There are about 60,000 charities in Australia, serving the community in a variety of ways. Many engage in advocacy in support of their purposes and their constituencies. The law says that in order to be recognised as charities, organisations must further purposes for the public benefit. So does charity advocacy meet this public benefit expectation?
Charity advocacy is a form of political expression, and in a liberal democratic world view, political expression is a significant public good. One reason for this is the contribution that such expression makes to the individual freedom that is so highly prized within liberalism. It enables citizens to articulate and publicise their beliefs, preferences and values, testing them for plausibility and subjecting them to the scrutiny of others in public debate. This sort of critical engagement with one’s own beliefs, preferences and values is an important component of a self-determining life.
Moreover, political expression is a means by which ideas about politics take shape, and are revised, refined and debated. These ideas constitute pathways and options that free people can engage with in contributing to the political life of the community. In sum, then, political expression helps to generate a cultural environment in which people can live meaningfully autonomous lives as politically engaged citizens.
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Political expression also plays a critical role in the maintenance of democracy. Democratic government depends on much more than an electoral system translating voting preferences into representative government. It turns on government being responsive to citizens, not acting corruptly or with partiality, and refraining from manipulating the preferences of citizens.
Democracy also depends on citizens being able to disseminate, access and evaluate information about government, its policies and its laws, so as to hold government to account. And democracy is enhanced by a culture in which citizens are equally valued as members of the political community, and where government manifests this respect by not silencing, interfering with or even in most circumstances disapproving of citizens’ speech. These conditions depend in important ways on a robust culture of free political expression.
There are reasons, then, for thinking that political expression is of public benefit in light of liberal democratic values. These reasons do not delineate an argument that singles out charity advocacy as especially beneficial to the public, but there are further reasons for thinking that charities make a special contribution to the liberal democratic values we have been discussing.
Many advocacy charities seek to advocate on behalf of the communities that they serve, communities that are often marginalised and alienated in society. Think of the charities that advocate for the poor, the disabled, refugees or other groups that have suffered historic discrimination and exclusion. Democracy demands that government is responsive not only to the voices and needs of the powerful, but also to the voices and needs of these marginalised and alienated groups. To the extent that charity advocacy gives voice to the otherwise voiceless, and puts pressure on government to give due weight to the interests of the disadvantaged, it makes a particular and important contribution to the democratic project.
In 2010, in a landmark decision, the High Court of Australia ruled that charity advocacy could be of public benefit because it contributes to a political culture on which Australia’s constitutional system of representative and responsible government depends. The liberal democratic argument for the public benefit of charity advocacy helps to show why this ruling is appealing. The ruling brought liberal democratic values to life, via the Constitution, in the setting of charity law. To that extent, the ruling reflected a principled approach to the questions raised by charities and politics.
Nonetheless, it did not exhaust such an approach, for the simple reason that it offered little guidance on the question of where to find the limits of the public benefit of charity advocacy. That question is of real practical importance, because civil society organisations that engage in political expression do not always do so in desirable ways.
Perhaps the best example in recent memory is the role that associations such as the Proud Boys and the Oath Keepers played in the attack on the US Capitol on January 6, 2021. In light of what sorts of argument might we say that some political expression is of public benefit while other political expression entails harms to the public.
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The simple answer lies once again in liberal democratic values. Political expression that undermines democracy, or the institutions that sustain it, is not of public benefit once viewed in light of such values. Neither is political expression that is directed against liberal ideals such as the autonomy of the individual.
Viewed in this light, the January 6 insurrection was plainly harmful to the American public, as it entailed the expression of a political desire to overthrow the democratic system of government enshrined in the US constitution. Equally, from the standpoint of liberal democracy, an organisation advocating for the subordination of women in public life could not be doing something of public benefit, as it seeks to order society in ways that violate the autonomy of women.
Closer to home, two recent court decisions from New Zealand provide excellent illustrations of these point. In 2020, the Supreme Court of New Zealand ruled that Family First’s advocacy, which entailed agitating for the withdrawal of civil rights from non-traditional families in New Zealand, could not, to that extent, be for the public benefit. On the other hand, in 2023, the New Zealand Court of Appeal considered that the Better Public Media Trust, formed to advocate for the maintenance of a robust and independent public media sector, had a purpose that was clearly of public benefit in light of the demands of liberal democracy.
