Commissioner's Interpretation Statement: Provision of housing by charities

Commissioner’s Interpretation Statements provide guidance to ACNC staff, charities and the public on how the Commissioner understands the law that applies to charities. These statements reflect our current understanding of the law on charity.

The purpose of this Commissioner’s Interpretation Statement is to provide education, guidance, legal analysis and reasoning regarding the application of charity law to housing providers.

This Commissioner’s Interpretation Statement is a public statement and is considered binding on ACNC officers. Commissioner’s Interpretation Statements set out how the ACNC interprets the law on the relevant topic. Additionally, consistent with the ACNC regulatory approach, we will ensure that charities that rely on the Interpretation Statements are treated fairly. If the law or an Interpretation Statement changes, we will apply the new position from the date of the change, not retrospectively in a way that could disadvantage a charity. In most cases, we will also allow a period of time for charities to respond to any change.

This Interpretation Statement was initially published on 1 December 2014. It was then revised and the revised document was published on 5 November 2021.

Contents of this Commissioner’s Interpretation Statement

1. In this Commissioner’s Interpretation Statement, we provide information and guidance on the Commissioner’s interpretation of the application of charity law to certain housing providers.
2. Providing ‘housing’ includes the provision of units, houses, shared accommodation, crisis accommodation and accommodation provided through hostels. The accommodation may be temporary or permanent.
3. This Commissioner’s Interpretation Statement focuses on housing provision under the charitable purpose of ‘advancing social or public welfare’. This is because the ACNC has identified this as an area of the law on which organisations and individuals seek guidance. This Statement will not apply to the many charities that provide housing under a different charitable purpose.
4. The legal and practical matters covered by this Commissioner’s Interpretation Statement are:
   • The charitable purposes that may be fulfilled by the provision of housing and the people that can receive housing from registered charities.
   • Whether a Public Benevolent Institution can provide housing.
   • The forms of housing that registered charities can provide.
   • Using profits from commercial activities to fund housing.
   • How an organisation can demonstrate that it is a not-for-profit.
   • The relationship between government and housing providers that are registered charities.

Charitable purposes: who can charities provide housing to?

Identifying a relevant charitable purpose

5. An organisation that provides housing is eligible for registration as a charity if it provides housing in furtherance of a charitable purpose.
6. The Charities Act 2013 (Cth) (the Charities Act) provides a statutory definition of ‘charity’ for Commonwealth purposes. The provision of housing is an activity that may be undertaken by an entity with one or more of the charitable purposes set out in the Charities Act.^[1]
7. This Commissioner’s Interpretation Statement discusses housing provision in furtherance of the charitable purpose of advancing social or public welfare.^[2]

Advancing social or public welfare

8. The Charities Act provides that the purpose of advancing social or public welfare includes, without limitation, the purposes of:
   • relieving the poverty, distress or disadvantage of individuals or families;^[3]
   • caring for and supporting the aged or individuals with disabilities;^[4] and
   • caring for, supporting and protecting children and young individuals.^[5]
9. The Commissioner will read the ‘purpose of relieving poverty, distress or disadvantage…’ disjunctively (as alternatives), so that the purposes of relieving poverty, or relieving distress, or relieving disadvantage may each come within the charitable purpose of advancing public or social welfare.^[6]
10. Public benefit is presumed if the purposes are relieving the poverty, distress or disadvantage of individuals or families, and caring for and supporting the aged or individuals with disabilities.^[7] This means that a housing provider with these purposes meets the public benefit element of the definition of a charity unless there is evidence to the contrary.^[8]

