Legislative Assembly for the ACT: 2010 Week 14 Hansard (Wednesday, 8 December 2010) . . Page.. 6036 ..
MS HUNTER (Ginninderra—Parliamentary Convenor, ACT Greens) (9.18): Mr Hanson could take some lessons from Mr Coe on reading out lists of names, because Mr Coe is very good at it. I rise tonight to draw the Assembly’s attention to a significant case that was decided by the High Court since our last sitting—Aid/Watch Incorporated v Commissioner of Taxation. The Commissioner of Taxation removed Aid/Watch’s status as a charitable organisation in 2007, and the decision was reversed by the Administrative Appeals Tribunal. The case was then taken to the full Federal Court where the commissioner’s original decision was upheld. Aid/Watch appealed to the High Court of Australia and was successful in arguing that it is, in fact, a charitable organisation under the common law of trusts, the Income Tax Assessment Act and other associated tax acts.
Aid/Watch is an organisation that monitors foreign aid and attempts to maximise the effectiveness of aid money and ensures that it delivers the best outcomes for the intended recipients. This often involves being critical of government aid policy and actively attempting to influence policy and change to the way things are done.
The full Federal Court found that, because the prevailing aim of Aid/Watch was to influence government, this invalidated any claim to charitable status for the purposes of the federal revenue laws. It was characterised as a political rather than charitable purpose. A key question for the High Court was: are there charitable purposes which are political?
In the majority joint judgement of Chief Justice French and Justices Gummow, Hayne, Crennan and Bell—Justices Kiefel and Heydon dissented—the court found that the generation by lawful means of public debate concerning the efficiency of foreign aid directed to the relief of poverty itself is a purpose beneficial to the community. The court also found that the system of law which applies in Australia thus postulates for its operation the very agitation for legislative and political changes. It is the operation of these constitutional processes which contributes to the public welfare.
The court found that Aid/Watch’s activities are:
… apt to contribute to the public welfare, being for a purpose beneficial to the community … whatever else be the scope today in Australia for the exclusion of ‘political objects’ as charitable, the purposes and activities of Aid/Watch do not fall within any area of disqualification for reasons of contrariety between the established system of government and the general public welfare.
The court also referred back to its decision in Coleman v Power and said:
Any burden which the common law places upon communication respecting matters of government and politics must be reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of that system of government.
The important point to take away is the High Court has confirmed that legitimate attempts to agitate for change and to influence public policy is a charitable purpose and deserves special recognition and protection under the common law.