Program and Abstracts

8.45am

Registration - Woodward Centre, Level 10, Melbourne Law School

9.15am

Welcome by The Hon David Bradbury MP (Assistant Treasurer of the Commonwealth of Australia)

9.30am

Keynote speaker:

Mr Hubert Picarda QC (Charity Law Chambers, London), 'Charities Act 2011: Dog's Breakfast or Dream Come True?'

ABSTRACT: Hubert Picarda's preliminary address touches on campaigning and the future of Aid Watch in England. He selects sone items from Lord Hodgson's incomplete review of the Charities Act 2006 In its sights and those of its critics is the future and independence of the Commission including allegations of its politicisation. Criticisms have also surfaced about the unpopularity of the tribunal.

The dog's breakfast of the Independent Schools case in the Upper Tribunal and the superfluous decision of the Tribunal in the provident associations case have evoked differing reactions.

There are lessons to be learnt from the schools merger case Aliss and Hesketh v Charity Commission in the First Tier of the Tribunal Disgruntled parents of children and juveniles at a school were faced with an allegedly unnecessary and precipitate merger with another school., claimed by them to be dissimilar, under a cypres section mirrored in Australia The merger was hidden from them and a resulting scheme with a most inappropriate 999 year lease and lack of due diligence emerged The scheme was upheld but the lease is to be reformed.

The Commission seems poised to concentrate now having controversially registered the Druid Network on established evangelical Christian charities on the footing of their not in different ways measuring up to the new public benefit requirement as set out in their Commission guidance . I will cover this topic on a no names no pack drill basis.

10.15am

The Role of Charity in the 21^st Century

Professor Rob Atkinson (Florida State University), 'The Future of Philanthropy'

ABSTRACT: This article maps a way beyond an impasse in today's treatment of philanthropy in both theory and law by taking us back to philanthropy's core function, uplifting our neediest and advancing our best. The standard academic model of philanthropy sees it as subordinate and supplemental to our society's other public sectors, the market and the state, and uses their metrics, aggregate consumer demand and majority voter preference, to measure philanthropy's performance. Thus the standard model gives us, as individuals and as a society, no single measure of philanthropy's traditional goal, the public good, besides consumer and voter preference. This article proposes to reverse the dominant theoretical perspective and reveal a radically different relationship among our society's three public sectors, philanthropy, the state, and the market. Following both classical western philosophy and the West's three Abrahamist faiths, this perspective places philanthropy first and measures everything, including our current economic and political systems, by this traditional philanthropic standard: enabling all human beings to participate in what both the Classics and the Scriptures take to be the highest human function, governing wisely for the good of all.

Associate Professor Matthew Harding (University of Melbourne), 'Religion and the Law of Charity: A Liberal Perspective'

ABSTRACT: In this paper, I consider the treatment of religious purposes in charity law from a perspective informed by the work of the political philosopher Joseph Raz. From that perspective it is a legitimate aim of the liberal state to promote conditions under which citizens may realise the ideal of autonomy in their lives. I begin by considering the treatment of religious purposes in charity law in light of the commitment to secularism that characterises all liberal thinking. I then turn to a key question from a Razian perspective: to what extent is the state's promotion of religious purposes via charity law justified because the pursuit of such purposes makes a contribution to the conditions of autonomy? Finally, I consider whether anything can be said, from a Razian perspective, about charity law's singling out of 'advancement of religion' as a distinct type of prima facie charitable purpose. I conclude that in many respects the treatment of religious purposes in charity law is consistent with the liberal commitments that animate Raz's thinking about political morality.

Chair: Emeritus Professor Michael Chesterman (University of New South Wales)

11.15am

Morning tea

11.45pm

The Role of Charity in the 21^st Century (continued)

Professor Nina J Crimm (St John's University) & Professor Laurence H Winer (Arizona State University),'Dilemmas in Regulating Electoral Speech of Non-Profit Organisations'

ABSTRACT: Western liberal democracies, including the United States (U.S.), Australia, and others, are predicated on the rights of individual citizens not only to vote but also to participate fully in the public political arena by expressing and hearing the widest possible variety of thoughts and ideas involving the most diverse sources. The First Amendment of the U.S. Constitution explicitly enshrines fundamental free speech and press rights – including most vitally electoral speech – of all speakers, interpreted recently by the U.S. Supreme Court in its controversial 5-4 decision in Citizens United v. FEC to include all corporations. Lacking an analogous constitutional provision, Australia's comparable protection for individuals and entities to engage in political expression is implied, but now firmly entrenched in the country's constitutional jurisprudence. 

