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Minerals Council of Australia | 1 MINERALS COUNCIL OF AUSTRALIA SUBMISSION ON TAX DEDUCTIBLE GIFT RECIPIENT REFORM OPPORTUNITIES DISCUSSION PAPER AUGUST 2017 TABLE OF CONTENTS EXECUTIVE SUMMARY Closer scrutiny is justified: the revenue foregone is significant .......................................................... 1 Tax concessions should only be granted to complying organisations ................................................ 1 Some deductibile gift recipients are breaking the law ......................................................................... 2 Some deductibile gift recipients are engaging in partisan political campaining .................................. 2 The Sunrise Project: Conscious non-disclosure of foreign donations and anti-coal activities ............ 3 MCA responses to reform proposals .................................................................................................. 3 Two red herrings to divert efforts to improve transparency and accountability .................................. 4 1. REGISTERED ENVIRONMENTAL ORGANISATIONS AND CHARITIES ..................................... 6 The principal purpose of registered environmental organisations ...................................................... 6 The conduit policy ............................................................................................................................ 7 Rules governing registered charities ................................................................................................... 7 A disqualifying purpose of unlawful activity ..................................................................................... 8 A disqualifying purpose of politically partisan activity ...................................................................... 9 Work health and safety obligations for volunteer directors ................................................................. 9 2. COMMITTING, AUTHORISING OR PROMOTING UNLAWFUL ACTIVITY ................................ 11 Greenpeace Australia Pacific ............................................................................................................ 11 350.org Australia ............................................................................................................................... 14 Lock the Gate Alliance ...................................................................................................................... 16 3. POLITICALLY PARTISAN ADVOCACY ....................................................................................... 19 Examples of political campaigning by registered environmental organisations and charities .......... 20 Partial or non-disclosure of political expenditure to the Australian Electoral Commission ............... 27 4. THE SUNRISE PROJECT: A CASE STUDY IN NON-DISCLOSURE ......................................... 30 An uncharitable and undisclosed purpose of anti-coal activity ......................................................... 30 Steps taken to ‘avoid disclosure, challenge and limit disclosure’ ..................................................... 31 5. USEFUL LESSONS FROM CANADA ........................................................................................... 33 APPENDIX: DECLARATIONS OF EXPENDITURE BY THE MCA TO THE AUSTRALIAN ELECTORAL COMMISSION ........................................................................................................ 35 Box 1: Subscriptions to industry associations are not analogous to tax-deductible donations .......... 7 Box 2: Regulator says greater transparency would enhance administration and public trust .......... 10 Box 3: Greenpeace representatives assert that they have a right to break the law ......................... 12 Box 4: US-based Tides Foundation donates millions to anti-coal activists in Australia ................... 31 Box 5: Political activity metrics would close the loophole for tax-deductible political donations ....... 34 FIGURE 1: Known foreign donations to The Sunrise Project, 2012 to 2016 (Us Dollars) ................ 32 Minerals Council of Australia 2017/001107 EXECUTIVE SUMMARY The integrity measures proposed in the Tax Deductible Gift Recipient Reform Opportunities discussion paper are important and timely. The MCA supports the early implementation of the recommendations contained in the discussion paper. The MCA also urges the government to consider additional integrity measures, including those that have been adopted in other jurisdictions. Closer scrutiny is justified: the revenue foregone is significant Deductible gift recipients are eligible to receive income tax deductible gifts (such as financial donations) and tax deductible contributions (such as the purchase of a ticket to attend a fundraising event). The revenue forgone from these tax concessions is significant. According to the discussion paper, the revenue forgone from donations to deductible gift recipients was $1.31 billion in 2016-17 and is expected to rise to $1.46 billion in 2019-20.1 Donations to registered environmental organisations totalled $129 million in 2013-14, resulting in tax revenue forgone of $45 million.2 In 2015-16, donations to just seven registered environmental organisations – who regularly run ideological campaigns against Australian export industries – amounted to $71 million.3 Tax concessions should only be granted to complying organisations The rationale for granting deductible gift recipient status is that the recipient organisation generates public benefits that government or businesses may not otherwise provide. Yet there is substantial evidence to suggest that some deductible gift recipients are not complying with existing law – and that this non-compliance is deliberate and persistent. The Minerals Council of Australia (MCA) has publicly documented numerous cases in which some registered environmental organisations (who are also registered charities) have: • Committed, authorised or encouraged activities that are unlawful or unsafe • Sought tax-deductible donations to support politically partisan activities • Have not disclosed, or only partially disclosed, political activities to regulators.4 This conduct clearly breaches the obligations that apply under federal legislation. According to the Income Tax Assessment Act 1997, registered environmental organisations must have a principal purpose of conserving or improving the natural environment, or undertaking related education or research. Registered environmental organisations must also have a policy of not acting as a mere conduit for the donation of money or property, although they may fund other bodies to undertake natural conservation work. The conduit policy is consistent with the rule that political parties are not deductible gift recipients. An additional code of conduct applies to the 75 per cent of registered environmental organisations that are also registered charities. The Charities Act 2013 stipulates that registered charities must only have charitable purposes that are for the public benefit; and they are expressly forbidden from promoting or engaging in activities that are unlawful, contrary to public safety or politically partisan. 1 Australian Government, Tax Deductible Gift Recipient Reform Opportunities, discussion paper, 15 June 2017, p. 5. 2 House of Representatives Standing Committee on the Environment, Report on Inquiry into the Register of Environmental Organisations, April 2016, released on 4 May 2016, p. 7f. 3 See World Wide Fund for Nature Australia, Annual Information Statement 2016($26.4 million); Greenpeace Australia Pacific, Annual Information Statement 2016 ($16.9 million in calendar 2016); Australian Conservation Foundation, Annual Information Statement 2016 ($11.5 million); The Wilderness Society, Annual Information Statement 2016 ($10.5 million); The Sunrise Project Australia, Annual Information Statement 2016 ($4.7 million in calendar 2016); and Lock the Gate Alliance, Annual Information Statement 2016 ($1.1 million). All statements are published by the Australian Charities and Not-for-profits Commission. 4 See the Minerals Council Of Australia, Submission to House of Representatives Standing Committee on the Environment Inquiry into the Register of Environmental Organisations, MCA, 29 May 2015, pp. 14-24; Pre-Budget submission 2016-17, MCA, 12 February 2016, p. 42f; Pre-Budget submission 2017-18, MCA, 27 January 2017, p. 17; Submission to Joint Standing Committee on Electoral Matters Inquiry into and Report on All Aspects of the Conduct of the 2016 Federal Election and Matters Related Thereto, MCA, 13 February 2017. Minerals Council of Australia | 1 Further, volunteer directors of a charity are required to exercise due diligence under the Commonwealth Work Health and Safety Act 2011. The Australian Charities and Not-for-profits Commission (ACNC) published guidance on political campaining and advocacy in April 2016. The guidance is directed at charity board and committee members and makes clear that charities can neither oppose a particular political party or candidate, nor engage in illegal methods to advance a charitable purpose. Some deductibile gift recipients are breaking the law Contrary to the regulator’s guidance, some registered charities continue to pursue a ‘disqualifying purpose’ of unlawful activity. On 2 March 2017, a director of Greenpeace Australia Pacific declared that: You can’t be on the Greenpeace board and be timid … I’ve learnt that as humans we’ve got a human right to break the law ... So we do break into things, we do stop businesses, we
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