Achieving success for charities in their times of need is immensely satisfying and rewarding work.
In two recent case studies, Birchgrove Legal acted for conscientious national charities facing scrutiny from the Australian Charities and Not-for-Profit Commission (ACNC). One was queried because of their advocacy, and the other was because of their focus on members.
In both cases, the Charities overcame these concerns, drawing on evidence from their operational activities, governing, and financial documents. To secure their success, we also made suggestions to modernise their Constitutions as part of our response to the ACNC.
Many charities already avoid political advocacy and operate within a culture of “self-silencing” for fear of risking their financial security or attracting scrutiny. It does not have to be that way. Australian case law does not support charities losing their registration simply because they are involved in advocacy and giving policy advice.
Case study one – Charity engaging in advocacy
Using the Commissioner’s Interpretation Statement and case authorities, we established that reducing barriers to participation was giving relief to people with disabilities.
We argued that being denied equal participation in social, economic, cultural, or political life constituted significant harm, abuse of fundamental human rights, and in some situations, even a form of sustained cruelty, to people living with a disability. This Charity was giving relief through protecting people from this.
Still, when we listened to our client and knew their story, we saw an extra unique dimension to their work. The Charity was made up of many people from the group it was established to help. Therefore it was helping people in need to self-determine and support their own community, including through collaboration. Through our familiarity with Australian case law, we identified an authority to acknowledge to support this argument.
Providing advice and engaging in advocacy does not detract from a main benevolent purpose or substitute it. We made this point, analysing relevant authorities in close-up detail.
The ACNC agreed and this excellent result left the Charity feeling confident about its future.
Case study two – An under-recognised charitable purpose
Our second case study included another national organisation representing health work professionals. The ACNC queried whether the Charity may have a purpose of furthering the interests and status of its members rather than a charitable purpose.
Acting for this client, again, we took the time to really understand their purpose and work. We discovered that they were under-recognised for a significant charitable purpose – advancing health. The client worked with us to provide research literature validating their arguments about the link between professionalism in their field, patient care, and public health. We carefully addressed each technical query of the ACNC to assist them in understanding how profoundly committed these volunteers were to bettering Australia’s health systems.
The reality is that most often, the ACNC is ready to work with charities that genuinely carry out a charitable purpose. Birchgrove Legal is proud to support charities in making their best case, and setting themselves up for sustained success.