Note that the question of the public benefit of political advocacy that undermines liberal democracy is different from the question of whether the liberal democratic state should tolerate such advocacy. A liberal democratic state might prudently tolerate a range of acts of political expression that are at odds with liberal democracy, mindful that the state will not always discern correctly when political expression is justifiably silenced, and that the risk of error warrants a cautious approach. But toleration does not in any sense presuppose a judgment of public benefit. Indeed, understood correctly, toleration presupposes precisely the opposite, in that the state has formed the view that the political expression in question will not benefit the public but nonetheless chooses not to interfere with that expression on other grounds.
Thus, to return to the example of Family First, the New Zealand state, through its judiciary, has articulated the view that Family First’s advocacy is not beneficial to the New Zealand public. Accordingly, Family First cannot be recognised as a charity and it cannot access the legal privileges such as income tax exemption that attend that status. Nonetheless, Family First is completely free to continue with its advocacy in the absence of state endorsement and support — as indeed it is doing according to its website.
From a liberal democratic standpoint, how should political advocacy be assessed where it is intemperate in the sense of emotive, unreasoned, uninterested in evidence and even belligerent? Trends in political culture make this question especially important for us right now. Whatever our views on the current war in Gaza, we can hardly deny that political advocacy in respect of that war has played out in Australian society in highly intemperate ways, from university encampments to attacks on private property and the offices of members of parliament and academics, to disruptive protests at events.
The style of engagement seems especially pronounced in the case of this war, but it is not limited to that issue, as the activities of environmental protest groups such as Extinction Rebellion and Just Stop Oil attest. Recently, members of the latter group sprayed orange powder paint on Stonehenge to draw attention to its demand that the UK government outlaw extractive industries by 2030. The stunt was widely condemned, including by the druids and witches for whom Stonehenge has religious significance.
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Thinking through the public benefit question in respect of intemperate advocacy is not easy from a liberal democratic point of view. Within the liberal philosophical tradition, there is a line of thought that ascribes value to expression only to the extent that the expression facilitates a true understanding of the requirements of reason. This rigorous view suggests that at least some intemperate advocacy lacks value as it does not invite engagement with reason. On the other hand, the famous liberal notion of a “marketplace of ideas” suggests that the discernment of truth is best enabled by the widest range of expression consistent with public safety.
On this laissez-faire view, intemperate advocacy might well be of public benefit even though it is confronting, emotive, and uninterested in engaging with reason and evidence. Moreover, it might be argued that some intemperate advocacy contributes to democratic government by forcing government to notice and respond to the preferences and needs of otherwise marginalised citizens in important political matters. While social and economic elites can command the attention of government in back rooms, the marginalised might have no choice, if they are to be heard, but to engage in noisy and disruptive protest.
A further set of considerations relates to the conditions under which liberal democracy can work in circumstances of moral and political diversity. What must be true if citizens who believe and care deeply about different things are to successfully maintain a shared public life built on liberal and democratic foundations? This is one of the core questions of liberal political philosophy. One part of the answer to it takes an interest in the attitudes that citizens cultivate and express in their contributions to public life. If the shared project of liberal democracy is to be sustained, it will likely depend on a sufficient number of citizens having and expressing empathy, trust and respect for others with whom they disagree deeply about moral and political questions.
This brings us back to the question of the manner in which political advocacy is carried out. Advocacy that is thoughtful, grounded in reason and evidence, and that seeks dialogue and engagement with those who disagree, is more likely than intemperate advocacy to contribute to building empathy, trust and respect. This, then, is an argument for withholding a finding of public benefit from at least some intemperate advocacy, even where the ends advocated for might benefit the public and even though the state might tolerate that advocacy. And, by extension, it is an argument for recognising public benefit where advocacy is carried out in a way that promotes attitudes on which liberal democracy depends.
In his judgment in the Family First case, Justice Williams of the Supreme Court of New Zealand highlighted the importance of “honesty and respect” in helping citizens who disagree to “navigate … through difficult issues”. The significance of his thinking can be fully grasped once the importance of attitudes to the liberal democratic project are brought into view.
This is an edited extract from Charities & Politics: A Principled Approach, published as part of Monash University Publishing’s “In the National Interest” series.
