Finding the Limits of Aid/Watch

Matthew Harding

doi:10.5130/ccs.v3i3s.2172

Abstract

Commissioner of Taxation v Aid/Watch Incorporated is the latest of a series of recent cases in which the High Court of Australia has exhibited what might be described as a ‘generosity of spirit’ to would-be taxpayers whose charitable status has been called into question. In Aid/Watch, the Court ruled that an organisation formed to monitor and evaluate the delivery of foreign aid by Australian government agencies was a charity even though it was engaged, consistently with its objects, in the sorts of political activities that traditionally have been regarded as anathema to charity. This article considers where we might feasibly locate the boundaries of the High Court’s reasoning in Aid/Watch, in light of charity law as a whole. In other words, as a matter of charity law, what are the limits of Aid/Watch? Thinking about this question demands: (a) some understanding of what the High Court in Aid/Watch said with certainty; and (b) a wider review of charity law to see which of its rules and principles may bear upon cases about political purposes now that Aid/Watch has been decided.

Highlights

Charity law is in many ways the centrepiece of civil society regulation in Australia
As a matter of charity law, what are the limits of Aid/Watch? Thinking about this question demands: (a) some understanding of what the High Court in Aid/Watch said with certainty; and (b) a wider review of charity law to see which of its rules and principles may bear upon cases about political purposes that Aid/Watch has been decided
In a trio of cases decided over the past few years, the High Court of Australia has exhibited what might be described as a ‘generosity of spirit’ to would-be taxpayers whose charitable status has been called into question

Summary

Introduction

Charity law is in many ways the centrepiece of civil society regulation in Australia. 27 Molloy v Commissioner of Inland Revenue [1981] 1 NZLR 688 (CA), Re Positive Action Against Pornography and Minister of National Revenue (1988) 49 DLR (4th) 74, Human Life International in Canada cases without considering the merits or otherwise of law reform, the majority in Aid/Watch has ensured that courts may continue to steer clear of such controversy notwithstanding that the rule against political purposes has been repealed. Much was clear from the majority’s discussion of the importance of freedom of political expression to the system of government established under the Commonwealth Constitution.28 If it is the effects of public debate on political culture, and not on governmental activities, that matter, it is difficult to see why courts in cases like Aid/Watch ought to be concerned about the character of the governmental activities that are subject to public debate when determining whether or not generating the public debate in question is a charitable purpose. Benefit’ (2008) 71 Modern Law Review 159. National Anti-Vivisection Society v Inland Revenue Commissioners [1948] AC 31. For the relevant principles, see Gino Dal Pont, Law of Charity (LexisNexis Butterworths, Chatswood, 2010)

Chapter 9.

Conclusion