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Standing Committee on Environment - 17/11/2015 - Register of Environmental Organisations

BRYANT, Mr Gareth, Committee of Management Representative, AID/WATCH


CHAIR: We will resume our hearing. Thank you. Welcome. We are not going to ask you to take an oath, but you should be aware this is a formal proceeding of parliament and will be treated as such. We have your written submission; however, if you wish to make an opening statement, you are welcome to do so.

Mr Bryant : Thanks. I will make a short opening statement. I acknowledge that we are meeting today on Gadigal land and I pay my respects to their elders past and present. Thank you very much for the opportunity to address you.

As I mentioned, I am representing AID/WATCH. We are an organisation with a purpose, as set out in our constitution, to ensure that aid projects and development programs and projects are designed to protect the environment and associated human rights of local communities in countries that receive Australian aid.

Our organisation is a charity that holds DGR status under the Register of Environmental Organisations. That is a status that the High Court ruled in 2010 was unconstitutionally stripped from us by the Australian Taxation Office in 2006. That decision had pretty far-reaching and positive consequences for the charitable sector in Australia, because it held that generating public debate is beneficial for the public community and therefore charities can have a dominant political purpose. As such, although we are a relatively small organisation, AID/WATCH has played a pretty central role in many of the issues that are concerning this inquiry.

It is as a result of these experiences that AID/WATCH was somewhat surprised by aspects of this inquiry's terms of reference that seem to be overly concerned with questions of how environmental organisations pursue the objective of protecting the environment. This manifests in an implicit distinction between political campaigning activities and practical work to restore the environment.

What AID/WATCH does, in the first instance, is work with the Australian community and communities overseas to protect the environment from aid and trade policies that threaten the environment. For example, we have campaigned against aid programs that support the expansion of unsustainable mining in Africa or programs that privatise land in Melanesia which can pave the way for unsustainable practices like palm oil plantations. Protecting the environment from these threats, we argue, is a precondition for communities to be able to have the space to determine ecologically sustainable development pathways that do practically improve the environments.

Whatever the committee's views on this approach are, what the High Court has done is rule that engaging in public agitation for legislated and political changes is protected as part of the implied freedom of political communication in the Australian Constitution. As a result, organisations cannot be excluded or otherwise discriminated against in relation to their charitable status on the basis of how they seek to achieve the objective of protecting the environment.

From AID/WATCH's perspective the more pertinent issue—and this relates to the first point on the terms of reference for this inquiry—is how the definition of 'an environmental organisation' can be updated to reflect the High Court's constitutional ruling in 2010. AID/WATCH's primary recommendation is therefore to incorporate some of the terminology from the Charities Act 2013 to include:

promoting or opposing a change to any matter—

as it relates to the environment, that is

established by law, policy or practice in the Commonwealth, a State, a Territory or another country.

and make that one of the principle purposes of the environmental organisation definition in the Income Tax Assessment Act. That is our primary recommendation that we are putting forward in this inquiry. That is it for my statement.

Mr GILES: Thank you, Mr Bryant, for your submission and your evidence today. I guess we should thank your organisation for initiating this inquiry, perhaps.

Mr Bryant : We definitely played a part.

Mr GILES: Firstly, in suggesting the amendment that you have proposed to the principal purpose test, do you really see that as a substantive change or is it really an avoidance of doubt provision?

Mr Bryant : Under the existing rules, AID/WATCH was found to be completely within those rules, as they currently stand, as a result of that constitutional implied protection of political communication. The way we see it is that, as things are, it is okay, but this is about updating the Register of Environmental Organisations to be consistent with some of the work that was done with the Charities Act and that constitutional ruling from the High Court—to make that explicit. I think that there is a case beyond the remit of this inquiry to do that for a number of the other registers as well.

Mr GILES: So you really see this as a matter of conformity and clarity rather than an expansion of the substantive operation.

Mr Bryant : That is right.

Mr GILES: The other matter I was keen to hear from you on is your sense, to the extent that it might be constitutional and permissible to do so, of how the introduction of an expenditure limitation, such as the Canadian system, would impact on environmental advocacy in Australia and perhaps with society more generally?

Mr Bryant : I am not familiar with the particular clause you are talking about. Is that an expenditure limitation for individuals?

Mr GILES: No, it is for organisations. Your submission touches upon the relatively recent Canadian provision, which I think is to the effect that environmental organisations are only permitted to spend 10 per cent of their funds, or perhaps it is 10 per cent of their funds derived from tax-deductable donations, on advocacy or political campaigning. It is a matter that is briefly touched upon in your submission and I was just wondering whether you had any wider reflections on—

Mr Bryant : That is an unnecessary restriction. It is quite difficult to draw the line between those kinds of political activities and not. In a lot of ways an organisation like AID/WATCH is responding to the broader context. If environments and communities in developing countries are threatened by Australian aid and trade policies then we need to respond to that. So in many ways we are responding to the threats as they are, and that kind of arbitrary distinction between how we are supposed to use our resources in different ways does not align with that. Does that make sense?

