Dear Commissioner: Krystian Seibert

In part five of Dear Commissioner, Krystian Seibert offers the yet-to-be-appointed ACNC commissioner some advice involving Tina Turner.

Note from the editor: welcome to Dear Commissioner, a five-part series we will be running each day this week. We invited five sector leaders to write a letter to the future Commissioner of Australian Charities and Not for Profits Commission (ACNC), welcoming them to the role and explaining what they think the priorities should be for the organisation going forward.  

Dear Commissioner,

Congratulations on your appointment!

My advice to you is a bit unconventional – I suggest that you listen to some 80s music, specifically the song What’s Love Got to Do with It? by Tina Turner. A worldwide hit in 1984, it was Turner’s first and only US chart topper.

I am very open about my obsession with 80s music, but that is not what I am making this suggestion. Rather, the title of the song poses an important question that you need to ask yourself as you start in your role, and then keep asking yourself throughout your tenure.

Your role is to regulate charities, and the word ‘charity’ is derived from the Latin term ‘caritas’, meaning ‘love for humanity’ or ‘love for all’. Charity, or caritas, has evolved over time to encompass many different kinds of such ‘love’ – including a love of our earth and its environment, a love not just borne of a desire to ‘help those in immediate need’ (although that is an important element of charity), but also borne of a desire for justice and for a different world (hence why advocacy is such a key element of charity).

As a regulator of charities, the organisations through which ‘caritas’ is demonstrated, your role is literally to regulate ‘love in action’ – a rather unique and distinct role for a regulator. It’s quite different to the role of other regulators such the Australian Securities and Investments Commission or the Australian Competition and Consumer Commission.

Given this unique context, you can’t just take ‘Implementing Regulation 101’ off the bookshelf and start applying the contents. You need to push yourself to think differently, adopting a mindset that reflects your role’s distinctiveness.

The regulatory framework you administer is set out in legislation, regulation and of course the common law. But how that framework operates in practice also comes down, in large part, to how you exercise your judgement and discretion. The decisions and choices you make about all sorts of matters will determine how effectively the ACNC regulates charities, how it supports their work and how it benefits community.

When thinking about the decisions and choices you will make, here are some points that you may wish to ponder:

• As I have written about previously, the ACNC was established to be a ‘facilitative regulator’ – I’ve also written about how the Second Object of the Australian Charities and Not-for-profits Commission Act 2012 is directly relevant to understanding the ACNC’s role as a regulator of ‘love in action’ (though I didn’t use those words in that piece). The inclusion of this Object in the Act was not just an impulsive decision, but rather it was included because it makes an important statement about the distinctiveness of the ACNC regulatory framework. You should think long and hard about how you will work to fulfil all three of the Act’s Objects, but especially this one.
• How you engage with charities and their employees and volunteers is critical part of your work – I would suggest thinking about regulation as a collaborative, rather than a top down, process. Good regulation involves all stakeholders working together to maintain and evolve the regulatory framework. Remember that although you are a regulator, you are also ‘subject to regulation’ yourself in terms of the scrutiny of your work by other stakeholders, be they charities, those working in and with charities, the media, the Parliament and the Government.
• The approach you take to applying the law and encouraging its development is a key aspect of your role – embrace this stewardship role, and try to adopt an expansive rather than narrow mindset when it comes to interpreting the law. Using the example of how we define a Public Benevolent Institution (the subject of a consultation process underway right now) – you can choose an approach where you think ‘this is how the law is defined, based on the common law’, or alternatively adopt the more ‘exploratory’ approach of ‘given the common law and the different perspectives on it, how can I work with stakeholders to adopt an interpretation that benefits the community?’.
• Supporting and ensuring compliance with the law is one of your core responsibilities – your regulatory approach should start with a clear presumption that charities, and those working in and with them, are motivated by altruism and want to do the right thing. That doesn’t mean that you shouldn’t take enforcement action where there is evidence of serious wrongdoing. When monitoring compliance, remember that the words you use when communicating with charities can impact people – you cannot allow what occurred during the recent reviews of Public Benevolent Institutions to happen again.

That’s a lot of advice from me, but here’s one more tip. If you’re sitting back to listen to some Tina Turner and feel like you wouldn’t mind a book to read too, then I highly recommend Regulating Charities: The Inside Story. Edited by Myles McGregor-Lowndes and Bob Wyatt. It will be very useful in helping you work out ‘What’s Love Got To Do With It?’.

Regards,

Krystian Seibert