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Tuesday, 30 October 2012
Page: 8377


Senator SIEWERT (Western AustraliaAustralian Greens Whip) (12:31): In continuation, at the time we adjourned last night I was talking about the importance of the NGO sector and the fact that we need legislation to protect the independence of the not-for-profit sector, both for the right of an organisation to exist and to ensure that government does not use its position, often of sole-funder status, to stop not-for-profit advocacy. If you remember—I am sure everybody does—I was talking about the important role of NGOs in advocacy and their leadership in policy development.

Government is often the sole provider of funds for many of the social, cultural and environmental services that not-for-profits provide. Government, therefore, is clearly in a powerful position compared to the not-for-profit sector and service providers when they are negotiating. The threat of loss of DGR status or a grant is a very powerful one because it means that not-for-profit organisations are unable to carry out their functions effectively and to the full extent possible. Given that not-for-profits and charities are dependent on these funds for their survival, it is very important that we ensure that there is guaranteed independence for these organisations.

It is fair to say that, in the past, governments have taken advantage of this power to try to silence the not-for-profit sector into silent dissent. We saw in the past, during the Howard era, gag clauses imposed on not-for-profit organisations. The present government, to its credit, removed most of those onerous aspects of such clauses. However, we are seeing a return to this approach with gag clauses. During the Senate committee's inquiry we heard about gag clauses being imposed on the not-for-profit sector by the Queensland government. In other words, they are going back to the bad old days when they expect not-for-profit organisations to sit there, be quiet, provide services but not advocate for their clients, both individually and-or for systemic change.

Even with government grants, it can be rather oblique when governments say to organisations, 'You need to run your media comments past us before you release them.' Again, that limits the independence of not-for-profits. We need to ensure, therefore, that the independence of the not-for-profit organisations is protected.

For all these reasons, it is absolutely critical that the individual components of this bill reflect the commitment to an independent vibrant sector. We felt it was very important that this was outlined in the objectives of this particular legislation. However, although it was included in the objectives, there were some components of the bill that did not properly support this outcome without amendments. That is why we are particularly pleased that the government has amended this bill to include the process of articulating upfront that governance standards cannot impinge on the independence nor the advocacy role of not-for-profit organisations. We are also pleased that the government has announced the process of bringing in a separate piece of legislation that means gag clauses cannot be imposed.

This bill allows for governance standards to be established by regulation. I recognise that this has come about because of the difficulties and the time frame both the sector and the government encountered in attempting to draft these standards. This is particularly because we have such a diverse range of strong and vibrant charities and not-for-profit organisations in this country that do totally different things. It is very hard to come up with a set of governance standards that covers all of them, therefore more time was needed.

Given that the governance standards trigger very significant powers for the commissioner and can lead to a charity having its registration revoked, we simply cannot leave these standards to the manner by which the government proposed the regulations would operate. We need to increase the safeguards to ensure that they have better certainty in place and cannot be easily revised to the detriment of the sector in the future. These issues were raised in the committee's inquiry and I am pleased that the government will move amendments that deal with them.

The Australian Greens recommended that the governance standards should be only a minimum standard of contact and be principle based, specifying the outcome to be achieved rather than detailing an entity would meet the standards. We also recommended clarifying and limiting some of the currently unfettered powers of enforcement that had been provided to the commissioner—such as the 'more likely than not' clause which gives the commissioner the power to act pre-emptively to prevent a breach of the standards.

Similarly, section 15-10 of the ACNC bill outlines matters that the commissioner must have regard to when exercising powers and functions, which includes the maintenance, protection and enhancement of public trust and confidence in the not-for-profit sector. We were concerned that, as they stood, these provisions gave the commissioner too much power to take pre-emptive enforcement action when an organisation had not as yet breached the conduct standards and could be used to look beyond specific breaches of legal liability and responsibility towards subjective judgements about how the not-for-profit sector should operate.

All of these recommendations reflect the comments that were provided by the charities and not-for-profit sector, who submitted evidence to the committee process. The amendments that have been circulated have finally resolved the biggest problems associated with these bills—that is, the governance standards. I hope that with these amendments we will get a more satisfactory process around the commission. Many organisations participated in this process looking at this legislation and I thank them very much, because the not-for-profit sector are often so busy delivering their vital community services that they have little time to participate in these sorts of overarching discussions.

Currently, the not-for-profits have to report across a number of government departments as well as state and territory regulations, depending on the size of the organisation. Issues around red tape are absolutely critical for the sector and they came up extensively during the committee process. As it stood, we thought the process did not articulate enough how the government intended to deal with issues around red tape. This matter came up repeatedly and there was much criticism that this bill could drive more red tape. That is why the government has also circulated some amendments to deal with issues of red tape. One of these is that the commissioner will be required to report to parliament specifically against red tape reduction. Also, the charity passport will be developed, and I think that will also assist.

It is very important that we have the commissioner driving the process of red tape reduction. If the commissioner does not have that specific mandate, I am concerned that red tape reduction will fall off the agenda and that there will be no-one driving specific government departments to work across and within government departments. I think we have made some significant progress there. This brings me to the point about the commission and the commission's role in consultation on governance standards. That is another particularly important amendment that has been circulated: that the commissioner will be involved intimately in the consultation process to set up the governance standards.

In conclusion, these amendments that have been circulated by the government include some extensive amendments, but they also reflect the outcomes of the committee consultation process. The Greens will be supporting these bills, although in the Committee of the Whole I will be asking the government some particular points around mechanisms and the way the legislation will operate. We will be supporting this legislation with these amendments.