From Purpose to Policy: Legal Insights on Charities Engaging in Advocacy

By Richard Hundt

Latest Australian Charities Report

Earlier this month, the Australian Charities and Not-for-profits Commission (ACNC) published the 11th edition of the Australian Charities Report (Report). The Report is based on aggregated data from the 2023 ACNC reporting period and, for data enthusiasts like me, offers a comprehensive snapshot of the state and composition of the sector in Australia.

It reported that a staggering $107 Billion (or 48.4%) of the total revenue of registered charities was sourced from Government.[1] This would include, for example, funds received under a rebate, subsidy, grant or contract to deliver services or programs.

Not only does this data demonstrate the significant contribution of charities to the wider Australian economy, but also the extent to which they operate at the coal face of delivering vital social, educational, health, cultural, and environmental programs and services on behalf of, or supported by, Government.

Well placed to aide reform

The direct involvement in program and service delivery provides many charities with valuable insights and a unique position to inform and advocate on proposed legislative, regulatory, and policy reforms. Charities can (and often do) engage in such advocacy activities as an effective means of advancing their charitable purposes. These activities occur both within and outside of formal election periods.

Careful planning

Importantly, the way charities advocate for (or against) such reforms must be carefully considered to ensure compliance and avoid breaching the law by having a disqualifying political purpose. This is because charities are prohibited under the Charities Act 2013 (Cth) from having a purpose of supporting or opposing a political party or an individual candidate. Such purposes would render the organisation ineligible to become, or remain as, an ACNC-registered charity.

But this doesn’t mean charities are prohibited from engaging in advocacy activities.

Any advocacy activities pursued by a charity (e.g. to promote or oppose a law, policy, or practice in the Commonwealth, or a state or territory) must further or aid another charitable purpose of the organisation. This condition necessitates a careful examination of the charity’s governing rules, including its purposes or objects, and the approach should be reviewed regularly.

Stick to the issues

So, how do charities stay out of trouble when engaging in advocacy or campaigns? They should stick to the issues that advance their purposes – and ensure independence from party politics.

Other areas to watch

Beyond regulatory requirements, charities should also review their own governing rules, policies, and even key Government contracts to ensure their advocacy activities do not contravene their obligations.

Key takeaways

As highlighted in the latest Australian Charities Report, charities involved in service and program delivery on behalf of Government occupy a significant space with great potential to shape the legal and policy landscape in which they operate.

Their role as intermediaries between the community and Government equip them with unique and valuable insights. However, their advocacy activities must be firmly anchored in their charitable purposes and remain independent of partisan party politics.

By embedding advocacy within a well-defined policy framework and regularly reviewing their governance processes, charities can help shape the legal and policy framework relevant to their charitable purposes and activities. In doing so, they will not only amplify their core mission, but also positively impact the beneficiaries or outcomes for which the charity is established to support.

Disclaimer: The information in this article is of a general nature and does not constitute legal advice. You should obtain legal advice before relying on its contents. It is not intended to be exhaustive and may not be appropriate or suitable for you.

[1] Australian Charities Report - 11th edition | ACNC