1 Introduction and Summary

1 Introduction and summary

1.1 This submission has been prepared by Greenpeace Australia Pacific Ltd (“GPAP”) with assistance from Sam Flynn, Shirin Sethna and Peter Seidel of Arnold Bloch Leibler, Lawyers and Advisers (“ABL”), in response to the Parliamentary “Inquiry into the Register of Environmental Organisations” conducted by the House of Representatives Standing Committee on the Environment (the “Inquiry” and the “Committee”).

1.2 GPAP recognises that the Committee may be minded to make recommendations that impact on the Australian not-for-profit sector and therefore welcomes the opportunity to contribute to the Inquiry by way of this submission.

1.3 For the reasons explained in this submission, GPAP, with ABL’s full support, recommends that the Committee rejects any proposal to alter: (a) the definition of ‘environmental organisation’; (b) the requirements to be met by an organisation to be listed on the Register of Environmental Organisations (the “Register”) and to maintain its listing; and (c) the activities permitted to be undertaken by organisations listed on the Register.

1.4 Importantly, the Inquiry is focused on organisations listed on the Register. The Register enables eligible organisations to be endorsed as deductible gift recipients (“DGR”) by the Australian Taxation Office. We reasonably assume the Committee will ensure that the Terms of Reference are analysed only to the extent that they apply to the DGR status of organisations. It is obviously beyond the scope of the Inquiry to apply its findings to the charitable status of environmental organisations.

1.5 The Inquiry is mandated to have particular regard to the following Term of Reference (“TOR”), amongst others ‘activities undertaken by organisations currently listed on the Register and the extent to which these activities involve on-ground environmental works.’

1.6 We respectfully urge the Committee to only have regard to the activities undertaken by organisations to the extent that such activities are conducted with tax-deductible funds. To the extent the Committee proposes to make any findings beyond such matters these would clearly be acting beyond the TOR.

1.7 This submission highlights the importance of the work carried out by environmental organisations, with particular regard to the work undertaken by GPAP. This submission also addresses:

(a) the contributions that environmental organisations make to the protection and enhancement of the environment by engaging in advocacy work;

(b) the current status of the law in Australia in relation to organisations that engage in advocacy (sometimes referred to as ‘political’) work; and

2 Background

2.1 Section 30-265(1) of the Income Tax Assessment Act 1997 (Cth), which governs the Register, requires that an environmental organisation’s principal purpose must be:

(a) the protection and enhancement of the natural environment or of a significant aspect of the natural environment; or

(b) the provision of information or education, or the carrying on of research, about the natural environment or a significant aspect of the natural environment.

2.2 Endorsement on the Register enables environmental organisations to receive DGR status. DGR status recognises the value of members of the public making donations to environmental organisations endorsed on the Register. DGR status obviously benefits members of the public who choose to donate to the DGR endorsed organisation, as well as benefitting the DGR endorsed entity.

2.3 Donations comprise an essential part of the funding for many environmental organisations endorsed on the Register. Without DGR status, many environmental organisations may immediately lose much of the financial support that they currently receive from an informed and supportive public, and will struggle to fulfil their objectives to protect, enhance and provide information about the natural environment.

2.4 Of the environmental organisations currently listed on the Register, the extent to which organisations undertake different kinds of work to protect the natural environment varies. It is well recognised that the ‘protection and enhancement of the natural environment’ extends beyond immediate ‘on -ground’ activities (such as planting trees or engaging in native animal rescue) and almost invariably requires that environmental groups publically advocate on behalf of the environment. Indeed as this submission sets out, it is ultimately not possible to effectively protect the environment without engaging in work outside of ‘on ground’ activities, including advocacy.

2.5 Advocacy may sometimes involve critiquing (or supporting) government policy and agitating for legislative change (or maintenance of the status quo). On- ground work and advocacy work complement each other and are both absolutely essential components in meeting the objectives of the Register.

