The Accountability Round Table (ART) welcomes the opportunity to make this submission to the Royal Commission on Antisemitism and Social Cohesion.
ART unequivocally condemns the antisemitic terrorist attack at Bondi Beach on 14 December 2025, in which 15 people were killed and 40 wounded, and condemns antisemitism. No person should face discrimination, hatred or violence because of their religion, ethnicity, culture, community or identity, and ART stands in solidarity with Jewish Australians and any others who suffer such discrimination, hatred or violence.”
This submission centres on where ART can make a constructive contribution. It is confined to a single question within the Commission’s terms of reference: in the event the Commission considers measures that would allow government new powers to sanction organisations deemed to have promoted, facilitated or endorsed antisemitism and how any new measures should be legislated so that they strengthen, rather than weaken, the foundations of social cohesion.
About the Accountability Round Table
ART is a non-partisan, civic organisation concerned with improving government accountability and democratic practice, and with strengthening integrity, transparency and ethical conduct in government. Its board includes senior legal practitioners, former judges, former parliamentarians and others with substantial experience of Australian and International integrity and accountability norms and institutions.
ART makes this submission both on principle and, candidly, as an organisation of the kind that measures of this nature could affect. ART engages in public-interest advocacy: it makes submissions to inquiries such as this one, and has advocated over many years for the strengthening of Commonwealth integrity institutions. It is, in that sense, an advocacy organisation. It is not a partisan one. That distinction is central to what follows.
Introduction
The Letters Patent recognise that strengthening the national consensus in support of democracy, freedom and the rule of law, that is, social cohesion, provides the strongest defence against antisemitism and other forms of religiously and ideologically motivated extremism.
The terms of reference direct the Commission to identify opportunities to enhance the responses of governments to antisemitism, including by strengthening social cohesion; to make recommendations to counteract and prevent manifestations of antisemitism; and to make any other recommendations that would contribute to strengthening social cohesion and countering the spread of extremism, including recommendations about policy, legislative, administrative or structural reform.
Proposals are in public circulation that would remove public funding to organisations deemed to have promoted, facilitated or endorsed antisemitism. In particular, the Plan to Combat Antisemitism recommends that arts institutions, universities and charities that promote, facilitate or endorse antisemitism have their public funding withdrawn and, in the case of charities, their charitable DGR status stripped, on the reasoning that taxpayer funding should not be used to “promote division or spread false or distorted narratives”. To the extent the Commission considers measures of this kind, ART respectfully submits that they engage directly the rule-of-law dimension of social cohesion that the Letters Patent identify, and should be assessed against it.
Advocacy is not illegal.
A distinction central to this submission, and to Australian law, is between lawful advocacy and unlawful conduct. Public-interest advocacy, generating debate in the public interest, is recognised in Australian law as legitimate, and may itself be a charitable purpose. By contrast, the promotion of, or opposition to, a political party or a candidate for political office is a disqualifying purpose for a charity, as is engaging in or promoting activity that is unlawful. The law already draws this line: issue-based advocacy is permitted and valued; unlawful or partisan activity is not.
The right balance is a sanction that carefully confines its application to where the content of the speech is in breach of an existing law, and that the sanction imposed is one proportionate to the seriousness of the breach. An organisation sponsoring unlawful or discriminatory speech may not be caught as offending the law, hence the discretion to sanction the facilitator in a proportionate way may be of interest to the Commission. Absent this form of sanction, a charity is free to engage whoever it likes without fear of any repercussion.
This distinction matters because the measures in contemplation would blur it. A power to withdraw funding or DGR status based on an organisation’s advocacy, or of the identity of the speakers it hosts, would treat lawful, non-partisan advocacy as though it were illegitimate. And the risk such a power presents runs in the opposite direction to the one its proponents assume. The danger is that a loosely legislated sanction, administered by government or an agency appointed by the executive, could enable the government of the day to act against its critics. Such a measure would not guard against unlawful speech or activity; it would cause advocacy organisations to self-censor, acting against social cohesion.
Recommendations
- The Commission should not recommend the withdrawal of DGR status or public funding from an organisation based on the identity or views of the speakers it hosts, or of broad allegations that it has “facilitated” or “failed to act on” antisemitism. The trigger for any sanction should be a breach of an existing law, not association.
- Where the Commission considers a sanction that would reach an organisation for speech it has platformed, that sanction should be confined to cases in which the organisation knowingly platformed speech whose content is established to be in breach of an existing law, should be proportionate to the seriousness of that breach, and should be administered by an independent statutory regulator through a transparent process. It should not extend to lawful speech, however objectionable.