Dr Matthew Turnour (Queensland University of Technology) & Ms Elizabeth Turnour (Moores Legal), 'Aid/Watch, Archimedes, Constitutional Levers and Where We Now Stand'

ABSTRACT: Significant reform of the laws regulating charities is underway in Australia. The reforms cover almost every facet of the relationship between charities and government. 

The reform 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 will explore these broader issues in the context of the Aid/Watch case. As that case involved an organisation that was utilised by citizens to challenge the State it is an example of an organisation that sits at the outer boundaries of what constitutes a charity. Accordingly it provides an excellent case study for consideration of broader issues regarding the relationship between government and charity. Beginning from the facts and the discussion by the High Court of the issues, this paper explores both context and broader philosophic issues. The paper highlights premises embedded in the judgment that can be passed over when it is analysed only in terms of legal precedent through the narrow lens of the existing four heads of charity. Finally, this paper illustrates how different positions on these broader issues result in different advice to clients, decisions by authorities and different approaches to legislative reform. 

Chair: Emeritus Professor Michael Bryan (University of Melbourne)

12.45pm

Lunch

1.45pm

Keynote speaker:

Professor Gino Dal Pont (University of Tasmania), 'Charity Law: No Magic in Words'

ABSTRACT:The legal concept of 'charity' from early times assumed a broader meaning than its meaning in ordinary parlance. Yet the passage of time, particularly commencing in the twentieth century, has seen the concept become broader again, and further removed from its dictionary counterpart. This paper catalogues various aspects of this expansion of the legal concept of 'charity' , and its coincidence with a loosening of the traditional restrictions on the scope of that concept. It then investigates the relevant pressures at play that have generated these outcomes, before ultimately questioning whether, as a matter of terminology, the legal concept of 'charity' should remain. It concludes that Lord Macnaghten's observation in Morice v Bishop of Durham that 'there is no magic in words' is hardly consistent with the development – and the future – of the 'charity' concept.

2.30pm

Defining Charity

Dr Jonathan Garton (Reader, University of Warwick), 'Fault Lines in Charity'

ABSTRACT: This paper considers elements of the public benefit requirement in light of the regulatory consequences of charitable status. It argues that the two types of public benefit as categorized by Warren J in the Independent Schools Council case are concerned with quite different regulatory goals. The public benefit in an abstract charitable purpose is best understood as a tool for identifying those purposes that, because of an information asymmetry between funders and providers, ought to attract trustee duties to ensure a certain level of trustworthiness in their provision. The requirement that a sufficient section of the community is able to benefit from the carrying on of that purpose is best understood in light of the fiscal benefits made available to charities through the tax system. The blunt nature of the English model of charity does not allow for one form of regulation without the other, resulting in a fault line running through the heart of charity law that forcing the courts and the Charity Commission to choose between competing regulatory aims that ought not to be competing at all because they are concerned with quite different issues.

Associate Professor Adam Parachin (University of Western Ontario), 'Common Misconceptions of the Common Law of Charity'

This article discusses select sources of incoherence in the law of charity with a view to addressing why "charity" has proven so difficult to define and regulate. In particular, three potentially misleading ideas about charity recurring (implicitly and explicitly) in the jurisprudence and commentaries are discussed. The first is the idea that charitable trusts are established for purposes rather than persons and are on that basis categorically distinct from other express trusts. The second is the idea that charity is a fiscal concept. The third is the idea that charity is public in nature. The thesis of this article is that, although each of these ideas is true to a point, they all have a demonstrated potential to confuse the law. 

