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.

Archimedes, aid/watch, constitutional levers and where we now stand

Significant reform of the laws regulating charities is under way in Australia. The reforms cover almost every facet of the relationship between charities and government and the process has brought to the surface different assumptions about the role of charities in society, their entitlement to fiscal and other privileges and the scope and nature of regulation that can or should be imposed on the charities. This paper explores these broader issues in the context of the Aid/Watch case, involving an organisation used by citizens to challenge the State. Such organisations occupy contested space as to what does and does not constitute a charity. Accordingly the case provides a useful perspective from which to consider the broader issues in the relationship between government and charity. This paper seeks to build on the contribution made by other academics, by exploring the constitutional significance of political purposes and drawing from philosophy to provide context and meaning to potentially significant aspects of the judgment that might be missed when it is analysed only in terms of legal precedent through the narrow lens of the existing four heads of charity. Revenue implications for taxation of charities and political parties are also considered and it is suggested that in practice, if not in theory, the fence between them has come down.

Archimedes, aid/watch, constitutional levers and where we now stand

Archimedes is reported as famously saying: 'Give me a place to stand and I will move the earth.' He was referring to the power of levers. His point was that a person of ordinary capacity with a place to stand, a fulcrum and a level could change the path of planets. This principle of physics is a metaphor for how the common law has moved over the last millennium. Courts have found a stable foundation on which to stand, such as the constitutional bedrock or well-grounded precedent, and, using cases as fulcrums and legal principles as levers, the have moved the law. Australia is at a critical juncture in the development of the law of charities. The High Court of Australia has held that political purposes can be charitable in certain circumstances. The Parliament of Australia has not only enshrined this in a statutory definition of charity but has done so with a preamble to the legislation which affirms the basis for this development in residing in the 'unique nature and diversity of charities and the distinctive and important role that they play in Australia'.

Seagrass-Watch: Engaging Torres Strait Islanders in marine habitat monitoring

Involvement in scientifically structured habitat monitoring is a relatively new concept to the peoples of Torres Strait. The approach we used was to focus on awareness, and to build the capacity of groups to participate using Seagrass-Watch as the vehicle to provide education and training in monitoring marine ecosystems. The project successfully delivered quality scientifically rigorous baseline information on the seasonality of seagrasses in the Torres Strait-a first for this region. Eight seagrass species were identified across the monitoring sites. Seagrass cover varied within and between years. Preliminary evidence indicated that drivers for seagrass variability were climate related. Generally, seagrass abundance increased during the north-west monsoon (Kuki), possibly a consequence of elevated nutrients, lower tidal exposure times, less wind, and higher air temperatures. Low seagrass abundance coincided with the presence of greater winds and longer periods of exposure at low tides during the south-east trade wind season (Sager). No seasonal patterns were apparent when frequency of disturbance from high sedimentation and human impacts was high. Seagrass-Watch has been incorporated in to the Thursday Island High School's Marine Studies Unit ensuring continuity of monitoring. The students, teachers, and other interested individuals involved in Seagrass-Watch have mastered the necessary scientific procedures to monitor seagrass meadows, and developed skills in coordinating a monitoring program and skills in mentoring younger students. This has increased the participants' self-esteem and confidence, and given them an insight into how they may participate in the future management of their sea country.

A multi-centre open-label randomised non-inferiority trial comparing watchful waiting to antibiotic treatment for acute otitis media without perforation in low-risk urban Aboriginal and Torres Strait Islander children (the WATCH trial): study protocol for a randomised controlled trial

Background Treatment guidelines recommend watchful waiting for children older than 2 years with acute otitis media (AOM) without perforation, unless they are at high risk of complications. The high prevalence of chronic suppurative otitis media (CSOM) in remote Aboriginal and Torres Strait Islander communities leads these children to be classified as high risk. Urban Aboriginal and Torres Strait Islander children are at lower risk of complications, but evidence to support the subsequent recommendation for watchful waiting in this population is lacking. Methods/Design This non-inferiority multi-centre randomised controlled trial will determine whether watchful waiting is non-inferior to immediate antibiotics for urban Aboriginal and Torres Strait Islander children with AOM without perforation. Children aged 2 − 16 years with AOM who are considered at low risk for complications will be recruited from six participating urban primary health care services across Australia. We will obtain informed consent from each participant or their guardian. The primary outcome is clinical resolution on day 7 (no pain, no fever of at least 38 °C, no bulging eardrum and no complications of AOM such as perforation or mastoiditis) as assessed by general practitioners or nurse practitioners. Participants and outcome assessors will not be blinded to treatment. With a sample size of 198 children in each arm, we have 80 % power to detect a non-inferiority margin of up to 10 % at a significance level of 5 %, assuming clinical improvement of at least 80 % in both groups. Allowing for a 20 % dropout rate, we aim to recruit 495 children. We will analyse both by intention-to-treat and per protocol. We will assess the cost- effectiveness of watchful waiting compared to immediate antibiotic prescription. We will also report on the implementation of the trial from the perspectives of parents/carers, health professionals and researchers. Discussion The trial will provide evidence for the safety and effectiveness of watchful waiting for the management of AOM in Aboriginal and Torres Strait Islander children living in urban settings who are considered to be at low risk of complications.

Sampling and analytical methods of the National Status and Trends Program Mussel Watch Project: 1993-1996 Update

Polycyclic aromatic hydrocarbons, butyltins, polychlorinated biphenyls, DDT and metabolites, other chlorinated pesticides, trace and major elements, and a number of measures of contaminant effects are quantified in bivalves and sediments collected as part of the NOAA National Status and Trends (NS&T) Program. This document contains descriptions of some of the sampling and analytical protocols used by NS&T contract laboratories from 1993 through 1996. (PDF contains 257 pages)

Women Speaking of National Security: The Case of Checkpoint Watch

The production of reports and the distribution of information have become integral to the operation of many non-governmental organizations. In this regard, the fact that the all-women organization of Checkpoint Watch publishes reports about the Israeli checkpoints in the occupied West Bank seems to comply with current trends. However, the reports—most of which are short repetitive descriptions of the banality and everydayness of the military checkpoints, counting the number of people and cars waiting, commenting on the manner in which the checks are performed and meticulously documenting what mostly amounts to minor incidents of humiliation and distress—do not seem to abide by any convention of reporting. This work analyzes the reporting praxis of the organization and claims that it should be understood as a form of activism in and of itself. Tracking the ways in which the reports address the Israeli public through the concept of parrhesia, the work suggests that this form of reporting enables the women activists to use their gendered marginality to make their way into the highly masculinized and militarized Israeli security discourse.