How Far Can You Go? Political Campaigning and Public Benevolent Institution Status for Charities

Introduction

For many charities, particularly those with or seeking Public Benevolent Institution (PBI) status, political advocacy is a vital tool for achieving their mission. However, this often leads to a significant concern: whether engaging in campaigning and advocacy could jeopardise their PBI status, especially during a federal election when the line between issues and party politics can seem blurred.

A landmark legal decision has provided much-needed clarity, confirming that charity advocacy is permissible for a PBI when it is an activity carried out to further its main benevolent purpose. This guide explains the key principles and legal lessons to help your organisation confidently engage in advocacy without risking its registration.

Understanding the ACNC’s General Rules for Charity Advocacy

Defining Advocacy & Campaigning for Your Charity Organisation

For any charity, including a PBI, it is important to understand how the Australian Charities and Not-for-profits Commission (ACNC) defines key terms. The concepts of “advocacy” and “campaigning” have specific meanings that guide what an organisation is permitted to do.

The ACNC describes advocacy and campaigning as activities aimed at securing or opposing changes to laws, policies, or practices. These activities can include:

• Participating in the development of public policy
• Promoting or opposing specific laws or government decisions
• Raising public awareness about certain issues
• Mobilising public support to influence behaviour or maintain or change policies

A critical distinction exists between a charity’s purpose and its activities. While a charitable purpose is the organisation’s fundamental mission or the goal it was established to achieve, activities are the specific actions a charity undertakes to support and further that overarching purpose.

For example, a charity with the purpose of advancing social welfare might hold a fundraiser; the event is an activity, not the purpose itself. Understanding this difference is essential for maintaining compliance with ACNC regulations.

What is a Disqualifying Political Purpose for a Charity

While charity advocacy is permitted, a charity must not have a “disqualifying purpose,” as this can jeopardise its registration. Engaging in party politics is a key boundary that charities must not cross, particularly during a federal election.

The ACNC outlines several purposes that will disqualify an organisation from being a registered charity:

Disqualifying Purpose	Description / Explanation
Promoting or opposing a political party or candidate	This is a primary restriction, ensuring that a charity remains non-partisan in its operations and does not promote or oppose a candidate for political office.
Engaging in or promoting unlawful activities	A charity must always operate within the bounds of the law.
Engaging in or promoting activities contrary to public policy	This includes actions that undermine the rule of law, the constitutional system, or public safety.

To determine whether a charity has a disqualifying purpose, the ACNC will examine all relevant circumstances, including the organisation’s governing documents and its pattern of activities. This comprehensive assessment helps ensure that charities maintain their focus on charitable purposes rather than political objectives.

How Political Advocacy Affects Your Public Benevolent Institution Status

The Common Concern Whether a Charity’s Advocacy Prevents Public Benevolent Institution Status

A significant concern for many charities is whether engaging in political advocacy could prevent them from obtaining or maintaining PBI status. This issue was central to the case of Global Citizen Ltd v Commissioner of ACNC [2021] AATA 3313.

In this case, the ACNC Commissioner initially rejected Global Citizen’s application for PBI registration. The rejection was based on the view that the organisation had an independent purpose of education or advocacy, which was seen as separate from its main benevolent goal.

According to the ACNC’s initial stance, this separate purpose could disqualify an organisation from being recognised as a PBI. The core concern was that advocacy might not be considered an activity in direct relief of poverty or need.

How Advocacy Activities Can Support a Public Benevolent Institution’s Main Benevolent Purpose

The Administrative Appeals Tribunal (AAT) overturned the ACNC’s decision in the Global Citizen case, providing crucial clarification for the sector. The Tribunal’s findings established important principles:

• Global Citizen had only one main purpose—the relief of global poverty
• Its educational and advocacy activities were simply the means by which it achieved that purpose
• Engaging in advocacy is a lawful and accepted way for a charity to pursue its charitable goals

Furthermore, the AAT acknowledged the practical realities of charitable work in the modern world. It noted that advocacy and awareness-raising are increasingly important tools for addressing issues like poverty.

The Tribunal emphasised that “most large PBIs engage with the political process as a regular and indispensable part of their work because governments are invariably key players in delivering the relief that is sought.”

Therefore, as long as political advocacy is an activity conducted to further a charity’s main benevolent purpose, it does not prevent the organisation from being a PBI.

