Guidance for charity advocacy and campaigning during election season

The 2025 Federal Election will be held on 3 May. In the lead up to the election, charities should be extra cautious as to how they engage in advocacy and campaigning. While some advocacy and campaigning activities are permissible, charities must not promote or oppose specific political parties or candidates. Charities must also be aware of federal electoral laws regarding electoral expenditure and gifts received for electoral expenditure.

What are advocacy and campaigning?

The Australian Charities and Not-for-profits Commission (ACNC) has published guidance for Responsible Persons on Charity campaigning and advocacy and the ACNC Commissioner has provided timely guidance for this election in the ACNC’s monthly newsletter entitled Remember to focus on issues, not party politics.

The ACNC’s definition of the words ‘advocacy’ and ‘campaigning’ in relation to the permissible activities of charities is narrower than the meaning those words may have in common use. In relation to charities, permissible activities are those aimed at promoting or opposing a change to law, policy, or practice at either a State or Territory, Commonwealth, or international level. Generally, permissible activities include:

·        involvement in development of public policy,

·        promoting or opposing particular laws, policies, practices or decisions of government, and

·        raising public awareness, changing public behaviour, and mobilising public support.

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How can a charity engage in advocacy and campaigning?

While such advocacy and campaigning activities are permissible for charities as a general principle, each charity must consider its specific circumstances. A charity must only engage in activities that further or aid its charitable purposes as set out in its governing document (constitution or rules). They must otherwise be permitted, or not prevented, by that document, and the advocacy or campaigning must be in the best interests of the charity.

Ensuring that advocacy is factual, respectful, and lawful is also necessary for complying with the ACNC’s Governance standards such as Standard 1, which requires charities to be transparent about their purposes and ensure they are working towards these purposes.

Disqualifying political purposes

Political parties are not charities and charities must maintain independence from party politics. The ACNC’s guidance mentions three purposes and activities that are not permitted for charities (disqualifying political purposes):

·        promoting or opposing a political party or candidate for political office,

·        engaging in or promoting unlawful activities, and

·        engaging in or promoting activities that are contrary to public policy (e.g. contrary to national security, the rule of law, or the Australian Constitution).

What activities should a charity engage in?

While a charity’s governing document may permit a charity to engage in advocacy or campaigning activities, the charity’s governing body must also consider whether it is in the best interests of the charity, which includes the potential effects on the charity's reputation and how to best engage. There is strong public interest in the area where charities and politics intersect. In principle, a charity’s policy position on a matter of concern may be similar to, or align with that of, a particular political party. The charity can still campaign on that issue, provided it does not amount to the charity having a purpose of promoting or opposing a particular political party or candidate.

However, there can be a fine line. Public perception is important, particularly during an election period where there is greater scrutiny from the community, in the media, and on social media. This may increase the risk that, in the minds of the public, a charity’s advocacy or campaigning could be perceived as support for a particular political party or candidate and result in reputational damage. Risks from engagement in campaigning and advocacy may be mitigated with careful planning about what will be said and who will deliver the message, and by adopting internal guidelines and ensuring they are communicated to and complied with by Responsible Persons, staff and volunteers.

A charity’s Responsible Persons, staff and volunteers also need to be mindful of their conduct. They are entitled to have and promote their own personal views on a political party or candidate but when doing so, they should make it clear that they are not speaking on behalf of any charity, particularly in the lead up to an election.

Examples of permitted activities

Subject to those general principles and the disqualifying political purposes outlined above, the ACNC gives some specific examples of permissible activities including:

 ·        advocating for changes to relevant government policy, including directly to elected representatives and public officials,

·        making submissions to a public consultation or enquiry into relevant legislative change,

·        publishing, including assessing, comparing and ranking, the policies of political parties or candidates relevant to the charity’s purpose (provided it is done with care in a reasoned and neutral manner and complies with the electoral legislation such as the Commonwealth Electoral Act 1918 (Cth)),

·        allowing members of political parties or candidates to appear at charity events, provided this does not amount to promoting that party or candidate (consider inviting representatives and candidates from a range of parties),

·        holding public debate events on  relevant issues of law or policy, and

·        publishing research on relevant current or proposed laws, government policies, or practices.

Donations and expenses related to advocacy and campaigning

The ACNC guidance specifies that a charity should not make a donation to a political party or candidate during an election campaign as it will run the risk of being found to have a purpose of supporting a particular candidate or party. A charity may accept a donation from a political party or candidate but must not do so in exchange for promoting or endorsing them.

Commonwealth electoral laws

Charities will also need to consider the Commonwealth Electoral Act 1918 (Cth) relating to electoral matters which are matters communicated or intended to be communicated for the dominant purpose of influencing the way electors vote in a federal election. There is a presumption that communications that promote or oppose the policies or actions of a political party, candidate, or federal MP are electoral matters. Communications that have the dominant purpose of reporting news and current affairs, educating their audience, raising awareness of, or encouraging debate on a public policy issue will generally be accepted as rebutting the presumption. Some electoral matters require authorisation from the Australian Electoral Commission (AEC).

Persons or entities (third parties), including charities, who incur expenditure for the dominant purpose of creating or communicating electoral matters (electoral expenditure) must lodge an annual return with the AEC if the expenditure exceeds the annual disclosure threshold ($16,900 for the 2024-5 financial year). This information will be publicly available on the Transparency Register for three years and the ACNC charity register will link to a charity’s entry on the Transparency Register. A third party whose dominant purpose or electoral expenditure meets certain criteria or whose electoral expenditure exceeds $250,000, is a ‘significant third party’ and must be registered by the AEC and submit an annual return.

A third party that receives a single gift or aggregated gifts from a single Australian donor with a value above the annual disclosure threshold and uses some or all of it for electoral expenditure must lodge an annual return which discloses the donor’s name and value of the gift. ‘Gifts’ for this purpose includes not only cash donations but also receiving free or discounted services or property. More stringent restrictions apply to gifts from foreign persons.

Looking ahead to future federal elections, amendments that change the rules about electoral expenditure and gifts for electoral expenditure and specifically affect charities will come into effect in 2026.

Charities will need to consider how these principles and laws apply to their specific circumstances. Please contact us if you require our assistance.

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