2.6 In 2010, the High Court of Australia held that political activities are consistent with charitable purposes. The High Court reasoned that:

(a) the generation of public debate is a purpose that is beneficial to the community; and

(b) political communication is essential for maintaining our system of responsible and representative government. That is, political purposes serve to uphold the Australian Constitution.

2.7 It is universally accepted as an Australian democratic right and an enshrined legal principle of Australian law that political activities should not preclude an organisation from gaining and maintaining charitable status. Given the obvious connections between DGR issues and charitable status, the same principles are to be similarly applied to DGR endorsement on the Register. Any

inconsistency of treatment of an organisation in respect of its charitable and DGR status would render the whole tax concession system completely out of alignment.

3 Greenpeace Australia Pacific Ltd

Greenpeace Australia Pacific purpose and values

3.1 GPAP consists of over 500,000 people, including board members, staff, activists, volunteers and supporters who care deeply about protecting the environment in our beautiful home: our precious climate, soaring forests and wide wild oceans. GPAP stands for positive change through action. We investigate, expose and confront environmental abuse in Australia and around the world. We champion environmentally responsible and socially just solutions, including scientific and technological innovation.

3.2 GPAP is a charity registered with the Australian Charities and Not-for-profits Commission (ACNC) and has been registered as a DGR on the Register of Environmental Organisations since 1994.

3.3 In Australia, the first activity under a Greenpeace banner was to protest against the last whaling station in the English speaking world at Albany in Western Australia on August 28, 1977. Just over a year later, Australia harpooned its last whale and a proud tradition of effective Greenpeace campaigning in Australia was born. In 1983, Greenpeace Australia (NSW) Limited was incorporated. It merged with other states over time, starting with South Australia in 1986. Later, Greenpeace Australia merged with Greenpeace Pacific to form the single Greenpeace Australia Pacific Limited entity in 1998.

3.4 GPAP’s core values are reflected in all of our work. We: (a) ‘bear witness’ to environmental destruction in a peaceful, non-violent manner;

(b) use creative non-violent confrontation to expose problems and promote accountability;

(d) ensure our financial independence from political or commercial interests by accepting no money from government, business or political parties; and

(e) seek solutions for, and promote open, informed debate about society’s environmental choices.

Importance of DGR status

3.5 GPAP‘s independence is key to achieving our aims. As we do not accept funding from governments or corporations, last calendar year 95% of GPAP funding came from over 65,000 members of the public. Our DGR status means these donors are recognised for their contribution to protecting the environment and creating a robust civil society. We rely on their generosity and good will to continue our vital work.

Environment work

3.6 Organisations on the Register are involved in a wide range of work ranging from: (a) direct conservation work such as nurturing injured native animals and bush regeneration; (b) educating the community, business and governments about the environment; (c) advocating at a local, state, national and international governmental level for policy change; and (d) representing the views of supporters to Australian and international business.

3.7 Our environment is affected by a myriad of anthropogenic factors. Among the most significant are business and government policies. While ‘on the ground activities’ by environmental organisations are essential, they can be rendered largely ineffective if they not complemented by policy change. For example, ‘on the ground’ conservation of intact ecosystems or biodiversity will be ineffective in the long run unless there is effective policy action on climate change. Similarly, it is hard to see how any large-scale ‘on the ground’ conservation can work in the context of the marine environment without an appropriate policy framework regulating fishing and other activities.

3.8 Since 1983, Greenpeace supporters in Australia have been involved in a range of activities with both national and international effect. In Australia, GPAP has advocated for and won a number of policy changes from government and business, a sample of which include: (a) more appropriate fishing methods in Australian and international waters; (b) controls on the hunting of marine mammals and kangaroos; (c) a reduction in nuclear power generation; (d) stronger controls on the use of and disposal of toxic chemicals; (e) protection of Antarctica including the Australian territorial claims in Antarctica; (f) an environmentally sustainable Sydney Olympic Games including the world’s largest solar village at the time, use of building materials containing less PVC, recycled water and prioritising public over private transport; (g) reductions in the use of ozone depleting substances in Australia; (h) launch of the first CFC free refrigerators in Australia; (i) government funding for the clean-up of a number of local environments including the Patawalonga River in SA and Homebush Bay in NSW; (j) listing of the Albatross in the Australian Endangered Species Act; (k) bans on Japanese fishing vessels within 200 miles of the Australian Coast to protect the Southern Bluefin Tuna fishing grounds; (l) McDonalds Australia removing PVC from children’s products; (m) removal of 400 tonnes of toxic dioxin contaminated material at the Sydney Olympic site;

