Thursday, 25 November 2021
Regulations and Determinations
Australian Charities and Not-for-profits Commission Amendment (2021 Measures No. 2) Regulations 2021; Disallowance
That the Australian Charities and Not-for-profits Commission Amendment (2021 Measures No. 2) Regulations 2021, made under the Australian Charities and Not-for-profits Commission Act 2012, be disallowed [F2021L00863].
The Australian Charities and Not-for-profits Commission Amendment (2021 Measures No. 2) Regulations 2021 should be disallowed as they amount to a prohibition of freedom of political communication and expression and expose charities to the risk of deregistration for actions most Australians accept as a right and in which they may have engaged, such as peaceful protests and sit-ins. Quite simply, the intent of these regulations is to stop charities engaging in lawful advocacy in pursuit of their charitable purpose. Millions of Australians donate, volunteer and are otherwise involved in charities every year. They provide frontline services in the areas of climate change, domestic violence, homelessness, refugee issues and a vast range of other social issues—issues this government doesn't really care about. Charities have raised issues and continue to advocate on issues such as black deaths in custody and the end of gender-based violence.
These regulations would have huge consequences for the ability of charities to speak up and advocate on behalf of the communities they represent and are part of. Further, these regulations impose far harsher penalties on charities for any minor offence than on any other corporate citizen. Charities don't even have to have committed an offence. The Commissioner of the Australian Charities and Not-for-profits Commission only needs to believe they might. If he believes that, they can be deregistered or refused registration. Charities are being held to a higher standard than any other organisation simply because the government is now going to categorise all their activities and advocacy as political activity.
There is a huge contrast here. Someone could have a sit-in to draw attention to an issue, and their charity could be deregistered. But we have sports rorts, car park rorts, blind trusts and the misappropriation of public moneys and that all gets written up in some report by the Secretary of the Department of the Prime Minister and Cabinet, Mr Gaetjens, and sent to the dirty little secrets committee of cabinet—that is, the governance committee of cabinet that was established under Tony Abbott. Basically, it ensures that if you want to write about the government and its illegal activities you simply have it funnelled to that committee and you won't see the results for the next 20 years. How convenient that is. Concerningly, these regulations would hold a charity responsible even where an unknown member of the public simply comments on a charity's Facebook post and encourages people to participate in a demonstration, say a sit-in. That would be grounds for deregistration.
There is no doubt that this will have a chilling effect on charities. It's obvious that this is intended to silence public discourse and action on political matters that impact charities and the Australian communities they assist. Am I being alarmist here? No. I refer all senators to the report of the Standing Committee for the Scrutiny of Delegated Legislation. They are absolutely concerned about what I've just talked about. Charities will have no choice but to stay silent, out of fear of being shut down, and that is no accident. This is an intentional and deliberate method this government has chosen in order to wield more control and avoid being held to account. The government have become more and more autocratic, shutting down debate and criticism, avoiding accountability and using other quietening techniques they feel necessary to get themselves back into government.
The government justifies these regulations as being needed to boost trust in the charities sector. Seriously? Charities are one of the most trusted sectors in the Australian community, certainly more than politicians, and yet this is what is being wielded at them. To suggest that these regulations are needed to shore up the public's confidence in the sector is patently false. Is there any institution that requires new laws to increase public trust? Certainly not in this sector. The government needs to get its priorities right. The minister made further amendments to these regulations on 11 November, imposing additional reporting requirements and clarifying that the types of summary offences that relate to impairment of an individual's health were only intended to cover offences relating to causing physical harm to an individual. These new amendments do not alter the substantive effect of the regulations subject to this disallowance motion.
I want to end by quoting a few of the more than 100 charities who have expressed grave concerns about the regulation. The Barnardos Australia CEO, Deirdre Cheers, says: 'We are currently helping more than 13,000 children in need. If we have to turn even one of those children away, due to increased cost, it will be a tragedy.' The Fred Hollows Foundation CEO, Ian Wishart, says:
Fred Hollows was well known for speaking out and demanding action from our political leaders. It's a key role of charities to advocate for those who don't have a voice. These laws limit the ability of charities to raise important issues and hold people in power to account. They have no place anywhere in the world, let alone Australia, where freedom of assembly and political participation, and basic human rights, are the cornerstone of our democratic society.
Anglicare Australia says:
… charity is not just about helping people in poverty. It's about creating a country where poverty doesn't exist. That's why we need to be able to stand up for the people we work with.
These rules are designed to stop organisations like Anglicare Australia from speaking up for our communities and our country by punishing us—and shutting us down for arbitrary reasons.
