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2010-11-12-13
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
NOT-FOR-PROFIT SECTOR FREEDOM TO ADVOCATE BILL 2013
EXPLANATORY MEMORANDUM
Circulated by authority of Senator the Hon Penny Wong, Minister for Finance and
Deregulation
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NOT-FOR-PROFIT SECTOR FREEDOM TO ADVOCATE BILL 2013
GENERAL OUTLINE
The Bill introduces provisions that would prohibit and invalidate clauses in Commonwealth
agreements with the not-for-profit (NFP) sector that restrict or prevent NFP entities from
advocating on Commonwealth law, policy or actions (`gag clauses').
The Bill will provide a clear and tangible response to the advocacy concerns raised by the
NFP sector. The use of `gag clauses' can restrict the NFP sector from engaging in debate or
lobbying on Commonwealth policy. The Bill will enable ongoing positive engagement,
together with open communication and debate, between the Federal Government and the NFP
sector.
Financial impact statement
The Bill will not have a financial impact on the NFP sector.
There is a remote possibility that the retrospective aspect of invalidating `gag clauses' in
existing Commonwealth agreements may result in a minor financial impact to the
Commonwealth. In this highly unlikely circumstance, the Bill provides for reasonable
compensation, where there has been an acquisition of property by the Commonwealth.
Statement of Compatibility with Human Rights
The Bill engages and promotes the right of freedom of expression as set out in Article 19 of
the International Covenant on Civil and Political Right (ICCPR). The Bill will prevent the
Commonwealth from including clauses in agreements that prevent or restrict NFP entities
from advocating on Commonwealth policy issues.
The Bill does not relate to any of the other applicable rights or freedoms outlined in the
Human Rights (Parliamentary Scrutiny) Act 2011, such as encompassed in the ICCPR.
The Bill does not limit any human rights, nor propose any offences or penalties.
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in subsection 3(1) of the Human Rights (Parliamentary
Scrutiny) Act 2011.
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NOTES ON CLAUSES
Clause 1
This clause provides that, if enacted, the Bill may be cited as the Not-for-Profit Sector
Freedom to Advocate Act 2013.
Clause 2
This clause provides for the Act to commence on the day after it receives the Royal Assent.
Clause 3
This clause contains a range of definitions that apply for the purpose of the Bill. The scope
and intent of the range of definitions are largely self-explanatory, or drawn from other
legislation, but the following point should be noted:
- The definition of `confidential information' encompasses existing concepts contained
in the Freedom of Information Act 1982. The definition of `prohibited content' also
excludes personal information within the meaning of the Privacy Act 1988. This
definition should be read narrowly. Parties to the agreement must be able to justify
why particular information is confidential.
Clause 4
This clause is the main operative clause in the Bill. It protects and promotes the NFP sector's
freedom to advocate or oppose changes on Commonwealth law, policy and actions. It does
this by preventing an agency from including prohibited content in a Commonwealth
agreement. The Bill recognises that a strong, independent and innovative NFP sector is
essential to building an inclusive community.
The Commonwealth government is committed to promoting the NFP sector's freedom to
advocate. The Bill is intended to encompass and build on the Commonwealth Grant
Guidelines, which include a specific clause that prevents agency staff from including
suppression clauses in grant application and selection processes or clauses in grant
agreements.
This clause invalidates any clauses in Commonwealth agreements that purport to restrict or
prevent the NFP sector from advocating on Commonwealth policy issues. As a result, it will
not be necessary to monitor compliance with the legislation, since any clause in a
Commonwealth agreement that purports to `gag' the NFP sector will simply be void from the
day after the Act receives the Royal Assent. This will assist to enable the freedom of the
NFP sector to advocate on Commonwealth policy issues in the future.
Clause 5
`Prohibited content' is defined broadly to enable the NFP sector to advocate freely on the
breadth of Commonwealth law, policy or practice. This freedom to advocate should be read
to include the release of non-confidential information.
The definition of `prohibited content' does not extend to confidential or personal information.
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Clause 6
Clause 6 is included to ensure the constitutional validity of the Bill. It is intended to cover
the highly unlikely circumstance that a party to an agreement with the Commonwealth that
was entered into before the commencement of the legislation would suffer loss because a
`gag clause' in the agreement became void upon commencement of the legislation. In the
event that this situation does arise, clause 4 will ensure that the legislation does not give rise
to an acquisition of property other than on just terms, by enabling reasonable compensation to
be paid to the affected party.
Clause 7
Clause 7 provides that the Act will apply to all Commonwealth agreements, regardless of
whether they were entered into prior to the commencement of the legislation. Since 2008, it
has been Commonwealth government policy to not include any `gag clauses' in
Commonwealth agreements, in order to remove any restrictions on the NFP sector from
engaging in policy and debate.
Where a Commonwealth agreement contains `prohibited content' immediately before the
commencement of the law, the `prohibited content' will become void on the commencement
of the law and any right, privilege, obligation or liability acquired in relation to the
`prohibited content' before the commencement of the law will continue to exist (i.e. can still
be enforced).
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