Hoping for a bureaucratic miracle? Don’t hold your breath

The Consumer Affairs Forum is not a group that is likely to drive significant change in fundraising regulation across Australia, writes Community Council for Australia CEO David Crosbie.

In two weeks, the Consumer Affairs Forum (CAF) will meet. This forum consists of all Commonwealth, state, territory and New Zealand ministers responsible for fair trading and consumer protection laws. The CAF was formerly known as the Ministerial Council on Consumer Affairs (MCCA).

According to the CAF website their role is: “to consider consumer affairs and fair-trading matters of national significance and, where possible, develop a consistent approach to those issues”.

The last meeting of the CAF was in Melbourne on the 26 October 2018. 

There are two aspects of this meeting that ring alarm bells for anyone in the charities sector still vainly holding out hope that this forum might actually make decisions in relation to consumer affairs and the multiple sets of inane fundraising regulations imposed on charities across Australia.

The first concern is that hardly any of the CAF members actually attend these meetings. In 2018 there were officially 10 members of the CAF – all consumer affairs ministers or their equivalent: 

• Hon Guy Barnett MP (Tasmania – chair)
• Hon Kris Faafoi (New Zealand)
• Hon William (Bill) Johnston MLA (Western Australia)
• Mr Shane Rattenbury MLA (Australian Capital Territory)
• Hon Vickie Chapman MP (South Australia)
• Hon Matthew Kean MP (New South Wales)
• Hon Yvette D’Ath MP (Queensland)
• Hon Stuart Robert (Commonwealth)
• Hon Natasha Fyles MLA (Northern Territory)
• Hon Marlene Kairouz MP (Victoria)

According to the meeting communique, seven of these Ministers – including the CAF chair – failed to attend, “The Hon Stuart Robert MP chaired the forum in the absence of the Hon Guy Barnett.” Other than the Commonwealth and New Zealand ministers, only the Queensland minister (Yvette D’Ath) bothered to attend. All the rest were apologies – leaving the meeting to their senior officials.

It is hard to imagine any important meeting proceeding if seven of the 10 members, including the chair, are not present. It is also difficult to see how the decisions from a meeting where only three of the 10 members attend can be seen as binding on all involved.

Over many years working at a national policy level, I have learnt that if there is no real interest in an issue from the states and territories, it is highly unlikely any progress will be made in implementing an agreed national solution.

The CAF attendance record suggests that when it comes to consumer affairs, most ministers have better things to attend to. This is not a group that is likely to drive significant change in fundraising regulation across Australia.

The second concern with CAF is that their default position seems completely at odds with a red tape reduction approach.

Discussion about charities and fundraising at the most recent CAF meeting was not about how counterproductive the whole system is, the need to harmonise regulations or reduce the administrative burden on charities. The issue raised and discussed was about the potential need for states and territories to put in place additional fundraising regulations.

Under the subheading “Charitable Fundraising” this is what is reported in the CAF Communique:

“NSW raised a potential regulatory gap arising from restrictions the ACNC faces in taking action against former directors or office holders of charities registered with the ACNC.

“NSW also raised the recent recommendation by the ACNC Act review panel that directors’ duties and auditors’ obligations under the Corporations Act 2001 (Cth) should be reinstated for bodies corporate registered with the ACNC.

“The Commonwealth government has not formally responded to the ACNC Act review panel report. While awaiting that response, CAANZ members will consider any potential regulatory gap for their local charitable fundraising statutory regimes.”

It seems the members of CAF have not been paying attention to any of the discussions about fundraising regulations in Australia. Just to be clear, Australia not only has “regulatory gaps” when it comes to fundraising regulations, we have a yawning chasm of dysfunctional inaction buried in self-serving bureaucratic process. 

Right now, as I sit at my computer, I can search for organisations seeking my donations. I can make a donation. There are thousands of charities I might give to that are not registered in every jurisdiction, thousands of charities that are actively engaged in fundraising from the Australian public right now. Many of these charities are non-compliant with the existing fundraising regulations, not because they are law breakers, but because compliance with all the different state and territory legislation is absurdly complex and time consuming. 

According to the communique from the Council of Australian Governments meeting held last week, the first item of business was congestion busting:

“COAG agreed to work together to reduce regulatory and bureaucratic barriers across the federation so that businesses can grow and create more jobs. Leaders committed to improving the design and efficiency of business regulation to support jobs and investment in the interests of the community. The Commonwealth’s Deregulation Taskforce will work with state, territory and local governments, and businesses themselves, to identify and address the most significant regulatory barriers to investment for selected industries. “

Once again charities are not mentioned. Our regulatory and bureaucratic barriers are not a priority for governments.

The absurdity of the current fundraising regulatory system is acknowledged. The incapacity of existing bureaucratic processes to resolve this long-standing dogs breakfast of regulatory failure is self-evident. There is bipartisan agreement governments need to fix fundraising, but the only workable vehicle – Australian Consumer Law – is apparently not the preferred option of too many bureaucracies. They would rather work through CAF. Really?

After decades of reports and recommendations highlighting the problems with fundraising regulations, charities remain captured by ineffectual bureaucratic decision-making processes focused largely on perpetuating irrelevance.

It seems charities are destined to sit outside the major national policy agenda on congestion busting, forced to operate in dysfunctional regulatory systems. As comfortable bureaucracies meet with each other to sign off on inaction, the reasonable expectations of charities assume miracle status. Surely Australia can do better than this? 

About the author: David Crosbie is CEO of the Community Council for Australia. He has spent more than 20 years as CEO of significant charities including five years in his current role, four years as CEO of the Mental Health Council of Australia, seven years as CEO of the Alcohol and other Drugs Council of Australia, and seven years as CEO of Odyssey House Victoria.

David Crosbie writes exclusively for Pro Bono News on a fortnightly basis, covering issues of importance to the broader not-for-profit sector.