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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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NOT-FOR-PROFIT SECTOR FREEDOM TO ADVOCATE BILL

Second Reading

Second reading.

The Hon. A. PICCOLO (Light—Minister for Communities and Social Inclusion, Minister for Social Housing, Minister for Disabilities, Minister for Youth, Minister for Volunteers) (15:38): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The proposed Not-for-Profit Sector Freedom to Advocate Bill 2013 will promote the already strong partnership between the South Australian Government and the not-profit sector. The Bill, if enacted, would prohibit State agreements restricting or preventing not-for-profit entities from commenting on, advocating support for or opposing changes to State law, policy, or practice.

This Bill is based on a Commonwealth Act for the same purpose that received bi-partisan support when it was considered by the Commonwealth Parliament earlier this year.

The South Australian Government recognises that a strong, independent and innovative not-for-profit sector is essential to building an inclusive community. The not-for-profit sector in South Australia provides services to some of our most marginalised and disadvantaged individuals, families and communities. The Government's partnership with the sector is essential to the achievement of its social policy objectives.

The not-for-profit sector has a critical role in developing and commenting on public policy. The provision of funding to not-for-profit entities should not prohibit such comment. South Australian Government policy already prohibits the use of gag clauses in grant agreements. However, the Government is committed to ensuring that the not-for-profit sector's freedom to advocate is protected in law.

The Bill, if enacted, will apply to all State agreements with the not-for-profit sector, regardless of whether they were entered into before or after the commencement of the legislation. It will render void and of no effect any clauses in State agreements, that is, agreements between a State government agency and a not-for-profit entity, that purport to 'gag' the not-for-profit entity.

The Bill should be supported as it protects the rights of the not-for-profit sector to engage in honest and frank public discourse on matters of government policy.

I commend the Bill to Members.

Explanation of Clauses

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause contains definitions of terms to be used in the Bill. Two key terms are prohibited content and State agreement. These terms are defined as follows:

prohibited content, in relation to a State agreement, means a requirement of the agreement that restricts or prevents, or purports to restrict or prevent, a not-for-profit entity or staff of a not-for-profit entity from commenting on, advocating support for, or opposing a change to, any matter established by law, policy or practice of the State government or a government agency, but does not include a requirement that restricts or prevents the disclosure of confidential information or personal information;

State agreement means a legally binding agreement between a government agency (on behalf of the State) and a not-for-profit entity.

4—State agreements not to include prohibited content

This clause provides that a State agreement must not include prohibited content. An agreement that contains prohibited content will be void and of no effect to the extent of the prohibited content. The clause applies to agreements entered into before or after the commencement of the Act but subclause (3) clarifies that, in respect of agreements that included prohibited content before the commencement of the Act, no right, privilege, obligation or liability will be affected by reason of the prohibited content becoming void or of no effect. Subclause (3) represents a safeguarding of rights existing before the commencement of the Act.

The Hon. I.F. EVANS (Davenport) (15:39): On reflection, I think I am more prepared than I thought; I am just waiting for a copy to come my way. If ever a government looks like it is starting to plan for opposition, it is this bill. Here is a government that has sat there for nigh on 12 years and beaten up every lobby group that dared to criticise it and put pressure on every group it funded that dared tried to criticise it. We all remember the Cora Barclay performance by a former treasurer. Here we are with three sitting weeks left, 10 sitting days to go, and the government has decided it is going to change the rules so that if a government funds a not-for-profit organisation, then the not-for-profit organisation has the capacity to still criticise the government, even though it is getting government funding.

I will let the government in on a secret. You do not need a piece of legislation to do that. All you have to do is adopt it as policy. That is all you had to do: write to all the chief executives saying that cabinet has adopted a policy that no longer are we going to require in our funding clauses a clause that says you cannot criticise the government. That is all you had to do but, after 12 years of putting pressure on organisations to not comment about their funding arrangements, the government has decided to see the ill of its ways and adopt this particular measure.

The opposition is going to support it. It is our policy, anyway. We do not think you need legislation. The government could simply say it will adopt it by policy today and we will adopt it and that will save yet another piece of regulation going onto the statute books because the government thinks it needs to be in law rather than adopt it at the cabinet table as a policy.

