Australia: Not-For-Profit Newsletter June 2012

Last Updated: 16 June 2012
Article by Patricia Monemvasitis

Privacy Act Reform

The Privacy Amendment (Enhancing Privacy Protection) Bill 2012 was introduced into Federal Parliament on 23 May 2012 and responds to the Australian Law Reform Commission Report (the report can be read here The Bill, if passed, will come into effect nine months after it receives royal assent. The bill can be read here: Significant proposed amendments to the Commonwealth Privacy Act (1988) are as follows:

  • The National Privacy Principles for the private sector and Information Privacy Principles for the public sector will be replaced by the Australian Privacy Principles applicable to both the private and public sector.
  • The private and public sector will have new additional obligations in relation to the collection, use and management of personal information including having clearly expressed up to date privacy policies.
  • Australian private and public entities will be required to take reasonable steps to ensure the overseas recipient of information will not breach the Australian Privacy Principles and will be taken to be responsible if the overseas recipient is in breach. This is particularly relevant in the current climate where entities are taking up data storage facilities involving the storage of their personal information in the "cloud".
  • The powers of the Commissioner will expand with respect to investigations and assessment of privacy law compliance by entities and recognising the resolution of complaints by external dispute resolution schemes.
  • Credit reporting will be governed by improved privacy protections for individuals and the CR Code, specifically dealing with credit reporting, will be introduced.

If the amendments are passed entities will need to take steps to update their privacy policies where necessary so as to comply with the new requirements.
We will keep you informed of the progress of the Privacy Act reforms.
This information is a general guide to the proposed changes and we are happy to discuss with your questions and circumstances.

Australian Charities and Not-for-profits Commission Update

Susan Pascoe, the Head of the Australian Charities and Not-for-Profits Commission (ACNC) Implementation Task Force, has now been formally nominated by the Government for appointment as the inaugural Commissioner of the ACNC.

The latest advice from Treasury is that reforms to the Sector are now to be introduced in stages.

The Commission will commence operating from 1 October, 2012, as anticipated, but its' only role from the start will be to consider applications for new charities, and to operate the portal to which all existing charities' details will have been transferred (from ATO records) on that date. Although it will rely upon endorsements by ACNC, ATO will continue to grant or refuse income tax exemptions and deductible gift recipient endorsements.

The ACNC portal will not be operational until 1 July 2013
The obligation on charities to:

  • implement new governance regimes has been deferred until 1 July 2013, and
  • to lodge financial reports has been deferred 12 months until 1 July 2014.

New exposure drafts on both of these areas are expected: Treasury has indicated that the governance regimes will be principles based, with less expected of smaller organisations: (eg risk management, conflicts of interest, observance of rules and constitutions and board member duties.

Treasury has also indicated that entities will not need to adopt the uniform financial year of 1 July to 30 June, but will be able to continue using their own reporting periods, unless specifically required to change: special purpose accounts may be acceptable in some cases.

The new statutory definition of "charity" is still due to apply from 1 July 2013.

The implementation of universal fund raising legislation is still intended but Treasury is currently considering submissions.

Notwithstanding the work COAG has done to facilitate take up by the States, the uncertainty of whether the States will adopt these measures remains. We understand the Liberal states are resisting the move because they are not willing to hand over their powers.

Notwithstanding these possible constraints, we are actively watching for the next round of legislation, and are ready to put submissions to Treasury where we see our clients' interests vulnerable.

Lifting the corporate veil on Church Property Trusts

David Shoebridge, a Greens member of the NSW Legislative Council, has followed up on his 'Justice for Victims' Bill which was published late last year with a Report on Submissions Received which was published on 28 May 2012.

The Greens in NSW have introduced a Bill to overcome the result of Ellis v Pell which determined that the Catholic Archdiocese of Sydney statutory property trust was not liable for the wrongful actions of a priest.

The Bill received 21 submissions, the majority of which were individuals who were supportive of the bill. CLAN (Care Leavers Australia Network), the Australian Lawyers Association and SNAP Australia were the only organisations to make submissions and were also supportive. Apparently no religious organisations made a submission on the bill.

The report makes further recommendations for changes to the 'Justice for Victims' Bill, including a two year postponement of the statute of limitations to invite victims to come forward and a broadening of the scope of the bill to make the Church liable for lay people acting with the authority of the Church.

The report also recommended a state inquiry similar to the one currently underway in Victoria and acknowledged that the bill is single minded, in that there are other institutions outside the Catholic Church who have similar legislative protections which would not be solved by the bill.

While the Bill appears to have support from a concerted few, we understand that it does not have the Liberal's support. It will be interesting to see whether a reform that imposes an obligation on an entity that was not vicariously responsible and strips statutory rights away from charities will stand up to scrutiny in parliamentary debate.

A public forum on the Bill is taking place on 13 June 2012 at NSW Parliament House, more details can be found here

The Good News

The latest must have item for children in Africa will soon be an e-reader! Worldreader, which has already distributed 100,000 e-readers to impoverished areas of Africa, has just been taken on as a 'pro-bono' client of the large PR company SutherlandGold. While the e-readers are undoubtedly going to boost the literacy skills of African children, we can only hope the users have plenty of access to the internet to top up their e-readers with new reads.

Another boon for education in the developing world this week came on the back of the world's least neediest kid, pop-star Justin Bieber, pledging $1 of each ticket sold on his upcoming tour to the 'Pencils of Promise' charity. It is not clear whether special pencils will be provided at his concerts to give to chaperoning parents the opportunity to place them in their ears to drown out the music.

This one only just scrapes into the 'good news' column, depending on which side of the fence you sit on. In Scotland a convicted criminal has had his sentence dropped early after he was ordered to provide 180 hours of community service to Barnardo's. He received a 179 hour discount as the Barnardo's staff deemed him unsuitable to work with children once they discovered he had been charged for repeatedly punching a 15 year old boy in the face. Talk about being under-qualified!

Widening the Anti Discrimination Net

There is a plan by the Commonwealth government to consolidate the various Commonwealth anti-discrimination laws. A discussion paper has been published but there is, as yet, no draft legislation. Some of the observations in the discussion paper have given rise to speculation that consideration may be given to widening the scope of the legislation. There is pressure from some groups seeking to remove the current exemptions that apply to religious bodies and education institutions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Patricia Monemvasitis
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