Reading notes: Submissions to the ACNC Senate Inquiry

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I previously commented on the batch of submissions (all 16 of them) that were available during the weekend following the May 2, 2014 deadline for submissions. In the following week, 132 submissions were added for a total of 148 (one being a duplicate entry it seems: 16, 146). I have read through about two thirds of them – the most relevant, imho — and share some reading notes (typos and shorthand and all) for those that are interested and might find some screening and commentary useful.

Comments and corrections welcome. Critique, too.

Overall impressions:

  1. I had previously called eminently readable the six-page brief of The Queensland Law Society and apparently I was not the only one who was impressed. Several other contributors (e.g., 42, 52, 77) refer explicitly to this submission (no. 7 here).
  2. The quality of the submissions varies widely, from the fluffy and gratuitous that runs for a page or two and is mostly self-advertisement (I won’t mention names but I’m sure they know who they are) to must-reads such as submissions 7 [Queensland Law Society], 16 [Creating Australia], 32 [John Butcher], 37 [Housing Industry Association], 43 [Ted Flack], 45 [Neumann & Turnour], 47 [philanthropy Australia], 50 [Third Sector Researchers], 52 [Robert Fitzgerald], 59 [Centre for Civil Society], 61 [Governance Institute of Australia], 70 [Elizabeth Cham], 77 [World Vision Australia], 79 [Performance Partners]; 95 [Susan Pascoe/ACNC], 99 [Martina Nehme], 102 [Financial Services Council], 103 [Universities Australia], 109 [Andrew Barr], 138 [Robert Wright], 146 [Myles McGregor-Lowndes]. My sample of 21 must-reads overweighs those in favor of the Repeal because the arguments in the  submissions in favor of the ACNC regime are pretty much the same and because, if there is a case that government can make for the abolition, you might find it in those that I over-sample.
  3. Support for the Repeal Bill clocks in at less than ten percent of the submissions (e.g., 37, 43, 59, 64, 102, 103, 115) overall. For what that’s worth: we don’t know how much selection bias there is and how many of the fluffier contributions are commissioned pieces; some clearly are. The repeated use of phrases such as “it would be a retrograde step to abolish the ACNC” suggest some gentle arm-twisting towards contribution.
  4. Overall, it is hard to escape the impression that the title of my earlier CET contribution captures the prevailing sentiment well. There is wide-spread concern about shoddy workmanship (the factual mistakes in the Regulatory Impact Statement; the failure to address the costs of the transition to a new system; the failure to lay out how a new regulatory framework would address the well-documented concerns regarding the pre-ACNC configuration which prominently featured ATO and ASIC as the default regulators and enforcers)
  5. Once again the widely favored regulatory model is anglo-centric and ignores the alternatives that exist elsewhere as well as the considerable problems that have been documented for charity commission models.
  6. Once again there are frequent attempts to downplay the considerable susceptibility of the third sector to outright fraud, mismanagement, and mission drift. Everyone who denies this danger starts from the wrong premise. There are good reasons while we have the layers of regulation: they are a reaction to the lack of transparency and accountability of the sector (a lack of transparency and accountability that the self-anointed leaders of the sector have failed to address for a couple of decades now), spectacular cases of abuse (that I have documented in previous contributions to this blog, here and here and here and here and here), and the general understanding that human nature of the actors in the not-for-profit sector is not even close to what some people like to believe (for a particularly silly example, see submission 61: “Members of charities are not driven by the bottom-line but by a deep-rooted ethical mission.”).

Detailed impressions:

Below the following abbreviations are used.

AIS = Annual Information Statement

ASIC = Australian Securities and Investments Commission

ATO – Australian Tax office

Bill 1 = Currently know Repeal legislation

Bill 2 = Legislation detailing future regulatory architecture, yet to be provided

COAG = Council of Australian Governments

Dgr = Deductible gift recipient (status)

EM = Explanatory Memorandum

ICFO = International Committee on Fundraising Organizations

Nfps = not-for-profits

RIS = Regulatory Impact Statement

Repeal = Repeal legislation

 

Commentary on selected submissions.

Submission 1 (Westworth Kemp, consultants, 2 pages): Concerned that Repeal a step backward; stresses consultation process that led to current configuration; supports ACNC focus on education as well as regulation; stresses that Tax Office would be a regulator with conflict of interest (strict regulation of Dgr status to protect tax revenues); proposes that Commonwealth work through COAG to remove regulation at State level, “so that the ACNC can become the ‘one-stop shop’ it was intended to be.”