(n) Australian government declaring the world’s largest “no-take” marine reserve at Heard Island; (o) changes to Australian corporations law requiring businesses to include environmental information in their annual reports; (p) commitments from Australian businesses to only use sustainable palm oil; (q) scrapping of plans for the ZeroGen coal power station; (r) Australian banking and finance institutions developing policies around the risk of carbon intensive investments; (s) commitments from major Australian food and retail companies to only sell sustainably sourced tinned tuna; (t) legislation to stop the import of illegal timber; (u) commitments from major corporations to take pulp and paper from recently deforested areas of Indonesia out of their supply chain; (v) the Australian Government legislating to ban super trawlers from Australian waters; and (w) the establishment of a container deposit recycling scheme in NSW.

3.9 To protect the environment in accordance with our charitable purposes GPAP has adopted a range of tactics including: (a) non-violent direct action; (b) conducting and publishing research and investigations; (c) producing consumer guides about the environmental credentials of particular products within a sector; (d) producing and disseminating targeted communication materials; (e) organising and delivering petitions; (f) lobbying business, government and other stakeholders; and (g) hosting stakeholder conferences about environmental issues.

3.10 GPAP was endorsed as a DGR on the Register in 1994, long after the Greenpeace brand was first associated with advocacy work. GPAP works hard to ensure that it acts strictly in accordance with the constitutional objectives for which it was originally endorsed on the Register. Further, GPAP is constitutionally bound to engage in the activities for which it was originally endorsed on the Register and afforded tax concessions.

3.11 The two case studies below highlight in more detail how GPAP conducts its advocacy work in support of conservation activities. One of these case studies deals primarily with government policy, the other with business policy.

Case study 1: Super trawlers - effective advocacy in action

3.12 Greenpeace campaigned against the introduction of one of the world's largest freezer factory trawlers, FV MARGIRIS, to Australia's Commonwealth Small Pelagic Fishery in 2012. As a result, the operation of vessels over certain dimensions became a 'declared' activity under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) for a period of two years while an expert panel reviewed the scientific impact of such vessels operating. This has resulted in a permanent ban on vessels over 130m in length operating in

Australian fisheries and stronger management of large factory trawlers that are permitted to operate in the fishery. The first oversized freezer trawler to arrive in Australia since 2012, the Geelong Star, is now subject to this more stringent management under a tailored vessel management plan. In addition to 'on the water' fisheries management improvement, this resulted in improved data collection and reduced uncertainty around key fish stock status. The Australian Fisheries Management Authority has also improved its stakeholder engagement process.

3.13 Greenpeace commissioned independent research into the financial arrangements of the Margiris operation and uncovered a high level of European Union government subsidisation contravening international agreements to limit global fishing capacity and against the policies of the Australian government. Greenpeace published data on the previous performance of the vessel and its owners including a history of legal infractions and negative fisheries management influence.

3.14 Greenpeace encouraged coastal communities around Australia to engage in the process of marine resource management and used peaceful protest to draw attention to the vessel's arrival in Australia before it had been granted permission to fish.

Case study 2: Tinned tuna - supporting Australian government policy

3.15 Following a Greenpeace campaign all major Australian tuna brands and retailers (via their private label brands) agreed to source all of their tuna from catch using lower impact fishing gears – in particular tuna caught without the use of fish aggregating devices (FADs) – in addition to adopting other best- practice policies related to sustainability and traceability.

3.16 This brought the brands' sourcing policies more closely into line with Australia's negotiating position on conservation and management measures at the Western and Central Pacific Fisheries Commission (WCPFC). Investment in third party audits and stricter traceability guidelines adopted by Australian tuna brands and retailers encouraged stronger fleet and supply chain compliance.