Mr GILES: It does. Thank you, Mr Bryant.

Ms MARINO: Since the changes, has the department had any contact with AID/WATCH?

Mr Bryant : Which department?

Ms MARINO: The Department of the Environment.

Mr Bryant : We have been involved in broader public discussions, especially immediately after the ruling in 2010. Through 2011, there were a series of public meetings and that sort of thing. We have made representations on some of the work to update the Charities Act with organisations like Pro Bono Australia and those sorts of groups. I am not aware of particular direct contact between us and the environment department.

Ms MARINO: Have there been any changes that you have noted to the act since that time?

Mr Bryant : Which act are you referring to?

Ms MARINO: In relation to managing the DGR status, have you seen any changes to that at all?

Mr Bryant : I am not aware of any changes.

Ms MARINO: With the groups you are involved with here and overseas, are any of those engaged in any form of illegal activity?

Mr Bryant : No.

Ms MARINO: Do you think that has implications in relation to DGR status?

Mr Bryant : It is not relevant to AID/WATCH's activities. I am here to represent AID/WATCH.

Ms MARINO: Thank you.

Ms CLAYDON: I was wondering, looking at your first recommendation with the addition to try and update the definition of environmental organisation, are you a member of any other registers—for example, the register of overseas aid funds? Do you have to be on that as well?

Mr Bryant : No, we are not part of that. That is one of the things I am referring to—and other things probably also need to be looked at—because that has a more restrictive definition of what you need to actually be—

Ms CLAYDON: That was going to be my question, but it may be unfair if you are not already having to deal with those other funds. Given your experience of having had your DGR status stripped and then having to fight that over a number of years in order to have it restored, would it be your view for the, at least. four registers in the ATO system in addition to the Australian Charities and Not-for-profits Commission that most of these definitions would probably need redefining to take account of the High Court decision in making explicit the range of activities that are allowable.

Mr Bryant : I think it would be useful to get considered legal opinion on those sorts of things, but what the High Court did was say that agitation towards political and legislative changes was protected as part of that implied freedom of political communication. At the moment, that does not appear to me to be consistent with a lot of the requirements for DGR status in those other areas of charitable status. In those areas, like the welfare sector or the overseas development sector, there would be at least reason to review those rules, but with that legal opinion to interpret that court decision.

Ms CLAYDON: Given your experience of an ATO decision-making process and then having that overturned, in your view, who is best placed to look at compliance issues? You asked a question earlier on about whether ATO is the best placed organisation to be dealing with compliance matters. I would be interested, given your experience in dealing with ATO, or your organisation's experience over a long period of time, in whether you think it is best placed or whether we might be warranted in looking more closely at an model bringing all those registers under a charitable not-for-profit commission scheme.

Mr Bryant : That is something worth looking at. Our experience was that the original decision made by the ATO to strip AID/WATCH of its tax-deductibility status was done in relatively close connection with the then Howard government. This was something that the tax commissioner revealed in Senate estimates at the time—that one of the coalition senators brought on the complaint and that AID/WATCH was the only organisation targeted at the time. That does raise issues around who is best to oversee these matters. When you now have this protection that actual political and policy agitation is a legitimate activity of charitable organisations, and a lot of the time their target is government policy, then you need to think about how to manage that. In the ATO example with us, that did not appear to operate particularly effectively, so it would be worth looking at, for sure.

Ms CLAYDON: Thank you.

Mr VARVARIS: In your submission, you describe your work examining land reform policy in Melanesian countries. What proportion of your work is carried out overseas, and what relationships, financial or otherwise, does your organisation have with overseas organisations?

Mr Bryant : We work with communities overseas, and we see our role very much as amplifying those voices in countries and in communities that are recipients of Australian aid programs. In the case of the Melanesian example, we are part of an alliance called MILDA—I cannot remember the exact acronym, but it is the Melanesian defence of land organisation, essentially—and so we have connections with people in PNG, Vanuatu and elsewhere. We very much see our role as working with those communities and amplifying their voices in Australia, because Australia is a big donor to the Pacific, and so what happens here politically has a big impact on the lives of people in Melanesia.

Mr VARVARIS: One final question: in your view, does operating overseas introduce any additional risks of funds being diverted or misused?

Mr Bryant : No, not at all. One of the things that came out of the High Court decision was that that kind of protection of activities, including extraterritorial activities—not extraterrestrial, although that would be an interesting case as well, I suppose!—beyond the Australian borders is legitimate, and necessarily so, given that the environment does not respect national borders, and what happens in the environment all around the world affects us all. So that is an important thing to do and not something that causes any concern from our perspective.

CHAIR: Mr Bryant, thank you for appearing before us today and for your time and your submission. You will receive a copy of Hansard. If you have an issue with it, you may contact the secretariat.

Mr Bryant : No worries. Thank you very much.

CHAIR: Thank you.

Proceedings suspended from 12:20 to 13:15