Friends of the Earth Australia

Box 222 Fitzroy, Australia 3065 | Ph: 61 3 9419 8700 | Fax: 61 3 9416 2081 Email: [email protected] | Web: www.foe.org.au | ABN No. 18 110 769 501

Committee Secretary House of Representatives Standing Committee on the Environment PO Box 6021 Parliament House Canberra ACT 2600 [email protected]

Dear Sir/Madam

Submission to House of Representatives Standing Committee on the Environment Inquiry into the Register of Environmental Organisations May 2015

Friends of the Earth (Australia) (FoEA) welcomes the opportunity to make a submission to this Inquiry. We support transparent and appropriate oversight of the not for profit (NFP) sector. We are, however, deeply concerned that there will be an attempt to use this inquiry to curtail the activities of environmental NGOs (ENGOs) like FoEA. We base this on the growing number of attempts by the Abbott government to limit the activities of ENGOs. These actions include:

 The motion by the Federal Council of the Liberal Party to strip eco-charities of the same rights permitted to other charities, including tax-deductible donations  The push by Minister Richard Colbeck for a secondary boycott ban to apply to environmental groups  The ‘Re:think, Better Tax system Better Australia’ discussion paper which calls for a review of the Not for Profit sector’s tax deductibility  The cuts to the Environment Defenders Office (EDOs)  The government has axed the Grants to Voluntary Environment, Sustainability and Heritage Organisations. This program had bipartisan support since it was set up in the 1970s. Cuts have negatively impacted on the activities of regional groups and State and Territory Conservation Councils  The current Inquiry into the tax status of environmental organisations.

There has been a consistent public narrative by various government MPs that suggest this Inquiry intends to limit the activities that are allowed for groups listed on the Register of Environmental Organisations (REO). We were concerned to hear comments made by the

Friends of the Earth Australia submission. Inquiry to environmental organisations. 1 of 10 Chair of the Committee, Alex Hawke, which were made on the ABC’s 7.30 Report on April 10.

Mr Hawke says that ‘the environment register is for groups to do actual practical environmental work or some education and other purposes’.

This opinion would put Mr Hawke at odds with the High Court finding on this matter. We hope that the Committee will not recommend changes which would go against the spirit of the benchmark case in Australian law (the Aid/Watch case).

A number of Coalition MPs who are not represented on the Committee have also made alarming announcements about the environment movement. They have said that they would like to see ENGOs lose their tax status. Queensland Senator Matthew Canavan has mentioned a figure of ‘100 to 150’ organisations currently on the Register which should be struck off. We hope and trust that the Committee itself will distant itself from extremist positions like those expressed by Mr Canavan. [source: ABC 7.30 Report, April 10].

Friends of the Earth (Australia) Inc is a national environmental organisation, founded in 1974. It is the Australian member of FoE International, the largest grassroots environmental network on the planet. FoEI has more than 2 million individual members and is active in more than 70 countries. It has consultative status with ECOSOC (the Economic and Social Council of the United Nations) and all relevant UN bodies.

FoEA is a medium sized NFP and has charitable status. It is a federation composed of seven member groups and 13 affiliate member groups. Collectively, these organisations have around 33,000 members and supporters. We have been listed on the Register of Environment Organisations since 2002. FoEA is independent of all political parties and economic interests.

Comment on Inquiry TOR

We note the committee’s purpose is to inquire in to the administration and transparency of the Register of Environmental Organisations (the Register) and its effectiveness in supporting communities to take practical action to improve the environment.

The following comments relate to the first three items in the TOR:

 the definition of 'environmental organisation' under the Income Tax Assessment Act 1997, including under Subdivision 30-E;  the requirements to be met by an organisation to be listed on the Register and maintain its listing;  activities undertaken by organisations currently listed on the Register and the extent to which these activities involve on-ground environmental works;

Friends of the Earth Australia submission. Inquiry to environmental organisations. 2 of 10 At the outset it is important to state that FoEA does not support any attempt by the federal government to curtail the important work of environment groups by calling into question activities that are not ‘on the ground’ activities. Environmental groups are permitted by law to conduct both ‘on the ground’ and advocacy activities in pursuit of their charitable purpose to protect and enhance the natural environment. This is the result of the decision of the High Court of Australia in the Aid/Watch case and the subsequent legislated definition of charity in the Charities Act 2013 (Cth).

Both types of activities provide practical ways of delivering tangible improvements to the environment. The majority of groups listed on The Register carry out a mix of activity and to limit allowable activity only to works like tree-planting and ecological restoration would have a dramatic effect on a large majority of these organisations.

