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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-09-26 Daily Xml
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NOT-FOR-PROFIT SECTOR FREEDOM TO ADVOCATE BILL

Second Reading

Adjourned debate on second reading.

(Continued from 24 September 2013.)

The Hon. S.G. WADE (16:15): The government has clearly indicated it is having trouble padding out this afternoon, so I will help them by giving a full discussion of the Not-for-profit Sector Freedom to Advocate Bill.

I think it would be fair to say that this bill has its origins not in this parliament but in the commonwealth parliament. The commonwealth government and parliament for some years now have been considering the appropriate regulation and governance of the not-for-profit sector. Honourable members would recall the report of the Productivity Commission, called 'Contribution of the not-for-profit sector: research report, Commonwealth of Australia, Canberra, January 2010'. That was part of the process of the commonwealth government considering how best to provide sound governance for the not-for-profit sector.

Of course, it was not focused on the issue of the impact of public sector funding on the roles of those agencies, but it would be fair to say that it was an issue—

Members interjecting:

The Hon. S.G. WADE: I am sorry that government members are not interested in this matter. It would be fair to say that the focus was not on public sector funding but more on the general governance, particularly to make sure that Australians, when making donations for not-for-profit organisations, could be confident that those funds were being properly looked after.

That said, whilst it was not the focus of the work of the Productivity Commission, it was an issue that was considered by them. In that regard, I would refer honourable members to page 296 of the Productivity Commission report. It makes the point:

Where influence or control is exerted by government over funded organisations in order to limit advocacy and other activities of NFPs—

I pause to indicate that that is not-for-profit organisations—

it is likely to be wasteful of public funds and may also distort the best endeavours of community organisations.

In line with this recommendation, the Productivity Commission recommended:

Australian governments funding service provision or making grants should respect the independence of funded organisations and not impose conditions associated with the general operations of the funded organisation, beyond those essential to ensure the delivery of agreed funding outcomes.

I would like to make two points from that quote. The first point is that a productivity-focused organisation saw the value of political independence, so this is not just a civil society issue. It is not just about conducting a healthy robust democracy in Australia. In the view of the Productivity Commission, where influence or control is exerted over a funded organisation to limit advocacy it is likely to be wasteful of public funds.

The work that was being done at the federal level progressed to the point where, under the Gillard Labor government—I think the expression is 'of blessed memory'—an Australian Charities and Not-for-profits Commission was established. It would be fair to say that we on the Liberal side of the equation are very disappointed with the way that the former Gillard government implemented that.

Initially, what was promised in that commission was an opportunity to simplify, to reduce the administrative compliance and duplication of reporting by agencies, so enabling the not-for-profit sector to be able to direct more of their limited resources to charitable and religious activities. But, as so often happens when Labor tries to implement a good idea, it all turns to sand. The final product of the legislation failed to meet this objective. It has become another great bureaucracy focusing on assessing compliance, rather than streamlining it.

The incoming Coalition government has made it clear that they will not treat charities and not-for-profit agencies as merely arms of government. The Coalition supports transparency and accountability of public funds, but it also supports simplicity and efficiency. When people give money to charities, they do not expect it to be chewed up by unnecessary commonwealth bureaucracies.

Particularly in the context of this particular legislation—because I know that honourable members are always interested to see how our legislation interacts with commonwealth bureaucracies and legislation—the incoming Coalition government has said that, until and unless there is harmonisation of various state and territory laws, their view is that the proposed commission simply adds yet another layer of regulation and bureaucracy on the sector. Interestingly, implicit in that is the government is not necessarily committed to harmonisation, but in any event they will be looking at winding back the overly bureaucratic approach of the former Gillard Labor government.

The Coalition government has indicated that it will be looking to work with the states to achieve harmony, particularly in relation to fundraising codes and other various regulations. The legislation before us, as the honourable minister indicated in his second reading speech, is significantly based on the commonwealth legislation. I can see very few real differences between the two, and I am not accusing anyone of plagiarism. The minister was quite frank about the fact that this was picking up what the government saw as a good idea from the commonwealth realm.

I just make the point that the incoming Coalition government is not giving an indication of the need for uniform law. I am sure they do not object to similarity and harmony between their legislation and ours. I will have some questions to raise in the committee stage, but I thought it would be remiss of me to let this government put in a piece of legislation singing the virtues of civil society and advocacy without reminding the house of the hypocrisy of this government—shall we say the Rann/Weatherill Labor government that has been in power for 12 years and is showing every sign of tiredness.

