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Not-for-profit Sector Freedom to Advocate
Bill 2013
Introduced into the Senate on 13
March 2013
Portfolio: Finance and Deregulation
1.1
This bill seeks
to make an agreement between a Commonwealth agency and a not-for-profit (NFP)
organisation void if it includes any requirement that restricts or prevents the
organisation from commenting on, advocating support for or opposing a change to
any Commonwealth law, policy or practice. In short, the bill seeks to prohibit
the use of 'gag clauses' in NFP funding agreements by the Commonwealth.
Compatibility with human
rights
1.2
This bill is
accompanied by a statement of compatibility that forms part of the explanatory
memorandum to the bill. It identifies that the bill engages and promotes the
right of freedom of expression under article 19 of the International Covenant
on Civil and Political Rights (ICCPR) as:
The Bill
will prevent the Commonwealth from including clauses in agreements that prevent
or restrict NFP entities from advocating on Commonwealth policy issues.[1]
1.3
It concludes
that the bill does not limit any rights and is therefore compatible with human
rights.
Freedom
of expression
1.4
Article 19(2) of
the ICCPR provides:
Everyone
shall have the right to freedom of expression; this right shall include freedom
to seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or
through any other media of his choice.
1.5
The bill, in
seeking to prevent Commonwealth contracts from restricting NFPs from
'commenting on, advocating support for or opposing a change to any matter
established by law, policy or practice of the Commonwealth', appears to promote
the right to freedom of expression.
Right
to take part in public life
1.6
The bill also
appears to promote the right to participation in public affairs as contained in
article 25 of the ICCPR. This article provides that every citizen has the right and the
opportunity 'to take part in the conduct of public affairs, directly or through
freely chosen representatives'. As the UN Human Rights Committee has noted:
In order to
ensure the full enjoyment of rights protected by article 25, the free
communication of information and ideas about public and political issues
between citizens, candidates and elected representatives is essential. This
implies a free press and other media able to comment on public issues without
censorship or restraint and to inform public opinion. It requires the full
enjoyment and respect for the rights guaranteed in articles 19 [free speech],
21 [peaceful assembly] and 22 [freedom of association] of the Covenant,
including freedom to engage in political activity individually or through
political parties and other organizations, freedom to debate public affairs, to
hold peaceful demonstrations and meetings, to criticize and oppose, to publish
political material, to campaign for election and to advertise political ideas.[2]
Right
not to be subjected to arbitrary interference with privacy
1.7
Clause 5(2) of
the bill provides that a Commonwealth agreement can restrict a NFP entity from
disclosing confidential or personal information. Confidential information means
information that would found an action for breach of confidence, disclose trade
secrets or be likely to prejudice national security,[3]
while personal information has the same meaning as in the Privacy Act 1988.
While this limits freedom of expression it appears to do in limited way and
promotes the right to privacy as guaranteed by article 17 of the ICCPR.
1.8
The
committee considers that the bill does not give rise to issues of
incompatibility with human rights.
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