Relief of poverty

11. The Commissioner takes the view that poverty is not limited to destitution,^[9] but refers to an inability to provide, from within one’s own resources, a modest standard of living in the Australian community.^[10] Therefore, in the context of housing, a charity with a purpose of relieving poverty might pursue this by providing housing assistance to ensure a modest standard of living to people who cannot afford, from their own resources, accommodation that would give them a modest standard of living in the Australian community.
12. In Re Coulthurst,^[11] Evershed MR described poverty as having to ‘“go short” in the ordinary acceptation of that term’.^[12] In the 1904 case of Trustees of the Mary Clark Home,^[13] Channell J found that poverty ‘does not mean the very poorest, the absolute destitute; the word “poor” is more or less relative’ and that he could not lay down a fixed rule.^[14] To qualify, the beneficiaries of the charitable objectives need not be 'in grinding need or utter destitution'; in this context 'relief connotes needs of some sort, either need for a home or for the means to provide for some necessity or quasi-necessity, and not merely an amusement, however healthy'.^[15]
13. Justice Chanell also held that a home established for ladies of ‘reduced circumstances… fifty years old or upwards’ and having an income below a certain minimum yearly level, but which would enable them to provide their own ‘furniture, food, clothing and washing, and medical attendance’ was a charity because its purpose was to relieve poverty.^[16]
14. Similarly, in Re Gardom, Le Page v A-G,^[17] Eve J held:

There are degrees of poverty less acute than abject poverty or destitution but poverty nonetheless…the objects to be benefited by the bequest are ladies too poor to provide themselves with a temporary home without outside assistance. I think it is a good charitable trust.^[18]

15. In 1955, the Court of Appeal of England and Wales considered that a trust established in 1890 to provide accommodation to the ‘working classes’, by 1955 a term ‘quite inappropriate in modern conditions’, was to be construed as a trust for people in ‘the lower income range’, and therefore charitable:

The only way to do it, I think, is to ask whether the house is provided for people in the lower income range, or, in other words, for people whose circumstances are such that they are deserving of support from a charitable institution in their housing needs. Applying this test, I am quite satisfied that the Guinness Trust does provide houses for such people. The majority of them do fall within the lower income group and they are deserving of support by this charitable institution.^[19]

16. In Community Housing Limited v Clarence Valley Council [2014] NSWLEC 193,^[20] the Court considered whether leasing properties to people with “very low”, “low” or “moderate incomes” amounted to providing housing for the relief of poverty. The Court commented on the meaning of the phrase ‘low income persons’, stating that:

It is obviously enough a relative term, not an absolute concept.^[21]

17. On appeal in Community Housing Ltd v Clarence Valley Council (2015) 90 NSWLR 292, the Court considered that the objects when read as a whole affirmed a view that “low income” connotes the idea of persons who have to “go short”.
18. The Commissioner will not assume household poverty based on classifications of incomes as “very low”, “low” or “moderate” because these thresholds can vary over time.^[22] The key consideration is whether the households in question are able to fund accommodation that would give them a modest standard of living in the Australian community.
19. The Commissioner recognises that in Australia, the 30/40 rule is often used as a benchmark for whether a household is experiencing “housing stress”. The 30/40 rule refers to households with income in the bottom 40% of Australia’s income distribution and housing costs of more than 30% of the household income.^[23] Households that meet the 30/40 rule have less income available for other essential costs ^[24] and are less able to maintain a modest standard of living in Australia. Some housing providers discount costs for households that meet the 30/40 rule to ensure the housing costs do not exceed 30% of the household income. The Commissioner recognises that such discounting is likely to be consistent with a charitable purpose of providing housing for the relief of poverty and not unjustified private benefit. This is assuming that the households are unable to provide a modest standard of living in the Australian community.
20. Organisations that apply for registration should provide evidence that the criteria they use ensures they provide housing for the relief of poverty. Charities that provide housing should retain evidence of this nature and provide it to the ACNC if required.^[25]