3.17 It also contributed to greater consumer confidence and food literacy around seafood purchases as companies have incorporated greater emphasis on provision of relevant product information, such as provenance, to the consumer.

3.18 In the course of the campaign Greenpeace engaged with the tuna brands via an annual survey process and regular face to face meetings regarding improvements to tuna brands' sourcing policies. We also conducted non- violent direct action and produced targeted communication materials. We provided best practice policies and encouraged their adoption. Where possible we introduced the procurement departments at these brands to suppliers that could meet higher production standards and services that could provide detailed audits and supply chain advice. We encouraged direct contact between brands and fishing fleets.

3.19 Through the survey process and its outcomes, Greenpeace provided consumers with a useful guide to the sourcing policies of tuna brands and retailers and fostered more direct communication between consumers and the brands. Greenpeace engaged in strong advocacy of policy changes including criticising brands publicly in circumstances where their sourcing policies were

undermining progress on improving conservation and management measures in regional tuna management fora.

3.20 An article by Aaron Gell in Business Insider published in June last year set out the effectiveness of Greenpeace’s approach to securing environmental protection through advocating to business.1 While the article mainly covered Greenpeace in an American context, the methods described and the successful business advocacy that is described are entirely applicable to Australia; including virtually all of the business corporations which are mentioned. The article contained numerous business testimonies as to Greenpeace’s effectiveness at protecting the environment including the following passages:

“…when it comes to catalyzing change in the corporate arena, Greenpeace seems to have cracked the code in a way that offers some important lessons for other advocacy groups.

Corporate representatives who have sat across the table from Greenpeace give the group’s negotiators high marks for professionalism. “They have been very trustworthy,” says Bill Weihl, manager of energy efficiency and sustainability at Facebook. “Certainly, when they first started, it was adversarial, but fairly quickly it turned into a productive conversation.”

Aida Greenbury, managing director for sustainability at Asia Pulp & Paper, calls Greenpeace “one of the very, very few NGOs I fully respect, because the people behind it really believe in what they are fighting for. We trust they are helping us achieve what we both want to achieve.”

“They are real subject-matter experts,” says Suhas Apte, former vice president of sustainability for Kimberly-Clark, the paper-goods giant. The company, which produces Kleenex, has made an astonishing turnaround — from clear-cutting ne’er-do-well to sustainability poster child — since being targeted by Greenpeace beginning a decade ago. “They obviously have a vested interest,” Apte adds, “but at the same time, they are very pragmatic and practical people, and as long as you are willing to listen, their whole intention is to see a change happen.”

“NGOs have become very businesslike,” says a sustainability officer for a major media company, who spoke on condition of anonymity. “They’re thinking through the strategy and creating an integrated campaign just like a company would when marketing a product, going through the R&D phase, the development phase, production, and then the retail channels. It’s a corporate approach.”

Meanwhile, unlike several other environmental groups… Greenpeace does not accept corporate or government funds. …

“It’s what I like most about them, to be honest,” Apte says. “Most other environmental NGOs are looking for some sort of partnership where you put some money in. Greenpeace doesn’t do that. In that sense they are unbiased and open-minded.”

1 A. Gell, ‘How A 'Bunch Of Commies' Are Forcing The Fortune 500 To Stop Destroying Rain Forests, Overfishing, And Burning Fossil Fuels’, Business Insider, 5 June 2014: http://www.businessinsider.com.au/greenpeace-fortune-500-deforestation-global-warming-2014-6

Proudly independent and non-partisan

3.21 GPAP is proudly independent. We are not aligned to any political party and advocate equally to governments of all persuasions. GPAP does not solicit or accept funding from governments, corporations or political parties. GPAP neither seeks nor accepts donations which could compromise its independence, aims, objectives or integrity.

3.22 Our campaigns are situated in a global context, are based on sound evidence and are developed with wide consultation and input from a variety of internal and external parties including subject matter experts and supporters.