The hypocrisy of the government is that, after 12 years of pressuring the lobbying groups, after 12 years of telling the lobby groups and the not-for-profits that they can have the funding as long as they shut up, with three weeks left to sit and a matter of months before the state election, suddenly, the government says, 'Well, we might change the rules.' A cynic might suggest that the government would be saying there is an outside chance they might lose the next election. The next election is going to be 50-50. Just in case they lose the election, let us make sure all these lobby groups can criticise whoever the next government is. I think the cynic would have a reasonable case to put that particular view, because what other reason would there be?

This is not the first time this issue has come up. I think it was at the end of the 2002 and 2006 periods of the Rann government that there was a very ugly incident that became public about the Cora Barclay Centre. There was no change on the road to Damascus then by the government. There was no hand on the heart then saying, 'Of course, the not-for-profits should be able to criticise the government.' In the heat of the battle, even when it was at its most public, the government did not say, 'Yes, we think they are right.' So, what is driving this? At the end of the day, the minister is going to write to all of these groups and say isn't he a big fella?

The Hon. A. Piccolo: Five foot seven.

The Hon. I.F. EVANS: Five foot seven—there you go. A big-hearted five foot seven. At the end of the day, the minister can write to all these groups saying that he has made this magnificent change, but I just make the point that you do not need legislation to do this because you could have simply adopted it as policy any day during the last 12 years. The way this bill is drafted, it talks about a proposed not-for-profit sector freedom to advocate bill. Of course, that comes down to a whole range of definitions.

A not-for-profit organisation has to be registered or be entitled to be registered under the Australian Charities and Not-for-profits Commission Act. The way I read this, if they give money to the SANFL and the SACA, they can still be required to be quiet, because they are not a charity. They are a not-for-profit sporting organisation but I am not convinced they are registered as a charity. For instance, none of the sporting groups who receive the Active Club grants (Sport SA, Hockey SA and all the local cricket and football clubs) are registered charities. So, it will be interesting to see what the actual definition means.

If it is to be as broad as 'every not-for-profit', we do not have a problem with that. We are quite open and quite relaxed if not-for-profits think they should be able to criticise the government or comment on the government's lack of support for their particular industry. We just find it curious, I guess, that in the dying days of this divided and tired government, the government has decided to bring in this piece of legislation.

As I said, it is our policy; we are not going to hold the house and have a committee stage of this bill. If the government thinks the bill is in the right form, then the government can have the bill in the form it is in. We do not intend to move amendments to the bill. We wish all the not-for-profits luck under this particular piece of legislation. As I said, it is the opposition's policy; we do not think you need the legislation. All we needed was a decent government that could have listened any time in the last 12 years to the not-for-profits' argument, and they could have actually achieved this.

Any minister that has a grant line under this particular provision (for example, the Minister for Sport or the Minister for Education) could have put their hand up and said, 'I don't want you to remain confidential.' The government did not. I think anyone observing politics would make the fair assessment that there is an argument to be mounted to say that the government is half preparing for opposition, and that is why it is changing its policy in its dying days.

When will this come into operation? It will come into operation on a date to be proclaimed, I would assume—yes: fixed by proclamation. Let me guess; what do you reckon? It is the day before the caretaker period. It will probably come into operation in the last week of January, on the day before the caretaker period. Or, I think the government could actually decide, under caretaker conventions, that it come into play on 14 March. In other words, the government is setting up a system for the not-for-profits to criticise the government, and it is going to delay the proclamation of this bill as late as possible in its electoral cycle so they cannot criticise the government: they can criticise the next one.

Well, I think the not-for-profits are not stupid. I think the not-for-profits realise they have been dudded by this government. The slashing of the sports funding by this government has been extraordinary. The reality is that not-for-profits are not going to fall for this, and we are glad that the government has been embarrassed, through the pressure of the not-for-profits, to change their policy, because ultimately it was our policy. We welcome the government running to our corner on this issue; it is just a pity it has taken you 12 long years.

The Hon. A. PICCOLO (Light—Minister for Communities and Social Inclusion, Minister for Social Housing, Minister for Disabilities, Minister for Youth, Minister for Volunteers) (15:48): I would like to thank the member for Davenport for indicating the opposition's support of this bill. I do not thank him for his comments, because they are not correct, but I do thank him for his indication of support. The member has indicated that other groups he mentioned are covered by an existing Treasury instruction regarding the grant funding in the terms he has already indicated, and it is also currently government policy. But, importantly—

The Hon. I.F. Evans: You don't need a bill!

