Advocacy and the Voice to Parliament referendum: what your charity or not-for-profit organisation should consider
Charities or not-for-profit organisations that intend to participate in the debate surrounding the upcoming Voice to Parliament referendum (to be held sometime between October and December 2023) should consider whether certain obligations under charity, tax and electoral law may affect if and how it can participate in this debate.
Advocacy by charities
Charities that are registered with the Australian Charities and Not-for-profits Commission (ACNC) are permitted to engage in issue-based policy advocacy to further their charitable purposes. This means that a charity would be able to support or oppose the Voice to Parliament (including by campaigning), as long as such activity:
- furthers the charity’s purposes, as set out in its governing documents – given that in order to maintain ongoing charity registration and endorsement for income tax exemption, a charity must comply with the substantive provisions of its governing documents (including its purposes), and apply its income and its property solely in furtherance of its charitable purposes;
- is not unlawful or otherwise “contrary to public policy” – given that in order to maintain ongoing charity registration, a charity must not contravene requirements in ACNC Governance Standard 3 to comply with Australian laws (that is, to not commit an indictable offence or an offence that may be punishable by way of a civil penalty of 60 penalty units or more), and must not have a purpose of “engaging in, or promoting, activities that are unlawful or contrary to public policy”; and
- is not in furtherance of a partisan political purpose – in order to maintain ongoing charity registration, a charity must not have a purpose of “promoting or opposing a political party or a candidate for political office”.
Advocacy by other not-for-profit organisations
Not-for-profit organisations that are not registered (or in fact registrable) as charities with the ACNC – such as employer organisations (e.g., many chambers of commerce or industry / professional associations), employee organisations (trade unions) or partisan political advocacy groups – are able to advocate for or against the Voice to Parliament, if such advocacy is in furtherance of their purposes as set out in governing documents.
Many not-for-profit organisations that are not registered as charities with the ACNC are still subject to requirements under the tax law to comply with their purposes and apply their income and assets solely in furtherance of their purposes (for example, such obligations apply to both employer organisations and trade unions). Accordingly, other not-for-profit organisations should carefully consider whether their ongoing or proposed advocacy for or against the Voice to Parliament is consistent with their purposes as set out in governing documents.
Disclosure requirements for ‘referendum expenditure’
Disclosure requirements – generally
Under the Referendum (Machinery Provisions) Act 1984 (Cth) (Referendum Act), a person or entity that is a “referendum entity” during a “referendum expenditure period” is subject to disclosure requirements requiring the referendum entity to provide a return to the Australian Electoral Commission (AEC), setting out:
- details of the “referendum expenditure” incurred by or with the authority of the referendum entity during the referendum expenditure period;
- the total value of gifts for referendum expenditure or creating or communicating “referendum matter” that were received by the referendum entity during the referendum expenditure period, and the total number of persons and entities who made such gifts to the referendum entity during the referendum expenditure period; and
- confirmation that the person or entity has complied with further requirements in the Referendum Act, prohibiting donations from “foreign donors” to referendum entities.
This return must be provided to the AEC before the end of 15 weeks after the voting day for the referendum.
A similar return must be provided by the entity to the AEC in relation to gifts that it receives (if any) for referendum expenditure or creating or communicating referendum matter.
What is a “referendum entity”?
A “referendum entity” is a person or entity that incurs referendum expenditure during a referendum expenditure period that exceeds the disclosure threshold for the purposes of the Commonwealth Electoral Act 1918 (Cth). The current disclosure threshold (to 30 June 2023) is $15,200 (and will be indexed upwards from 1 July 2023).
“Referendum expenditure” is expenditure incurred for the dominant purpose of creating or communicating “referendum matter”. In turn, “referendum matter” is matter that is communicated or intended to be communicated for the dominant purpose of “influencing the way electors vote at a referendum”.
What is a “referendum expenditure period”?
For the purposes of the Referendum Act, a “referendum expenditure period” means the period:
- starting on the day that is 6 months before the writ for a referendum is issued; and
- ending on the voting day for the referendum.
Given that the Voice to Parliament referendum is to be held between October to December 2023, the referendum expenditure period for this referendum may already have commenced. The exact referendum expenditure period for the Voice to Parliament referendum will depend on the date when the writ for the referendum is issued.
How we can help
Carroll & O’Dea Lawyers has 124 years of service to community organisations across Australia. We can assist you to comply with your organisation’s obligations under charity, tax, and electoral law (as and where relevant).