Compliance, openness and transparency

3.23 Our supporters know that non-violent direct action is just one of the means adopted by GPAP. Our supporters also know their financial support also enables us to: (a) investigate and expose the scientific, financial and political roots of environmental problems;

(b) challenge the political and economic power of those who can effect change;

(d) publish papers, produce films and photos in an effort to distribute critical information widely; and

(e) research and promote environmentally responsible and socially just solutions.

3.24 We are extremely grateful for the trust bestowed on us by our donors to protect and conserve our national environment and accordingly we are committed to higher standards of accountability and transparency than required by Australian laws.

3.25 We communicate regularly with our donors so they are aware of what difference their contributions make and are confident in the collective ability to deliver environmental protection. Donors receive one email per week and our supporter magazine Making Waves three times per year. We also regularly phone and mail supporters about the progress of our latest campaigns. Participating donors are also updated through social media such as Twitter and Facebook.

3.26 GPAP is a signatory to the International NGO Accountability charter and we meet our reporting requirements though reporting to Greenpeace International.

3.27 We comply with annual reporting to the Register of Environmental Organisations and Australia Charities and Not-for-profit Commission. We report as required to state charitable regulators as to our annual income and expenditure and prepare audited annual statutory financial statements that are available to the public. Like any other trading company, GPAP also fulfils its statutory obligations in relation to GST, FBT, withholding tax, superannuation and other requirements.

Level of community support for GPAP campaigns:

3.28 Greenpeace is a highly public brand that is well known among the Australian people. The bombing of the Rainbow Warrior in Auckland Harbour thirty years ago was a seminal event for many Australians. Greenpeace activities to save marine life, rainforests, Antarctica and to reduce pollution are instantly recognisable to millions of people. We have over 500,000 active supporters who participated in at least one GPAP activity in the previous year. There are 175,000 supporters of the GPAP Facebook page where an average post has a reach of over 520,000 people; 35,000 followers on Twitter, 7,000 followers on Tumblr and 70,000 on Google Plus.

3.29 We know our work is supported by many Australians because of the high level of community engagement we have in our advocacy campaigns and tactics. For example, since January 2014, 1,021,000 people have signed our online petitions with over 220,000 people signing petitions about the Great Barrier Reef, 231,000 people signing our petition about shark culling in WA and 80,000 people signing a petition in relation to container deposit recycling. Just recently over 41,000 people made a submission to government about dredging and dumping on the Reef through a Greenpeace web platform.

4 The intersection of political activities and environmental activities

4.1 The TOR state that the Inquiry will have particular regard to the extent to which environmental organisations’ activities ‘involve on-ground environmental works’.

4.2 To complement work ‘on the ground’, environmental organisations invariably engage in acts of advocacy to inform the public and seek to persuade government to protect and enhance the natural environment. Given their aim of influencing government decision-making, in that sense many advocacy activities can be characterised as political in nature. Whilst practical ‘on- ground’ activities like cleaning waterways and planting trees are essential acts of conservation, and many environmental groups carry out such work, advocacy plays a similarly crucial role in fostering public awareness and bringing about wide-reaching environmental protection.

4.3 Commentary from some members of Parliament in the previous few months appear to demonstrate an increasing appetite for restrictions to be placed on environmental organisations’ ability to participate in advocacy. Should any such retrograde recommendation be made by the Committee it would be entirely out of step with the nature of Australian civil society in the 21st century. It would also be completely contrary to law, as we explain in the remainder of this submission.

4.4 Notably, George Christensen MP (Member for Dawson) states on his website that he supports:

‘environmental organisations undertaking practical measures to improve the environment, such as planting trees and cleaning up waterways’ but that ‘Taxpayers are entitled to expect results and they don’t want to see a privilege like tax-deductibility status on-sold to organisations selling political ideas’ (2 April 2015).

