Election years spark renewed interest in charities involved in public debate and policy activities, and organisations pursuing such a purpose may fall into a certain category when they register with the Australian Charities and Not for profits Commission (ACNC). ‘Promoting or opposing a change to any matter established by law, policy or practice in the Commonwealth, a state, a territory or another country’, also known as ‘advancing public debate’ is one of the 12 charitable purposes under The Charities Act 2013 (Cth) (Charities Act). In this article, we take a deep dive into this charitable purpose, and explore the meaning of ‘public debate’ in the context of ACNC charity registration and consider the activities that can and cannot be undertaken in pursuance of this purpose.
What are the requirements for registration as a charity with the purpose of advancing public debate?
A charity wishing to register with the ACNC must comply with certain requirements stipulated under the Charities Act. The applying charity must:
- be a not-for-profit;
- not pursue any disqualifying purposes;
- not be an individual, political party or a government entity; and
- have only charitable purposes that are for the public benefit (or any non-charitable purposes are incidental or ancillary to, and in aid of its charitable purpose(s)).
What is a charitable purpose of ‘advancing public debate’?
That is, advancing education through helping to ensure Australia adopts a public school system which provides for the best possible education for all young Australians.
The recognition of advancing public debate followed the decision in Aid/Watch Inc v Federal Commissioner of Taxation (2010) 241 CLR 539. In this case the High Court extended charities' ability to advance public debate, recognising the inherent right for agitation and communication about matters affecting government, politics and policies under the Australian Constitution.
Whilst not specifically defined within the Charities Act, both case law and the Explanatory Memorandum to the Charities Act (Explanatory Memorandum), describe this subtype as a purpose of generating public debate with a view to influence legislation, government activities or government policy in furtherance or protection of one or more existing charitable purposes, in a manner consistent with those purposes.
The Charities Act prescribes where an organisation has a purpose to promote a change, the change must further or be in aid of one or more of the eleven other purposes listed in the Charities Act, i.e:
- the purpose of advancing health;
- the purpose of advancing education;
- the purpose of advancing social or public welfare;
- the purpose of advancing religion;
- the purpose of advancing culture;
- the purpose of promoting reconciliation, mutual respect and tolerance between groups of individuals that are in Australia;
- the purpose of promoting or protecting human rights;
- the purpose of advancing the security or safety of Australia or the Australian public;
- the purpose of preventing or relieving the suffering of animals;
- the purpose of advancing the natural environment; and
- any other purpose beneficial to the general public that may reasonably be regarded as analogous to, or within the spirit of, any of the purposes listed above.
The ACNC provides the following example of a charity established for ‘the purpose of promoting public debate (i.e., advancing public debate) in the context of education law and policy in Australia. Advancing education through helping to ensure Australia adopts a public school system which provides for the best possible education for all young Australians.
Additionally, if an organisation has a purpose to oppose a change, the change must not hinder any of the other 11 charitable purposes recognised by the ACNC. An example of a permitted purpose provided by the ACNC is a charity established with ‘the purpose of preserving the current law regarding the protection of refugees (i.e., promoting or protecting human rights) and opposing any change to the law that would erode refugees’ current rights (i.e., advancing public debate)’.
According to the Australian Charities Report 7th Edition (compiled from data from the 2019 Annual Information Statements submitted to the ACNC), advancing public debate was one of the least common subtypes. Charities solely registered under this subtype (with no other subtypes) comprised only 1% of charities, reflective of the requirement that advancing public debate is inherently linked with the other charitable subtypes.
What kinds of activities does a charity pursuing this subtype undertake?
A charity’s purpose and it’s activities must work in parallel. All activities undertaken by the charity must, be in pursuit or furtherance of the charity’s purpose. For charities that seek to ‘advance the public debate’ this can pose some interesting challenges.
There is no determinative legal or ACNC guidance regarding the activities a charity advancing public debate may undertake. While the activities of a charity will be assessed on a case-by-case basis, they can generally include advocacy and campaigning activities, such as making submissions or giving evidence in relation to existing or proposed laws, government policies or practices; and developing and publishing research on current or proposed laws, government policies or practices.
Charities registered under this subtype may include:
- human rights research bodies providing law reform submissions to government; and
- education research institutes developing public policy position papers.
Please note: a charity does not need to be registered under the subtype of advancing public debate to partake in advocacy or campaigning activities. For more information on charities undertaking political activities, please read our article ‘Let’s get political: when can charities partake in advocacy and campaigning activity?’.
What kinds of activities should a charity pursuing this subtype of charity be wary of?
While charities can promote or oppose a change to any matter of law, policy or practice provided doing so furthers or aids another charitable purpose, charities cannot have a ‘disqualifying purpose’.
Under the Charities Act, the following are disqualifying purposes:
- engaging in or promoting activities that are unlawful or against public policy; or
- promoting or opposing a political party or a candidate for political office.
For example, a charity registered under the subtypes of advancing public debate and advancing the environment may be deemed to have a disqualifying purpose where it encourages its members to partake in illegal activities, such as intimidation, breaking, entering and committing serious indictable offences as part of a campaign to protest logging laws.
An example of permitted advocacy would include the publishing of information regarding a preferred policy on animal welfare in greyhound racing by a charity registered under the subtypes of advancing public debate and preventing or relieving the suffering of animals.
However, if the information asks its supporters to vote for the political party or candidate which supported its preferred animal welfare policy, the charity may be found to have a disqualifying purpose. Where the ACNC determines that a charity has a disqualifying purpose of promoting or opposing a particular political party or candidate, it may deregister the organisation as a charity.
How can we help?
If you would like to find out more about registering as a charity or amending your charitable subtype
to include advancing public debate, please get in touch with our specialist Charities + Social Sector Lawyers.