They are not just an attack on charities. They are an attack on democracy.
… … …
We're also calling on the Government to withdraw these changes—and end these attacks for good.
They are wise words, and I ask senators to pay attention to them.
This regulation is an awful regulation. If we look at the statement that our own committee has made on its concerns about this regulation, it's plainly obvious that the government has gone way too far here. It's unnecessary regulation, and I urge the Senate to assist me in having it disallowed.
[by video link] The charities and not-for-profits in Australia have brought support and respect throughout our community. The 2016 Giving Australia survey found that 8.7 million Australians—over 40 per cent of the population aged 15 and over—volunteered for charities and not-for-profits, providing an estimated $17.3 billion in value. Australians also give generously to charitable causes—around $12.5 billion a year, including about $3.5 billion in tax deductible donations. It's of little surprise that charities are so popular, when they've been established entirely for the purpose of promoting public good, whether it's helping vulnerable and disadvantaged Australians, tackling poverty overseas, promoting social justice and human rights, recording and preserving history or heritage, or protecting and caring for the natural environment. These aims are universally supported, even if there may be public debate about how they are achieved.
We also need to recognise the vital role that charities and not-for-profits have had in helping Australians get through the COVID pandemic. When lockdowns and restrictions were in place, charities were the ones that worked hard, under difficult circumstances, to meet skyrocketing demand. There were charities helping to connect people who were feeling isolated and lonely, supporting people who had lost jobs and income, and delivering meals and household essentials. The impacts of the COVID pandemic could have been much worse if it not been for the hard work of so many of Australia's charities and their staff and volunteers.
I thank Senator Patrick for bringing on this disallowance motion. The regulation he is seeking to disallow was designed to silence charities. It's another battlefront in the coalition's ongoing war on charities, and it is a war. Let me outline some of the history. While in opposition, the coalition campaigned for years against the establishment of the Australian Charities and Not-for-profits Commission, and they wasted no time in trying to abolish it when they came to government. Failing at that, they appointed Dr Gary Johns to hit the ACNC. Dr Johns has a history of criticising charities, accusing them of what he called 'impure altruism', whatever that means. He once said that the then Abbott government should deny 'charity status to the enemies of progress' and referred to the Indigenous reconciliation charity Recognise as the 'officially sanctioned propaganda arm of the Australian government'. At the time Dr Johns was appointed, David Crosbie, from the Community Council of Australia, said it sent 'a signal to charities that the government is out to get them'.
But the government's attempts to abolish and then undermine the ACNC were only the start of the war. Since Labor introduced the Volunteer Grants program, the coalition have slashed its funding in half. They've introduced no new initiatives to help recruit and retain volunteers, even though unpaid volunteering is considered to be worth almost $17 billion to charities and $39 billion to the whole economy, and despite the increased demand for volunteers during the COVID pandemic.
I have spoken several times in the Senate chamber about the charity fundraising Senate inquiry that I chaired. Years before the inquiry was established, the sector was calling for charity fundraising reform—and they're still calling for it. Compliance with complex and outdated fundraising laws is costing the sector $15 million a year in red tape. The report's recommendations, delivered in February 2019, were supported by coalition senators and backed up by the government's own review three years ago. But the government has kicked the can down the road on fundraising law reform through six charity ministers—six. Just imagine if they put the same energy into addressing the sector's priorities as they have put into this regulation.
Sadly, the regulation we're debating now is not the government's first attempt to silence charities. In 2014, the government initiated moves to amend the Competition and Consumer Act in order to ban consumer boycotts for environmental campaigns. In 2017, the original draft of the government's foreign interference legislation would have forced many charities to register as foreign agents and stop them from advocating on important social issues. The government eventually backed down and exempted charities from the registration requirement, but only after pressure from the sector. The government has also inserted gag clauses into many social services agreements, and this new regulation threatens charities with deregistration if they commit minor or summary offences. While no-one wants charities breaking the law, this is an absolutely massive overreach. A summary offence could be something as simple as blocking a footpath at a public rally or failing to shut a gate to private property. And just one person—only one person—has to commit such a minor offence to give the commissioner the power to investigate and even deregister an entire charity, large or small. Even more bizarrely, merely promoting an event at which a summary offence is committed can trigger a process that could result in deregistration.
If all that isn't authoritarian enough, the regulation gives the commissioner the power to take action against a charity because he anticipates a summary offence being committed. That's ridiculous. Does the government think the commissioner has some kind of magic crystal ball he can use to predict lawless behaviour? It's as if we're living in the world of George Orwell's Nineteen Eighty-Four, with the charities commissioner playing the role of the thought police. I wouldn't trust any commissioner with that kind of power, let alone someone with the outdated attitudes of Dr Johns.
