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Tuesday, 30 October 2012
Page: 8468


Senator PAYNE (New South Wales) (18:22): I seek this evening to reiterate the coalition's opposition to the government's proposed new regulator for charities and the not-for-profit sector. The Australian Charities and Not-for-profits Commission Bill 2012 and the Australian Charities and Not-for-profits Commission (Consequential and Transition) Bill 2012 is not actually legislation for which I had envisaged I would be participating in the debate. But, over recent times and at a number of community events, concerns have been raised with me by representatives of organisations which will find themselves swallowed by the behemoth of the ACNC when it is created. Their concerns are legitimate. Their concerns go to the sorts of issues both Senator Back and Senator Boyce—whom I have had the opportunity to hear here this afternoon—have raised within the chamber.

It is not often that you are at a community event on one issue and then find yourself approached on a diametrically different piece of legislation—such are the concerns that are apparent at the community level. Mostly I find—and I am sure this is the case for other senators too—that an event occurs and you pass through. But this particular piece of legislation—at the grassroots, with the small organisations to which Senator Boyce referred—has raised so many concerns that you see coalition senators, in particular, here today raising those concerns and raising the sorts of issues that these organisations are exemplifying regarding how the day-to-day operations of their organisations will be made much more difficult by this legislation.

They are concerned that this legislation will not reduce red tape—a concern also shared by the coalition. It seems to me, on a reading of the legislation and of the material associated with the legislation, that the community sector is almost looked at as untrustworthy—like there is some massive ill to cure but there is no evidence of what that massive ill is actually supposed to be. The implication that one reads in the material is that there is some taint attached to the people involved. In my experience—and I think overwhelmingly in the experience of the Australian people in communities from one end of this nation to the other with the sorts of volunteers to which Senator Back referred—that is not the case.

We as a parliament should not be seeking to enact legislation that hinders the activities of charities and not-for-profits across the sector; we should in fact be seeking to facilitate their more effective operation. We should be seeking to cure an ill if it is there but not with a sledgehammer. You do not need a sledgehammer to crack a walnut. We do not want to be in a position, I would not have thought, to discourage the involvement of people in civil society. But from the concerns many organisations have raised in making submissions to inquiries within this area, it seems to me that that is exactly the result we are going to have.

The sector has been very vocal in opposing the government's creation of this big new regulator, and there are a couple of comments to which I would like to refer because they do in fact come from participants in areas of my portfolio responsibilities. For example, the Housing Industry Association, which made a substantial submission, said that they consider that the 'regulation of charities should be on a completely separate basis from the regulation of other NFPs. They go on to say:

HIA also considers that NFPs which are companies should continue to be regulated by ASIC.

Treating all NFPs in the same way as charities is inappropriate, as most NFPs are of a fundamentally different nature to charities. While both charities and NFPs are expected to act in the public interest, or in the interest of a section of the public, charities go further and receive and spend public donations, while NFPs do not.

Mission Australia, also a significant participant in my portfolio, says the bill 'is not sufficiently well balanced by a commitment to enable the not-for-profit sector to reduce duplication of reporting and to provide public confidence in the sector' and that 'it may be very hard for smaller organisations to understand the implications and respond in the time frames outlined in the draft legislation.' They go on to say:

A genuine process of broad consultation and proper use of the advisory mechanisms will yield good results that will meet the needs of the sector and the broader Australian community. Mission Australia would have concerns if the Government failed to properly commit to and resource this consultation process.

So if you do not want to listen to the people over here—and I understand the process of politics; it is kind of a mutual process in that regard—then listen to the people who are actually running the sorts of organisations that are going to be covered by this great big new regulator.

What the government ought to be doing is getting out of the way of civil society and allowing them to operate appropriately and competently and to help each other—not creating a roadblock for civil society. A number of eminent Australians and people who are known as philanthropists—or big V volunteers is perhaps another way to put it—are also concerned at the capacity this legislation has to discourage people from being prepared to volunteer. I refer in particular to Mr David Gonski, who is a life fellow of the Australian Institute of Company Directors and, amongst other things, is well known to all of us for his extraordinary work in the not-for-profit and charitable sector and even assisting governments with things like the recently produced Gonski report. Mr Gonski said:

I am very concerned that what is put in some parts of the bill in fact will not support nor sustain a robust, vibrant and independent sector.

He went on to say:

It concerns me massively that we might be the first country in the world to make being on a not-for-profit as a director more onerous than being on a for-profit.

These organisations rely on people with business experience, with legal experience, with financial experience, who are professionals in their own communities to give their time, so often pro bono, to make those sorts of contributions—and those are the sorts of concerns of which I think we should take note.

Let us come to the matter of COAG and the states and territories. Generally speaking—and Senator Back has also referred to this in his remarks this afternoon—the states have not exactly shown a great new enthusiasm for the creation of a new regulator. They have not agreed to hand over powers in any large respect with regard to incorporated associations or fundraising, so that does put in a new regulator as another layer of red tape. The contributions of a number of organisations on this issue are also apposite. As the Chairman of Mission Australia, Ewen Crouch, has indicated:

… without State support and further progress through COAG, a less than optimal national regime would result with ongoing duplication and inconsistencies in regulatory treatment across jurisdictions.

If people do not want to hear from people from that area, what about an organisation like Micah Projects, an organisation which does some very important work across a number of areas but, in my own portfolio area, in homelessness to home support services and in the support of housing services. They are very concerned that, when the ANC begins regulation, there is a risk of an additional reporting burden for registered charities as states and territories are yet to commit to harmonisation. This will be particularly problematic for small and medium-sized organisations who direct a large proportion of their revenue to fulfilling the organisation's mission as opposed to funding administration. Micah Projects is further concerned that the proposed three-tiered reporting system will expose large inequities in capacity to meet reporting requirements in the third tier, the annual revenue of $1 million or more.

What we see is extremely influential, extremely prominent and, on the other hand, small but nevertheless important operations in this sector who are raising concerns about the detail of the government's legislation. I was very concerned to hear from a member of the committee, Senator Boyce, this afternoon, that, in response to her questions in relation to consultation across the sector—not just in relation to smaller participants—the committee was unable to be provided with evidence of that consultation. This is the fabric that binds Australia's voluntary sector together: the small organisations, the gems that we all have in our community that sit there and do their work quietly, unassumingly, without need for credit and without any need for this sort of onerous regulation. What we should be doing is trusting the voluntary sector. This approach from the Labor government threatens the cornerstone assumption of that trust. It creates legislation that assumes that there is a very big ill that needs to be cured. Quite simply, they have not provided the evidence of that. We as the coalition support a smaller commission that focuses on innovation, on education and on advocacy that is responsive to the sector. Our approach is to actually cut red tape—such as our proposal in the family services area, where contracting reforms will make it much easier for agencies in civil society.

There are so many aspects of this legislation which are of concern, but the reality is that on the street, day to day, in the organisations that matter in this country, the concerns are real and they are ongoing. It is incumbent on the government to acknowledge those concerns and to review their legislation in a way that meets those concerns and does not establish the massive burden that this legislation will place on organisations such as those to which I have referred from the community.