Charities, civil society and the charity law reviews on the island of Ireland

This article considers the opportunity, presented by the coincidence of simultaneous charity law reviews in the two jurisdictions on the island of Ireland, for an adjustment of charity law frameworks to maximise appropriate and effective charitable activity within each jurisdiction,while also facilitating the coordination of some such activity between both. It examines the nature of civil society and charity law, and the relationship between them. The article argues that a creative legislative response to this opportunity could address themes of social inclusion common to both jurisdictions and thereby contribute to the consolidation of civil society on this island.

Charity law reforms : overview of progress since 2001

In the UK, Singapore, Canada, New Zealand and Australia, as in many other jurisdictions, charity law is rooted in the common law and anchored on the Statute of Charitable Uses 1601. The Pemsel classification of charitable purposes was uniformly accepted, and together with a shared and growing pool of judicial precedents, aided by the ‘spirit and intendment’ rule, has subsequently allowed the law to develop along much the same lines. In recent years, all the above jurisdictions have embarked on law reform processes designed to strengthen regulatory processes and to statutorily define and encode common law concepts. The reform outcomes are now to be found in a batch of national charity statutes which reflect interesting differences in the extent to which their respective governments have been prepared to balance the modernising of charitable purposes and other common law concepts alongside the customary concern to tighten the regulatory framework.

Charity law

Charity Law - 2nd edition addresses the modern law relating to this sector. Like the first edition, it comes at a time of public concern about the law regulating charitable activity. While concentrating on both legal and practitioner issues, this book also explores the modern concept of charity. It examines and explains the regulatory framework for charity and the need for transparency and public accountability. It gives you a complete understanding of the changes introduced by the Charities Act 2009, giving particular attention to the responsibilities of the new regulatory authority for charities, the importance of the role now statutorily allocated to the public benefit principle, and the significance of a new extended range of charitable purposes.

Modernising charity law : recent developments and future directions

In recent years the pressure for charity law reform has swept across the common law jurisdictions with differing results. Modernising Charity Law examines how the UK jurisdictions have enacted significant statutory reforms after many years of debate, whilst the federations of Canada and Australia seem merely to have intentions of reform. New Zealand and Singapore have begun their own reform journeys. This highly insightful book brings together perspectives from academics, regulators and practitioners from across the common law jurisdictions. The expert contributors consider the array of reforms to charity law and assess their relative successes. Particular attention is given to the controversial issues of expanded heads of charity, public benefit, religion, competition with business, government participation and regulation. The book concludes by challenging the very notion of charity as a foundation for societies which, faced by an array of global threats and the rising tide of human rights, must now also embrace the expanding notions of social capital, social entrepreneurism and civil society. This original and highly topical work will be a valuable resource for academics, regulators and legal practitioners as well as advanced and postgraduate students in law and public policy. Specialists in charity law, comparative law, and law and public policy should also not be without this important book.

Charity law, advocacy and the aid/watch decision : compatibility of charitable purposes and political objects — the view from Australia

Introduction In 1952 the Nathan report stated that: Some of the most valuable activities of voluntary societies consist, however, in the fact that they may be able to stand aside from and criticize State action or inaction, in the interests of the inarticulate man in the street. Some 60 years later it remained the case that if a voluntary society wanted to gain or retain charitable status then, contrary to the Nathan report, the one thing it could not do was set itself up with the purpose of criticizing State action or inaction. This legal position was adopted by the authorities in Australia with the Australian Taxation Office (ATO) noting in Taxation Ruling TR2005/21: 102. An institution or fund is not charitable if its purpose is advocating a political party or cause, attempting to change the law or government policy, or propagating or promoting a particular point of view. So, why, if it is such a valuable activity, have governments steadfastly refused to allow charities to have as their purpose the freedom to advocate in this way and how has this situation been affected by the recent High Court of Australia decision in Aid/Watch v Commissioner of Taxation? This article proposes to address such questions. Beginning with some background history, it explains that, initially, the current constraints did not apply. Then it looks at the nature of these constraints: how does the law define what constitutes the type of political activity that a charity must not undertake? What is the rationale for prohibition? How has the judiciary contributed to the development of the law in this area in recent years? This will lead into a consideration of the Aid/Watch case and the implications arising from the recent final decision. The article concludes by reflecting on what has changed and why the view on this contentious matter now looks different from Australia.