Chair: The Hon Justice Susan Kenny (Federal Court of Australia)

3.30pm

Afternoon tea

4.00pm – 5.00pm

Defining Charity (continued)

Dr Joyce Chia (Australian Charities and Not-for-Profits Commission) 'A Statutory Definition of "Charity" for Australia'

ABSTRACT: The Australian Government is proposing to enact a statutory definition of charity in 2012, some eleven years after the Charities Definition Inquiry proposed one and several years after the various jurisdictions of the United Kingdom adopted one. This paper examines the current proposal, discussing the purposes of a definition of charity and the historical debate concerning a statutory definition. It then briefly sets out the Government's proposal and critiques elements of it, before setting a proposed definition for discussion by the audience. Finally, it concludes with a brief examination of the political prospects of the proposal.

General discussion on themes and issues arising from the day's proceedings (led by Joyce Chia, Matthew Harding, Ann O'Connell and Miranda Stewart)

6.30pm

Conference dinner

After-dinner speaker: Ms Linda Lavarch (Chair of the Australian Government's Not-for-Profit Sector Reform Council)

9.15am

Regulating Charity

Panel discussion: Ms Susan Pascoe AM (Commissioner, Australian Charities and Not-for-Profits Commission); Mr Trevor Garrett (formerly of the New Zealand Charities Commission); Mr David Locke, (Assistant Commissioner, Australian Charities and Not-for-Profits Commission)

Chair: Ms Sue Woodward (Director of Policy and Education, Australian Charities and Not-for-Profits Commission)

10.15am

Morning tea

10.45am

Regulating Charity (continued)

Mr Robert Fitzgerald AM (Chair of the Advisory Council, Australian Charities and Not-for-Profits Commission), 'Not for Profit Reform - Focusing on the Outcomes for the Sector and Society'

Judge Alison McKenna (First-Tier Tribunal (Charity) for England and Wales) 'Appealing the Regulator: Experience from the Charity Tribunal for England and Wales'

ABSTRACT: In this paper Judge Alison McKenna (Principal Judge of the First-tier Tribunal (Charity) and Judge of the Upper Tribunal (Tax and Chancery Chamber)) will:

• Discuss the policy rationale for the creation of the Charity Tribunal for England and Wales (now the First-tier Tribunal (Charity));
• Consider whether the Tribunal has been able to meet the objectives set for it;
• Describe the nature of the Tribunal's work since its inception in 2008, and in particular some issues arising from (i) appeals brought by charities and beneficiaries and (ii) the Attorney General's References;
• Consider the relationship between the Tribunal, the Charity Commission and the charity sector;
• Discuss the differences for charities in litigating in the Tribunal rather than in the High Court;
• Look at the potential reform of the Tribunal following the current review of its remit and forthcoming report to Parliament.

Chair: Mr Murray Baird (Assistant Commissioner, Australian Charities and Not-for-Profits Commission)

11.45pm

Lunch

12.45pm

Keynote speaker:

Professor Evelyn Brody (Chicago-Kent College of Law), 'A Review Essay on US Non-Profit Law Reform Projects: Ambitions and Limitations'

ABSTRACT: This article compares three recently completed or ongoing U.S. nonprofit law reform projects drafted by three different models of nonprofit institutions: the American Law Institute, the American Bar Association, and the Uniform Law Commission. These projects are not themselves law; rather, success depends on enactment by state legislatures or application by practicing attorneys, regulators, and judges. Moreover, this entrepreneurial and sometimes competitive model of law reform means that a true unified "charities law" in statutory form is unlikely to emerge in the United States. Finally, future law reform might focus less on nonprofit organizational form and more on subsectors or activities in which certain nonprofits (and perhaps also government and businesses) operate.

1.30pm

Taxing Charity

Professor David Duff (University of British Columbia), 'Tax Treatment of Charitable Contributions'

It is common for developed English-speaking countries to grant tax concessions to charities not only in the form of tax exempt status, but also through tax relief for donations Although various reasons have been offered to support tax relief for charitable donations, this paper argues that the most persuasive rationale is to provide an indirect subsidy to charitable activities in order to promote social and cultural pluralism and on account of the public or quasi-public nature of the goods and services that charities provide.