4.5 Chairman of the Inquiry, Alex Hawke MP (Member for Mitchell) has commented:

‘Over 600 environmental groups are currently deductible gift recipients. This allows them to access tax-deductible donations to fund important, practical work to improve the natural environment. We need to ensure that tax deductible donations, which are a generous concession from the taxpayer, are used for the purpose intended and expected by the community’ (31 March 2015).

4.6 The suggestion that tax deductible donations are a gift from the taxpayer is to ignore the benefits to taxpayers and the reality of the tax system’s architecture. DGR status of organisations listed on the Register is also a gift to the hundreds of thousands of donating taxpayers who receive a tax deduction for making a donation to listed organisations.

4.7 Countless taxpayers benefit from the current system because listed organisations rely on DGR status for funding and so are able to perform work that is beneficial for society.

4.8 While it is unclear what is precisely meant by “selling political ideas”, it may be that some members of the Committee are presently minded to advocate limiting environmental organisations, if they are to retain their DGR status, to “practical” efforts to protect the environment, rather than allowing them to engage in advocacy, education of the public and promotion of public debate, as is currently the case.

4.9 To make any such change as outlined in the previous paragraph would be to ignore the current state of the law in Australia and around the world. Tax concession law, now more than ever, recognises that advocacy and public debate play a vital role in allowing not for profits to effectively and efficiently contribute to the betterment of society.

4.10 While we recognise that the scope of this inquiry is limited to DGR status pursuant to the Income Tax Assessment Act 1997 (Cth), the principles developed regarding the definition of a charity and charitable purposes are clearly relevant to whether an organisation should be entitled to DGR status.

4.11 The High Court’s decision in Aid/Watch Incorporated v Commissioner of Taxation2 in 2010 was a seminal moment in the recognition of advocacy and political activity as vital to the work of charities in Australia. In this case, Aid/Watch Incorporated sought, through research and public campaigning, to promote the more efficient use of foreign aid. Contrary to the findings of the Commissioner of Taxation, the majority of the High Court held that Aid/Watch was not disqualified from being found to be a charitable institution even though its activities involved agitating for legislative and political change.

4.12 According to the High Court:

“… generation by lawful means of public debate … itself is a purpose beneficial to the community.”3

4.13 This High Court inviolable principle reflects a recognition of the reality that in 21st century Australia that:

“political speech by charities enriches the political process by encouraging political debate, facilitating citizen participation and engagement and promoting political pluralism”.4

2 (2010) 241 CLR 539. 3 Aid/Watch Incorporated v Commissioner of Taxation of the Commonwealth of Australia (2010) 241 CLR 539, 557 (French CJ, Gummow, Hayne, Crennan and Bell JJ).

4.14 On this reasoning, any efforts to restrict environmental organisations from participating in public debate would significantly impoverish Australian civil society and democracy.

4.15 The disjunction between a democracy that requires public debate and any law that does not recognise public debate as a public good was acknowledged by Hayne J during the course of the Aid/Watch proceedings when His Honour said:

A defining characteristic of the society in which this doctrine has defined its application is that of representative and responsible government underpinned by free political exchange and an understanding of what is meant by the term ‘political’ when used, it seems, as a term of disapprobation in contradiction to the approving term ‘charitable’, requires some adjustment.5

4.16 A related but more influential reason for the decision of the majority was that the political purposes doctrine, by which political purposes were traditionally not held to be charitable, does not and should not apply in Australia. The majority held that this was largely because such a rule was contrary to the Constitution and the type of democracy that it engenders. It held that:

The provisions of the Constitution mandate a system of representative and responsible government with a universal adult franchise, and s 128 establishes a system for amendment of the Constitution in which the proposed law to effect the amendment is to be submitted to the electors. Communication between electors and legislators and the officers of the executive, and between electors themselves, on matters of government and politics, is “an indispensable incident” of that constitutional system. … Any burden which the common law places upon communication respecting matters of government and politics must be reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of that system of government.6

4.17 The majority in Aid/Watch held that a principle by which political purposes are held to be mutually exclusive with charitable purposes was not compatible with the Australian system of government and therefore should not be followed.