Activities undertaken by Friends of the Earth Australia Inc to protect the environment

According to our constitution, our primary purpose is:

(a) The conservation, restoration, and sustainable use of the world’s resources

(b) To stimulate a movement of social change towards an ecologically stable and self-managed society;

(c) To preserve the natural environment in Australia;

(d) To promote public awareness of environmental issues in Australia through public awareness activities and the production of leaflets, booklets, films and other educational materials;

(e) To assist other people and organisations interested in these objectives to carry out their tasks through the maintenance of resource centre’s, newsletters, magazines and communication with like-minded national and international bodies;

We run a number of national campaigns and projects which seek to support this goal, as well as supporting our local groups to do so. FoEA carries out policy development and research, environmental education and outreach, and advocacy and engaging in public debate. It also seeks to develop practical opportunities for Australians to support the natural environment and live ecologically sustainable lives. For instance, we manage a bulk food store in Melbourne, which seeks to demonstrate best practice business operations around environmental impact, run Reverse Garbage in Brisbane, which seeks to divert waste away from landfill, and support a considerable number of ecological management and restoration projects. We established a sustainability hub and learning demonstration centre called the South Melbourne Commons in conjunction with a local Catholic Parish and range of local partners in Melbourne.

Friends of the Earth Australia submission. Inquiry to environmental organisations. 3 of 10 For specific ecological restoration projects to have meaningful impact, they need to occur within a broader understanding of the impacts and pressures on ecosystems. Therefore, FoEA has often collaborated with other organisations that have expertise in landscale-scale land management by providing logistical support and volunteer labor rather than managing projects ourselves. To give one example, FoE helps co-ordinate a neighbourhood group that is removing woody weeds from a bushland reserve in central Victoria. The land manager provides guidance on management and work activities, FoE provides labor to actually carry out the work through organising working bees.

In many instances, hands on activity sits as part of a broader campaign strategy to achieve environmental protection.

As with other ENGOs, FoEA plays a valuable role in supporting the activities of government and provides a benefit to the community by providing a wealth of research, policy development, scrutiny, oversight, and warnings about developments and projects that may be environmentally or financially disastrous for the country. A key role of ENGOs is to push public debate and encourage the development of policy based on rational and science- based approaches. In this sense, to have a strong voice calling for application of the precautionary principle becomes a necessary part of the planning process.

There is a long list of outcomes that have resulted in protection of the natural environment that FoEA has helped achieve in its four decades of activity. From helping to end commercial whaling in Australian waters to having lead removed from petrol, stopping destructive mines within World Heritage listed ecosystems like Kakadu, and gaining protection of 30,000 hectares of cool temperate forests in the Strezlecki Ranges in Victoria, advocacy has played a key role in gaining all these results.

Additional key outcomes that FoEA has helped achieve:

 protection of Antarctica (the Madrid protocol bans mining in Antarctica)

 early work to promote extended producer responsibility around consumer products, and resulting legislation like container deposit schemes

 FoE was involved in the Green Bans campaigns that saw considerable areas of historic Sydney protected from inappropriate development

 FoE campaign for a whale sanctuary in Australian territorial waters (whaling was banned in the late 1970s)

 FoE played a significant role in the Murray-Darling Basin Plan process, which resulted in up to 3700GL of water for Basin through the Living Murray Initiative

Friends of the Earth Australia submission. Inquiry to environmental organisations. 4 of 10  FoE helped initiate the very successful Halifax urban development in inner Adelaide, based on sustainability principles, and which acts as a sustainability demonstration site

 FoE helped gain protection of forests on Fraser Island (QLD) and stop sand mining on sections of North Stradbroke island, and played a key role in the campaign that saw protection of large sections of the old growth forests in East Gippsland (now a reserve of 40,000 ha) and the Otway Ranges (now a reserve of 103,000 ha) (VIC)

 after a long campaign, the River Red Gum parks were created along the mid Murray River, protecting more than 100,000 hectares of the largest Red Gum forest ecosystem on the planet and internationally recognised Ramsar wetlands

 There have been many local victories where remnant ecosystems have been protected or rehabilitated. A small number of examples: FoE halted leech mining of gold and destructive mineral sands projects in Victoria which would have adversely affected both land and water, gained protection of the Aldinga Reef in SA, and the adjacent Aldinga Scrub, gained permanent protection of a 14 hectare strip of highly endangered heathland in Oakleigh (VIC), and restoration of the Whites Creek wetlands (NSW). These few examples give an indication of the benefits of having local groups working in local communities to gain protection of local environments. This is a key aspect of the model employed by FoEA.

FoE also has a specific role in terms of forward casting for potential threats to the environment. Often emerging issues are not apparent to governments or land managers, and by carrying out research and policy development, FoEA is able to alert relevant government authorities before an issue becomes a major problem. In this work advocacy may be less necessary, but research and community education often is.

The key point we wish to make here is that advocacy is one tool in the set of options that can be used by ENGOs to gain enhanced environmental protection. However, it is an essential one in terms of gaining cumulative and meaningful protection of the environment.

