Recent decisions in Australian charity law – update
November 2021 | News | Jae Yang
The Administrative Appeals Tribunal (AAT) and Federal Court of Australia (FCA) have recently handed down a set of decisions that have major implications for the Australian charity law sector and for charities and not-for-profit organisations across Australia.
The four recent decisions that the AAT and the FCA have handed down that are relevant for charities and not-for-profit organisations across Australia are:
- Global Citizen Ltd v Commissioner of the Australian Charities and Not-for-profits Commission  AATA 3313: The AAT determined that Global Citizen (a charity registered with the ACNC that applied to be registered with the ‘Public Benevolent Institution’ (PBI) subtype) was a PBI. Relevantly, the AAT noted that a PBI is not required to have exclusively benevolent purposes, and that the meaning of the term ‘PBI’ may evolve over time to allow PBIs to engage in relief of poverty through innovative indirect means of partnership and other indirect activities, including through education and advocacy.
- Cancer & Bowel Research Australia Ltd v Commissioner of the Australian Charities and Not-for-profits Commission  AATA 3875: The AAT determined that three organisations (Cancer & Bowen Research Australia Ltd, Breast Cancer Australia Ltd and Kids Cancer Research Australia Ltd) that were applying to be registered as charities with the ACNC were not entitled to be registered as charities, on the basis that these organisations had a non-charitable (and potentially disqualifying) purpose of avoiding the payment of taxation liabilities so that the charitable work of the organisations’ predecessor (Cancer and Bowel Research Association Inc) could “continue untrammelled”.
- Angel Loop Ltd v Commissioner of the Australian Charities and Not-for-profits Commission  AATA 3894: The AAT determined that Angel Loop Ltd (a not-for-profit organisation applying to be registered as a charity with the ACNC) was not entitled to be registered as a charity, on the basis that Angel Loop had an independent non-incidental purpose of providing private benefits to inventors and investors through arranging commercial deals.
- The Buddhist Society of Western Australia Inc v Commissioner of Taxation (No 2)  FCA 1363: The FCA set aside the ATO’s decision to revoke the Deductible Gift Recipient status of the ‘Dhammaloka Buddhist Centre Building Fund’ (a ‘school building fund’ (SBF) under item 2.1.10 of the table in section 30-25(1) of the Income Tax Assessment Act 1997 (Cth)). In setting aside the ATO’s revocation decision, the FCA rejected some of the tests applied by the Tax Commissioner in Taxation Ruling 2013/2 relating to determining the meaning of a ‘school’ and determining whether a building is used, or is to be used, as a school.
Implications for your organisation
Each of these decisions may influence the ACNC’s approach going forward with respect to registration of charities, and also the ATO’s approach going forward with respect to endorsement of a fund as a SBF.
Please contact Jae Yang if you have any questions about the implications of these decisions for your organisation.