Charity law in Fiji

Very little has been written on charitable laws in Fiji to date. Most of the organisations in Fiji seek incorporation under the pre-independence legislation dealing with charities, the Charitable Trusts Act (Cap 67). This Act is the basis of this paper. The key provisions of the Act are discussed in this paper. Recently serious questions have been raised on the status of charitable bodies with the de-registration of one of the registered charities (the Citizens’ Constitutional Forum (CCF)) for political activity. This paper also provides an insight into the CCF ‘saga’, which goes to the ‘heart’ of the Act and examines the serious questions that are raised in interpreting the provisions in the Act. In the concluding part, various issues of reform in the charity sphere are also proposed.

Charity law review and civil society : paving the way from alienation to social inclusion in Northern Ireland ; the resonance with experience in Australia

This paper considers the opportunity, presented by the forthcoming charity law review in Northern Ireland, for adjusting the charity law framework so as to focus charitable activity on the circumstances typical of societies in conflict or experiencing transition. This opportunity is one for broadening the definition of 'charitable purpose' to include activities directed towards forestalling alienation and facilitating social inclusion. It would include rehabilitating the victims of social confrontation and developing related services of advocacy, mediation and reconciliation. It argues that a creative response to this opportunity could address the current social inclusion agenda and thereby contribute to the consolidation of civil society in this jurisdiction. It suggests that the experience in Northern Ireland, as an exemplar of a society in transition, has a resonance with the experience in Australia. It further suggests that it could also have a relevance for approaching the management of tensions within or between nations where people may otherwise come to perceive themselves as alienated...

Wrong way go back! Rediscovering the path for charity law reform

Problems with charity law jurisprudence persist. The difficulties arose in the 20th century and are fundamental to the way the doctrine is presently theorised. They grew out of the approach taken in Pemsel’s Case to the categorisation of the ‘spirit and intendment’ of the Preamble to the Statute of Charitable Uses. Recent statutory reforms, such as the Charities Act 2006 (Eng&W), have compounded the underlying problems rather than resolving them. This paper aims to stimulate thinking about a new foundation for charity jurisprudence – while the approach may seem radical, the paper argues that these new foundations can be discerned underlying the current jurisprudence. The difficulties can be overcome by rediscovering the underlying jurisprudence which is disregarded in the current approach to categorisation. Giving voice, in contemporary language, to that foundational jurisprudence, this paper provides a way out of the current problems. It also provides an alternative way of conceptualising the doctrine of charitable purpose to guide reform.

The Church of England : Charity Law and Human Rights

This book examines the interface between religion, charity law and human rights. It does so by treating the Church of England and its current circumstances as a timely case study providing an opportunity to examine the tensions that have now become such a characteristic feature of that interface. Firstly, it suggests that the Church is the primary source of canon law principles that have played a formative role in shaping civic morality throughout the common law jurisdictions: the history of their emergence and enforcement by the State in post-Reformation England is recorded and assessed. Secondly, it reveals that of such principles those of greatest weight were associated with matters of sexuality: in particular, for centuries, family law was formulated and applied with regard for the sanctity of the heterosexual marital family which provided the only legally permissible context for any form of sexual relationship. Thirdly, given that history, it identifies and assesses the particular implications that now arise for the Church as a consequence of recent charity law reform outcomes and human rights case law developments: a comparative analysis of religion related case law is provided. Finally, following an outline of the structure and organizational functions of the Church, a detailed analysis is undertaken of its success in engaging with these issues in the context of the Lambeth Conferences, the wider Anglican Communion and in the ill-fated Covenant initiative. From the perspective of the dilemmas currently challenging the moral authority of the Church of England, this book identifies and explores the contemporary ‘moral imperatives’ or red line issues that now threaten the coherence of Christian religions in most leading common law nations. Gay marriage and abortion are among the host of morally charged and deeply divisive topics demanding a reasoned response and leadership from religious bodies. Attention is given to the judicial interpretation and evaluation of these and other issues that now undermine the traditional role of the Church of England. As the interface between religion, charity law and human rights becomes steadily more fractious, with religious fundamentalism and discrimination acquiring a higher profile, there is now a pressing need for a more balanced relationship between those with and those without religious beliefs. This book will be an invaluable aid in starting the process of achieving a triangulated relationship between the principles of canon law, charity law and human rights law.