From this perspective, various features of current tax rules for charitable giving may be questioned, particularly the delivery of tax incentives in the form of deductions and exemptions which provide greater subsidies for high-income donors than those with lower incomes, and the absence of meaningful limits on tax-assisted giving which promotes a narrow philanthropic sector based on substantial donations from the most affluent taxpayers rather than a broad and pluralistic philanthropic sector sustained by a large number of smaller donations.

In Canada, the shift from a deduction to a credit in 1988 was a positive step, but was counteracted by the choice of a two-tiered credit, a relaxation of limits on tax-assisted donations, and the subsequent enactment of exemption of accrued gains on the donation of specific categories of appreciated property. As an alternative to deductions, exemptions and Canada's two-tiered credit, Canada's political contributions tax credit - which provides a higher credit for small amounts - is arguably a better and fairer way to promote a broad and pluralistic charitable sector.

Ms Fiona Martin (University of New South Wales), 'Convergence and Divergence with the Common Law: The Public Benefit Test and Charities for Indigenous Peoples'

ABSTRACT: The common law narrative of the legal concept of charity requires that a charity have a public benefit. This has been interpreted to exclude charities that benefit family members (other than those solely for the relief of poverty). Indigenous Australians holding traditional lands commonly wish to use a charitable structure to receive mining payments and promote community development. However the common law public benefit requirement poses a legal barrier to the establishment of charities for the benefit of Native Title Groups and other Traditional Owners who are defined in accordance with their traditional cultures and practices as this often involves family relationships. New Zealand followed the common law on this issue until it reviewed the taxation of Maori organisations in 2001 and subsequently amended the law relating to charities.

The first part of this paper discusses the historical development of the application of charity law in New Zealand and the judicial criticism of the strict 'public benefit' test. The second part considers the two government reviews that took place in New Zealand that culminated in the amendment of the law to provide that the public benefit test can still be satisfied where the is a blood connection between the beneficiaries. It looks at how this broader test has been applied in New Zealand and concludes with lessons that can be learnt in Australia from these developments.

Comment: Professor Miranda Stewart (University of Melbourne)

Chair: Professor Miranda Stewart (University of Melbourne)

2.45pm

Afternoon tea

3.00pm

Ms Debra Morris (Reader, Liverpool University) 'Recent Developments in Charity Taxation in the UK: The Law Gives and the Law Takes Away'

ABSTRACT: In this paper, I look at recent developments in charity taxation in the UK. Particular emphasis is placed in the paper on the recent government proposal (now aborted) to cap charitable donors' tax reliefs. Fiscal changes are examined by reference to the government's 'Big Society' agenda, part of which is aimed at encouraging philanthropy and charitable activity. Big Society also envisages a greater role for charities in the provision of public services. Against this background, there is both an implied and explicit assumption that government initiatives (including in the field of taxation) will be aimed at facilitating charitable giving and philanthropy. What will be revealed, however, in an examination of recent measures, is a surprising inconsistency in approach towards the charitable sector. Whilst some developments are clearly geared towards encouraging charitable giving and enabling charities, others may well have the opposite effect. It will be seen that, in the context of charity taxation, there is a complex picture, with the law both giving and taking away.

Mr John Emerson AM (Freehills) and Professor Ann O'Connell (Melbourne Law School), 'Not-for-Profit Tax Reform in Australia - Opportunities and Challenges'

ABSTRACT: This paper discusses theoretical framework models for public policy making, in the context of not-for-profit tax reform. It also explains the desired aims of tax reform, namely achieving equity, economic efficiency and less complexity (simplicity).

The paper identifies reasons for the current problems with tax concessions for not-for-profit entities, including complexity and undue compliance burdens. It identifies challenges in addressing the problems such as cost to government revenue, removing existing concessions from some entities, and issues arising from Australia's federal system. It suggests, however, that the opportunity presented by the considerable enthusiasm for reform by government, as well as by many participants in the not-for-profit sector, is likely to lead to successful outcomes.

Finally, the paper outlines some options for tax reform in addition to those now being considered by the Australian government.

Comment: Professor Ann O'Connell (University of Melbourne)

Chair: Professor Ann O'Connell (University of Melbourne)

4.15pm

Close of conference