Let's remember that in 2006, under then disability minister Weatherill we went into a disability reform process which involved a massive attack on advocacy. So the so-called Weatherill Labor government wants to sing the virtues of advocacy and a civil society in this piece of legislation when, in fact, what they did in practice was appallingly different. Let me remind you of those events.

In 2007-08, the government withdrew funding for a number of agencies providing disability advocacy and information services. State government funding was to be cut and information services that were to be provided through the department, we were told, would enable money to be put into front-line services. This decision was made without consultation and delivered by letter on the very day of the budget.

I was involved in the disability sector prior to taking my seat in this house; in fact, I needed to convene a board meeting of Julia Farr Services the night before I was sworn in to this parliament. We had been advised that then minister Weatherill, under the then Rann government, was going to announce a disability reform process on that day, so it was important that as I left that organisation they were ready for the changes ahead, and they were very significant.

We saw in Weatherill the minister the indicators of what we see with Premier Weatherill. He was a centralist then and he is a centralist now. He believes the government knows best, and this Labor Party value, that the bureaucrats and the political elite know better what is best for people than they do themselves, was evident in the way they emasculated advocacy in the disability sector.

We do not normally have dedicated advocacy services for Australian citizens, but let us remember the particular needs of people with a disability. There are significant sectors within our community who are living with disabilities which significantly impair their own capacity to advocate for themselves. There are people with intellectual disability, for example, who many would say are not in a position to advocate for themselves so advocacy services are often seen as very important for system development.

That can be system advocacy (in other words, advocating for what people with an intellectual disability need as a community) and it could be individual advocacy (what I as an individual person with an intellectual disability might need). Let me hasten to add that people with an intellectual disability often do not need somebody to advocate for them and, in fact, it was during this period that I became very well aware of the work of Our Voice. Our Voice was a group of South Australians with an intellectual disability who were being trained and supported to self-advocate.

Another one of the organisations that was affected was the Arthritis Foundation of South Australia, which was providing a program to combat juvenile arthritis, a condition which causes many children to develop a permanent disability or deformity, particularly in the absence of appropriate information and treatment. This was an organisation (as with a number of these organisations) whose advocacy services were blended with their information services so, in spite of the Weatherill Labor government's rhetoric about preventive health, these cutbacks in advocacy and information services were leading to a worse outcome in health and disability indicators.

It is a very well established pattern in the disability sector that information informs practice and vice versa but, in spite of its rhetoric in this bill about the importance of advocacy in civil society, this is the government that cut millions out of the disability sector and deprived people in that sector of valuable advocates.

Certainly, public servants are valued professionals and they often have significant perspectives to share, but they are, by nature, generalists. They do not have the expertise to develop and maintain information over an extended period of time. I think it would be fair to say that disability is a classic example of a sector where, to be able to advocate effectively, to have either a limited experience with a disability or to have a direct role in providing support or care to a person with a disability provides you with perspectives that are unlikely to be achieved anywhere else.

At that time, a senior disability leader indicated to me his concern about the defunding of advocacy on the basis that it was leading to an unhealthy shift in the relationships between the government and non-government sectors. Let me quote him:

One of the key principles of disability services is the valuing of diversity but, unfortunately, this decision is only part of a trend towards uniformity and centralisation that will eventually compromise disability service delivery in South Australia. A vibrant non-government sector is one of the checks and balances needed to provide the dynamic tension that nurtures growth and development. Placing information services within a department rather than valuing diversity in the capacity of non-government organisations to provide this important front line service is a retrograde step.

So the point I am making is that it is easy to put a bill in. After 12 years, 170 days before the election, it is easy to put a bill in, but a government will be known by its actions not its words, and what we have seen with this government is a failure to respect advocacy, a failure to respect civil society.

I was focusing particularly on disability. I could draw other case studies. After all, it was this government that provided a unique South Australian contribution to the Australian dictionary: being Bottralled, I think is the expression, which is generally known as being aggressively sat upon by a government media spin doctor. Another case study that comes to mind is a group of businessmen who having put an ad in the paper critical of former premier Rann were fortunate enough to get a telephone call from him sharing his views about their behaviour.

