The Australian Charities and Not-for-profits Commission (ACNC) has released its Decision Impact Statement in response to the Administrative Appeals Tribunal (ATT) decision about Global Citizen Ltd (GLC), which affects ACNC guidance on Public Benevolent Institutions
Global Citizen Ltd, an existing charity, applied to the ACNC to add the charity subtype of public benevolent institution (PBI) to its registration. PBI is a type of charitable institution which has a main purpose of providing benevolent relief to people in need. After the application was refused, the matter went before the ATT and the Tribunal found that GCL had only one purpose – the relief of global poverty – and that it engaged in educational and advocacy activities to achieve that purpose, overturning the ACNC’s decision and determining it was entitled to registration as a PBI. Its education and advocacy activities - if viewed as purposes - were also found to be incidental and ancillary to its main purpose of the relief of poverty.
Response from the ACNC
The Decision Impact Statement, published on 9 December 2021, provides a detailed response from the ACNC to the Tribunal decision on the effect of the decision, including:
- entities within a network of entities providing relief, that direct their advocacy or educational activities towards specific aid projects – may be entitled to registration as a PBI;
- while the Tribunal made several comments about the significance of minor purposes in assessing a main or predominant purpose for a PBI, the ACNC considers that the decision does not result in a change to its view of ‘purpose’ set out in the Commissioner’s Interpretation Statement on PBIs; and
- in considering whether activities provide benevolent relief to those in need, there is distinction between advocating for changes in policy and advocating for specific financial commitments, and some activities will be too remote to determine that an entity is “organised” for, or “concerned in” or “promoting” the relief of poverty.
The ACNC will update its guidance on PBIs as a result of this decision, including the Commissioner’s Interpretation Statement: Public Benevolent Institutions. However the ACNC has noted that while the ATT raised many interesting matters of law about the meaning of the terms “public benevolent institution” and “main purpose”, it did not reach a concluded view on these matters and the ultimate decision was not based on them, rather it reached a decision based on the specific facts of this case.
What it means to be a PBI in contemporary Australia will continue to be tested and challenged in the coming months and years. Whether the ACNC’s interpretation of the Global Citizen case will be shared by the AAT and the Courts is yet to be determined. The concept and definition of charity does not stay static and instead shifts and moves with the times. We look forward to further judicial clarification of the understanding of PBI and advocate for specific funding to help accelerate such examination.
You can read the ACNC Decision Impact Statement: Global Citizen Ltd here. For more information you can also read the ATT’s decision here.