Senator FIFIELD: (Victoria-Manager of Opposition Business in the Senate) (13:00):
I also rise to speak on the Australian Charities and Not-for-profits Commission Bill 2012. As the title of the bill suggests, the bill seeks to establish a new statutory office, a Commonwealth-level regulator for the not-for-profit sector called the Australian charities and not-for-profits commission.
Let me be clear up front: the coalition does oppose this bill. We do so on the basis that despite the intent, the new regulator would hinder not help civil society. I want to acknowledge the previous contributor to this debate, Senator Stephens, who has a genuine interest in the not-for-profit sector and has had that interest for many years. But on this occasion I respectfully disagree with the conclusion that she has reached.
A robust civil society is a reflection of the sort of country that we are. It is built through people who choose to freely associate with organisations and causes that are important to them. Australia has a strong and diverse not-for-profit sector that thrives on community spirit and goodwill. We all know of local carer groups in the cities and towns we live in, the sporting clubs which as members of parliament we have associations with and we know that these networks, associations and clubs are sustained by people who volunteer their time and energy to causes that matter to them and to organisations that they see as important.
It is the view of the coalition that the state should be at the service of civil society to make life easier for civil society. We on this side of the chamber start with the principle that the government should do no harm to the efforts and endeavours of the not-for-profit sector. Government should be a facilitator but it should not intrude upon the operation of the not-for-profit sector. The government’s proposal enshrined in this bill for a new regulatory body is what you might call a typical Labor ‘reform’. The intent is fine, worthy and noble, but the reality in the text of the legislation we think would lead to an altogether different outcome.
When the new regulator was proposed, the primary objective was to reduce administrative compliance and reporting duplication for the not-for-profit sector. The intent of that was to allow these organisations to direct more of their limited resources and time to their core business. We do not believe that the bill in its current form does justice to the original objective. One of the key aims of the legislation is supposedly to reduce red tape for the not-for-profit sector. We do not think that it will do that. Also unless the states and territories agree to hand over their powers to the Commonwealth and agree to harmonise their laws, these bills would add a layer of red tape which the sector would have to meet. Susan Pascoe, the head of the commission implementation task force, has stated that:
You are only going to achieve full red-tape reduction with the involvement of the states and territories.
The states and territories to date have declined to hand over any of their powers with respect to charities and not-for-profits. In fact, they are highly critical of the proposed commission. The Commonwealth have not had a terrific track record, it must be said, of negotiating with the other jurisdictions. Instead they tend to try and seek to blame and scapegoat the states at every opportunity.
The proposed commission treats Australian not-for-profits as though they are not entirely to be trusted. The legislation has a range of powers to interfere with the internal workings of an organisation which has the potential to jeopardise the independence of civil society. The bill gives the commission the power to deregister an organisation if it is deemed to be conducting its affairs in a way that might cause harm or threaten the public trust or confidence in the not-for-profit sector. While that is a noble sentiment, it is a very strong power for a government to be able to deregister a not-for-profit. The phrase ‘public trust and confidence’ in the legislation is ambiguous and creates uncertainty as to the definition of that phrase. No doubt if this legislation is passed it would ultimately be the courts that would determine what the phrase means.
The bill provides the ACNC commissioner with a range of enforcement powers that go far beyond what is necessary. The commission would have the authority to issue warning notices, issue directions, enter into enforceable undertakings, apply to the courts for injunctions, suspend or remove responsible entities and appoint acting responsible entities.
These sorts of provisions are, I think, disproportionate for the potential risk that there is in the sector. We think that, when it comes to the not-for-profit sector, you should not be adopting not so much a risk minimisation policy but rather a risk management policy. Where the risk is low, government should have a light touch. We think that the powers proposed here are not commensurate with the level of risk and that they are excessive.
As I have said, the powers and penalties contained in the legislation are pretty heavy-handed. But also of concern is the commissioner’s ability to remove the director of a not-for-profit. In his submission to the House of Representatives inquiry into the legislation, Mr David Gonski, of the Australian Institute of Company Directors, raised the issue that Australia may be the first country in the world to make being a director of a not-for-profit more onerous than being a director of a for-profit organisation.
In short, the legislation is a bad piece of legislation. What was supposed to create a one-stop shop for charities has created an environment that in effect undermines confidence in the not-for-profit sector. There is no agreement with the states to harmonise powers. There would be duplication of reporting requirements, and the onerous compliance obligations would have the potential to discourage community involvement and volunteers from being involved in local organisations. There are approximately 600,000 entities in Australia’s not-for-profit sector. They are made up on people who give their time and their energy to many Australians who greatly need it.
The coalition have a different approach. We reject the legislation. We will not be supporting the creation of a heavy-handed regulatory body that would only add to red tape and compliance burdens for the not-for-profit sector. The government should seek to work with the sector rather than treating it as an arm of the state. I think that the level of intervention that this legislation seeks to give government the capacity exercise is a reflection of the Labor Party’s philosophical approach. We should make sure that government is of service to Australia’s civil society, that it should not hinder it. That is what the coalition will endeavour to achieve.
We oppose the legislation and, as my colleagues have indicated already, if we have the opportunity, we shall repeal it. As I said at the commencement of my remarks-and now that Senator Stephens is in the chamber I will repeat my remarks-I do respect Senator Stephens’ interest in and contribution to the not-for-profit sector and the charitable sector over a long period of time. I listened to her contribution but, on this occasion, I respectfully have reached a different conclusion to her.