Protecting Public Participation

Protecting the Environment through Protecting Public Participation

The oceans, forests, woodlands and arid areas, and the non-human species which inhabit them, can not speak for themselves. They need us to give voice to the need to protect our unique natural heritage. In turn, this requires people to be able to freely engage in public debate and protest to advocate policies which will protect the environment. And it requires organisations like The Wilderness Society to be a powerful voice for conservation. In short, environmental protection requires a civil society which supports environmental activity, and which fully supports public participation in the political debate and decision making processes.

The Wilderness Society, along with other environmental community organisations have identified four major impediments to our work and to full and free public participation:

• The complexity of the regulations in relation to community organisations
• Politicized government funding of community organisations
• Tax status of community organisations
• SLAPP suits (Strategic Lawsuits Against Public Participation which have the effect of chilling public debate). 

The Wilderness Society does not receive any direct government funding, but taken together these things represent a significant agenda for the environment movement and a vital strengthening of the whole community sector and civil society.

Complex Regulatory Regime – Electoral Disclosure Laws

There are a range of complex regulations which govern the activities of community organisations in relation to fundraising, taxation and environmental activity. Perhaps the silliest of these are the laws requiring authorisation of “political” material and the disclosure of “election” funding. While The Wilderness Society fully supports transparency and accountability in the community sector, and in electoral funding and advertising in particular, the way the electoral laws are currently written are unclear, onerous and anything but transparent. The definitions of “political” and “electoral” material is so wide that it covers a host of very obviously non-political material and the provisions relating to disclosure of ‘electoral’ expenditure require crystal ball gazing to decide what might be an election issue in any one of the 150 electorates or among the multitude of Senate candidates in an election up to 3 years away. A fuller explanation of the problems with these laws for community organisations is available here.

Tax Status of ENGOs

Over the past number of years, there has been a campaign run by vested interests attacking the tax charity status and tax deductible gift recipient (DGR) status of The Wilderness Society and other environment organisations. The Australian Tax Office conducted a number of audits into the activities of The Wilderness Society and confirmed the entitlements to tax charity status. More broadly, the ATO published for the first time provided some clear guidelines for community organisations engaging in public debate (TR2005/21). While this is welcome, the tax ruling still does not fully take into account the community benefits of environmental and other social advocacy and more than the guidelines are needed.

Ultimately, if organisations are entitled to charitable status when they act for the public benefit, there is an argument that ‘political’ organisations (including political parties) should be entitled to tax concessions because robust public debate and the free exchange of ideas is a fundamental part of the democracy from which the public derives benefit. Such an argument goes beyond the current tax law, but at a minimum The Wilderness Society would like to legislative change to give certainty and protection to legitimate environment organisations advocating policy agendas in line with their core charitable/environmental purpose. Features of such legislative change might include:

• The principles of TR 05/021 to be incorporated into legislation;
• The list of tax charities and Deductible Gift Recipient organisations to be incorporated into regulations under the appropriate Act; and
• A clear and mandatory process for dealing with breaches of the rules and a removal of the Ministerial discretion to remove DGR status.

SLAPP suits and anti-SLAPP legislation

In recent years there has been a growing trend of community activists being sued for engaging in public debate or political protest. This is particularly worrying because of the chilling effect this has on public debate. These impacts and the need for legislation to protect the community’s right to participate in debate and protest free of the threat of litigation are fully outlined in The Wilderness Society’s publication, Gunning for Change – which itself arose out of Australia’s biggest civil litigation against public participation, the Gunns 20 case.

However, the Gunns 20 case is not the only such case and the list of Australian SLAPP suits (ie. Strategic Litigation Against Public Participation) on the “Sourcewatch” website has over 50 such cases. (see http://www.sourcewatch.org/index.php?title=SLAPP's_in_Australia).

Since the Gunns case began there have been some important developments. The ACT Legislative Assembly’s Standing Committee on Legal Affairs has considered the need for law reform and various different model laws and recommended that such legislation be introduced. The report can be found at: http://www.parliament.act.gov.au/committees/index1.asp?committee=66&inquiry=199&category=19

We still await action on that report in the ACT. Other bills introduced into Tasmanian and South Australian parliaments have not been taken up by those state governments. This is disappointing and can only lead to ongoing stress for defendants whose only wrong was to stand up for our environment. It also means that a continuing waste of taxpayers’ money as these lawsuits take up valuable court time.

However, given that some of the cases identified in the Australian SLAPP list are Federal Court cases, and given that the Australian government is a signatory to various conventions to protect human rights, the federal government could also introduce laws to protect public participation from SLAPP suits. The Wilderness Society is now calling on the federal government to enact such laws.