4.18 We respectfully urge the Committee to proceed with extreme caution in its deliberations and recommendations, to avoid any compromising of these sacrosanct legal and democratic principles.

4.19 As the Committee is no doubt aware, the legislature is also bound to make laws that are compatible with the maintenance of the constitutionally prescribed system of representative government.7 The implied freedom of political communication in the Constitution protects exactly the kind of activity that was proscribed by the political purposes doctrine. Any attempt to reintroduce this doctrine in part by prohibiting environmental organisations that have and seek to retain their DGR status from engaging in public debate and

4 Chia, Joyce, Harding, Matthew and O’Connell, Ann, “Navigating the Politics of Charity: Reflections on Aid/Watch Inc v Federal Commissioner of Taxation’ (2011) 35 Melbourne University Law Review 353, 365. 5 Transcript of Proceedings, Aid/Watch Inc v Federal Commissioner of Taxation [2010] HCATrans 154 (15 June 2010) 3086-92. 6 Aid/Watch Incorporated v Commissioner of Taxation of the Commonwealth of Australia (2010) 241 CLR 539, 556 (French CJ, Gummow, Hayne, Crennan and Bell JJ). 7 Lange (1997) 189 CLR 520, 561-2, reformulated in Coleman v Power (2004) 220 CLR 1, 50 [93] (McHugh J), 77-8 [196] (Gummow and Hayne JJ), 82 [211] (Kirby J).

advocacy is as a matter of law very likely to be inconsistent with the Constitution and the implied freedom of political communication.

4.20 It would be disingenuous for the Committee to suggest, as seems to be the view of at least some Members of Parliament, that stripping environmental organisations of their DGR status would not curtail their right to engage in political communication.

4.21 The very reason that organisations go through the rigorous process of applying for DGR status is that such status is instrumental in encouraging people to donate to the organisation. Without DGR status, environmental organisations will in all likelihood lose a very large proportion of their funding and will inevitably be limited in their ability to engage in advocacy.

4.22 In Aid/Watch, Kiefel J held that:

it could scarcely be denied, these days, that it may be necessary for organisations, whose purposes are directed to the relief of poverty or the advancement of education, to agitate for change in the policies of government or in legislation in order to best advance their charitable purposes.8

4.23 This statement of fundamental legal principle incorporates the important truth that, in a modern society, “advocacy and engagement with politics are better conceptualised as an essential, and perhaps the most effective, method of achieving charitable purposes”.9 This is because government can be and often is a powerful ally in achieving charitable purposes and because government and legislation pervade nearly every aspect of life in Australia.

4.24 Any suggestion that environmental organisations that engage in public debate are not conferring a benefit upon society or are not furthering their charitable purpose would not only fly in the face of this reality, it would reflect a regrettable and misinformed view of the contributions of environmental organisations to Australian civil society.

4.25 The wisdom of the decision of the majority in Aid/Watch was recognised by Parliament and enshrined in section 12(l) of the Charities Act 2013 (Cth), which provides:

“Charitable purpose means any of the following:

…

(l) the purpose of promoting or opposing a change to any matter established by law, policy or practice in the Commonwealth, a State, a Territory or another country, if:

(i) in the case of promoting a change - the change is in furtherance or in aid of one or more of the purposes mentioned in paragraph (a) to (k); or

(ii) in the case of opposing a change - the change is in opposition to, or in hindrance of, one or more of the purposes mentioned in those paragraphs.”

8 Aid/Watch Incorporated v Commissioner of Taxation of the Commonwealth of Australia (2010) 241 CLR 539, 564 (Kiefel J). 9 Chia, Joyce, Harding, Matthew and O’Connell, Ann, “Navigating the Politics of Charity: Reflections on Aid/Watch Inc v Federal Commissioner of Taxation’ (2011) 35 Melbourne University Law Review 353, 366.

