Almost twelve months ago, I first wrote of threats to democratic advocacy from three foreign interference Bills. On Tuesday this week, the final most controversial Bill, the Electoral Funding and Disclosure Reform Bill, was passed with the support of civil society. The story of this transformation from horrified opposition to support for the Bill is a story of Australian civil society working together to influence legislation in a way rarely seen. It opens the way for future collaboration to proactively promote the strengthening of our democracy.
Civil society supports measures to restrict foreign interference in our political system, but as originally drafted the Electoral Funding and Disclosure Reform Bill was incoherent and dangerously damaging to democratic advocacy. There were fears Labor would be ‘wedged’ into supporting the legislation, because their record on ‘security’ Bills has been to avoid any appearance of opposition. Instead, Labor, the Greens and key independents worked with the alliance calling itself, Hands Off Our Charities (HOOC), to successfully introduce amendments that saw them support the final Bill. This transformation from outright opposition to support has been quietly played out behind the scenes with little public fanfare because most of the action focussed on sensitive, internal lobbying of MPs. It is a story with important lessons for our democracy.
HOOC included an array of different types of organisations – from ACOSS and its member groups, to environment groups, international development organisations, philanthropy organisations, human rights groups, youth groups, service and religious organisations. Over 40 groups joined, but some of these were also peak groups with multiple members. The strength of HOOC took the political parties by surprise.
The trust which alliance members developed with one another was remarkable. One of the first steps they took was to establish their Red Line Principles that underpinned all negotiations. These were six basic requirements that the foreign interference legislation had to meet before the groups could give support. They included no restriction on using funding for issues-based advocacy. International funding was included because development organisations such as Oxfam work internationally. The alliance chose to make a clear distinction between issues-based advocacy and partisan electioneering in order to be consistent with the Charities Act 2013, where “promoting or opposing a candidate or a party for political office” is a disqualifying purpose for a charity. They expected no increase in their compliance burden, and no more regulatory controls than those to which business or industry associations are subjected. Agreement on these Red Line Principles allowed negotiating flexibility within their clear framework.
The trust the alliance engendered was helped by the methodology they developed for quick turnaround on the often complex minutiae of significant words and clauses in the Bill. When agreement on changes to wording was required consensus was not demanded. It is impossible for 40 organisations to have all their authoritative leaders respond within hours. Instead, those who could respond did so and trust was developed in those with the skills and knowledge to progress the negotiations using the Red Line Principles. So flexibility developed at the same time as trust in one another was strengthened. Because they represented so many different types of organisations, they were able to highlight very different ways they would be affected using practical examples. These examples were crucial in persuading MPs that they were talking about real damage from the Bill. The whole process was fortunate in having a couple of outstanding facilitators who respected process, were consistent, were flexible in understanding the huge demands on the time of leaders of participating organisations, but who understood the importance of demonstrating to politicians that there was real buy-in by all organisations.
In their media release on Tuesday (27 Nov) welcoming the Bill, the alliance referred to the way they had negotiated with all political parties saying,
This is how democracy should work – civil society speaking up, and parliament working with us cooperatively.
A vital test of any democracy is the ability of people to express views not shared by the government. That’s why the Hands Off Our Charities alliance has spent the past year campaigning for changes to the Electoral Funding and Disclosure Reform Bill.
Twelve months ago the picture looked bleak. In hindsight, the steps to amending the Bill appear clearer, but it has been a year of gruelling work for the alliance. Initially, the group was able to persuade the Joint Standing Committee on Electoral Matters (JSCEM) in April that there was a need to redefine the meaning of ‘political expenditure’ to acknowledge there was a difference between the issue-based advocacy done by charities and partisan electioneering. When the JSCEM came down with their April report, Labor began to take a stronger position publicly and Bill Shorten said that it was the Australian Labor Party’s policy to ban foreign donations, but it would not support ‘anything that punishes the charity and not-for-profit sector”. By June, Labor, the Greens and crossbenchers in the Senate were passing a motion to support the Red Line Principles of the alliance. There were more hearings of JSCEM in September to further address the detail of the confused drafting of the Bill that did not meet the Red Line Principles. The text of the final Bill, negotiated line by line, did address the majority of the alliance’s concerns and removed the largest threats that it had contained. The interpretation of the legislation by the AEC and the Australian Charities and Not-for-profits Commission headed by Gary Johns will be the next hurdle for the alliance.
The most positive outcome from the year is not only the greatly improved Bill, but for the alliance it is the bonds of trust that have been developed. This year has also sharpened their focus on the need to revitalise our democracy. There is reason to hope the alliance will continue as a proactive campaign to strengthen our democracy.
Dr Joan Staples was the ACF National Liaison Officer during the Hawke Government and is currently an Adjunct Principal Research Fellow in the School of Global, Urban and Social Studies at RMIT University. Her research area is the democratic role of civil society.