Submission Improving Governance within Incorporated Associations

Transcription

1 4 th December, 2013 Associations Incorporation Act Review Fair Trading Policy PO Box 972 Paramatta NSW 2124 Via Submission Improving Governance within Incorporated Associations The Illawarra Forum is the peak body working for community services and organisations in the Illawarra and the Shoalhaven. We support community organisations, promote expertise and innovation in community development, foster industry development and advocate for social justice. For more than twenty years, the Illawarra Forum has taken a leadership role in the local community services sector, which is a major employment sector in the region, and currently consists of more than 300 organisations in the Illawarra and Shoalhaven areas of New South Wales. The Illawarra Forum works closely with numerous organisations which provide support to vulnerable people across the region including: Individuals and families with multiple layers of social and financial disadvantage; Victims of domestic violence and sexual assault ; Youth work programs; Social housing and homelessness services; Home and community care services; Community health services, including mental health and drug/alcohol services; Community legal centre services; and Community development and community capacity building programs. The Illawarra Forum consulted with members and service providers to develop this response.

2 Improving Governance within Incorporated Associations General Overall the Illawarra Forum recognises the need for improved governance within incorporated associations, however, we note that a in a number of areas, the public interest was cited as the reason for change. We would like clarification about the term public interest and who decides what is in the public interest. The grounds on which the public interest is protected need to be outlined clearly e.g. incitement to hatred etc. The NSW Government supports a light-touch approach to regulation that balances the need for transparency and accountability with simplicity and efficiency. The legislation therefore intends that associations be largely autonomous with minimal involvement by the regulator We are supportive of this approach and are hopeful that NSW Fair Trading will remain committed to this. Carefully review recommendations from public submissions on how best to achieve this effectively. NSW 2021 Goal 24 of NSW 2021 is to make it easier for people to be involved in their communities. This goal has targets of increasing volunteering and participation in local community organisations. In addition, Goal 27 is to enhance cultural creative, sporting and recreation opportunities It is important that the Act does not create unnecessary obstacles that would dissuade people from volunteering or being members of incorporated associations We are supportive of these Goals of the NSW 2021 Strategic Plan and maintained them during our dialogue about the Discussion Paper. 1. Independent Returning Officers We are supportive of the proposal for an independent person acting as Returning Officer and agree that it is important that an election process must be transparent and uncompromised. We believe it is unnecessary to outline varying circumstances as this may be unnecessarily complicated and open to mistakes. All incorporated organisations should have an independent returning officer regardless of funding, direction from the Commissioner or level of government funding. We also believe it is unnecessary to specify the types of persons permitted to act as a

3 returning officer. These types of people are not necessarily the best placed in every community, and are not always accessible to groups. A better option would be to include a definition of independent returning officer. Limiting the returning officer by a time period since they have been a member of the association unnecessary and in smaller communities this could be too restrictive. The roles and responsibilities of a Returning Officer should be outlined clearly, which will ensure that they are acting independently and therefore don t need to be defined by time frames, occupations etc. We do not support the requirement for an association to pay for an Independent Returning Officer. Rather, the Department could maintain a register of people willing to volunteer as an Independent Returning Officers, similar to the list of Justices of the Peace. All associations could access the list to source approved Independent Returning Officers. If the Department orders the use of Returning Officers which must be paid, we strongly believe that the association should not have to bear the cost. Many of the associations mentioned in this document are small and such a cost for professional services would be prohibitive. The Act ensures that the Constitution of all incorporated associations outlines the requirement of an Independent Returning Officer A list of approved people willing to volunteer as Returning Officers is created The role and responsibilities of an Independent Returning Officer is clearly defined No time period is specified since the returning officer has been a member of the association No cost is involved If any costs must be incurred, it should not be borne by the organisation 2. Public Warnings We query the benefit of Public Warnings to either the community or the association. Accountability is covered by the Constitution, due legal process, and where funding is received, overseen by funding bodies. For Government Agencies using FASS there is already a checking mechanism available, prior to making funding decisions. We believe that Public Warnings might jeopardise the relationship-building, trust and blemish previous good work of the association in the community. We feel that Public Warnings would impede rather than increase volunteering and participation in local community organisations as outlined in NSW 2021