This is a government that might like to put in a bill towards the end of its term, but 12 years of Rann-Weatherill Labor government, of centralism, bullying, and lack of respect for diversity, will not be wiped out by this bill. We will be supporting it, just as our Coalition colleagues supported the similar bill at the commonwealth level, but as I said, this government will not be remembered for this bill; it will be remembered for 12 years of bullying, 12 years of lack of respect for civil society.

The Hon. T.A. FRANKS (16:31): I rise on behalf of the Greens to speak to the Not-For-Profit Sector Freedom to Advocate Bill and I do so welcoming the introduction of this bill, thanking those who have lobbied long and hard for it and acknowledging in particular the role of SACOSS in that. It should come as no surprise that the Greens will be supporting this bill, and I certainly acknowledge Tony Piccolo's work as Minister for Communities and Social Inclusion in progressing it to this place at this stage. I thank him and in particular Megan Hackett from his office and other officers within the Department for Communities and Social Inclusion for their recent briefing.

Of course, this bill before us is a state bill, but it cannot be viewed without the federal context and indeed the context of, in particular, the Newman government in Queensland and recent developments there. I would like to step back a little and acknowledge the work of Clive Hamilton and Sarah Maddison, who edited a book called Silencing Dissent which very well illuminated the problem here, that there was indeed a systematic silencing of the NGO sector and that that systematic silencing happened under the Howard era federally.

In that book, many contributors detailed experiences and evidence of this silencing of dissent, documenting the processes inside and outside government, in the Public Service and in statutory authorities, in media, in universities, in the research community, in non-government organisations, in the intelligence community, and indeed, when the government won a majority in that place, in the Senate.

The book put forward that what were seen previously to be apparently unconnected phenomena of attacks on non-government organisations, politicisation of the Public Service, stacking of statutory authorities, increasing restrictions on academic freedom and control over universities, gagging and manipulation of some sections of the media and politicisation of the military and intelligence services actually formed a pattern that posed a grave threat to the state of democracy in Australia.

In that particular book we saw chapters such as that written by historian Stuart McIntyre, who documented how the then education minister Brendan Nelson had interfered with the research grant process. Emeritus professor of science Ian Lowe examined the ideological intervention in the science field, and indeed he quite eloquently wrote that the government 'is increasingly using science as a drunk uses a lamppost—for support rather than for illumination'.

Journalist Geoffrey Parker captured the attitude towards the Public Service when he recounted the comment of one former secretary who said, 'Don't be against us but this one asked "Are you one of ours?"' with regards to a previous incoming government. That sort of behaviour in Australian democracy deserved to be exposed and deserves to be rejected. This bill before us will go some way to rejecting those sorts of behaviours, be they at a federal or state level and whatever colour of government is in power at the time.

I note that SACOSS (South Australian Council of Social Service) has written to all members of at least the upper house advocating support for this bill in an unamended form and providing information that it not only supports the intent of this bill but also that it had been consulted in an appropriate manner. They express their clear support for the passage of this legislation.

I also thank them for their kind words acknowledging both my past experience in the NGO sector and my record of promoting anti-gag clause legislation, which I have done when opportunities presented themselves in the community and in the media. I was also very pleased to work with the government on the recent gambling reforms which saw removal of any potential for gag clauses on those NGOs, not-for-profits and small organisations which take money from those particular pokies funds sources.

This is a much more wideranging bill, and it should go some way to restoring confidence in what I believe should be a truly civil society. From my experience in the NGO sector, I will draw on one area where this has had a profound impact in recent history—not the disability sector, to which the Hon. Stephen Wade referred, but when I worked for Amnesty International in our work on refugees in this country.

When I worked for Amnesty International, it was in the days when mandatory detention of asylum seekers was a recent introduction. At first, it was almost incredible and unbelievable to the community when groups such as Amnesty, where I worked, informed the Australian community that we were locking up children, in particular, but also men and women for committing no crime in this country. At that time, in the South Australian context the Woomera detention centre was being used and later it was the Baxter facility.

