“Illegal or contrary to public policy”

Last week, non-profit environmental organisations received a letter from the Australian Government which the Guardian’s Lenore Taylor characterised as having “ominous implications”. It asks them, for the first time, to curtail their commitment to promoting the public good by rethinking the time and resources they devote to public advocacy.

A few days later, Peter Dutton has been appointed to head a new ministry spanning security, intelligence, policing, transport and immigration. It asks us, for the first time, to associate each of these portfolios with the discussions, the relationships and the values of our private realm: this agglomeration forms the new Ministry for Home Affairs.

How does our government want us to imagine the distinction between the public and the private? What kinds of public discussions would they like to foster? What kinds would they prefer to prevent? And what is their expectation of those organisations whose very purpose is to champion the public good?

Treasury is currently welcoming submissions on proposed changes to the Deductible Gift Recipient (DGR) tax arrangements – that is, the tax status that allows not-for-profit organisations to offer tax deductions to donors. This encourages a culture of giving as a civic act, as well as encouraging not-for-profit organisations to build what’s commonly known as the community sector: that enormous group of individuals and companies whose work exists only to advance the public good. Companies like this must, of course, generate annual profits, otherwise their work would lack the resilience needed to sustain that important work into the future. The key difference is that they are not for profit: they exist to realise specific public objectives, and their annual profits are reinvested back into the business each year, rather than being taken away by directors and executives. (Elsewhere I argue that the media could learn a great deal from this model.)

A confident government fosters freedom of expression, encourages public criticism and welcomes specialised expertise. Tax concessions exist in recognition of the public value of each of these as public goods. Instead, the government is proposing changes that would make championing the public good subject to unprecedented political interference. These changes include:

  • asking charities to rejustify their classification, either at random or every five years, and against criteria that may have evolved across that period;
  • asking charities to limit the proportion of their turnover that is devoted to advocacy activity;
  • identifying for the first time advocacy activity that can risk DGR status;
  • expanding the “exceptional circumstances” under which “the government of the day” via “the Minister or Parliament” can revoke charity status;
  • abolishing the Register of Environmental Organisations and giving all oversight responsibility to the Australian Taxation Office, thus erasing any special categorisation or policy recognition of environmental organisations (the Register of Cultural Organisations, which oversees the DGR registration of arts and cultural organisations, would continue to exist… but for how long?);
  • expanding the disqualifying conditions to include engaging in or promoting activities that are “illegal or contrary to public policy.”

It’s this final distinction – illegal or contrary to public policy – that is the most troubling.

Laws and regulations already exist to prevent individuals and organisations from acting illegally. However, to threaten the withdrawal of DGR status because an organisation is advocating a position that’s contrary to public policy is to repudiate the very definition of advocacy itself.

Advocacy is not just the work of constituted organisations. It is our civic duty to contribute actively to the discussions that frame our culture and expand our horizons. This is necessarily a political act – political not in the partisan sense, but in the ethical sense: an act that shares and develops our values. Advocacy can be as simple as a conversation that encourages the other to repeat that story, whether they agree with you or not, because what you’ve offered is a compelling way to rethink a key issue.

The most important advocacy is that which is contrary to public policy. It can recognise Indigenous Australians in the constitution, or end the White Australia Policy, or prevent deaths from smoking, or close cruel offshore refugee camps, or even end wars.

For non-profit organisations, this work is inseparable from the services and resources they offer.

For example: disability. We recognise widely now the social model of disability, understanding that it’s not physical barriers but social attitudes that prevent universal access. Thus a very high percentage of a disability organisation’s work would be advocacy, rather than physical access modifications which its work aims to normalise across planning and building.

For example: asylum seekers. In Australia and off its shores, the humane treatment of asylum seekers is prevented not by a lack of community members and organisations willing to accommodate them, but by the fears of small proportion of the population – fears that are contrary to all evidence and research; fears that are amplified by mass-market media whose business model is premised on sensationalism for quick sales and click-throughs. Therefore a high proportion of the work of asylum seeker service organisations is advocacy for well-informed public attitudes, aiming at countering both media and political populism.

For example, the arts. Despite mountains of global evidence on the relationship between the arts and innovation, wellbeing, education outcomes, mental health, social cohesion, cultural diplomacy etc., arts policy is largely silent and funding perilously low. Advocacy to create a vision that is contrary to public policy offers a profound contribution to the Australian imagination. This is how a future is created.

The entire nation is enriched by this work. Even “taxpayers who do not share their views,” as backbencher Matt Canavan puts it in counter-argument, benefit every day from the work of thousands of specialised community sector organisations whose services and whose vision are focused entirely on making Australia a better place.

Any organisation that exists to promote the public good has a moral duty to lead public discussions actively, passionately and honestly. The alternative is a public sphere dominated by well-resourced commercial entities whose primary interest is in profit above the social, environmental and cultural good. Like the NSW Minerals Council who have led the push to have environmental groups stripped of their charity status. The potential for self-censoring following these kinds of public threats adds another dimension to Treasury’s risky proposals: plenty of organisations will now start to rethink their advocacy, rather than escalating it, out of fear of losing the means to operate their organisations. And that’s no way to build a confident, informed and ethical community.

Surely the government is not this afraid of the voice of the people?

 

Responses to the discussion paper on Tax Deductible Gift Recipient Reform Opportunities close on Friday 4 August. Download the paper and respond here.

 

 

IMAGE: OMA’s MPavilion (2017) will feature reconfigurable grandstands that can shift the experience between public and private modes of engagement. OMA architect David Gianotten describes this civic space as a “cultural laboratory.”