Electoral Legislation - AMPAG welcomes improved exemption for the arts.

Last month the federal government proposed new amendments to the draft Electoral Legislation including a better exemption clause to protect artistic expression and returning greater capacity for charities to advocate for their charitable purpose.

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Electoral Legislation - AMPAG welcomes improved exemption for the arts.

The proposed changes were a major move in the right direction. This week the second advisory report on the Electoral Legislation (Electoral Funding and Disclosure Reform) Bill 2017 was released by the Joint Senate committee- recognising a lot of improvements and proposing a further 12 recommendations.

In March 2017 the Joint Standing Committee on Electoral matters issued a report on how to manage the influence of foreign donations on Australian politics as part of its review of the 2016 federal election, recommending that donations from foreign citizens and foreign entities to Australian registered political parties, associated entities and third parties be banned.[1]

In response, in December 2017 the Government introduced the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017 (the Bill).

The Bill was immediately referred to the Committee for inquiry and report, and consequently the Committee undertook a detailed inquiry into the Bill, receiving over 200 submissions from a range of stakeholders including AMPAG.

The draft legislation included wide definitions of what constituted political purpose and expenditure and introduced significant reporting obligations and criminal penalties for failing to comply. The legislation attracted significant reactions from the charity sector, concerned the legislation would limit charities' capacity to advocate for their charitable purpose while exempting commercial organisations. AMPAG agreed and also argued the exemption for the arts was too rigid to be practical. An exemption was only provided if;

‘the expression of the views, or the communication, broadcast or research, is solely for genuine satirical, academic or artistic purposes.’

AMPAG argued that advancing understanding of ourselves and/or our world is at the centre of what Art is. The value or ‘purpose’ of the arts is multifaceted. An artist, playwright, director, artistic director or arts organisation’s determination of what art is to be produced and/or programmed often draws or responds to current issues and events, and can, as a legitimate part of that artistic process, set out to influence public understanding. If that matter happened to be an election issue now or in the future the draft legislation  was likely to capture that the artists and the organisations involved.

The committee took up AMPAG’s issues along with many other s and suggested further drafting and a narrowing of activity to be targeted by the legislation in their first report in April.

Last month, in response, the government provided extensive new amendments with the Committee providing a short window (1 week) for feedback by the end of September.

AMPAG and the University sector welcomed the proposed amendment to the exemptions under to:

‘5(b) is or would be by a person for a dominant purpose that is a satirical, academic, educative or artistic purpose, taking into account any relevant consideration including the dominant purpose of any other communication of matter by the person;’

We also welcomed the proposed amendment to remove the term ‘political purpose’ which was defined broadly with the term ‘electoral matters’ in so far that it effectively addresses our concern that the Bill in its previous form, had the potential to limit Charities’ capacity to advocate for their charitable purpose.

While the amendments are a vast improvement on the first draft some in the charities sector and the Law Council are concerned the second draft is not clear enough.

The Law Council proposes amending s 4AAof the legislation:

‘assist in making it clearer that issue-based advocacy by charities as permitted under the Charities Act is not caught by the proposed measures. Without these amendments, or some means of distinguishing between a dominant purpose of influencing voters to vote for a party and/or a candidate, from a dominant purpose of raising awareness, education or promoting debate on an issue, the Bill is likely to catch issue-based advocacy by charities, and due to the uncertainty in application, may deter many charities from engaging in issue-based advocacy in furtherance of their charitable purposes.3

We understand the proposed amendments intent is to ensure Charities will be able to continue to be active in  ‘promoting or opposing a change to any matter established by law, policy or practice in the Commonwealth, a State, a Territory or another country, in furtherance or protection of one or more of the above purposes (being its charitable purpose)’as set out in the Charities Act (2013).

The Committee issued its second report this week - supporting the new  amendments and putting forward and have made a further 12 recommendations, with additional dissent reports put forward by Labor and the Greens. Labor will be working on further refinements in the process of considering the Bill in parliament and The Greens, while acknowledging significant improvements have been made, are concerned by the fact there is greater scrutiny on charities and not-for-profits than for commercial operations and the impact that may have on debates around civil society.

The full report can be found here:https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Electoral_Matters/proposedamendmentsbill/Second_advisory_report

[1]    JSCEM, March 2017, Second interim report on the inquiry into the conduct of the 2016 federal election: Foreign Donations. Available at www.aph.gov.au/em

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