At that time, most of those who supported refugees through NGOs were scared to speak up. In fact, they came to Amnesty and we set up a refugee group to assist with getting the message out, not just that people should support refugees in our community but that in fact we were locking up asylum seekers, despite having committed no crime. In that, I was honoured to be part of helping establish the South Australian Justice for Refugees Group because it acted as a shield, a group that did not take money from government and could therefore actually speak out against government policy, when those who were helping refugees and new arrivals—

The Hon. S.G. Wade interjecting:

The Hon. T.A. FRANKS: The Hon. Stephen Wade interjects and notes that Amnesty doesn't take money either—that is true. That is why they came to Amnesty for assistance with this, but also I was proud to be part of setting up a group that was specifically just to advocate about the refugee issue because those who worked with refugees were too scared. They knew that their funding would be threatened if they spoke up against government policy, and they thought that the work they were doing was so valuable—and I believe that it was—that they could not endanger that very important work.

I am sad that we continue to need such advocacy in this country. It is a very sorry state of affairs that the debate has come to where it has in this country, that refugees are a political and politicised issue and that it is a race to the bottom. I digress—and I do so because I have the freedom not to be gagged and the luxury of not being in an NGO that is a bit scared to speak up on a particular hot potato issue.

That is the culture that has been documented by works such as Silencing Dissent and other reports as well. We know that, where it is not necessarily an issue of politicisation or direct government interference, NGOs can often fall foul of dying through bureaucracy or drowning in constant editorials made to a flyer, for a very simple matter can actually take weeks or even months to finally come to an end product.

With those things, the government and bureaucracy should simply get out of the way and let NGOs do what they do best, which is address community concern at that coalface level. I have heard some horror stories about dealings with bureaucracy that do indeed drain the very lifeblood out of those wonderful, vibrant community organisations.

With that, I will have a few questions of the government at clause 1, but I certainly commend them for this very positive step forward. I hope that it will continue to be not just a bipartisan but very much a cross-party supported initiative.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (16:41): I thank members for their contribution, and I rise to close the debate today. As members should now be all aware, the bill includes provisions that will prohibit and invalidate gag clauses in South Australian government agreements with the not-for-profit sector that restrict or prevent not-for-profit entities from commenting on, advocating support for or opposing changes to South Australian government law, policy or actions.

I should probably not comment, but I cannot let it go. The Hon. Mr Wade said that he believes this bill arose from a similar bill that was passed, I think, in the federal parliament; of course, that is not exactly the story. The bill arose initially, as I understand it, as a result of actions of the Campbell Newman Queensland Liberal government and their attempts to gag community organisations who were receiving government funding.

In fact, I distinctly recall that it was Premier Weatherill who instructed me, when I had another portfolio, to put out a circular to the NGO sector that received fundings under my portfolio to advise them that this government—this Jay Weatherill government—would not be following the lead of the Queensland Liberal government. That is where this started, and I will leave it at that.

The not-for-profit sector works to assist South Australians, particularly our disadvantaged and vulnerable. Our not-for-profit sector supports our communities in so many different ways: the provision of services in health care, caring for our environment and promoting a healthy lifestyle, sports, arts and culture. An independent not-for-profit sector is essential to building our inclusive communities.

I am concerned, as I said, about the actions of the Queensland state government, which has sought to use clauses in funding agreements that prohibit the not-for-profit organisations from advocating and restrict their input on important policy issues. This move by the Queensland state government will ultimately lead to poorer outcomes for individuals and communities who rely on government funded services. The decision by the Queensland state government to restrict advocacy in funding agreements demonstrates a lack of respect for the not-for-profit sector and, ultimately, our broader communities.

The bill before the chamber will protect the rights of the not-for-profit sector to engage in honest and frank public discourse on matters of government policy. I believe that is what we would all expect, and I once again commend this bill to members.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: The similarities between the state bill and the federal bill are significant, but perhaps the area hardest to correlate is the definition of 'agency'. Considering I was not able to decipher the similarities and differences, I wonder whether the minister might be able to advise in broad terms whether there are any significant variations between the scope of agencies under the commonwealth legislation and the scope of agencies under this bill.

The Hon. I.K. HUNTER: My advice is that parliamentary counsel were asked to replicate as best they could the commonwealth bill but, as we know, our parliamentary counsel are the best in the country and they have their own approach and use different terms from time to time. However, I am advised that it should not have any great impact.

The Hon. S.G. WADE: I thank the minister for the answer. In that sense I am not surprised that it significantly varies because we all have different organisational structures and different ways of referring to them. I wonder whether the minister might help me understand what might be permitted and what might be prohibited. It says that you cannot restrict or prevent or purport to restrict or prevent a non-profit entity or staff 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, etc.