In terms of current campaign activity, FoEA's key work is in the following areas:

 Inland ecosystems and rivers and biodiversity. This includes substantial monitoring of key indicator populations in southern inland rivers (such as the platypus populations in the mid Murray) and temperate forest systems (focused on the sub species of Strezlecki Koala).

 Tracking the development of emerging technologies (which can be both beneficial and destructive in terms of impacts on the natural environment).

 Energy and climate change. This includes tracking developments in the nuclear fuel cycle and the coal and gas sectors, developing and advocating for policy which is

Friends of the Earth Australia submission. Inquiry to environmental organisations. 5 of 10 consistent with what mainstream climate science says is necessary, and encouraging investment in renewable energy and energy efficiency.

 Radioactive waste is a major environmental management concern, and poses significant human, environmental and security challenges. FoE continues to advocate for a transparent and evidence based approach to the long-term management of Australia’s radioactive waste, and actively supports communities that have been considered as possible sites for a national radioactive waste facility  The investment environment (financial investment can be positive or negative in terms of impacts on the natural environment).

 Sustainable food and agriculture.

 substantial work monitoring the impacts of chemical loads on land based ecosystems and waterways.

 Supporting the development of sustainable urban form, including transport infrastructure.

For brevity's sake, we have not provided substantial detail on our activities in this submission. However, if the Committee wishes to receive an in-depth report on the specifics of our day-to-day activity, we would be pleased to provide such information.

Details on our year on year activity is publically available and covered in our annual reports, which are available on our website. http://www.foe.org.au/our-structure

 reporting requirements for organisations to disclose donations and activities funded by donations;

We would point out that the reporting requirements for groups with DGR status is substantial. As an ENGO listed on the Register, FoEA reports annually to the federal environment department. These statistical returns are comprehensive and require the organisation to report on activity and expenditure against specific criteria which are set by the department.

FoEA is also an Incorporated Association in Victoria and as such reports extensively each year to Consumer Affairs Victoria.

Additionally, all groups that carry out fund raising activities must be registered with the relevant state government agencies and submit fund-raising activity statements each year, on a State by State basis.

We would point out that each of these entities have different templates or reporting requirements, which means we need to write multiple reports each year. Given that the majority of groups on the REO are probably experiencing similar duplication of reporting, it would be worthwhile for the Committee to consider what efficiencies can be made across the various jurisdictions. Possibly a single reporting template could be developed for REO listed organisations that can also be used for the government departments that manage

Friends of the Earth Australia submission. Inquiry to environmental organisations. 6 of 10 Incorporated bodies and fund raising. There may be a role for the ACNC in establishing this simplified set of reporting templates. This would yield a considerable saving of time in terms of staff allocation, which in turn would mean that scarce organisational resources could then be applied to activity aimed at protecting the natural environment.

The Australian Council for International Development (ACFID) has a Code of Conduct for it's members covering governance and finances. ACFID describes the code as “a voluntary, self-regulatory sector code of good practice that aims to improve international development outcomes and increase stakeholder trust by enhancing transparency and accountability of signatory organisations.” While FoEA's experience is that the reporting requirements are too onerous for smaller groups, there is the potential for a simple template which could be developed for all ENGOs on the REO that is modeled on a system like the ACFID code and appropriate for reporting to all relevant government entities.

Apart from reporting to government bodies, we take our reporting responsibilities to our members and financial supporters very seriously. As a membership based organisation, FoEA reports about its activities on a regular basis to it's members and supporters. Primarily this is done via monthly email newsletters and a print magazine (which is produced three times a year and sent to members). It produces an annual report, which includes details on all corporate and philanthropic donors. As is standard practice in the sector, and to meet requirements of the Privacy Act, FoEA does not list individual donors in this report. Members can request full financial reports (the reports that are considered by our auditor). These are provided by the secretariat in Melbourne.

 the administration of the Register and potential efficiency improvements;

We have mentioned above the need to consider a streamlining of reporting requirements for REO listed organisations that report to multiple government bodies.

Having been subjected to two investigations relating our DGR status, it has become apparent that there is a significant problem with how the Environment Department and ATO communicate. When initiating their investigation, the ATO informed us this was necessary because they are not able to access the assessment that had already been carried out by the Department. This constitutes a double up of effort by the departments, and is obviously an inefficient use of taxpayer funds.

RECOMMENDATION

FoEA suggests that the Committee recommend that arrangements be made between the ATO and the Implementation and Governance Policy Analysis and Implementation Division of the Environment Department to allow the departments to share final reports into investigations of DGR listed entities.

 relevant governance arrangements in international jurisdictions, and exploring methods to adopt best practice in Australia.

