, State or Territory law; and
- the summary offence relates to one of the following: (i) entering or remaining on real or personal property; (ii) destroying or damaging real or personal property; (iii) appropriating personal property belonging to another entity; and (iv) causing personal injury to an individual or any other kind of impairment of an individual’s health, including the risk or threat of such.
The resolution to disallow this instrument was supported 24 to 29, and is recorded in Hansard, as follows.
That the Australian Charities and Not-for-profits Commission Amendment (2021 Measures No. 2) Regulations 2021, made under the Australian Charities and Not-for-profits Commission Act 2012, be disallowed [F2021L00863].
The reasons for disallowing the instrument were expressed in the debate, also recorded in Hansard. A taste comes from the first paragraph of Senator Patrick, which is as follows.
The Australian Charities and Not-for-profits Commission Amendment (2021 Measures No. 2) Regulations 2021 should be disallowed as they amount to a prohibition of freedom of political communication and expression and expose charities to the risk of deregistration for actions most Australians accept as a right and in which they may have engaged, such as peaceful protests and sit-ins. Quite simply, the intent of these regulations is to stop charities engaging in lawful advocacy in pursuit of their charitable purpose. Millions of Australians donate, volunteer and are otherwise involved in charities every year. They provide frontline services in the areas of climate change, domestic violence, homelessness, refugee issues and a vast range of other social issues—issues this government doesn’t really care about. Charities have raised issues and continue to advocate on issues such as black deaths in custody and the end of gender-based violence.
Source: Senate Hansard, 25 November 2021, pp 60-65; LTN 229, 26/11/21]
[Tax Month – November 2021 – Previous 2021] 28.11.21