David Bradbury (Lindsay, Australian Labor Party, Assistant Treasurer ) Share this | Link to this | Hansard source

I present the explanatory memorandum to this bill and I move:

That this bill be now read a second time.

The Not-for-Profit Sector Freedom to Advocate Bill 2013 will promote ongoing positive engagement, together with open communication and debate, between the federal government and the not-for-profit sector. The bill will prohibit and invalidate clauses in Commonwealth agreements that seek to limit or restrict not-for-profit entities from advocating on Commonwealth policy issues.

An unfettered not-for-profit sector is essential to building a democratic and inclusive community. Other governments have mandated 'gag clauses' in agreements with the not-for-profit sector, preventing them from advocating on government policy. This bill will prevent this from occurring at the Commonwealth level.

The Commonwealth government recognises that a strong, independent and innovative not-for-profit sector is essential to building an inclusive community. The not-for-profit sector is made up of around 600,000 organisations and accounts for approximately eight per cent of employment nationally. Providing Commonwealth funding to not-for-profit entities or entering into other agreements should not prohibit the sector from engaging in policy and debate.

The bill will apply to all Commonwealth agreements with the not-for-profit sector, regardless of whether they were entered into prior to the commencement of the legislation. The bill specifically addresses circumstances where, despite current Commonwealth government policy to the contrary, there may still be 'gag clauses' in existing Commonwealth agreements with the not-for-profit sector.

The bill will invalidate any such clauses in existing agreements. This will ensure that not-for-profit entities are not disadvantaged due to clauses in existing Commonwealth agreements that should not have been included. The bill will also prevent any clauses in future Commonwealth agreements that purport to 'gag' the not-for-profit sector.

The bill will operate retrospectively, and includes a clause relating to compensation. This is intended to cover the highly unlikely circumstance where a party suffers loss because a 'gag clause' in a pre-existing agreement is invalidated by the legislation. In that rare and unlikely situation, the Commonwealth will pay 'reasonable compensation' to that person.

This bill should be supported as it protects the rights of the not-for-profit sector and not-for-profit entities to engage in debate and advocate on Commonwealth policy. It recognises and supports the critical role that the not-for-profit sector has in developing public policy and advocating on behalf of the community.

Kevin Andrews (Menzies, Liberal Party, Shadow Minister for Families, Housing and Human Services) Share this | Link to this | Hansard source

I rise to speak on the Not-for-profit Sector Freedom to Advocate Bill 2013. This bill seeks to introduce provisions which would prohibit and invalidate clauses in Commonwealth agreements with the not-for-profit sector that limit or prevent not-for-profit entities from advocating on Commonwealth law, policy or actions—including so-called gag clauses. The bill would prevent an agency from including specified prohibited content in a Commonwealth agreement. Prohibited content is defined broadly to enable the not-for-profit sector to advocate freely on the breadth of Commonwealth law, policy or practice. This freedom to advocate should be read to include the release of nonconfidential information. Parties to the agreement must be able to justify why particular information is confidential.

The government's approach to civil society is entirely disingenuous. Unlike Labor the coalition understands civil society—we get it—and I am pleased that last year I announced the coalition's approach to civil society. Despite introducing this bill into the parliament, the government has done nothing to unwind the great big new bureaucracy it has created to increase the regulatory burden on charities and not-for-profits. I put my remarks, therefore, in this broader context.

Under the pretext of simplifying and easing the regulatory burden on civil society, the government has established the Australian Charities and Not-for-Profits Commission. Unfortunately, what was initially promised and what has emerged from the bureaucracy and since been legislated are poles apart. A primary concern of the current government's reform was that the new commission should reduce administrative compliance and duplication of reporting by agencies, so enabling them to direct more of their limited resources to charitable and related activities. Yet the final product of the legislation fails to meet this objective. It has become yet another great big new bureaucracy focusing on assessing compliance rather than streamlining it. Furthermore, the commissioner has been vested with a range of powers to interfere with and remove responsible office-bearers in a manner which is simply unprecedented. As things stand, the government is still yet to satisfactorily make out the mischief which it sees and which would warrant such extraordinary regulatory overreach.

In contrast to the current government, the coalition will not seek to treat charities and not-for-profit agencies as arms of government. The coalition supports transparency and accountability of public funds. We also support simplicity and efficiency. The charity and not-for-profit sector has a long history in this country of responsible governance and management, and the coalition will continue to respect this fact. We recognise that there is a place for a national body to enhance the role of institutions of civil society. Accordingly, we will support a small organisation as an educative and training body and will work with the sector to ensure that the body represents the sector. Indeed, we will work with the sector to transfer responsibility and governance of the commission, or of the new body to replace it, to the sector over the next few years.