The peak community sector body, the Australian Council of Social Service, has described this new regulation as 'extreme overreach and an attack on our democracy'. Like ACOSS, charities and not-for-profits throughout Australia have raised real concerns that this regulation would effectively silence them—that the red-tape cost will be paid by all charities, regardless of whether they do public advocacy work or not. A recent pro bono Australian survey estimates that the regulation will cost the sector $150 million in the year it takes effect and $40 million every year after. Charitable causes will suffer, because the red-tape burden this government is imposing is beyond belief. It's heavy-handed and it's unnecessary. There are already provisions in place that allow charities to be deregistered for breaking the law.
Contrary to the government's narrative of a charity crime wave gripping the nation—do you know how many charities have been deregistered in the past four years? I'm sure you don't, so I'll tell you: only two. Two of Australia's 59,000 charities have been deregistered for the kind of activism the government says is tarnishing the sector. Even the coalition members of the bipartisan Scrutiny of Delegated Legislation Committee agreed that the rules are antidemocratic and give the charities commissioner too much power.
After endorsing a report that contains major criticisms of this regulation, it would be the height of hypocrisy if those three senators did not support this disallowance motion. I understand from media reports that One Nation senators are considering backing the government and not supporting the disallowance. Can that be right? How could Senators Hanson and Roberts be so forthright only yesterday in fighting for what they see as rights and freedoms yet not support the freedoms of churches and charities to speak up on policy issues? How could One Nation senators happily consign those same churches and charities to around $270 million in additional red tape over the next four years? But that's the path One Nation are looking at supporting: less freedom and more red tape. I wonder whether that's what their supporters put them there for.
Unlike the current laws, this regulation is not about stopping charities from engaging in unlawful activity. It's about silencing dissenting voices. Why does the Morrison government want to silence charities? The answer is obvious. This government is failing to act on climate change. The gap between the haves and the have-nots continues to widen. They continue to make savage cuts to overseas development assistance. So of course it's of little surprise that, when charities speak out, what they have to say is uncomfortable for this government to hear. But this government, instead of taking onboard the advice of charities, decides that the best defence is attack. That is why they have been waging war on the sector for eight years.
Unlike the coalition, Labor values the important part charities play in public policy debate. As organisations that work at the coalface of social, economic and environmental causes, charities have a wealth of experience and a valuable perspective. This voice is vital to democracy and to good policy outcomes. And let's not forget that the charity sector kickstarted the campaigns for many vital reforms that are now widely embraced by Australians, such as the National Disability Insurance Scheme, Medicare and marriage equality. Imagine where Australia would be now without these reforms and without the vital voice of charities to spearhead those campaigns?
But the Prime Minister, who praises the 'quiet Australians', would prefer Australian charities and not-for-profits to stay completely silent. Like naughty children, he'd like charities to be seen but not heard. He doesn't want charities to have a key role in public discourse because to do so would actually make his government accountable for delivering on social outcomes. Mr Morrison would like to see charities planting trees and raising money for bushfire victims but not advocating for effective action on climate change. He'd like to see them running op shops and soup kitchens but not advocating to address the root cause of poverty and structural inequality. He'd like to see charities providing education, health care and clean water to impoverished communities overseas but not advocating for a fair investment in overseas development assistance. He'd like to see them providing legal assistance to victims of domestic and family violence but not advocating for greater respect for women or for the government to invest more money in emergency accommodation for victims of domestic violence and their children.
The advocacy that Mr Morrison and his government so hate is how charities do some of their best work. But if you wage war on charities you're also declaring war on the people and causes they support. A war on charities is a war on the environment, a war on human rights, a war on poverty and a war on vulnerable, disadvantaged and marginalised Australians. For the sake of all Australians, this war must end. There's no charity crime wave and there's no need for this draconian law, so I urge all senators to vote for this motion and let charities get on with their important work.
This needs to be knocked off. These regulations are all about the government trying to silence its opposition and silence its critics, tilting the level playing field in its favour and tilting the level playing field of democracy in its favour. This needs to be seen as part of a whole suite of actions it's taking currently: stopping people from voting, through the voter ID laws, and the other legislation that's currently in the House, which is making organisations involved in advocating during election times jump through a huge amount of bureaucracy in order to do that.
