ADVOCACY AND THE REFORM AGENDA Esther Abram, Executive Officer

Changemakers Australia Promotes social change philanthropy Focus on restrictions to advocacy under charity law April 2011 “Freedom to Speak – Capacity to Act” funded by Victorian Legal Services Board

Why advocacy? Effective way of achieving social change Cost effective way of achieving charitable purposes Representation of disadvantaged people and the environment has public benefit Our project followed a period where charities had been publically attacked for advocacy

What did our research tell us? Legal advocacy restrictions hinged on old distinction between “charitable” and “political” While advocacy was not banned (except party political), the law lacked clarity. How much is too much? Philanthropy much more restricted re funding advocacy

Aid/Watch decision 2010 High Court decided in favour of Aid/Watch, that they were a charity Overturned the legal view that “political” activity is not charitable All charities can have “political” objects Having a purpose of generating public debate to influence laws and policies on a charitable subject matter is charitable

Three key reforms ACNC – regulator Statutory definition of charity Tax concession review

Why have a statutory definition? Complexity of case law approach Should the courts or governments decide what is or is not charitable? Hard to change case law approach when charities don’t undertake litigation However, generally agreed that there isn’t too much wrong with the current case law definition, particularly post Aid/Watch

Advocacy and the statutory definition Aid/Watch decision largely removed old case law obstacles to advocacy Any statutory definition needs to reflect this 2011 consultation didn’t take Aid/Watch into account adequately However, there have been clear statements from government endorsing Aid/Watch decision Remember Charities Bill killed off when it tried to restrict advocacy

Advocacy and tax concessions Statutory definition – relates to TCC status only Who gets DGR and PBI reliant upon Tax Act and the review of concessions Currently, half of all charities don’t have DGR Many advocacy charities don’t get DGR and don’t get properly resourced

Advocacy and the regulator ACNC should adopt the ATO Charities Tax Ruling which reflects Aid/Watch (in lieu of statutory definition) ACNC should review the PBI Tax Ruling as it doesn’t reflect Aid/Watch In future, respond to demands from the sector regarding need for guidance

Conclusion First priority today is to get the ACNC legislation through Yes to a statutory definition that enshrines Aid/Watch and other key ‘asks’ of the sector Statutory definition won’t address advocacy resource issues – need an extension of DGR to achieve this