Red tape won’t make the world a better place

One of the big differences between the not-for-profit (NFPs) sector, which my company Our Community works with, and the frankly commercial sector is that NFPs look at the law in terms of “What does the law say we have to do?” and for-profits ask “What can we get away with?”

That’s not an anti-capitalist rant. Businesses work in the real world, and NFPs need to learn from them. Laws aren’t granite walls that channel us in a set direction. They’re more like wetlands. You can take the made road through, and most people do, but if you have a reason to go another route you can generally feel your way through the bogs without actually hitting the unmapped patches of quicksand.

All laws are unavoidably ambiguous, and lawyers don’t give definitive answers. How could they? Every single court case since the ancient Mesopotamians thought up the idea of courts in the first place has involved two people who both believed, on consideration of the relevant texts, that they were in the right.

In the light of this it’s clear that a perfect dispute resolution system, managed by angels, might achieve a client satisfaction rate as high as 50%. Under a totally corrupt system run by ignorant neanderthals, that rate might sink as low as 50%. I’d say Australia fell somewhere in the middle.

Like so much else in life, lawyers are primarily a means of assessing risk. Their job is to find out what degree of risk you’re happy with and direct you along a vector that points towards your eventual goals. Along the way, your course is going to be pushed or pulled one way or another by the force fields that apply to all of us all the time; the law, yes, but also cost, degree of difficulty, time, paperwork, and, above all, other people.

At Our Community we get a stream of inquiries from clubs and societies asking variations on the same question: “Our constitution says such-and-such, but that’s not going to work. What do we do?” To which we generally bounce back another question: “Who cares?”

That’s not a flippant dismissal (well, not always). It’s a vital constitutional principle, at all levels. If nobody has an interest in taking you down, you can fairly safely choose your own course. If the rules have painted you into a corner, people will generally look the other way even though you’re tracking paint through the corridor (and who does paint their floors, anyway? Haven’t you ever heard of carpeting?).

If your problem involves significant amounts of money, of course, people are likely to care, but most volunteer NFPs can’t hope in their wildest dreams to run into those hazards. Most of the time, they just want to be good citizens.

And it’s here that they run into the government information fogbank.

If you go to any government website or helpline with a difficult question, you’ll find that the exchange goes something like this.

“Your site says ‘Twas brillig, and the slithy toves Did gyre and gimble in the wabe: All mimsy were the borogoves, And the mome raths outgrabe.’ Does that apply to my group?”

“Your call is important to us. If, in your case, you are brillig, and the slithy toves Did gyre and gimble in the wabe: All mimsy were the borogoves, and the mome raths outgrabe, then yes. Otherwise, no.”

Jargon, legalese, poor drafting – there is a whole range of things that can make the written rules unreadable. Still, no government advice source can either add or subtract a jot or tittle from the words of the Act, and so it can’t say what the words mean, and so the answers don’t touch on anything the questioner wants to know.

That’s where the Our Community advice line comes in. We’re generally prepared to give a three-dimensional answer, lifting off the page into the real world. Our slogan Ready, Fire, aim – the best lesson I ever learned from a very bright politician – thanks Steve Crabb.

Most of law, we tell people with questions, is a bluff. If you park illegally, or evade your tram fare, or put soft plastics into your recycling bin, you’ll very probably get away with it, and those offences actually have enforcement officers who want to justify their salaries by feeling the collars of as many malefactors as possible. NFPs don’t have even that. The regulators are first and foremost concerned with having their forms filled out correctly, and they will intervene only if the NFP concerned is overturned in the middle lane of the freeway leaking petrol while setting off fireworks.

Which is, to a large extent, a good thing. Nearly all NFPs are trying to do the right thing nearly all the time and forcing them into rigid compliance would be simply a waste of everybody’s time and money, with the added possibility of political abuses. We should trust them. That involves a risk that some groups will abuse that trust, yes – a very small risk – but the alternative is grisly.

NFPs should be focusing on what they want to do, which is to make Australia a better place, rather than on what’s in the small print.

Denis Moriarty is group managing director of OurCommunity.com.au, a social enterprise that helps the country’s 600,000 not-for-profits.