Submission 3 (Queensland Association of Independent Legal Services Inc., 1 page): Supports current regulatory framework and recommends that Repeal not be passed; forsees that reporting burden will be reduced; recommends that all levels of government commit to supporting the “one-stop shop” regulator concept.

Submission 4 (Fielding Foundation, 1 page): draws on own experience to argue that ACNC and AISs have significantly reduced its workload (costs of information acquisition); suggests that financially insignificant charitable entities such as community sporting groups need not be regulated.

Submission 5 (Incredable, 2 pages): based on own experience in favor of retaining ACNC as national regulator of nfps and charities; applauds “The ACNC for its softly-softly approach to the oversight of the charity sector, and for its active pursuit of those masquerading as Charities”; stresses that ACNC helps to resolve competing claims about size of nfp sector and its impact: “Clearly, the states have failed to do so to date, it is therefore incumbent on the commonwealth government to do so.” Stresses consultation process that led to the current configuration and stresses that Repeal was not based on consultations. “I must conclude this is an ideological thing with this [Abbott] government. … As a conservative voter I am pretty disillusioned with their ‘idillogical’ outlook.”

Submission 6 (Max Bourke, 1 page): Repeal “a most retrograde step and is to be deplored. There is no doubt it will increase the potential for fraud and I imagine fraudsters relishing the prospect. To introduce a Bill with a vague and totally unspecified means of replacing these functions is the act of a government covering up it intentions … “

Submission 7 (Queensland Law Society, 6 pages; see my earlier extended summary here): deplores two-stage process, stresses that it creates costly uncertainty for the sector, that “it makes good administration by the current ACNC extremely difficult”, and that “it makes informed debate on the No. 1Bill effectively impossible”; QLS particularly concerned with EM and RIS “being less than rigorous, and not meeting the usually high standards and disciplines of Commonwealth legislative processes.” Multiple examples of factual mistakes in both EM and RIS enumerated; failure to address consequences of a return to pre-ACNC regime critiqued, lack of appropriate public consultation critiqued. Also pointed out that ATO itself, in 2001, expressed support of an ACNC-like organization. Importantly, QLS quantifies early achievements of ACNC and its efficiency in processing applications for income tax and Dgr status, and more generally timely response to legal developments/dissemination to the sector. It also lauds data systems and handling: “it has become apparent to all professional advisors that the state of the data set handed by the ATO to the ACNC was poor and this was despite the the ATO in the months prior to handover attempting to cleanse their records.” Overall, a very favorable endorsement of the present regulatory framework and the ACNC, as it is.

Submission 8 (Melville Miranda, 2 pages): apparently in favor of present regulatory framework; suggest that Repeal will help “the rich and charities to corrupt the Australian system”; excessive salaries and unethical practices of CEOs of nfp mentioned but no examples given of such transgressions.

Submission 9 (The Shepherd Centre, 2 pages): In favor of retention of ACNC; repeal “would increase the current workload on charities and forego the opportunity for future savings in workload.”

Submission 10 (Women’s Health Network, 12 pages): In favor of retention of ACNC; “The ACNC, in a short space of time, has achieved much and engendered trust and goodwill in implementing its objects and functions in terms of the ACNCAct. … “  Own experiences used for case study. Discusses the need for extending reach of ACNC to fundraising. Discusses alternative arrangements and finds them wanting for the standard reasons.

Submission 11 (Associated Christian Schools, 2 pages): In favor of retention of ACNC; “a positive step forward in initiating the simplification of compliance and red tape, and a mechanism for removing the ATO from the determination of charitable status.” Suggestion that repeal would increase workload and red tape.

Submission 12 ( Add-Ministry Inc, 2 pages): Based on experience as “advisor to many charities in Western Australia” in favor of retention of ACNC: “If the ACNC were given the opportunity of pressing forward and completing its task it will achieve a far better reduction of red tape than any possible dismantling would achieve. … The abolition proposed seems to fly against significant Government inquiries and also requests of the Sector expressed over many years.”

Submission 13 (Riverview Church, 2 pages): In favor .. based on ACNC achievements pertaining to regulation, education, and as public register system.