- The Commission should recommend that any such sanction be modelled on the existing framework — the ACNC Act, the governance standards and the general law — which ties loss of status to unlawful conduct, requires the regulator to weigh statutory factors of proportionality, affords a process to respond before a decision, and is subject to independent review. New provisions should not rest on vaguely defined tests; the existing mechanisms should be adequately resourced; and the independence of the regulator should be secured, including by appointing its Commissioner through a transparent process with oversight independent of government.
- Consistent with the recognition in the Letters Patent that the rule of law is the foundation of social cohesion, the Commission should ensure that any measure it recommends to combat antisemitism is consistent with the implied freedom of political communication, preserves the distinction between non-partisan advocacy and partisan activity, and does not erode the open civic space on which a cohesive democracy depends.
ART’s position
ART does not contend that a sanction directed at unlawful conduct is illegitimate, indeed any organisation found to have broken the law in a court should receive a proportionate sanction consistent with the offence and its impact. Organisations that receive public funding or tax-deductible donation status carry real responsibilities, and the public is entitled to expect that those responsibilities are met. The question is not whether a sanction should exist, but how the circumstances in which funding or DGR status may be withdrawn are defined. Whether such a measure protects or erodes legitimate expression depends entirely on the terms in which its trigger is drawn.
Getting that design right is itself a matter of public interest. A measure that is well drawn would have a positive, protective effect, consistent with the purpose the Letters Patent identify, and would safeguard the benefit that charities deliver to the communities they serve. A measure that is vague, or keyed to association, would do the opposite: it would add pressure to the sector, deter lawful advocacy, and so reduce that benefit. A measure of that kind would not be in the public interest.
ART submits that any measure permitting the withdrawal of public funding or DGR status should satisfy three conditions:
- Grounded in a breach of an existing law — it should be triggered by a breach of an existing law: whether by the organisation’s own unlawful conduct, or by its knowingly platforming speech that itself breaches an existing law. It should not be triggered by the identity or views of a speaker, nor by open-textured allegations of “facilitating” or “failing to act on” antisemitism.
- Precise and proportionate — it should be confined to clearly defined breaches of the law and be proportionate to the seriousness of the breach, rather than resting on vague tests vulnerable to politicisation.
- Independently administered — it should be assessed and applied by an independent statutory regulator, through a process that is transparent and consistent with good democratic practice, and not exercised at the discretion of the executive. The independence of that regulator should extend to the appointment of its head: the Commissioner should be a federal court judge or a person of equivalent status and should be appointed through a transparent process, with oversight by a body independent of government.
A measure that is association-based, loosely defined and subject to executive control fails each of these conditions, and collapses the distinction between advocacy and wrongdoing on which a healthy civil society depends.
The existing framework.
Australian law already contains a sanction framework, Under section 35-10 of the Australian Charities and Not-for-profits Commission Act 2012 (Cth), the independent ACNC Commissioner may revoke a charity’s registration, and, its DGR status , where the Commissioner reasonably believes the charity has not complied with the governance standards. Governance Standard 3 ties this to the charity’s own serious unlawful conduct: a registered entity must not engage in conduct that may be dealt with as an indictable offence, or that breaches a law carrying a civil penalty of 60 penalty units or more. Before acting, the Commissioner must weigh statutory factors — the nature, significance and persistence of the contravention among them — and afford the charity an opportunity to respond, and the decision is subject to independent review. That framework is grounded in unlawful conduct, proportionate, and independently administered. Its strength depends, in turn, on the regulator’s own independence — including that the Commissioner is appointed through a transparent, merit-based process with oversight independent of government.
ART does not, however, contend that this framework as presently drafted addresses every case. The current legislation is directed at a charity’s own conduct. It does not clearly reach a charity that provides a platform to a speaker whose speech itself breaches an existing law — for example, speech amounting to incitement to violence, or to serious racial or religious vilification. In such a case the speaker may be liable, but the organisation that platformed the unlawful speech may not be sanctioned as a matter of its charity status.If the Commission wishes to address this gap, the principle that should govern it is the legality of the content, A sanction imposed on an organisation for knowingly platforming speech that breaches an existing law, and that is proportionate to the seriousness of that breach, is consistent with the conditions set out above and is a legitimate instrument. Any new provision should be tied to a breach of an existing law, and should preserve the existing line already drawn between legitimate advocacy and unlawful conduct.