Modernising charity : steps to an alternative architecture for common law charity jurisprudence

This chapter addresses the question, how can the common law concept of charity law be modernised? There are difficulties with the present jurisprudential conception. The focus of the chapter is not on those difficulties, however, but rather on the development of an alternative architecture for common law jurisprudence. The conclusion to which the chapter comes is that charity law can be modernised by a series of steps to include all civil society organisations. It is possible if the ‘technical’ definition of charitable purpose is abandoned in favour of a contemporary, not technical concept of charitiable purpose. This conclusion is reached by proposing a framework, developed from the common law concept of charities, that reconciles into a cohesive jurisprudential architecture all of the laws applying to civil society organisations, not just charities. In this section, first the argument is contextualised in an idea of society and located in a gap in legal theory. An analogy is then offered to introduce the problems in the legal theory applying, not just to charities, but more broadly to civil society organisations. The substantive challenge of mapping an alternative jurisprudence is then taken in steps. The final substantive section conceptualises the changes inherent in a move beyond charities to a jurisprudence centred on civil society organisations and how this would bring legal theory into line with sectoral analysis in other disciplines.

Government : charity boundaries

The Preamble1 was the initial legislative statement of matters construed by government to constitute charitable purposes in a common law context. It provided an outline of what was to become the core agenda for government’s relationship with charity. The resulting implied partnership, as viewed by government, endured for four centuries and in many different cultural contexts across the common law world. During that period, judicial mediation on the balance to be struck between government interest in acquiring value for granting tax exempt privileges and the right of individuals to freely dispose of property in accordance with their particular altruistic wishes steadily broadened the range of purposes deemed to be charitable, the vagaries of donor choice often prevailing over government interest in acquiring value for tax exemption.

The politics of charity

For the first time since 1601, a number of leading common law nations have almost simultaneously chosen to revise and place on the statute books the law relating to charity. The Politics of Charity examines the reasons for this and for the varying legislative outcomes. ----- ----- ----- This book examines the legal framework and political significance of charity, as developed within England & Wales, contrasts this with the experiences of other common law nations and explores the resulting implications for government/sector relationships in those countries. It suggests that charity law lies at the heart of the relationship between government and the non profit sector, that there is an unmistakeable political agenda driving charity law reform and that the differential in legislative outcomes reflects important differences in the policies pursued by the governments concerned.----- ----- ----- Looking at fundamentally different approaches of government towards the sector in the UK, Ireland, the US, New Zealand, Canada, Singapore and Australia, O’Halloran argues the results will have implications for the present workings of parliamentary democracy.----- ----- ----- The Politics of Charity will be a valuable resource for academics, regulators and legal practitioners as well as advanced and postgraduate students in law, politics and public policy.

Options for the development of the New Zealand Law of Charities

The Australian Centre for Philanthropy and Nonprofit Studies was briefed to advise the Charities Commission of New Zealand on ways in which the law of charity might be developed. The substantive issue underpinning the brief is a need to enable charity law in New Zealand to continue to develop in accordance with the societal values of New Zealand. This is an options paper and as such it does not explain the current law, but is intended to generate constructive discussion. Four options are sketched, with important issues and implications for each. No recommendation is made to adopt a particular option; there are strengths and weaknesses, opportunities and threats with each of the four approaches canvassed.

The Definition of Charity and its Nexus with Tax Preference Issues

Charity, since the Reformation, has been secularised to the extent that the continued use by the courts of analogies to a four hundred year old statute in order to determine charitable purpose with respect to tax exempt status, is giving rise to absurd situations. Tax exempt status is generally assigned by an agent of the government, for example the Inland Revenue Department in New Zealand, without any evaluation of the impact of the activities of the charitable organisation on social or economic policies. It is only when the activities of the charitable organisation are challenged in the courts, that the charitable organisation may lose its privileged position. From this brief analysis, it can be seen that the situation which is developing is a classic case of 'putting the cart before the horse'. A recent New Zealand case demonstrates the folly of assigning tax exempt status without first having examined the charitable purposes of the trust, and without having conjointly undertaken an evaluation of the social and economic impact of that charitable organisation. It is apparent that there is a need for substantial changes in charity law, with respect to charitable purpose and fiscal issues, in today's social and economic climate.