News & Insights

In its recent judgment on the eligibility of Equality Australia Ltd to be registered as a Public Benevolent Institution (PBI), the Full Court of the Federal Court has provided some further guidance regarding the test for a PBI and the extent to which PBIs can engage in advocacy.

Equality Australia Ltd, which organisation has as its purpose the improvement of the wellbeing and circumstances of gay, lesbian, bisexual, transgender and intersex people (LGBTIQ+ people) was registered as a charity with the Australian Charities and Not-for-profits Commission (ACNC) in 2016, with the charity subtype ‘advancing public debate’.  In 2020, it applied to the ACNC to change this subtype to become a PBI.

The ACNC refused Equality Australia’s application to register with the PBI subtype because the ACNC considered that the charity had an independent, non-benevolent purpose of engaging in advocacy to agitate for law reform and social change, and this purpose did not constitute benevolent relief to people in need.

The Administrative Appeals Tribunal (AAT) later upheld, by a 2-1 majority, the ACNC’s decision to refuse Equality Australia’s application for PBI registration. The AAT determined Equality Australia was not a PBI, as it was focused on advocacy (particularly advocacy of law reform and social change) and therefore it was not organised or conducted for and did not promote, the relief of the distress experienced by LGBTIQ+ people in the required way.  The AAT further concluded that there must be a “sufficiency of connection between the activities of the entity and the benevolent ends it seeks to achieve” which was not present in the case of Equality Australia.

Equality Australia then appealed the AAT’s determination to the Full Court of the Federal Court.

The Federal Court found that the majority in the AAT did not err in law by introducing a qualification of its own, being “a requirement of sufficient proximity, or a direct connection, between an entity’s activities and its benevolent ends” to the test for a PBI.  The Federal Court further found that “whether activities are apt to achieve benevolent purposes is a question of fact and degree”.

Neither the Federal Court nor the AAT’s decision provides a great deal of guidance as to when the sufficiency of connection between an organisation’s activities and the relief of the identified distress exists, particularly in circumstances where one of the organisation’s principal means of addressing such distress is advocacy nor do the decisions give a clear indication of the permitted scope of advocacy in which a PBI may engage and continue to satisfy the core requirements of a PBI.

The ACNC has indicated that it will issue a Decision Impact Statement shortly and may also update the Commissioner’s Interpretation Statement on PBIs to address the Federal Court’s ruling.  Perhaps these updates will provide further guidance as to the degree to which a PBI can engage in advocacy and when the ACNC considers a “sufficiency of connection” exists between the activities of a PBI and the distress it seeks to relieve.

If you are intending to apply to register as a PBI or are a registered PBI charity and would like advice on the scope of advocacy you can undertake or assistance with respect to your advocacy policy, please contact Sarah Johnson.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.