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 (c) the expectations that the community holds in relation to expenditure by environmental organisations. 1 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 2 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; (c) have no permanent allies or adversaries in exposing threats to the environment and finding solutions; (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 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