Submission 14 (Aged & Community Services NSW & ACT, 1 page): In favor …

Submission 15 (ACRATH, 3 pages): In favor … A contribution worth a read because it shares experiences from the process of becoming incorporated and from seeking fundraising licences or the like in multiple jurisdictions (states). Concern voiced that Repeal will have the opposite effect to that being proposed by Abbott Government in terms of red-tape .

Submission 16 (Creating Australia, 3 pages; see also submission 146): Disappointed with Repeal, in favor of retention of ACNC. Stressed that building the present regulatory framework takes time, that much has been accomplished already (more than 500 complaints, of which 240 have been investigated, for example), and that in the absence of the ACNC numerous questions are in need of an answer. Excellent list of questions provided.

Submission 17 (Uniting Church in Australia National Assembly, 5 pages): Disappointed with Repeal, in favor of retention of ACNC. Desiderata formulated in case Abbott Government wishes to press ahead. Achievements of ACNC so far lauded, concern that abolition (and movement away from current system) “will impose considerable distress and probable further costs”. Concern about lack of a well-researched justification of the Repeal, or alternatives to it. Need for a more open and wider dialogue stressed.

Submission 18 (Institute of Chartered Accountants, 5 pages): In favor of retention of ACNC model/regulatory framework. COAG involvement urged to promote harmonization of state laws pertaining to charity regulation/fundraising rules that are at variance. Concerns about the two-step legislative process (Bill 1 now, Bill 2 later). Lack of appropriate consultation so far noted. I would dispute the statement on p. 3 that “This [charity-commission based] regulatory model is consistent with the majority of regulatory models across the world … “; this statement is based on a very limited, anglo-centric, view of range of models that are out there; see []

Suggestion that red-tape reduction can be achieved by reducing layers of inconsistent state/territory legislation.

Submission 19 (National Disability Services, 3 pages): In favor of retention of ACNC model/regulatory framework. History that led to present framework recounted. Strong support for the existent model and philosophy.

Submission 20 (CPA Australia, 2 pages): In favor or retention of ACNC model/regulatory framework. Concern about two-phased approach employed to remove ACNC and associated legislation. Stressed that before abolition of ACNC a number of open questions need answering.  Key targets identified: inconsistent state/territory incorporation and fundraising legislation, as well as multiple compliance and reporting obligations, which are part of funding arrangements with govt agencies, including acquittal processes.

Submission 21 (Law Council of Australia, 1 page): In favor of retention of ACNC model/regulatory framework. Request for further consultation with stakeholders.

Submission 23 (All Together Now, 1 page):  In favor of retention of ACNC model/regulatory framework based on own experience. Against Repeal.

Submission 24 (Australian Centre for Philanthropy and Nonprofit Studies, 4 pages): ):  In favor of retention of ACNC model/regulatory framework. Stressed that abolition would leave stranded the National Standard Chart of Accounts (NSCOA), request (well, more a demand based on “moral rights”) to be involved given initial investment in the development of the NSCOA.

Submission 25 (Rowena Skinner, 2 pages, plus attached Open Letter to Government of March 18 2014, signed by almost 60 parties urging the retention of the ACNC):  Strongly in favor of retention of ACNC. Recalls some of the arguments and statements in support of the present ACNC.

Submission 26 (The Synergy XChange Ltd., 2 pages): In favor of retention of ACNC.

Submission 27 (Conservation Council SA, 4 pages): In favor of retention of ACNC and calls on Senate to reject the Repeal. Points out that the South Australian government has moved to legislate away the duplication in reporting and that the proposed legislation is simple and would be effective and should be a template for other states to follow suit. Lauds the transparency available through the ACNC register: “it is something of a scandal that the ATO did not have such public records when it had responsibility for registration.”

Submission 28 (better boards, 2 pages): In favor or retention of ACNC and calls on Senate to reject appeal. Also lauds ACNC’s “two-pronged approach to encouraging excellent governance practices … implementing minimum standards of governance, the ‘Governance Standards’, … In combination with this, the ACNC  promotes good governance beyond the Standards’  stipulations … “

Submission 32 (John Butcher, 6 pages): In favor of retention of ACNC and against Repeal. “Signficantly, no evidence has been offered either before the election or since in support of the decision to repeal these important policy measures.” Stresses that ACNC in process of being established, argues that impressive progress has been made, and that abolishment would represent an enormous waste of effort and loss of faith with Australia’s not-for-profit sector. Points out that ACNC is results of deliberations commenced under Howard Coalition and details some milestones along the road.  Questions process and also points out factual errors in EM. A substantial contribution. Nice reference to Lyons (2003) as reminder of the pre-ACNC mess.