Why sanctions would weaken social cohesion
A sanction that withdrew funding or DGR status on the basis of the identity of the speakers an organisation hosts, or of broad allegations of “facilitating” antisemitism, rather than on a breach of an existing law, would operate quite differently. By its nature it would reach lawful advocacy and political expression; it would be susceptible to application according to the preferences of the government of the day; and it may deter organisations and individuals from lawful participation in public debate.
A funding sanction that is controlled by the executive and directed at the very civil society that scrutinises and holds the government to account presents a structural conflict of interest. It would not strengthen the democratic, rule-of-law consensus that the Letters Patent rightlyidentifies as the strongest defence against antisemitism; it would weaken it. It would also reduce the public benefit that charities deliver: pressure of this kind diverts resources and deters lawful advocacy, and so reduces both the services and the voice that charities provide to the communities they serve. This would unfairly impact lawful advocacy,eroding social cohesion rather than building it.
Protection must lie in independence
These concerns have been put, in the Parliament, by the Minister now responsible for the charities regulator. The Hon Dr Andrew Leigh MP, Assistant Minister for Productivity, Competition, Charities and Treasury, and the Minister responsible for the Australian Charities and Not-for-profits Commission, to a similar proposal in 2021, then as Shadow Assistant Minister for Charities when the Senate disallowed regulations that would broaden the ACNC’s Governance Standard 3,with every Labor senator voting in favour. The measure would have allowed deregistration for low-level and some anticipated conduct. The now Assistant Minister for Productivity, Competition, Charities and Treasury, and the Minister responsible for the Australian Charities and Not-for-profits Commission¹ noted there was no problem to justify the change. Over three and a half years, “the charities commissioner has deregistered just two of the nation’s 59,000 charities for breaking the law in pursuit of activist goals.”
The principle the Minister affirmed then, that a sanction of this gravity must rest on an actual breach of the law and be proportionate to it, applies directly to a funding or DGR sanction directed to “promoting, facilitating or endorsing” antisemitism.
But a sanction power does not stay pointed to its original intent. Whatever is enacted now is available to whoever holds government, and a power of this kind can be redirected at advocacy its creators did not intend.
The protection must live in the design, not in the goodwill of a government. The fundamental element that is most important is independent administration: the sanction must be decided by a regulator appointed through an independent, merit-based panel process – not chosen by the minister of the day – with its decisions subject to procedural fairness and merits review. A confined or narrow trigger sets the terms of the power; an independently-appointed decision-maker governs how it is exercised, at every application. Legislation can be amended a, but a power held by an independent regulator cannot as easily be removed. The regulator in question, the ACNC, is today led by a Commissioner who is an executive appointment not through an independent merit-based panel. If any changes are to be legislated for the ACNC is to administer any sanction of this kind, that is the appointment that must be placed beyond the immediate reach of executive government.
Australian law already recognises that advocacy may be charitable — the Charities Act includes the purpose of advancing public debate, and the public benefit of advocacy lies in its contribution to public discussion. But uncertainty remains about whether the public-benefit test could be invoked to question an advocacy purpose by weighing its claimed benefits against asserted detriments, and that uncertainty itself can have a detrimental effect
Charities have themselves been advocating for legislative change: a sector-led proposal would give charities greater certainty to advocate, and free up resources for the work they do.
Conclusion
Measures to combat antisemitism and the protection of an open, democratic civil society are not in tension. A sanction that is tied to a breach of an existing law, proportionate to its seriousness, and independently and transparently administered, including where an organisation knowingly platforms speech that is itself unlawful, is a legitimate instrument, and ART does not oppose it. A sanction tied to the identity or views of speakers, to lawful expression, or to vague allegations of “facilitation”, and controlled by executive government, is not: it would erase the line between lawful advocacy and unlawful conduct that Australian law already draws, and weaken the rule-of-law foundation of social cohesion rather than strengthen it. The Commission has the opportunity to strengthen social cohesion positively.
ART makes these submissions conscious that the Commission’s function is to inquire and, to recommend measures that would allow government new powers to sanction organisations deemed to have promoted, facilitated or endorsed antisemitism and how any new measures should be legislated The Government has already adopted the Plan, So the recommendations the Commission makes to the Government on the design of any measure will carry real consequences for the thousands of organisations holding DGR status. ART therefore respectfully urges the Commission to recommend to the Government that any measure of this kind be confined to a breach of an existing law, be proportionate, and be independently and transparently administered by a regulator appointed in a transparent way with independent panel oversight, and that lawful advocacy be protected. ART would welcome the opportunity to assist the Commission further.