4 Public Warnings are not included in the Act 3. Dispute Mediation We fully support mediation as a mechanism for the resolution of dispute between members and the association. The CJC is a valuable resource providing vital services to the community and we support a free of charge service for incorporations. We strongly support the adequate resourcing of CJCs so that they can continue operating an effective service. Adequate funding and resourcing of CJCs 4. Mandatory Practice Directions The Illawarra Forum does not support mandatory practice directions. We believe it would be more effective to issue best practice guidelines and to encourage associations to adopt the model Constitution. NSW Fair Trading should also offer conflict resolution in a supportive manner as opposed to a punitive practice. We support a more consultative approach with affected associations which does not impact on their autonomy and note that funding contracts often cover ability to govern effectively. Develop and disseminate best practice guidelines, including making available on the Fair Trading website NSW Fair Trading to work with associations to resolve conflicts as opposed to operating in a punitive role Resource support agencies to provide ongoing support, capacity building etc. 5. Banning Powers We do support the proposal for Fair Trading to have the power to ban individuals from holding a position. Individuals may be banned on the basis of actions they took many years before. A mistake made as a young person should not affect an individual s ability to volunteer as a Board member. We believe that associations are impacted by other legislation regarding the right to hold positions. For example if a police check is required, we believe the committee should be able to make a decision based on this police check. Banning powers might prevent potential volunteers from coming forward and would serve to hamper an increase in volunteering and participation in local community organisations as outlined in NSW 2021 In the development of aforementioned Best Practice Guidelines, ensure that police

5 checks are recommended for board members, volunteers and staff members Ensure that police checks are free for volunteer Board members and Officers Resource local support agencies to take on a monitoring/evaluation role in terms of police checks, best practice etc. 6. Enforce Rules in Local Court We would see an Enforcement Order as a last resort for members or associations which is only implemented after all other avenues have been explored e.g. mediation and due process. While Local Court is more preferable to the Supreme Court Enforcement Orders may prove time consuming and costly. In addition, the formalities required make it difficult for nonrepresented litigants. We would suggest utilising the current CTTT (soon to be NCAT January 2014) as a viable alternative. The filing fee is small and less legal understanding is required, making it more accessible for all individuals. Use the NCAT (CTTT), ensuring that it is adequately resourced 7. Oppressive Conduct Remedy We do not support an Oppressive Conduct Remedy as it could be open to abuse. People may use this a platform to air personal vendettas or vexatious complaints. Legislation is already in place to govern this issue, and the model Constitution adequately adresses this. Associations should have policies and procedures in place, underpinned by their Constitution, to address oppressive or unreasonable conduct. If the Oppressive Conduct Remedy is instituted then a Local Court would be preferable to the NSW Supreme Court. Develop model policies and procedures for associations in addition to the model Constitution, and make these available through the Department s Use and resource local support agencies to educate members of associations about the Constitution, and policies and procedures 8. Disclosure of Interests While it is important that a committee member discloses her or his interest, we believe it is unnecessary for a conflict of interest disclosure to be made public.. The management committee should address it in accordance with their policies and procedures and, while it

6 should be minuted, the nature of the conflict need not be generally available. Ensure conflict of interest is covered model policies and procedures Use and resource local support agencies to deliver workshops on policies and procedures 9. Cancellation of Registration This proposal is to enable the Commissioner to cancel registration in the public interest Without a clear definition of public interest we cannot support this option. The association could otherwise be de-registered for political, environmental or religious positions. We feel that current legislation is sufficient and this option should not be included. This legislative amendment is not recommended 10. Misleading or Deceptive Conduct This proposal also relies on the public interest. Without a clear definition of public interest the proposal would be very difficult to enforce. We are concerned that this could lead to effective censorship. We believe this could be incorporated into the Constitution of an association. This legislative amendment is not recommended Thank you for the opportunity to comment on the discussion paper For further information about this submission, please contact me at nicky@illawarraforum.org.au or by phone on Nicky Sloan CEO Illawarra Forum Inc