Submission 33 (mgi consultants, 3 pages): Against appeal; comments on positive impact that ACNC had on clients since inception. Expresses hope that govt along with state and territory governments work together to remove multiple layers of red tape. Lauds ACNC education efforts.

Submission 37 (Housing Industry Asociation Ltd, 3 pages): “HIA fully supports the Bill to repeal the ACNC Act.” They document their long history of arguing against the ACNC; they seem to miss the point that indeed the intention was/is to have ACNC regulation supercede State regulation. They also argue against what they call “oppressive ACNC powers” to gather information or request documents, search premises and inspect item on premises, and secure documents or electronic equipment found on premises. “The Commissioner also holds powers to take information (and presumably ask questions) under oath or affirmation. … ” Interestingly some of the claims being made here (“Not all NFPs are philanthropic in focus, community based, in receipt of public donations or public funding, and staffed by volunteers – only a very small minority fall into this category.”), so far are not easy to substantiate and / or quantify.

Submission 39 (Reach Foundation, 2 pages): Strongly in favor of ACNC and against Repeal. Stresses long process of consultation and engagement with the sector that led to it, and attests ACNC “remarkable progress in a short period of time” (including a seamless registration process across ACNC and AT).

Submission 40 (the difference [“independent charity analyst”], 1 page): “Not all charities are working hard to deal with the issues they were created to address. [generic examples follow] . … Visibility on charity effectiveness is important. … ” In favor, kinda. Worthless.

Submission 42 (John Church, 2 pages): In favor of ACNC and against Repeal. Critical of Repeal process so far; points out the limitations of the Charity Navigator model; mentions that own experience with ACNC has been much better than with ATO; refers explicitly to the Queensland Law Society submission (no 7) and its critique of the RIS.

Submission 43 (Ted Flack, 3 pages): Reviews pre-ACNC regulatory environment and far-reaching consensus of its dysfunctionality. Assesses the prospects for a real reduction in the regulatory burden if the ACNC were abolished and points out that it would not solve the problems that led to the ACNC in the first place. Claims that there are measures that “could achieve much of what the ACNC was designed to do much more cheaply”. It seems that some of these ideas (for charities that issue tax-deductable receipts in excess of $100,000 p.a.) take inspiration from ICFO templates. Urges , “Whatever the arrangements made, should the ACNC be abolished, this submission strongly urges the Commonwealth govt not to lose sight of the main game – red tape reduction. … at practitioner level the rationale for reform is the modernization and streamlining of regulation of charities and fundraising in Australia. It is argued that most of the unnecessary red-tape burden is generated by state and territory regulators.”

Submission 45 (Neumann & Turnour, lawyers, 6 pages): One of the more interesting and substantial briefs, as you would expect. Makes the interesting point about the disruption that a repeal would bring about. Arguing that “in general terms we have experienced significant difficulties in attempting to enliven the ACNC powers to prevent the misapplication of charitable funds in state-based entities” and that relatively few entities (probably about 7,000 of the > 600,000 NFPs) were directly subject to federal regulation, “little may be lost at this time by considerable reduction of the ACNC’s regulatory powers. … We recommend that the ACNC be approached for its views on its powers. … Such a step need not be permanent. … The sector needs stability. If the ACNC is abolished, only for it to be reinstated again when the govt changes, enormous damage will be done to the fabric of civil society.” Points out that the Repeal is likely to need the support of six of the eight incoming senators. Hence at this stage concessions from all relevant parties may be preferable over a winner-take-all strategy.

Submission 47 (philanthropy Australia, 12 pages): Encourages “the retention of the parts of the framework which are working effectively, even if the ACNC itself is not retained.” It proposes three principles to guide its policy recommendations for a possible post-ACNC world.

“These principles address the questions about the appropriate allocation of regulatory roles, the importance of ongoing work to reduce regulatory burden, and the value of information collection and provision about charities (including philanthropic organizations.”

