Authors: Belinda Marsh, Partner and Dylan Anderson, Paralegal
Update on 2 November 2023 – the case referred to in this article is subject to an appeal to the Full Federal Court. We will provide a further update to the case and the response from ACNC as the matter develops.
The updated Commissioner’s Interpretation Statement has further clarified the criteria as to what kind of charity and charitable activities could qualify for registration as a “Public Benevolent Institution” (PBI), which provides more certainty for the charity sector.
Furthermore, it has left the door open to a wider variety of charities with differing activities that now may be eligible for PBI registration.
The recent Administrative Appeals Tribunal (AAT) Decision in Equality Australia Ltd v Commissioner of The Australian Charities and Not-For-Profits Commissioner  AATA 2161 sought to interpret the meaning of PBI to determine:
- whether an entity, Equality Australia Ltd (EAL), with the objective to “relieve distress experienced by persons who identify as LGBTIQ+”, meets the definition of PBI; and
- if so, does EAL’s engagement in advocacy (particularly legal advocacy), education and campaigning function to relieve this distress experienced by LGBTIQ+ people in Australia meet the criteria that apply to PBIs.
Since the term PBI is not expressly defined within legislation, there is significant reliance on the interpretation of the term by the Court, Tribunals and the Australian Charities and Not-for-profits Commission (ACNC). The ACNC defines a PBI as ‘an institution that is organised, conducted or promoted for the relief of poverty, sickness, destitution, helplessness, suffering, misfortune, disability or distress’ (1).
EAL is an advocacy organisation that applied to the ACNC in 2021 to be recognised as a PBI but its application was rejected by ACNC on the grounds that it did not meet the criteria that apply to PBIs. EAL then appealed this decision to the AAT. The AAT accepted that LGBTIQ+ people in Australia are part of a particular group which experiences distress that gives rise to a need for relief, and that this distress fits into the category relevant for a PBI. The majority also acknowledged that an organisation needs not be directly involved in the provision of relief or aid for PBI purposes but could play a role as part of a larger process of funding, administering, and delivering that assistance (2).
The key determinant was whether there was sufficiency of connection between the activities of the entity and the benevolent ends it pursues. The majority of the Tribunal ultimately found in favour of the Commissioner of the ACNC in determining there to be insufficient connection between EAL’s primarily advocacy activities and the benevolent ends it pursues and thus did not meet the criteria to be a PBI.
Shortly following the AATs decision on 30 June 2023, the ACNC issued an updated Commissioner’s Interpretation Statement including a new section titled ‘Advocacy and Benevolent relief’. This section incorporates a summary of the above decision of the AAT, highlighting the ‘sufficiency of connection’ rule as a key determinant as to whether a charity would fit into the sub-type of PBI. The section notes that the ACNC accepts that a PBI can in some circumstances engage in some advocacy that is ancillary to the delivery of benevolent relief. The reference to advocacy groups as a potential PBI is a departure from the previous Commissioner’s Interpretation Statement, which took the general approach that an advocacy group did not fit into the charity sub-type of PBI.
If you have any queries in relation to these changes, please do not hesitate to contact us.
(1) Perpetual Trustee Co Ltd v Federal Commissioner of Taxation (1931) 45 CLR 224, 232 (Starke J); 233 (Dixon J); 235-6 (Evatt J); 241 (McTiernan J).
(2) Global Citizen Ltd v Commissioner of the ACNC  AATA 3313.