The past month has seen concerning developments regarding proposed regulatory changes that will expand the Charity Commissioner’s powers to deregister charities.

With the controversial new regulations having now been tabled in Parliament, urgent work is underway to secure support for a disallowance motion and protect the charities sector from changes that could effectively discourage charities from engaging in public interest advocacy and peaceful protest.

Leading the effort to prevent the changes is the Hands Off Our Charities (HOOC) Alliance – a consortium of over 90 charities formed in 2017 in response to a number of Bills that would have had a similar chilling effect had HOOC not been successful in lobbying for significant amendments. A group of Australian Communities Foundation funders, including Jackie Yowell and Steve Rothfield (Fairer Futures Fund), were among the Alliance’s early supporters.

“We were particularly concerned about the prospect of organisations being threatened with restrictive regulations against advocacy,” Jackie recalls, “so we were gratified and optimistic when HOOC ably saw off that threat.”

“That’s why we’ve been quick to support the Alliance again in its response to this latest challenge.”

What you need to know

In this quick Q&A we look at the changes being proposed, the risks to charities and funders, and why support is needed now more than ever to protect the voices of Australia’s diverse charities sector.

In simple terms, what are the new regulations and their implications for charities?

The Government has tabled new regulations to amend the Australian Charities and Not-for-profits Commission’s (ACNC) governance standard 3, which would give the Charities Commissioner expanded discretionary powers to deregister charities.

“The risks to charities are real,” says Saffron Zomer, Executive Director at the Australian Democracy Network – one of HOOC’s founding organisations.

“These regulations are drafted so broadly that it would actually be possible for the Commissioner to move to deregister a charity for something as simple as blocking a footpath at a vigil or failing to have paperwork in order.”

While the Government insists this is not the intention of the regulations, the HOOC Alliance and many others in the sector believe that the uncertainty around how they will be applied will lead charities to self-censor.

“It’s inevitable that, in the face of the huge potential risk, charities will choose not to do perfectly legitimate activities – what’s known as the ‘chilling effect’,” says Saffron.

“That’s not the kind of regulatory environment we want for civil society in a democratic country.”

HOOC is also concerned the regulations will result in more red tape and compliance costs for charities, meaning time and money will be directed away from the frontline.

“In the middle of a global pandemic and climate crisis, Australia needs its charities more than ever. It’s very disappointing to see this kind of red tape imposed on our sector for zero public policy gain.”

Australian Communities Foundation is concerned about the impact these regulations could have on the hundreds of charities our community supports each year, says Maree Sidey, Chief Executive Officer.

“As a proud supporter of advocacy work in the sector, our giving community understands the critical role that civil society advocacy plays in a democracy.”

“Furthermore, as an organisation with a shared vision of a fairer and more sustainable Australia, we are concerned about the risk these regulations pose to our capacity to support our charity partners to advocate in pursuit of this vision.”

Australian Communities Foundation has been part of both formal and informal submissions to Government raising concerns about the proposed legislation, including the joint submission coordinated by Philanthropy Australia.

Why is support needed now? How can I help?

Once regulations are tabled in Parliament, the Senate has only 15 sitting days to initiate a disallowance motion. With a motion looking likely to be moved on 18 October, HOOC is now focused on ensuring there is support for the motion to succeed.

“We need to fight these regulations because civil society advocacy is such a critical part of a healthy democracy,” says Saffron.

“We speak with, for and from communities that otherwise might not have a voice in public debates. We hold the Government of the day to account, and we translate complicated policy issues for all to understand. Any move to silence the voice of charities is bad for democracy and bad for the many communities we serve every day.”

HOOC is also currently tasked with campaigning against proposed legislation that would lower the threshold at which charities are required to register as political campaigners.

This legislation was introduced in a group of five electoral amendment Bills, all of which have already passed except the one relating to the political campaigner threshold. To block this Bill from becoming law, support will be needed from Labor, the Greens, and three crossbench senators. HOOC is meeting with all political parties to make the case why this change would stifle civil society advocacy and should not proceed.

“Charities need our support if our democracy is to give voice to societal and environmental concerns that governments and lobbyists ignore,” says Jackie Yowell.

“We hope fellow members of the ACF community will join these efforts to safeguard responsible charities in their important advocacy work.”

Updated 29 September: With the Senate Committee for Scrutiny of Delegated Legislation recommending that the ACNC regulations be scrapped, the Hands Off Our Charities Alliance is one step closer to winning this campaign. The Committee is expected to give notice of a motion to disallow the changes on 18 October, with a vote to be held 15 sitting days afterwards in early 2022.

Updated 13 October: Independent modelling by ACIL Allen has found that the sector-wide compliance cost for the new ACNC regulations could be up to $150 million in the first year alone – more than 100 times what the Treasury indicated in their regulatory impact statement. Read more

Updated 19 October: Independent Senator Rex Patrick has postponed an expected vote on the regulations until 25 November, while the Senate Committee for Scrutiny of Delegated Legislation has given notice of their disallowance motion with a vote on the fourth sitting day of next year.

Updated 25 November: In a huge win for democracy, the Senate has disallowed the new regulations, ensuring the long tradition of charitable advocacy continues.