It proposes hat Senate postpones consideration of the Repeal and undertakes a process of public consultation that deserves the name. “One option which PA believes should be considered … would involve replacing the ACNC with a ‘Charities Registrar’, which would be a smaller body responsible for determining the charitable status of entities and maintaining a publicly searchable register of charities.” One of the more interesting submissions.

Submission 49 (Wesa Chau, 1 page with attachment): In favor of ACNC, against Repeal. Stresses the uncertainty the current stalemate has brought about and the negative impact it has on the forward planning processes of many NFP organizations. Mostly opinion.

Submission 50 (ANZ Third Sector Researchers, 5 pages): Focusses on the role ACNC has and can continue to play in promoting research. In favor of maintaining the ACNC from that perspective and against the Repeal. Useful details from 2006/7 ABS data on the sector. Urges regulation of philanthropic foundations and (family) trusts (which are currently not required to report to ACNC). “This omission is a tragic loss of opportunity to remedy the current near-total ignorance about Australia’s philanthropic sector. … “

Submission 51 (hanrickcurran, 2 pages): “We expect that with time, the ACNC will be able to bring a focus to reducing duplication that is unlikely to be achieved if the regulatory functions are devolved to previous agencies such as ASIC and ATO.”

Very true: “We consider that … the previous regulatory environment (i.e., ASIC and ATO) is a response to instances of malpractice in the sector … “

“We consider it is likely too soon after the implementation of the ACNC for a proper conclusion to be drawn as to the efficiency of the current arrangements when compared to previous arrangements.”

Lauds work of ACNC so far, “we submit that the removal of the ACNC at this time would be unnecessarily disruptive to the sector … “

Submission 52 (Robert Fitzgerald, Chair, Advisory Board, ACNC, and head of the Productivity Commission that produced the 2010 report on the third sector, 12 pages): As you would expect: “I regard the proposed repeal of the ACNC as deleterious for the Australian community, government and charitable sector. It is not in the public interest. More significantly, I do not believe that the repeal of the ACNC meets the govt’s own stated objectives. … The repeal proposal is not founded on a robust evidentiary base … This matter should not be a party political issue. It certainly should not become an ideological issue. It is and should be simply about good policy …  

The ACNC can achieve its objectives … It needs the opportunity to do so.”

No surprise here. According to Fitzgerald the ACNC legislation is soundly based on evidence … It works and it works well. Notably Fitzgerald contest the quality of the process and refers explicitly to the RIS analysis of the Queensland Law Society (submission 7 above).

Submission 59 (Centre for Civil Society, 3 pages): Highly critical of the ACNC and the present regulatory framework: “The fatal flaw of the Act and the ACNC was  to equate all not-for-profits in Australia with the 5 % of not-for-profits that deliver service delivery contracts for governments. Of the 695,000 nfps in the country, 665,000 employ no paid staff and deliver no service delivery contracts for governments. These 95 % of nfps are culturally invisible to the ACNC. They … don’t exist culturally and politically because they have no voice, are absent from sector forums and conferences, and have no lobbyists in Canberra. … This has generated a deeply flawed understanding of the sector, which in turn produces a deeply flawed understanding of the regulatory requirements for the sector. … “ And so on. Pretty blunt assessment of the managerial class that runs ACNC (and the advisory board).

Urges the Repeal and the abolition of the ACNC. An interesting document that surely will get dismissed by the defenders of the ACNC. Because it attacks many of them.

Submission 60 (St Vincent de Paul Society, 3 pages): The Society opposes the move and “is wary of what appears to be an ideological opposition to the very existence of the ACNC. Rather than abolishing the ACNC, the Society believes that the government would be well-advised to listen to the voices of charitable and nfp sector.”

Submission 61 (Governance Institute of Australia, 15 pages): In favor of ACNC (partially because of its light-touch presence) and against Repeal. Recommendation that current reg reform process be allowed to complete, with COAG progressing harmonization of regulation.

Some contestable statements in the document: “Members of charities are not driven by the bottom line but by a deep-rooted ethical mission.” Evidence? (Weisbrod’s work surely not.)

But the document does contain a number of interesting facts (e.g., about COAG having already commissioned a Regulatory Impact Assessment of potential duplication of governance and reporting standards for charities and on how to best achieve national regulation.

Submission 63 (The Smith Family, 1 page): Specifies four principles of appropriate regulatory frameworks that it has consistently advocated over the years. Looks forward to a consultation process that is up to snuff.

