Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CHARITIES BILL 2013
CHARITIES (CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL
PROVISIONS) BILL 2013
ADDENDUM TO THE EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Deputy Prime Minister and Treasurer, the Hon Wayne Swan MP)
Chapter 1
Addendum to the explanatory
memorandum
Outline of chapter
1.1 This Chapter adds additional material to the explanatory
memorandum to the Charities Bill 2013 and the Charities (Consequential
Amendments and Transitional Provisions) Bill 2013.
1.2 The additional materials are explained by way of modification to
the explanatory memorandum to the Bills.
Further explanation of new law
Disqualifying purposes
Unlawful activities
1.3 At the end of paragraph 1.102, include the following text:
1.102A There is a distinction between the purposes of
an entity and the activities of an entity. This provision is
concerned with purpose. Individual instances of engaging in,
or promoting, an unlawful activity would generally not cause
an entity to be considered to have a purpose to engage in
such activity. However, activities can be considered in
determining an entitys purposes (see paragraphs 1.27
to 1.29) and an entitys engagement in, or promotion of,
unlawful activities to an extent that they could be considered
to constitute a purpose to engage in, or promote, such
unlawful activities, would be disqualifying.
1.102B In general terms, the purposes of an entity are
usually the aims listed in the entitys constitution, and the
activities will be the methods by which the entity achieves
those purposes. However, not all purposes will necessarily
be listed in the entitys constitution. If an entity spends a
large portion of its time and resources carrying out certain
activities over extended periods of time, these activities may,
3
Charities Bill 2013
Charities (Consequential Amendments and Transitional Provisions) Bill 2013
in fact, amount to a purpose in their own right. Whether the
activities have amounted to a purpose will be determined on
a case-by-case basis, considering all relevant factors,
including but not limited to the factors listed in
paragraphs 1.27 to 1.28.
1.102C In addition to the distinction between the
activities and purposes of a charity, there is also a distinction
between the activities of the entity and the activities of the
individuals involved in that entity. The Bill is concerned
only with the purpose of the entity and to a lesser extent its
actions and activities in determining those purposes, not the
actions and activities of individuals associated with the entity
unless they are authorised by the entity. Unauthorised
individual instances of unlawful activity carried out by an
employee, member or volunteer of an entity are unlikely to
constitute a disqualifying purpose of an entity. Whether an
action of an individual amounts to an action of the entity will
be determined according to the law of agency and other
relevant factors.
Political activities
1.4 At the end of paragraph 1.110, include the following text:
1.110A The Commissioner of Taxations current
taxation ruling TR 2011/412 explains that if the purpose of an
entity that is otherwise charitable, will not generally be
affected by non-charitable political activities that are simply
a means of giving effect to its charitable purpose. These
activities could include seeking to persuade members of the
public to vote for or against particular candidates or parties in
an election, or distributing material designed to underpin a
party political campaign as long as these activities do not
alter the entitys purposes. The disqualifying purposes are
not intended to alter the outcome as explained in the ruling.
1
At paragraph 73.
2
The ruling was updated in 2011 to reflect the High Court decision in Aid/Watch.
4
Addendum to the explanatory memorandum
Charitable purposes
Charitable housing
1.5 At the end of paragraph 1.125, insert the following text:
1.125A The examples of purposes are not intended to
limit charitable purposes to those specifically mentioned.
Particularly under the broad category of advancing social or
public welfare, the purposes of an entity may encompass a
range of circumstances. For example, a charitable purpose
that includes providing housing may address housing needs
arising from financial disadvantage under the relief of
poverty. Charitable housing may also address particular or
special physical, social or psychological needs or other
special disadvantages of individuals and families. A special
disadvantage is disadvantage suffered by an individual or
family that is something more than the issues commonly
experienced by the public, such as general problems with
housing affordability.
Advancing the natural environment
1.6 In paragraph 1.141, replace the dot point starting with
"promoting sustainability development" with the following dot point:
· promoting sustainable development, including through
promoting ecologically sustainable urban environments and
resource sustainability, and promoting biodiversity; and
Public benefit - identifiable detriment
1.7 At the end of paragraph 1.148, insert the following text:
Advocacy to influence government policy or legislation
which may result in government policy or legislation being
amended to the detriment of certain members of the public
will not be an ,,identifiable detriment for the purposes of
paragraph 6(2)(b) of the Bill. This is because advancing
public debate or advocating about an issue is generally
beneficial and produces no detriment to the public itself,
except where such advocacy or debate is contrary to law, for
example, where the debate is intended to be legally
defamatory (including debate that is knowingly libellous or
slanderous).
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