Lack of NFP “Harmonisation“ Intolerable - Fitzgerald

Charities Inquiry Productivity Commissioner Robert Fitzgerald says it is almost intolerable that three years on from the commencement of the Not for Profit reform process there is still no ‘harmonisation’ of fundraising laws around Australia.

Fitzgerald was speaking before Easter at a Conference hosted by the 'Australian Centre for Philanthropy and Nonprofit Studies, at QUT Business School called Reforming Fundraising Regulation. He told the audience that there was no justification for the lack of harmonisation.

The Conference saw researchers and regulators from International jurisdictions and across Australia come together to look at ways to reform and produce new fundraising laws that are appropriate to contemporary Australia.

Robert Fitzgerald chaired the Productivity Commission’s Review of the Contribution of the Australian Not for Profit sector.

Fitzgerald told the conference that the Not for Profit sector faced a multiplicity of rules, regulations, definitions, exemptions, exclusions and penalties and while he welcomed the contribution of the States and Commonwealth through the COAG working group it was simply well and truly past an acceptable position that there has been no real harmonisation reached in this space.

He said that reform in the sector was not complex, despite State differences. He said there are State differences in every single area of Australian regulatory regime and yet they achieve regulatory reform in those areas.

The conference was told earlier by Sue Anne Wallace of the Vincent Fairfax Family Foundation that currently there are eighteen pieces of fundraising legislation and regulation in Australia and because fundraisers also get involved with lotteries and gaming, there are another fifteen pieces of legislation to deal with – making a total 33 pieces of fundraising legislation.

Fitzgerald told the Conference that the Productivity Commission report had called for harmonisation with a National fundraising register, based on the premise that the States continue to have an important role but if they wished to refer powers to the Commonwealth they could do so.

He said the recommendation was also based on an absolute belief that the States and Territories and the Commonwealth would be able to, in a timely manner, achieve a reasonable outcome in a relation to harmonisation.

He said it was his great hope that that belief and faith was not misjudged because if it were he doubted whether the recommendation would have been the same.

Fitzgerald said the current regulations, rather than facilitating an environment for fundraising, were set up to protect and control and that that is a fundamental misreading of what regulation should and could be about.

Regulation, he said, is absolutely about trying to eliminate or reduce bad practice.

But he said his view was that a regulatory environment needed to be one that enables, and encourages the advancement of particular causes, industries or activities.

He said while the Government has agreed to the Standard Charts of Accounts there is a need for harmonisation of Association’s Law, which allows migration from one legal type to another so that people should be able to easily move from a State based association regime into a corporations law at the Commonwealth level.

He said the Commission believed that the notion of a charity should be defined at the Commonwealth level together with a whole range of other definitions and those that are applied at the State level.

He said what’s needed is a simple common Commonwealth-based definition for which there can be exemptions in relation to particular states.

Since the release of the Productivity Commission report, COAG has initiated a project developing model laws for fundraising (The Nonprofit Model Law Project) and the Federal Government has established an Office for the Not for Profit Sector within the Department of Prime Minister and Cabinet, to coordinate and oversee the implementation of the Productivity Commission recommendations.

The COAG regulatory reform of NFP fundraising regulation was agreed in April 2010 and the Ministerial Council on Consumer Affairs (MCCA) has been charged with developing a nationally consistent approach to fundraising regulation.

Currently it is expected to have a regulatory impact statement released for public comment and to report to COAG by July 2012 on the implementation progress.

At its meeting in December 2010, Ministers noted progress in developing proposals, together with the development of an issues and options paper identifying key areas of inconsistency in current fundraising regulation and outlining potential options for reform.

A transcript of Robert Fitzgerald’s speech can be found at the QUT podcast site here.

An extensive list of Issues Sheets and Conference papers is available at https://wiki.qut.edu.au/display/nmlp/Issues+sheets+and+conference+papers

Information on the The Nonprofit Model Law Project is at https://wiki.qut.edu.au/display/nmlp/The+Nonprofit+Model+Law+Project