Submission 64 (Colin Brennan, 2 pages): “Please remove this impost from us, and relieve us of this irrational exploitation of precious volunteer hours.”

Submission 66 (Corney & Lind lawyers, 1 page): In favor of ACNC, against Repeal. Anecdotal feedback that majority of clients (charities) support continuation of ACNC.

Submission 70 (Elizabeth Cham, 11 pages plus attached PBA article): An attempt at an academic paper on the rise and fall of Australia’s first regulator for the NFP Sector. Sketches the evolution of the ACNC and identifies “the missing segment” of the current regulatory framework: “The ACNC never included philanthropic bodies in its remit despite their status under Australian law of charities, i.e. legally part of the nfp sector. … As a consequence, for the overwhelming majority of foundations we do not know: who they are, what they fund, the capital base of each foundation, the amount distributed to the community, etc.” Argues the need of accountability of these entities.

Submission 77 (World Vision Australia, 6 pages): Broadly in support of ACNC and current regulatory framework. “We do not believe that 16 months is a realistic period on which to judge the ACNC’s’ progress on its objectives.” Interesting facts on compliance costs: See page 5. WVA estimates that “in FY 13 it spent in excess of 13,000 hours in fulfilling reporting obligations to other government departments and agencies (at both a Commonwealth and State level), most notably, grant acquittal and reporting obligations to the DFAT (formerly AusAID). “ Here reference to Queensland Law Society submission (no 7)  which reports similar experiences.

Sharply critiques the two-stage Bill procedure.

Submission 79 (Performance Partners [Greg Smith], 7 pages): Pretty much in line with the arguments in Fitzgerald’s contribution (submission 52). Points out that “The process being followed to close the ACNC is a distinct and remarkable contrast to that which led to its creation.” Recalls that process in detail and in particular the 2010 Productivity report.

Points to an article (“Andrews leads fight to abolish charity commission”) by Michael Seccombe in the Saturday paper March 29, 2014, who argues that that there are two groups that want the charities regulator and its oversights scuppered: the financial services industry and the Catholic Church. Andrews is their pointman. See relatedly submission 70.

Submission 80 (pwc, 2 pages): Do not support Govt’s plan to repeal the ACNC. Pretty much in line with ACNC’s view of itself.

–          The ACNC aims to reduce red tape …

–          The ACNC’s role is broader than compliance. Its aim is to foster transparency, public trust and comparability of reporting

Submission 92 (Asia-Pacific Centre for Social Investment and Philanthropy, 4 pages):

Repeal bill considered ill-advised. “Abolishing the ACNC would potentially return the NFP sector in Australia to the state in which the Productivity Commission found it in 2010 – with an unnecessarily complex regulatory framework that lacks coherence and transparency and imposes excessive cost burdens on NFPs.”

Submission 93 (Amnesty International, 2 pages): In support of ACNC, against Repeal Bill which it considers disruptive.

Submission 94 (Australian Institute of Company Directors, 3 pages): “We believe until the Govt fully discloses all of the information regarding a proposed alternative framework for independent regulation, which is endorsed by the sector, the ACNC should remain in its current form and press ahead with achieving its objectives.”

Submission 95 (ACNC/Susan Pascoe, 45 pages); Useful document with the expected message. Stresses that “it is not the ACNC brand which should be the focus of debate, rather what constitutes good charity regulation.” (p. 1) As usual, international trends in charity regulation are considered through the anglo-centric glasses. “Australia is a relative late-comer, as most comparable jurisdictions either already have independent charity regulators or are setting them up.” (p. vii; see also p. 21 for an explicit reference to what the ACNC model is based on; see also p. 36: “The ACNC model was developed drawing from and improving upon the best practice regulatory models across the world. Jurisdictions reviewed included Singapore, NZ, Scotland, and NI, the US and Canada.” Interestingly, no mention throughout the document of ICFO or its members.)

Makes astonishing claims about media attention on ‘sham’ charities or other ‘scandals’ was not the catalyst for establishing the ACNC. (p. 8) Really? These are disingenuous statements. See my earlier CET contributions HERE AND HERE AND HERE

Provides an interesting example of how pre-ACNC regulatory framework exploitability See box on p. 8 and fn 44.

Warns (p. vii) that the abolition of the ACNC might fire back on the government in light of Australia’s obligations to the Financial Action Task Force. Once again

Lots of facts and counterfactuals (“What would happen if ACNC gets abandoned.)