The Hon. A. PICCOLO: If you let me finish, I will answer your question. The reason this has been brought to parliament—and this has been brought to parliament with the support of not-for-profit sector. I have had discussions with SACOSS and other organisations, and I would like to put on record my thanks to SACOSS for assisting with the consultation process of this bill. It is certainly a bill which is seen to be important and necessary by that sector, so in that regard, the Liberal Party is at variance and has clearly not consulted, because they do support this bill.

This bill does a couple of things. Firstly, it prohibits and invalidates the so-called 'gag clauses' in agreements between the state of South Australia and any not-for-profit organisations as defined. It specifies that restrictions on the disclosure of confidential information or personal information still remain in force, though, so obviously there are still bits of information which should not be released. However, it applies to all state agreements, regardless of whether they were entered into prior to the commencement of this legislation, so any existing agreement that for whatever reason has that clause, after the bill is enacted, those will not be valid or cannot be enforced.

The not-for-profit sector works to assist South Australians and particularly those amongst us who are disadvantaged and vulnerable. They actually speak on behalf of the most vulnerable, so it is those people who this bill seeks to support. By enabling them to speak out, we actually protect and support the most vulnerable in our community. We have a range of these organisations. In my own Town of Gawler, for example, there is a whole range of organisations involved in health care, environment, helping people who are homeless, etc.

It goes without saying, though, that having an independent not-for-profit sector is essential to building an inclusive and stronger community, and the Premier has made that quite clear on a number of occasions, saying that with a strong government working with a strong, independent not-for-profit sector and also the business sector, we have a stronger community. So, this is part of the philosophy that this government has.

But why do we need it as a bill? Because a policy can be changed any time, as the member for Davenport's brothers and sisters in Queensland have done. That is why we need a bill, because if they behave like their brothers and sisters after an election, should they win the next one or the one after that, that is what we are going to see. So, as their brothers and sisters did in Queensland, where they gagged organisations from actually speaking out, that is why we need this bill.

This bill will remove from any future government the ability to do that without the consent of this parliament. What the Queensland Liberal National Party government did was they actually have stifled debate in that community by insisting that those people who get funds from the government cannot speak out. So, the decision by the Queensland Liberal National Party government to restrict advocacy on funding agreements demonstrates not only the closing down of debate but also a lack of respect for the not-for-profit sector and ultimately the broader community.

This bill before this chamber will protect the rights, as I said, of the not-for-profit sector to engage in honest and frank public discourse, which is important for any healthy democracy. For those reasons, I again commend this bill to the house.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

The Hon. I.F. EVANS: I just wish to check: 'confidential information'—that can be either confidential to the government or confidential to the recipient of the funds, am I right in asserting that?

The Hon. A. PICCOLO: What that means is that this act does not actually override privacy provisions, so they cannot disclose information that would actually go against that act.

The Hon. I.F. EVANS: So, if a government deems something to be commercial-in-confidence, it cannot be revealed. The agreement can say that that matter cannot be revealed. Can the recipient of the grant advocate a matter that is related to the commercial-in-confidence matter without raising the commercial-in-confidence matter? So, if there is a commercial-in-confidence matter that might be a policy issue, for instance, can the advocate criticise the policy even though it is subject to being commercial-in-confidence?

The Hon. A. PICCOLO: Just to clarify, what that has to be read in conjunction with is 'prohibited content'. It actually defines what things are prohibited content, so in relation to the state government, it means a requirement of the agreement that restricts or prevents, or purports to restrict, a not-for-profit or staff 'advocating support for, or opposing a change to, any matter established by law, policy or practice of the state government'. So a policy matter is quite clearly one that we could not prohibit. That actually defines the scope of it.

The Hon. I.F. EVANS: For instance, if the government gives $50 million to an industry or to a body, is a not-for-profit allowed to advocate that that amount is not enough even though the amount is confidential?

The Hon. A. PICCOLO: In relation to this matter, the words 'there may be an occasion at some point' have been included in there, but it will be case by case. I can assure the member that grants, especially ones that go through my agency, are all won generally by tender process, and those processes are made public and they are publicly available. While I have to acknowledge that a circumstance of that description may arise, I cannot think of one, certainly in the charities area, it would arise in.

The Hon. I.F. EVANS: This is the problem, minister. This bill does not relate just to charities. According to your second reading contribution, and according to clause 3, under the definition of not-for-profit entity, it applies to any other entity that is not carried on for the purposes of profit.

The Hon. A. PICCOLO: But even sporting grants are in the same category: they are won by tender.