That is what I understand we are referring to when we say 'a gag', but presumably a funding agreement could still say that money cannot be spent on matters other than what the government is buying, if you like, under the funding agreement and that may not include advocacy. I am just trying to understand a provision which says that you cannot use this money for advocacy: you can only use it for providing services for our target group. Is that a gag and is that privy to content?

The Hon. I.K. HUNTER: My advice is that funding generally is given for specific activities, and that is normally in the funding agreement. It would be an expectation that the funding would be disbursed for the purposes for which it had been granted. My advice is that we need to consider that this was actually aimed at allowing organisations to act in support of its community of interest and is not meant to be construed as applying to a formal advocacy role for which they may receive other funding streams, either from the state government or another funder.

The Hon. S.G. WADE: Thank you, minister. My understanding of the non-government sector, particularly over the last 10 years or so, and perhaps in response to the Howard government and the activities of other governments, that increasingly agencies are developing their own policy units or advocacy units funded by, if you like, own-source income. Considering that I am not aware of the government providing any advocacy funding in any sector primarily for an advocacy purpose, is it the expectation of the government that whilst organisations would be free from a gag they would still be looking to own-source income to undertake advocacy work?

The Hon. I.K. HUNTER: Again, my advice is that we need to distinguish between formal advocacy work and political advocacy. For instance, off the top of my head, an organisation may be funded to deliver a particular service to a community group or subgroup. That would not prevent that organisation from engaging in public debate on topics of interest of the day, but the expectation would be that the moneys for which that organisation is funded would only be used for the purpose for which they were granted.

The Hon. S.G. WADE: I am just wondering how broadly the prohibited content might apply. I will probably have some rusty examples but hopefully the minister might be able to glean the import. I am thinking, perhaps, of what I understand are differences between the Salvation Army in New South Wales versus the Salvation Army in Victoria. I think they have quite a different attitude to drug rehabilitation. I am not exactly sure what the difference was, but one, I think, was, perhaps, willing to get involved in needle exchange, and the other one was not. I am also thinking of the issue of values in relation to government-funded schools.

We often hear, in relation to, particularly, discrimination legislation, for example, that if an organisation is getting public funds then they are expected to respect public values, and that might come across a whole gamut of discrimination areas. I appreciate that the Salvation Army example is probably different in nature and that, perhaps, is a good example of the diversity you would expect in the public debate. I am just wondering whether the prohibited content provisions might, in particular, mean that governments and parliaments in the future are saying that it is inappropriate for parliaments or governments to say, 'If you're taking public money you've got to consistently promote values that reflect broader community values.'

The Hon. I.K. HUNTER: Again, my advice is that we need to distinguish the two activities. So, for the example the honourable member gave, if an organisation was funded to deliver a particular service then, yes, the expectation would be that they would apply public values. That would not, however, constrain them (an NGO) from advocating on government issues and policies of the day.

The Hon. T.A. FRANKS: My question goes to publicity clauses that are put into government contracts. Will there be some sort of review of those clauses and, indeed, perhaps a removal of those clauses where they are deemed to not be strictly necessary as a result of this legislation?

The Hon. I.K. HUNTER: My advice is that the minister has given an indication to the NGO sectors that any clauses in existing agreements would be reviewed in light of this act. My understanding, from dim memory, in terms of funding documents, when I used to see them, is that publicity clauses were usually phrased in such a way that an organisation would be expected, as a courtesy to the funder, to provide that funder with documents that they produce for public consumption. So, newsletters would go to the relevant office, for example.

The Hon. S.G. WADE: Just picking up on your answer, in terms of, if you like, heritage clauses. My understanding is that as this has no transition provisions it has retrospective effect to the extent that—and I am not objecting to it, I am just noting it—once this legislation has passed any agreements with prohibited content would immediately have those clauses void and to no effect pursuant to proposed section 4(2).

The Hon. I.K. HUNTER: My advice is that the honourable member's supposition is correct, but I have no information available to me that suggests there are any such clauses that would be impacted; however, that does not mean that they do not exist historically.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. A. BRESSINGTON: Mr Chair, I will not be moving my amendments.

Clause passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (16:56): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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