Public Benevolent Institution case clears the air

The High Court has not considered the term Public Benevolent Institution (PBI) since a couple of cases in 1942. At the time the Court made the observation that it was not appropriate for the term PBI to be fixed in time. This allows for the meaning of PBI to alter as its common understanding does.  A recent judgment from the Administrative Appeals Tribunal emphasises that the PBI definition depends on the common or ordinary understanding of the expression at the relevant time, not a mechanical application of past authority up to a century old.

Background

Global Citizen Limited (GCL) is a charity with the sub type of ‘advancing education’ registered with the Australian Charities and Not-for-profits Commission (ACNC). GCL is a company limited by guarantee and its sole member and parent entity is Global Poverty Project Inc which trades as Global Citizen (GPP US). GPP US is a non-profit entity that is a public charity in the United States. Both GCL and GPP US are part of a global network of entities operating as part of the Global Citizen Network (GC Network).

In 2015 the GC Network embraced the UN’s Sustainable Development Goals (SDGs) and collectively adopted a mission to ‘end extreme poverty by 2030’. Its model contemplated activities that were devoted to raising awareness as well as focused action towards achieving the SDGs.

Evidence was given about GCL’s activities in relation to three campaigns for polio eradication, vaccination and the fight against infectious diseases, often in partnership with other non-profit organisations, by education of the public, government agency staff and politicians.

The Tribunal found that (at [55]):

“Based on this largely uncontested evidence, we find the activities of GCL, together with other entities in the GC Network and in collaboration with other non-governmental organisations (NGOs), are directed to securing commitments, primarily financial commitments, from governments and wealthy philanthropists, to international organisations that carry out the projects to relieve poverty.”

Change in subtype sought

GCL applied to the ACNC to alter its charitable subtype from ‘advancing education’ to ‘public benevolent institution’ (PBI). GCL was not seeking deductible gift recipient (DGR) status to facilitate it engaging in public fundraising, but rather, so it could apply for grants from ancillary funds (Item 2 DGRs) that may only make grants to Item 1 DGRs (i.e. PBIs).

The ACNC argued that GCL was not eligible to be registered as a PBI because:

• GCL has an independent purpose, or purposes, of education and/or advocacy that prevent it from being a PBI (the purposes sub-issue); and
• GCL does not provide relief directly, or through related entities, to those in need and this prevents it from being a PBI (the provision of relief sub-issue).

The ACNC did not dispute GCL was an ‘institution’ or whether it is ‘public’.

The Tribunal agreed with the Full Federal Court in Commissioner of Taxation v The Hunger Project Australia[2014] FCAFC 69 that in the ordinary contemporary meaning or understanding of the term, a PBI did not need to provide relief directly (at [76]).

Does GCL have a main benevolent purpose?

The ACNC argued GCL has several independent purposes, including education and/or advocacy, and that the relief of poverty was not its main purpose.

After analysis of relevant case decisions, the Tribunal found that (at [81]):

“The ordinary meaning of ‘main’ in relation to an object or purpose does not preclude an entity from having other objects or purposes, provided the benevolent purpose was predominant.”

The ACNC argued in the alternative that the ‘main purpose’ requirement meant that any other purpose must be incidental or ancillary to the benevolent purpose. On that view, an independent non-incidental purpose would be disqualifying.

The Tribunal found that this notion was derived from charity law, often expressed as that a gift to both charitable and non-charitable purposes would be invalid as not ‘exclusively for charitable purposes’. The Tribunal cautioned that the fact that charitable purpose or purposes must be exclusively charitable does not mean a PBI must have exclusively benevolent purposes.

After reviewing GCL’s constitution, its alteration over time, and its activities, the Tribunal was ‘satisfied GCL had only one purpose – the relief of global poverty – and that it engages in educational and advocacy activities to achieve that purpose’ (at [98]). It added that even if education/advocacy were purposes, they were incidental and ancillary to the main purpose of the relief of poverty.

Was there provision of relief?

The ACNC argued that the activities of GCL and the provision of relief was ‘too abstract’ and ‘too remote’. GCL did not provide relief because:

• there was no evidence of a causal link between the activities of GCL and the provision of benevolent relief; and
• there was an absence of the closeness of relationship contemplated by the decided cases between GCL and those entities that actually provided relief.

The Tribunal noted that there was clear authority that relief can be provided by a PBI indirectly, and that it is not necessary to require proof of the link between the activities of the entity and the provision of relief.

After considering uncontested expert evidence, the Tribunal accepted that advocacy, awareness-raising and educational activities were common methods employed by entities tackling global issues, including global poverty. GCL was able to present a range of evidence establishing it role with others in relieving poverty, such as its own reports, endorsements from international organisations and government ministers.

Finding that GCL a PBI

The Tribunal came to the conclusion that GCL was a PBI charity as it (at [127]):

“:…undertakes a range of activities, together with other entities in the GC Network, and in collaboration with other entities both in Australia and overseas, so that monies are directed to international organisations that are involved in the direct delivery of aid and assistance in the relief of poverty.”

In a final comment the Tribunal laid down a challenge to modernise the definition of a PBI (at [128]):

“The evidence clearly established that most large PBIs engage with the political process as a regular and indispensable part of their work because governments are invariably key players in delivering the relief that is sought. Once that reality is accepted, there is potentially a blurring of the distinction between a PBI that participates in the political process as part of its activities in providing benevolent relief and an entity that is pursuing political outcomes for their own sake. If the line needs to be more clearly defined, there may be a need for the Parliament to refine the definition of ‘public benevolent institution’ in the legislation. As we have explained, the expression was itself introduced to narrow the range of organisations that were entitled to the valuable concessions in question after court decisions made nearly a century ago.”

It is not yet known whether the decision will be appealed.