The Hon. I.F. EVANS: Sporting grants are not won by tender, minister, I am sorry. If you think the Adelaide Oval and the $535 million was won by the South Australian Cricket Association and the South Australian National Football League by tender, you are sadly mistaken. They are not-for-profits. The issue becomes: can a not-for-profit criticise the government for not giving them enough money if the amount of money is commercial-in-confidence? Or, if what they are using the money for is a trade secret or commercially sensitive—a particular style of technology or particular style of training they do not want to be made public to the market—can they still criticise without revealing what the funding is for?

The Hon. A. PICCOLO: From my reading of that clause I would say yes. They would not, perhaps, release the specific information, but they certainly could still criticise because that would be a matter of policy as distinct from the confidential content.

The Hon. I.F. EVANS: So, you could have a circumstance where someone advocates for more money and be in a position where they say, 'I can't tell you what the money is being used for because it's a trade secret or prohibited by the agreement.' That would still be legal under this law.

The Hon. A. PICCOLO: Potentially, that is correct.

The Hon. I.F. EVANS: How is that different from the problem you are trying to fix?

The Hon. A. PICCOLO: I would have thought it was quite clear. I could find any bill that would have an exceptional and extreme case, but this would cover, certainly in my area and other areas I can think of, where, as a matter of practice, most grants would be made public.

Clause passed.

Clause 4.

The Hon. I.F. EVANS: Can the minister confirm for the committee what he told us in his response to my second reading contribution, that is, that the matters contained in this bill are already state government policy?

The Hon. A. PICCOLO: The comments were in relation to your mentioning other organisations like sporting organisations, and I drew to his attention Treasurer's Instruction 15.19:

A grant agreement should not contain any provision which seeks to constrain the entity receiving funding from engaging in political or policy advocacy.

That is existing policy.

The Hon. I.F. EVANS: Can the minister confirm that if a not-for-profit has such an existing agreement with what is known as a gag clause in it, that that would be contrary to government policy and contrary to the Treasurer's Instructions?

The Hon. A. PICCOLO: For any ones made after this one, yes, but not any prior ones. This instruction is dated and effective from 28 March 2013.

The Hon. I.F. EVANS: So from 28 March this year an agreement was made. What is the position for those agreements that are made prior to 28 March? Does this legislation override existing agreements with gag orders in them?

The Hon. A. PICCOLO: Yes.

The Hon. I.F. EVANS: If that is the case, why do the Treasurer's Instructions not override it?

The Hon. A. PICCOLO: The bill seeks to make sure it is not a matter of policy, it is a matter of law, irrespective of which government is in place. I have already mentioned that.

The Hon. I.F. EVANS: Just come back one second. Treasurer's Instructions go to cabinet. When the Treasurer's Instructions went to cabinet, why did cabinet not decide to override all existing agreements at that point? Why have they waited a further nine months to bring in an overriding provision in this bill? The Treasurer's Instructions, as I understand your answer, do not override existing written agreements.

The Hon. A. PICCOLO: I think I have already mentioned that. It has been the experience in Queensland and also the experience of the commonwealth government. The commonwealth brought in similar legislation which supports the not-for-profit sector. Also, the experience in Queensland has prompted us to remove any doubt.

The Hon. I.F. EVANS: You are either misunderstanding my question or deliberately not answering it; so I am assuming you are misunderstanding it, so I will ask it again. When your government—not the Queensland government or the commonwealth—when Her Majesty's South Australian government decided in March, through a change to Treasurer's Instructions, to adopt a no gag clause provision in agreements post the date of the Treasurer's Instruction, why, at the time of making that instruction, did they not bring in an override provision for all existing agreements that had a gag provision in them at that time?

The Hon. A. PICCOLO: The short answer is that in terms of moving to a bill, or a more encompassing approach, it happened after that occasion.

The Hon. I.F. EVANS: And what is the expected date of proclamation? On what date is the government going to start this particular bill?

The Hon. A. PICCOLO: I need to seek cabinet's and the Governor's consent to that, but my view would be as soon as practicable.

The Hon. I.F. EVANS: If that is the intent, minister, you will be glad to know that I will have an amendment moved in the upper house to bring it in at the earliest possible convenience to the government, so I look forward to the government's support.

Clause passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. A. PICCOLO (Light—Minister for Communities and Social Inclusion, Minister for Social Housing, Minister for Disabilities, Minister for Youth, Minister for Volunteers) (16:07): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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