Under the coalition, the independent body will provide education and support services to registered charities, provide information to assist with the process of registration of new charities and not-for-profit agencies, act as a one-stop shop for information on charitable organisations and agencies operating within Australia, advocate for the rights of charities and not-for-profit agencies, represent the interests of charities and not-for-profit agencies to government, help facilitate the interaction between government and the charitable and not-for-profit sector, undertake research and cross-sector evaluation on issues of concern to the sector and help to foster innovation within the sector.

We will also work with the new body to coordinate with the sector, the Commonwealth, states and territories to propose a new common financial and other reporting standard that will negate the practice of numerous reports being prepared each year for different funding and regulatory bodies. We will return the regulatory powers which existed in the ATO, ASIC and other similar bodies to those bodies.

Until and unless there is harmonisation of various Commonwealth, state and territory laws, the proposed commission simply adds yet another layer of regulation and bureaucracy on the sector. We will respect the role of the states but we will work with them to achieve harmony in relation to the fundraising codes and other various regulations. Secondly, we will retain the current common law definition of 'charity' and maintain the public benefit test. This is consistent with evidence-based reviews of the 2001 charities definition inquiry, the 2008 Henry review and the 2010 Productivity Commission report. We will examine any particular issues that are the cause of concern. For example, it has been suggested that the charity sector needs review and regulation because the sector receives substantial tax concessions. Arguments about tax concessions for charities and not-for-profits do not belong in the consultation formation of policy on the definition of 'charity', the ACNA, not-for-profit governance arrangements and charitable fundraising. The issue should not be conflated. Instead, tax reform should be considered in specific responses such as the unrelated business income test and the 'in Australia' proposed reforms.

Consistent with this approach the coalition will work with the sector to address any particular issues that arise regarding the taxation treatment of charitable organisations. We will not use discrete taxation issues as a Trojan horse, to impose a burdensome new regulatory system on the sector. When it comes to civil society, there is a clear choice between Labor's approach and that of the coalition, between Labor's complex, burdensome regulation and big-stick approach, which includes a new regulator and between the coalition's approach, one where the government treats civil society with the respect and the trust it deserves.

In closing, I am pleased to advise that the coalition supports this bill. I only wish that the government supported our broader approach to civil society as well.

David Bradbury (Lindsay, Australian Labor Party, Assistant Treasurer ) Share this | Link to this | Hansard source

I thank the member for Menzies for his contribution and for his indulgence a little earlier. The Not-for-profit Sector Freedom to Advocate Bill 2013 will introduce provisions that would prohibited and invalidate clauses in Commonwealth agreements with the not-for-profit sector that restrict or prevent not-for-profit entities from advocating on Commonwealth law, policy or action. It is an important bill given that we have recently seen Liberal state governments across Australia prohibiting community and not-for-profit organisations from speaking out against their savage cuts. For example, the New South Wales government has recently followed in the Queensland government's footsteps by proposing to introduce gag clauses into funding agreements with community legal centres. State Liberal governments are making their approach to the not-for-profit sector clear. They cut to the bone and then they try to silence any criticism.

Insulting gag clauses, I am afraid, are a part of the Liberal Party's DNA. They clearly have no respect for the independence of the not-for-profit sector. They used gag clauses when the Howard government was in power and it took a Labor government to remove them in 2008. If the opposition genuinely values and recognises the independence of the not-for-profit sector and the contribution it makes to policy debates, then the Leader of the Opposition must publicly condemn the use of gag clauses by his Liberal state colleagues. Indeed, I noted with interest the comments of the member for Menzies about the suggestion that, when it comes to the not-for-profit sector, 'they get it', to quote him. If they do get it, I would suggest that he should, at the very least, pick up the phone and call Premier Newman and Premier O'Farrell and ask them to overturn the positions they have implemented which have sought to gag the not-for-profit sector, to silence their opponents, people who have stood up in defence of a range of organisations, from community development organisations through to domestic violence services, organisations which have sought to speak out against cuts to government programs. The response of those respective Liberal governments has been to impose gag clauses, to silence their opponents under the threat of withdrawing any remaining government funding that they may be entitle to. That is what the not-for-profit sector could look forward to if the Leader of the Opposition and the coalition were to be elected. I commend the bill to the House.

A division having been called in the House of Representatives—

Sitting suspended from 17:20 to 17:35

Question agreed to.

Bill read a second time.

Ordered that this bill be reported to the House without amendment.