Friends of the Earth Australia submission. Inquiry to environmental organisations. 7 of 10 Given our fears about the political nature of this inquiry, FoEA is concerned that looking to international jurisdictions for examples of best practice will include those that limit NGO activity. We would point out that the healthiest democracies have strong civil society actors who have the ability to engage strongly in public debate and advocacy without undue interference from the authorities. To be able to do this effectively means groups must be adequately resourced. In the Australian context, DGR status is essential to having these resources. Nations that are not based on democratic values limit and control the ability of NGOs to be fearless and independent. A number of nations, including Russia, China and India have passed laws to silence opposition to mining and energy developments. We hope the Committee will not recommend limiting the power of NGOs to engage in public debate through limiting their ability to engage in advocacy.

If the committee wishes to look to international jurisdictions for examples of best practice, it would be wise to consider the situation in the European Union. The strongest protections for political advocacy have been recommended by the Council for Europe, which recommended that non-governmental organisations should enjoy ‘the right to freedom of expression’, and in particular:

 the right ‘to undertake research, education and advocacy on issues of public debate, regardless of whether the position taken is in accord with government policy or requires a change in the law’; and  the right ‘to support a particular candidate or party in an election or a referendum provided that they are transparent in declaring their motivation’ (subject to legislation on the funding of elections and political parties).

The recommendation of the Council of Europe also includes guidance that: NGOs should be assisted in the pursuit of their objectives through public funding and other forms of support, such as exemption from income and other taxes or duties on membership fees, funds and goods received from donors or governmental and international agencies, income for investments, rent, royalties, economic activities and property transactions, as well as incentives for donations through income tax credits.

Key role of advocacy to achieving our charitable purpose

The High Court of Australia in the Aid/Watch decision of 2010 has been clear that advocacy activities aimed at policy or legislative change will not exclude an organisation from being classified as a charity. This is because activities by which entities ‘agitate’ for legislative and policy change contribute to the public welfare because they support the operation of the Constitution of the Commonwealth of Australia, which mandates a system of representative and responsible government. Communication between electors and legislators and of the officers of the executive, and between electors themselves, on the matter of government and politics is an indispensable incident of the constitutional system (paras 44-45).

The judgment in the High Court ruling described the freedom to speak out on political issues as “indispensable" for “representative and responsible government”. Moreover, the

Friends of the Earth Australia submission. Inquiry to environmental organisations. 8 of 10 court pointed out that there is no general rule that excludes “political objects” from charitable purposes.

Subsequent to the Aid/Watch decision a definition of charity, one that permits advocacy activities, was legislated in the Charities Act 2013 (Cth) (Charities Act). It is important to note that this statutory definition clearly contemplates that an organisation whose purpose is to influence law, policy or practices in Australia or overseas (i.e. engage in advocacy) has a charitable purpose if that advocacy relates to a recognised charitable purpose such as advancing education, advancing culture or advancing the environment. That this statutory definition was implemented following the Aid/Watch case it is a clear sign that the government understands and accepts the importance of advocacy activities and the benefits that they provide to the community.

Many of the activities listed above involve advocating for outcomes through generating public awareness and debate over an issue and through that, agitating for legislative and/or policy change to protect the environment. Indeed, while on ground activities such as tree planting are of course of value to the environment, large scale systematic changes to protect the environment are impossible to achieve without these advocacy activities. FoEA conducts these activities in pursuit of its charitable purpose to protect and enhance the natural environment.

It is clear from the Aid/Watch case that as long as our group and other groups have a purpose to achieve enhancement and protection of the natural environment, then the fact that we carry out activities which promote change at a political level should not affect in any way whatsoever our entitlement to be endorsed as a charitable institution.

Conclusion

As mentioned in our introduction, FoEA welcomes a review of reporting requirements for groups listed on the REO provided it is done so in order to reduce inefficiencies and ensure best practice management of groups that do enjoy DGR status. We earnestly hope the committee will not suggest

 limiting allowable activity to 'on ground' works

 amending the definition of 'environmental organisation' under the Income Tax Assessment Act 1997 in a way that would limit existing activity.

We believe that any recommendation of the Committee that seeks to curtail the lawful activities of environmental groups on the Register would go against the decision of the High Court of Australia in the Aid/Watch case.

It would be an attack on the independence of Australian civil society, restrict the free exchange of views and opinions within our community, and have negative consequences for our environment.

Friends of the Earth Australia submission. Inquiry to environmental organisations. 9 of 10 Many hundreds of thousands of Australians support ENGOs. These people appreciate that most of the positive outcomes that have happened in the last five decades in terms of protection of the natural environment have happened largely as a result of advocacy by the environmental movement. Any attempt to restrict ENGO activities and limit allowable activity only to ‘practical’ activity will be seen as being an attack on an institution that is deeply respected – and strongly supported - by a significant portion of the Australian community.

Yours faithfully

Jim Green Chairperson Committee of Management Friends of the Earth Australia

Friends of the Earth Australia submission. Inquiry to environmental organisations. 10 of 10