Submission 99 (Martina Nehme, UNSW Law, 6 pages): Strongly objects to Repeal. In favor of current framework. Lots of useful references. Stresses that ACNC has chosen, for now, a cooperative approach but has the option to change its regulatory strategy. This is reminiscent of De Marzo et al. RES 2005. Argues that a Centre of Excellence is not incentive-compatible for “bad apples”.

Submission 100 (Institute of Public Accountants, 8 pages): In favor of maintaining the ACNC and the regulatory framework in which it is embedded. Among other things being discussed is the controversial issue (to some people’s minds) of the ACNC’s oversight of religious institutions and the complex institutional arrangements they often are (see pp. 4 – 5). “Grandfathering for religious institutions from financial reporting obligations may well permit them the opportunity to reconsider the merits of the ACNC Act and effectiveness of the operation of ACNC itself as part of our proposed 2015 review.” (p. 8)

Critiques how the process was handled so far.

Submission 102 (Financial Services Council, 8 pages [including attachment 1] plus 18 pages attachment 2: Advice by Herbert Smith Freehills): “The FSC and its members welcome the abolition of the ACNC Act and Regulations (ACNC regime) for three reasons … [new compliance costs; imposition of different governance standards on trustees of charitable will trusts on the one hand and licensed trustee companies in relation to their delivery of all other traditional trustee company services; excessive powers granted to Commissioner]“

Lots of legalese here, need to go back to appreciate the subtleties.

Submission 103 (Universities Australia, 2 pages): “No public interest is advanced by the ACNC …  UA supports this Repeal Bill to abolish the ACNC as it will address UA’s concerns on the duplication of regulatory and reporting burdens currently imposed on univeresities.” See also submission 118 (NeuRA)

Submission 109 (Andrew Barr, Deputy Chief Minister for ACT Government, 4 pages): Continues to support ACNC regime. Disputes RIS and mentions, as template for other jurisdictions, ACT Govt agreement to cease the regulation of charities registered in the ACT, where these charities were also registered with the ACNC. Puts a price tag on this collaboration (p. 3)

Submission 114 (David Gilchrist, Director, Curtin NfP initiative, 2 pages): Calls ACNC regime “a well-balanced and thoughtful piece of legislation that neatly combines suitable regulatory responsibilities with critical trust-building, capacity building and red tape reduction responsibilities.” Consider Repeal, if enacted, a set-back.

Submission 115 (NeuRA, 1 page): Endorses all the issues raised in the submission from the AAMR (which submission?). “The ACNC Act has achieved no benefit and has, in fact, increased the administrative and regulatory burden for many Medical Reearch Institutes including NeuRA. Therefore, NeuRA supports the repeal of the ACNC Act.”

Submission 120 (Fundraising Institute Australia, 3 pages): Points out that fundraising activities are covered by State and Territory law and are not part of the ACNC regime. “FIA finds it difficulty in commenting further on the ACNC Repeal Bill in the absence of the foreshadowed second Bill … “

Submission 123 (Save the Children Australia, 2 pages): Strong support for ACNA regime. “In addition, SCA is a member of the CCA and endorses the matters raised in its submission.”

Submission 138 (Robert Wright, Solicitor, 4 pages +) : In support of ACNC regime. Good set of faq and good answers. Discusses problems with Charity Navigator model.

Brings up this excellent question:

“Having regard to the concern resulting from the various enquiries into child sex abuse, especially the difficulty  in suing a church entity, is it appropriate that most assets of most churches are held in trusts with no public reporting obligations at all?Is it not significant that there has been comment in the press that the moving force behind the abolition of the ACNC has been the Catholic Church? … “

Also briefly discusses the situation in other parts of the world but seems unaware of ICFO.

Submission 145 (Paxton Hall, 3 pages): Firmly in favor of ACNC regime.

Submission 146  seems to be the same as submission 16.

Submission 146 (Myles McGregor-Lowndes, sending what looks like the galleys of a chapter due to be published in a CUP book titled Not-for-Profit Law: Theoretical and Comparative Perspectives) The chapter describes the law and events up to June 2013. The assessment of the ACNC regime and the progress of the ACNC up to date is what you would expect to hear from MML. Contains some interesting facts about the perception and reality of the costs of compliance.

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