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Thursday, 27 June 2013
Page: 4362


Senator SIEWERT (Western AustraliaAustralian Greens Whip) (19:13): I, too, rise to speak on the Charities Bill 2013 and the Charities (Consequential Amendments and Transitional Provisions) Bill 2013, and indicate that the Australian Greens will be supporting these bills.

I have spent a lot of time working on this legislation and working on the suite of reforms for the charities and not-for-profit sector that have been achieved over the last period of time, particularly over the last 12 months. I believe that this is a key part of that legislation. It helps to cement in place the support, protection and—with the ACNC legislation passing—the regulation of this sector.

These reforms are absolutely essential for the vibrant, diverse and, I must say above all, independent, fearless civil society. These protections, these bills and this reform are essential to ensure that we have that fearless civil society. We know that in Australia we have a very vibrant civil society. We have a vibrant set of charity and not-for-profit organisations and we know that they strive tirelessly—often the face of significant self-interests—to serve, defend and promote the broader needs of our community.

The tax concessions that some of these organisations receive allow them to carry out this work, delivering important services to the community and often filling in the gaps where the government has failed to act or is in fact incapable of acting. They provide services such as emergency relief services, which are being called upon more and more in this country. They provide services to the homeless as well as other forms of community services. They provide environmental support services. They also provide services protecting, managing and restoring our natural resources. They are active across the full range of our society.

The representations that these organisations make on behalf of the marginalised and vulnerable members of our community are absolutely critical. Their contributions to the public policy debate are absolutely crucial. In fact, civil society not-for-profit organisations and charities are broadly leading public debate. This place follows their lead. We have no better example of that than the national disability insurance scheme, DisabilityCare. As I have said in this place before and as Senator Fifield was just commenting on as well, they had the concept and the dream about a national disability insurance scheme. If it was not for those groups, we would not have it. The politicians in this place—all of us—followed their lead. That is just one example of the changes that charitable organisations have been responsible for.

As a parliamentarian, I am indeed indebted to so many organisations that—despite being chronically understaffed and underfunded and despite facing a range of immediate needs from their clients or members—provide advice and contribute to debates. Importantly, they contribute to the debate in this place through Senate inquiries. Most Senate inquiries have a charity making submissions to them in some form. In doing so, they do not just bring problems to this place. More often than not, they bring the solutions—in other words, they again provide that leadership.

This bill is yet another piece of important reform in this sector and one that has been a long time coming. The proposal to introduce a statutory definition of charities was most recently first launched—and I say that advisedly!—in 2001, although having worked in the sector for a long time previous to coming into this place, I can say that one of the issues that we had been talking about on and off over all that time was the definition of 'charity' and whether a particular charity or not-for-profit gets tax deductibility et cetera. It was on the agenda a long time before 2001. This is an issue that has had significant consideration over a number of decades, in fact, and not just over the last decade.

On this particular piece of legislation, I have tried to consult widely with the sector. I have consulted with the lawyers of many charities. They have been very generous with their time and knowledge. Overall, I think that there is strong consensus in the sector that Australia needs to modernise its laws on charity. I know that some stakeholders would have preferred a definition that was a bit broader. But I can categorically say that I have had overwhelming lobbying to support the definition of charities—emails, phone calls, texts. They want to see this definition get up, because they believe that this is a significant step forward. This step, as I said, has been quite a long time coming. However, I must say that there were concerns raised with us, and I and the Greens had concerns when we first read the bill. I will go into them in a second.

We do not believe that we can any longer rely on complex and confusing definitions of charities that in part are based on 16th century law and arbitrary legislative interventions. The law as it currently stands really only recognises four heads of charity: poverty, education, religion and other purposes beneficial to the community. Other areas, such as the protection of the environment, are often considered in an ad hoc manner. This can have significant impact on charities. It can be very difficult and costly for a charity that does not fit neatly into this 16th century concept of public benefit to prove its charitable status. This diverts time and energy that could be better spent on the other much more important things that the charity is established to do.

