Submission to the Inquiry into the Register of Environmental Organisations

The Minerals Council of Australia (MCA) welcomes the opportunity to make a submission to the House of Representatives Standing Committee on the Environment Inquiry into the Register of Environmental Organisations.  Registered environmental organisations enjoy the same tax privileges as public hospitals, school building funds, and benevolent institutions that relieve poverty and distress.  These privileges are contingent on satisfying reasonable regulatory requirements that help maintain public confidence in the not-for-profit sector.  It is entirely appropriate that the Commonwealth Parliament review the administration and transparency of the Register.

This inquiry is also timely because there appears to be evidence that some registered environmental organisations may not be using tax-deductible donations for their identified purpose, which is to fund practical actions to conserve and enhance the natural environment.

In particular, evidence suggests that some registered environmental organisations could be using tax-deductible donations to fund activities that have only a tangential relation (if any) to natural conservation.  Their purpose is not to undertake practical action to improve the environment, or education or research that advances this aim.  Rather, these organisations appear to be pursuing an ideological agenda.  Some of these organisations are listed in the ‘Stopping the Australian coal export boom’ manifesto, which set forth a strategy for disrupting and delaying key coal projects.

In pursuing anti-development goals, some registered environmental organisations appear to be encouraging supporters to engage in illegal behaviour.  These contraventions frequently involve serious and unnecessary risks to the safety of employees and volunteers in these organisations, as well as to other members of the community.  Documented offences include trespass, obstruction, wilful damage to property, engaging in unregulated high-risk activity, resisting and hindering police, intimidation and piracy (illegally boarding a vessel for private ends).

Beyond the immediate risks to individuals, unlawful activities against law-abiding companies have significant economic and social costs.  For example:

  • A blockade of Hay Point Coal Terminal near Mackay by Greenpeace Australia Pacific cost BHP Billiton Mitsubishi Alliance approximately $13 million and Queensland taxpayers approximately $1 million in royalties
  • Lock the Gate Alliance boasted that its blockade of gas exploration in Glenugie ‘took a force of about 80 police nine hours to clear the blockaders and eighteen people were arrested’.
  • A blockade of a proposed liquid natural gas project north of Broome led by the Wilderness Society necessitated a major police operation, which cost Western Australian taxpayers $1 million.

The problem is not simply the subsidisation of illegal and hazardous protests.  There remains uncertainty over how donations to these organisations are being used.  Questionable use of tax deductable donations to registered environmental organisations includes:

  • paying for court fines that are incurred as part of protest activity
  • paying for overseas trips to observe international protest activity and strategy
  • establishing and promoting activities that return a profit to these organisations.

Further, there is some regulatory uncertainty over how these organisations can legitimately allocate these donations to other groups that undertake activities.

Registered environmental organisations that breach the legislation should not be able to keep their deductable gift recipient status.  Like other not-for-profit bodies, they should observe both criminal and company law.  Further, some registered environmental organisations are also registered charities, and are therefore expressly prohibited or engaging in activities that are unlawful or contrary to public safety, or which involve promoting or opposing a political party or candidate.

The MCA considers that more rigorous monitoring and enforcement of existing rules would go a long way to strengthening the integrity of the Register of Environmental Organisations.  This could include:

  • Immediately deregistering any entity that has a track record of committing or promoting unlawful activities
  • Transferring responsibility for administering the Register from the Department of Environment to the Australian Taxation Office (ATO)
  • Leave to ATO discretion to conduct thorough audits where there is prima facie evidence that tax-deductible donations have been used for purposes other than environmental conservation, education and research
  • Leave to ATO discretion as to whether to audit:
    • those entities that have falsely claimed deductible gift recipient status for their affiliates
    • those entities that are not listed on the Register yet have claimed deductible gift recipient status by referencing an affiliate who is
  • Requiring registered environmental organisations to submit a written self-review of their purpose and activities to the ATO on an annual basis, to demonstrate their continued eligibility (the ATO currently advises all deductible gift recipients to conduct and document a self-review every year).
  • Leave to ATO discretion the option of randomly auditing 5 per cent of all registered organisations per annum.

In addition, the Committee may wish to consider the following:

  • Whether there is a need to increase transparency requirements for the funding of registered environmental organisations, especially where there are foreign sources of revenue
  • Whether there needs to be stricter enforcement of work health and safety laws for registered environmental organisations, where they have both paid employees and volunteers
  • The implications of 2014 decision of the New Zealand Supreme Court on the charitable status of Greenpeace, which confirmed that unlawful activities preclude charitable status, and that the public benefit of a charity’s purpose must be proven where it is abstract or not self-evident
  • Whether there is any merit in adapting the Canadian rule for charities to registered environmental organisations in Australia, whereby entities can spend no more than 10 per cent of their resources on political advocacy that is partisan or not directly related to their charitable purpose.

Some opponents of this inquiry argue that more focused regulation of the Register of Environmental Organisations would stifle freedom of speech.  This is incorrect.  None of the existing regulations under the Register (or any of the proposals submitted here) restrict the free speech or political activity of individuals.  These regulations apply to entities, not to individuals.  And limitations are only placed on entities that seek access to tax concessions through the Register.  In other words, the regulatory framework that accompanies the Register is entirely voluntary.  The same points were made by the previous Labor Government, when it explained that restrictions placed on the political expression of registered charities (clarified under the Charities Act 2013) do not breach human rights.[1]

In short, the right to free speech should not be conflated with an entitlement to taxpayer-funded political activity.  Any assertions to the contrary should be dismissed as special pleading.

[1] Commonwealth of Australia, Explanatory memorandum to the Charities Bill 2013, p 49.

Download complete article