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.

Beyond charity : outlines of a jurisprudence for civil society

There is not a single, coherent, jurisprudence for civil society organisations. Pressure for a clearly enuciated body of law applying to the whole of this sector of society continues to increase. The rise of third sector scholarship, the retreat of the welfare state, the rediscovery of the concept of civil society and pressures to strengthen social capital have all contributed to an ongoing stream of inquiry into the laws that regulate and favour civil society organisations. There have been almost thirty inquiries over the last sixty years into the doctrine of charitable purpose in common law countries. Those inquiries have established that problems with the law applying to civil society organisations are rooted in the common law adopting a ‘technical’ definition of charitable purpose and the failure of this body of law to develop in response to societal changes. Even though it is now well recognised that problems with law reform stem from problems inherent in the doctrine of charitable purpose, statutory reforms have merely ‘bolted on’ additions to the flawed ‘technical’ definition. In this way the scope of operation of the law has been incrementally expanded to include a larger number of civil society organisations. This piecemeal approach continues the exclusion of most civil society organisations from the law of charities discourse, and fails to address the underlying jurisprudential problems. Comprehensive reform requires revisiting the foundational problems embedded in the doctrine of charitable purpose, being informed by recent scholarship, and a paradigm shift that extends the doctrine to include all civil society organisations. Scholarly inquiry into civil society organisations, particularly from within the discipline of neoclassical economics, has elucidated insights that can inform legal theory development. This theory development requires decoupling the two distinct functions performed by the doctrine of charitable purpose which are: setting the scope of regulation, and determining entitlement to favours, such as tax exemption. If the two different functions of the doctrine are considered separately in the light of theoretical insights from other disciplines, the architecture for a jurisprudence emerges that facilitates regulation, but does not necessarily favour all civil society organisations. Informed by that broader discourse it is argued that when determining the scope of regulation, civil society organisations are identified by reference to charitable purposes that are not technically defined. These charitable purposes are in essence purposes which are: Altruistic, for public Benefit, pursued without Coercion. These charitable puposes differentiate civil society organisations from organisations in the three other sectors namely; Business, which is manifest in lack of altruism; Government, which is characterised by coercion; and Family, which is characterised by benefits being private not public. When determining entitlement to favour, it is theorised that it is the extent or nature of the public benefit evident in the pursuit of a charitable purpose that justifies entitlement to favour. Entitlement to favour based on the extent of public benefit is the theoretically simpler – the greater the public benefit the greater the justification for favour. To be entitled to favour based on the nature of a purpose being charitable the purpose must fall within one of three categories developed from the first three heads of Pemsel’s case (the landmark categorisation case on taxation favour). The three categories proposed are: Dealing with Disadvantage, Encouraging Edification; and Facilitating Freedom. In this alternative paradigm a recast doctrine of charitable purpose underpins a jurisprudence for civil society in a way similar to the way contract underpins the jurisprudence for the business sector, the way that freedom from arbitrary coercion underpins the jurisprudence of the government sector and the way that equity within families underpins succession and family law jurisprudence for the family sector. This alternative architecture for the common law, developed from the doctrine of charitable purpose but inclusive of all civil society purposes, is argued to cover the field of the law applying to civil society organisations and warrants its own third space as a body of law between public law and private law in jurisprudence.

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.

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.

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.

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.

The Australian nonprofit sector legal and accounting almanac 2012

This is the fifth year that The Australian Centre for Philanthropy and Nonprofit Studies has published an Almanac summarising annual developments in the law relevant to Australia's nonprofit sector. The Almanac provides comprehensive summaries of legal cases in Australia and overseas, and changes to relevant legislation in all Australian jurisdictions, during 2012. It also includes articles outlining developments in taxation and charity law, and the regulation of nonprofit organisations. This edition naturally includes extensive discussion of the new national regulator, the Australian Charities and Not-for-profits Commission (ACNC), and the legal arrangements surrounding its establishment. There are also articles on matters of interest arising in New Zealand, the UK, and Canada.

Private purpose trusts: a reform proposal

Argues for the introduction of statutory reform to enable valid private purpose trusts to be created by those wishing to make testamentary gifts for non-charitable purposes, with no human beneficiary. Examines the rationale employed in cases where the validity of a private purpose trust has been upheld despite the absence of a human beneficiary. Considers the approaches adopted by five offshore jurisdictions when introducing purpose trust legislation. Identifies key features to be included in any new purpose trust legislation introduced in the UK.

The origins of the Irish hospitals' sweepstake

This article examines the two main reasons for the setting up of the Irish sweepstakes in 1930; the financial crisis facing voluntary hospitals and the tradition of using sweepstake gambling to raise funds for charitable purposes. Such gambling, although technically illegal, was prevalent and widely tolerated during the late 19th and early 20th centuries. The change of government that accompanied Irish independence in 1921 led to much confusion surrounding the law on gambling and large-scale sweepstakes proliferated during the early 1920s, many of them selling tickets illegally in Britain. At the same time the Irish voluntary hospitals faced a financial crisis that threatened their future, brought about by the adverse impact of war-time inflation on the value of their endowments, the emigration of supporters of the Protestant voluntary hospitals after independence, the political upheaval of the revolutionary period, the decline in fees from medical students and the increasing cost of and demand for hospital treatment. This article provides a detailed account of the enactment of the sweepstake legislation and of the first sweepstake on the 1930 Manchester November Handicap.