While the definition has not been fully overhauled as some people, particularly in the past, have been advocating for, I welcome the explicit recognition of charitable purpose related to health, culture, the environment and human rights, including reconciliation. The bill clarifies key areas of legal uncertainty, including the relationship between government and charity and the application of the definition of 'charity' to native title. The bill also reflects the ways in which modern charities advance causes by preventing, educating, conducting research and raising awareness.

We also focused on how this legislation impacts organisations that work closely to address housing and homelessness. There were some concerns that the current work in the housing affordability area is not recognised by the bill. But I have sought assurances that this will continue to be possible under the bill, and the bill also grandfathers in existing arrangements so that any organisation that is currently charitable will not be at risk of losing its charity status in the middle of a project. These are all important and welcome changes.

But the most important thing about this bill is that it secures a right for charities to have a purpose that is focused on advocacy. All charities can undertake advocacy as a legitimate activity without the threat of losing their charitable status. Ensuring that this right to engage in advocacy, including political advocacy, was clear is one of a number of improvements to the explanatory memorandum that were introduced as a result of advocacy by the Greens to strengthen the bill. The explanatory memorandum now clearly spells out that this bill enshrines the High Court decision in the Aid/Watch case, which ensures that charities can advocate changes to laws, policies and practices without jeopardising their charitable status. The full wording of paragraph 73 of the 2001/4 tax ruling is now embedded in the EM. Other improvements to the EM clarify that advocacy and advancing public debate cannot of themselves produce a detriment, even if a change of public policy or legislation by government has a detriment to certain members of the public. For charities that fall under the category of advancing the natural environment, we have ensured that the category is classified in the EM so that it is clear that all work, whether it is in an urban landscape or a wild place, can be considered charitable and that promoting sustainable development includes promoting ecologically sustainable urban environments and resource sustainability.

With these clarifications in the EM, we will be supporting the passage of this legislation. These amendments to improve the clarity of the bill were critical, because we are concerned about the future of the sector. Speeches on this bill in the lower house demonstrate why there is a need to ensure that the important work of charities and the not-for-profit sector is in fact protected from interference by government that does not like to have its policies scrutinised. Tax on environmental organisations in the past has been particularly vicious and unnecessary and makes those groups extremely nervous. Maybe for some in this place the contributions of a strong not-for-profit sector are unwelcome. The Australian Greens do not share this view. We believe it is absolutely critical to acknowledge the important work charities do. They cannot be subject to harassment the way they have been in the past. In the past, organisations that spoke out became the focus for deregistration—or, in fact, became the focus for putting the famous gag clauses in. We believe their independence is essential. They should be fearlessly able to advocate for policy change, even if we in this place do not like it.

That is why we are very pleased that other steps have been taken to secure the independence of the sector. Other initiatives the Greens have supported or been involved with include, of course, establishing the Australian Charities and Not-for-profits Commission. We debated that particular legislation just late last year. In fact, we moved amendments that strengthened that legislation. Although I have been concerned—and I mentioned it in this place just two days ago—at the ACNC's heavy-handedness, the Greens chose to support the ACNC because we believe that putting in place appropriate regulation is a step towards a better, stronger and more vibrant not-for-profit and charitable sector and takes the sector a step further away from interference by government.

Through the ACNC legislation the Australian Greens secured a further commitment that freedom to advocate would be protected—a commitment that the government, to its credit, delivered on with the Not-for-profit Sector Freedom to Advocate Bill 2013, which protects the independence of charities and the not-for-profit sector by ensuring that government cannot use its position, often as a sole provider, to stop not-for-profit advocacy as part of any contracting clauses. Now adding to these improvements, this definition will ensure that the breadth of charitable purposes recognised in our contemporary community is in fact recognised in law and that all charities can use the tools of political and policy advocacy in furthering their charitable purposes without fear of losing that status or having retribution. The Greens will be supporting this legislation.