Basically, these regulations will shut charities down just for speaking out, for being critical of the government—for saying things that this government doesn't want to hear. These regulations will discourage charities from promoting and having a presence at peaceful protests. They will make it harder for charities to share their resources with community groups and, of course, they will wrap charities up in unnecessary bureaucratic red tape and threaten them with deregulation if they fail to comply.
We know that the regulations and the penalties are disproportionate and incredibly punitive. They would see charities being shut down by the regulator because of really minor and inadvertent breaches of the law. But, if that's what the government wants to see, to ping a particular charity because they're particularly getting under its skin and niggling it just that little bit too much, that's the very sort of action that can be taken.
In particular, some of the most outrageous parts of these regulations are that they expose charities to pre-emptive punishment if the Australian Charities and Not-for-profits Commission believes that they're likely to breach the regulations in the future. 'Likely to breach the regulations in the future'—that's shutting charities down for something they may do in the future! That treatment is absolutely unprecedented. Neither for-profit corporations nor political parties can be deregistered because a staff member might do something in the future. This is a complete attack upon the ability of charities to be engaged in processes to advocate for human rights, the environment or social justice.
We have the situation at the moment where charities are operating very fine, thank you. We do not need this sort of really punitive overreach by the government, which is going to have a massive impact—it will have a huge chilling impact. We know, of course that there has been a huge array of charities, right across the spectrum, which have united together through the Hands Off Our Charities Alliance, opposing these regulations. I really want to salute them all. It is remarkable we have had charities right from the environment groups through to quite conservative Christian organisations that have worked together with organisations right across the political spectrum because they all recognise what a huge impact on their operations these regulations are going to have. They absolutely must be overturned for the sake of charities to be able to operate fairly and appropriately in our democracy today.
The government opposes this disallowance. The proposed changes to governance standard 3 seek to redefine the standard to capture the offences of trespass, vandalism, theft, assault and intimidation. This will empower the ACNC Commissioner to investigate such breaches of the law by charities and take enforcement action if warranted. Charities will still be able to undertake advocacy activities consistent with their charitable purpose, provided it is conducted lawfully. Registered charities that act lawfully and do not use their resources to promote others to engage in unlawful activities are already complying with the proposed changes.
I'm proud to stand up to call for senators to vote to stop this attack on free speech in the charities sector. This is happening on the same day, the very same day, that Mr Morrison got up in the chamber at the other place, genuflected to religious freedom, and his Assistant Treasurer is busy smothering any attempt of religious charities to speak up against the government.
I acknowledge the great contributions of my colleague from Tasmania, Senator Bilyk, who put on the record the detail of this, and those who participated in the debate. I point out that the marriage equality campaign commenced with charity action and so did the NDIS. This is a government that talks out of two sides of its mouth, dog whistling to win votes and never delivering for the Australian people, only delivering for itself. I urge the Senate to vote for this disallowance. It is an unnecessary and drastic overreach that will prevent charities continuing the fantastic work that we know that they do.
The idea that in our common law system a charity could be deregistered merely on the suspicion a member of the organisation was committing a crime is totally outrageous. Extraordinarily, the ACNC Commissioner could deregister a charity that was neither charged nor found guilty of an offence. An entire charity such as Barnardo's Australia could be deregistered if just one of its staff or volunteers engaged in minor vandalism or trespassing, or if the charity cannot provide evidence to show it has taken reasonable steps to make sure resources are not used to promote or support unlawful contact.
This type of collective punishment of NGOs is more reminiscent of Lukashenko's Belarus or Orban's Hungary. It does not reflect the Australian proud tradition of democracy and civic benevolent action by people of faith and people of no faith who seek to do good for their fellow Australians, and do it collaboratively. Just like with the voter suppression bill, this is yet another attempt by the government to win the next election through tilting the scales in its favour. Not content with rorting every grant program in sight, they want to keep the charity sector silent and acquiescent in an election year.
This piece of regulation from the government is all about power and politics for them; it's not about good for the Australian people. The reason we're here is well and truly made clear by a submission of the Centre for Public Integrity, which says:
Through the delegation of law-making powers—
Which are the powers the government is using to put this really bad piece in action—
policy decisions that affect the rights and obligations of individuals, business and industry are increasingly being made by the Executive without adequate parliamentary oversight or other forms of accountability.
That's why we're here, trying to put the brakes on a runaway government that wants to take out the charities sector—the charity sector! It's not good enough to go after Australians for robodebt, not good enough to rort all the money through all the schemes—including the sports rorts, the car park rorts, the Building Better Regions rorts; now they want to go after the charities, who might in the future have a volunteer who might do something wrong. It is an overreach, and senators should vote against it.