4.26 The Explanatory Memorandum to the Charities Act 2013 (Cth) contained recognition that this provision protects the right to freedom of expression and the right to take part in public affairs.10

4.27 Similarly, in the explanatory memorandum to the Taxation Laws Amendment (No. 5) Bill 1992 (the Bill which introduced the predecessor to s 30-270 of the Income Tax Assessment Act 1997 (Cth)) it was said that an “environmental purpose” (i.e. a purpose of protecting the environment and defined in the terms set out in s 30-265(1) of the 1997 Act) was such that:11

“Environment in this context is the natural environment and includes all aspects of the natural surroundings of humans. The term natural to describe the environment is used here to make a distinction between this type of the environment and other types of the environment, such as the ‘built’, ‘cultural’ and ‘historic’ environments. …

The ‘natural environment’ and concern for it would include, for example, significant natural areas such as rainforests; wildlife and their habitats; issues affecting the environment such as air and water quality, waste minimisation, soil conservation, and biodiversity; and promotion of ecologically sustainable development principles. [our emphasis]”.

4.28 It is a well-established principle in Australian law that an organisation can be granted charitable status and can, and indeed should, engage in advocacy or political activity.

4.29 The legal principles set out above are clearly relevant to any consideration of the law regarding DGR status as the underlying purpose of granting an organisation charitable status or DGR status is exactly the same.

4.30 This is why Professor Matthew Harding says that “we may speak of an association of charity law and indirect tax privileges, even in jurisdictions where the trigger for those indirect tax privileges is not the pursuit of charitable purposes qua charitable”.12 Any attempt to limit the ability of environmental organisations listed on the Register to engage in advocacy would be to ignore the principled and rational development of charity law. It would also sit uneasily with Australia’s constitutionally prescribed system of representative government.

10 Explanatory Memorandum, Charities (Consequential Amendments and Transitional Provisions) Bill 2013, pp. 44-46. 11 Explanatory Memorandum, Taxation Laws Amendment (No. 5) Bill 1992, p.46. 12 Harding, Matthew, Charity Law and the Liberal State (Cambridge University Press, 2014).

5 Community Expectations

5.1 GPAP is aware of suggestions that, at present, donations are being used by environmental organisations for purposes which members of the community would not expect or accept. Any such assertions only serve to patronise and understate the intelligence of members of the community who choose to donate to environmental organisations.

5.2 There are over 600 organisations listed on the Register. In addition, there are over 17,000 other organisations (in addition to over 10,000 funds, authorities and institutions) which receive DGR status outside the environmental sphere.

5.3 Donors freely elect both whether and which organisations to financially support. It would be an unwarranted and unworthy assumption that donors make gifts to organisations without first considering the activities that such organisations undertake. Particularly given the contemporary ease of access to information via the internet, it is obvious that donors make contributions to organisations whose activities they support.

5.4 In relation to Greenpeace in particular, it is clearly understood in the public mind that Greenpeace engages in non-violent direct action as one of our key methods for protecting the environment. Images of Greenpeace activists preventing whaling ships from killing whales, or dropping banners off public buildings are among the most instantly recognisable images of environmental protection and it is simply inconceivable that a Greenpeace donor would not be aware of this.

6 Conclusion

6.1 It is the strong view of GPAP, with the full support of ABL, that: (a) the definition of ‘environmental organisation’ under the Income Tax Assessment Act 1997 should not be altered; and (b) the requirements to be met by an organisation to be listed on the Register and maintain its listing should not be tightened.

6.2 Furthermore, in recognition of Australian common law authority which is now enshrined in statute, political purposes are clearly included as part of an organisation’s charitable purposes.

6.3 Given the similarity in the tests for achieving DGR status and charitable status organisations endorsed on the Register should be able to freely participate in advocacy work, consistent with fundamental and well enshrined legal and democratic principles.

6.4 Advocacy work forms an essential part in ensuring that the objectives of the Register are met - namely that the natural environment is protected and enhanced and that the public are informed and educated about the environment.

6.5 Any attempt to restrict the DGR status of organisations that engage in advocacy work would be contrary to the Australian Constitution and to our democratic system of government.

6.6 GPAP would be delighted to be given an opportunity to appear before the Committee and explain further or expand upon any aspect of this submission.