Keeping giving going : charitable bequests and Australians

The potential of bequests to contribute to the sustainability of charities1 is immense, with social and economic trends opening up the bequest landscape. Yet so much is unknown about how Australians think about charitable bequests – particularly about the motivations, barriers and triggers surrounding this behaviour. Do bequestors differ from other donors? What prevents good intentions from becoming good actions? Where do charities figure in this process? This study aims at a better understanding of those Australians who make a charitable bequest and those who might. It offers individual charities, and the sector as a whole, empirical evidence to support and extend the anecdotal knowledge of those working with donors around this sensitive, but vital, area. This research has been supported by the Perpetual Foundation, the EF and SL Gluyas Trust and the Edward Corbould Charitable Trust under the management of Perpetual Trustee Company Ltd.

Differences between students and non-students’ willingness to donate to a charitable organisation

This paper reports on a comparative study of students and non-students that investigates which psycho-social factors influence intended donation behaviour within a single organisation that offers multiple forms of donation activity. Additionally, the study examines which media channels are more important to encourage donation. A self-administered survey instrumentwas used and a sample of 776 respondents recruited. Logistic regressions and a Chow test were used to determine statistically significant differences between the groups. For donatingmoney, importance of charity and attitude towards charity influence students, whereas only importance of need significantly influences non-students. For donating time, no significant influences were found for non-students, however, importance of charity and attitude towards charity were significant for students. Importance of need was significant for both students and non-students for donating goods, with importance of charity also significant for students. Telephone and television channels were important for both groups. However, Internet, email and short messaging services were more important for students, providing opportunities to enhance this group’s perceptions of the importance of the charity, and the importance of the need, which ultimately impacts on their attitudes towards the charity. These differences highlight the importance of charities focussing on those motivations and attitudes that are important to a particular target segment and communicating through appropriate media channels for these segments.

Computer profiling for forensic purposes

Computer forensics is the process of gathering and analysing evidence from computer systems to aid in the investigation of a crime. Typically, such investigations are undertaken by human forensic examiners using purpose-built software to discover evidence from a computer disk. This process is a manual one, and the time it takes for a forensic examiner to conduct such an investigation is proportional to the storage capacity of the computer's disk drives. The heterogeneity and complexity of various data formats stored on modern computer systems compounds the problems posed by the sheer volume of data. The decision to undertake a computer forensic examination of a computer system is a decision to commit significant quantities of a human examiner's time. Where there is no prior knowledge of the information contained on a computer system, this commitment of time and energy occurs with little idea of the potential benefit to the investigation. The key contribution of this research is the design and development of an automated process to describe a computer system and its activity for the purposes of a computer forensic investigation. The term proposed for this process is computer profiling. A model of a computer system and its activity has been developed over the course of this research. Using this model a computer system, which is the subj ect of investigation, can be automatically described in terms useful to a forensic investigator. The computer profiling process IS resilient to attempts to disguise malicious computer activity. This resilience is achieved by detecting inconsistencies in the information used to infer the apparent activity of the computer. The practicality of the computer profiling process has been demonstrated by a proof-of concept software implementation. The model and the prototype implementation utilising the model were tested with data from real computer systems. The resilience of the process to attempts to disguise malicious activity has also been demonstrated with practical experiments conducted with the same prototype software implementation.

Assessment of the suitability of public mobile data networks for aircraft telemetry and control purposes

This paper provides a review of the state of the art relevant work on the use of public mobile data networks for aircraft telemetry and control proposes. Moreover, it describes the characterisation for airborne uses of the public mobile data communication systems known broadly as 3G. The motivation for this study was the explore how this mature public communication systems could be used for aviation purposes. An experimental system was fitted to a light aircraft to record communication latency, line speed, RF level, packet loss and cell tower identifier. Communications was established using internet protocols and connection was made to a local server. The aircraft was flown in both remote and populous areas at altitudes up to 8500 ft in a region located in South East Queensland, Australia. Results show that the average airborne RF levels are better than those on the ground by 21% and in the order of - 77dbm. Latencies were in the order of 500ms (1/2 the latency of Iridium), an average download speed of 0.48Mb/s, average uplink speed of 0.85Mb/s, a packet of information loss of 6.5%. The maximum communication range was also observed to be 70km from a single cell station. The paper also describes possible limitations and utility of using such communications architecture for both manned and unmanned aircraft systems.

A review of rapid prototyping techniques for tissue engineering purposes

Rapid prototyping (RP) is a common name for several techniques, which read in data from computer-aided design (CAD) drawings and manufacture automatically threedimensional objects layer-by-layer according to the virtual design. The utilization of RP in tissue engineering enables the production of three-dimensional scaffolds with complex geometries and very fine structures. Adding micro- and nanometer details into the scaffolds improves the mechanical properties of the scaffold and ensures better cell adhesion to the scaffold surface. Thus, tissue engineering constructs can be customized according to the data acquired from the medical scans to match the each patient’s individual needs. In addition RP enables the control of the scaffold porosity making it possible to fabricate applications with desired structural integrity. Unfortunately, every RP process has its own unique disadvantages in building tissue engineering scaffolds. Hence, the future research should be focused into the development of RP machines designed specifically for fabrication of tissue engineering scaffolds, although RP methods already can serve as a link between tissue and engineering.