Key Legal Lessons from the Global Citizen Case for Your Organisation

Distinguishing Between a Charity’s Main Purpose & Its Activities

A crucial legal lesson from the Global Citizen Ltd v Commissioner of ACNC case is the distinction between a charity’s purpose and its activities. The AAT emphasised that:

• An organisation’s purpose is the overarching goal it is set up to achieve
• Its activities are the actions taken to further that purpose

In this case, the AAT determined that Global Citizen had only one main purpose: the relief of global poverty. The organisation’s educational and political advocacy work was not viewed as an independent purpose but rather as a series of activities undertaken to achieve its primary benevolent objective.

This finding is significant for any PBI, as it clarifies that engaging in campaigning and advocacy does not automatically create a separate, potentially disqualifying, purpose.

Furthermore, the Tribunal noted that even if the advocacy was considered a purpose, it would not prevent the organisation from being a PBI so long as it was incidental and ancillary to the main benevolent purpose. This provides assurance to a charity that its advocacy efforts in support of its mission are legitimate.

The Role of Indirect Relief & Ancillary Purposes for a Public Benevolent Institution

The Global Citizen case also reinforced the legal principle that a PBI is not required to provide relief directly to people in need. This builds upon the precedent set in the earlier Commissioner of Taxation v The Hunger Project Australia (2014) 225 FCR 39 case, which established that an organisation can be a PBI even if its primary activity is fundraising for other associated entities that deliver direct aid.

The AAT rejected the argument that Global Citizen’s connection to the provision of relief was too remote. It found that the charity was organised for the relief of poverty because its activities, including political advocacy, resulted in:

• Securing tangible financial commitments from governments and philanthropists
• Directing these funds to partner organisations that carried out the direct aid work

This confirms that a charity may have purposes that are not strictly benevolent, provided they are ancillary to and in support of its main benevolent purpose. For a PBI, this means that activities such as campaigning and advocacy are permissible when they serve as a means to achieve the organisation’s primary goal of providing benevolent relief.

Practical Guidance for Your Public Benevolent Institution’s Political Advocacy

How Your Charity May Lawfully Engage in Campaigning & Advocacy

A charity, including a PBI, can lawfully engage in campaigning and advocacy as long as these activities further its charitable purpose. The ACNC permits various forms of advocacy work that align with your organisation’s mission.

Your charity may lawfully undertake several activities to advance its mission, including:

Lawful Advocacy Activity	Description / Permitted Scope
Making submissions or giving evidence	Pertains to existing or proposed laws and government policies that affect your organisation’s purpose or beneficiaries.
Generating public debate	Involves seeking clarification on current or proposed laws, government policies, or practices relevant to your charity’s work.
Distributing information	Includes analysing or comparing the policies of different political parties, provided it relates directly to your charity’s purposes and is presented neutrally.
Publishing research	Focuses on current or proposed laws and policies to inform the public and policymakers, so long as it doesn’t explicitly tell people who to vote for.
Directly promoting your purpose	Involves promoting your charity’s purpose or the interests of its beneficiaries to elected representatives and public officials through meetings or correspondence.
Hosting or participating in public debates	Relates to public debates on matters of law or policy, which can effectively raise awareness and engage the community.

Focusing on Issues & Not Party Politics During a Federal Election

The key to lawful charity advocacy is to remain focused on issues rather than engaging in party politics. While your organisation can advocate for changes in law or policy, it must maintain a non-partisan approach, especially during a federal election.

Any public stance or campaign your charity undertakes must clearly link back to its registered charitable purpose. What is not acceptable is promoting or opposing a particular political party or an individual candidate, as this constitutes a disqualifying purpose under the Charities Act 2013 (Cth).

In the heightened political atmosphere of an election, even well-intentioned, issues-based political advocacy can be misperceived as partisan if not handled carefully.

Conclusion

Engaging in political advocacy does not prevent a charity from holding PBI status, provided the campaign is conducted to further the organisation’s main benevolent purpose. The landmark Global Citizen case affirmed that charity advocacy is a legitimate activity, but it is crucial to focus on issues rather than party politics to avoid having a disqualifying purpose.

If your organisation requires guidance on how these principles apply to your specific circumstances, contact our team at LawBridge today. Our not-for-profit legal experts provide specialised legal advice to help your charity confidently pursue its mission through effective and compliant political advocacy.

Frequently Asked Questions