Relief of distress or disadvantage

21. Some examples of the provision of housing that may relieve distress or disadvantage are:
    • The provision of crisis accommodation to people escaping family violence.^[26]
    • The provision of temporary housing to people whose homes have been destroyed following a natural disaster.^[27]
    • Short-term accommodation provided to newly arrived asylum seekers or refugees.
22. Another example of housing provision that may relieve the distress or disadvantage of individuals is accommodation offered to ex-offenders or ex-prisoners, including prisoner half-way houses. People with a period of imprisonment or criminal history often face difficulties in securing accommodation due to stigmatisation, even if they have an income and can afford to rent in the marketplace.
23. Providing ex-offenders or ex-prisoners with adequate housing can also be seen as a form of prisoner rehabilitation, and working towards reintegrating them into society, particularly if additional support services are also provided. This purpose would be beneficial to the general public, and was recognised as such in the Preamble to the Elizabethan Statute of Charitable Uses 1601.^[28]

Factors relevant in determining poverty, distress or disadvantage

24. Several factors may be relevant in determining whether a person is in poverty, distress or disadvantage such that they need relief through the provision of housing. These include:
    • their income and assets;^[29]
    • any specific disadvantage or distress they may have suffered (for example, a person escaping domestic violence needing refuge or crisis accommodation);
    • their eligibility for government assistance relevant to the relief of poverty (for example, means tested social security payments, rent assistance, or access to public housing);^[30]
    • their dependents and the needs of the dependents;^[31]
    • the cost of providing other necessities of life;^[32]
    • their geographical location and their need to obtain accommodation in that location and its surrounds;^[33] and
    • the cost and availability of accommodation in their location, and the income required to acquire and maintain accommodation in that area and its surrounds.^[34]
25. In Australia, significant differences can be observed between certain rural, regional and remote locations and the large coastal urban centres. For this reason, any information provided in relation to the local context, rather than a national average relating to income, cost of housing and housing availability, may be taken into account when assessing the factors relevant to poverty.
26. The Commissioner will consider these factors in assessing whether a housing provider is providing housing for the relief of poverty, distress or disadvantage.

Caring for and supporting the aged or individuals with disabilities

27. The purpose of advancing social or public welfare, includes the purposes of caring for and supporting:
    • the aged, or
    • individuals with disabilities.^[35]
28. Courts have ordinarily presumed, in the absence of evidence to the contrary, that a disposition for the benefit of people of advanced age is for the purpose of relieving the needs arising from old age.^[36]
29. However, if the benefit is not intended to provide relief for needs attributable to the advanced age of the beneficiaries, the purpose is unlikely to be charitable.^[37] For example, an organisation set up to provide bungy-jumping for the elderly would not have a charitable purpose of caring for or supporting the aged.
30. The housing provided to the elderly by not-for-profit retirement and aged care facilities can be seen to relieve needs arising from old age, and so can be considered in furtherance of charitable purposes.^[38]
31. Providing additional services such as meals, assistance with shopping and other essentials, may also be carried out in furtherance of a charitable purpose. Other services that may be seen as ‘luxuries’, such as entertainment, can be ancillary to the charitable purpose of caring for and supporting the aged, and will not necessarily prevent an organisation from being considered charitable.^[39]
32. Similarly, providing housing to relieve the needs of individuals with disabilities will be in furtherance of a charitable purpose.^[40]

Can a Public Benevolent Institution provide housing?

33. Some housing providers will be eligible for registration as a Public Benevolent Institution (PBI). A PBI is a charitable institution that is organised, conducted for, or promotes the relief of poverty, sickness, disability, destitution, suffering, misfortune or helplessness.^[41]
34. An organisation that provides housing to ‘people in need’ to relieve their needs may be eligible for registration as a PBI.^[42] Refer to the Commissioner’s Interpretation Statement on PBIs for more information on eligibility.^[43]

What kind of housing can be provided?

35. Whether a housing provider is charitable depends on the purpose for which it provides housing. The type or form of housing is not critical for this determination and includes the forms of housing set out in paragraph 2.
36. It is possible that a scheme to assist people to buy their own home may be charitable.^[44] Such assistance may take the form of shared ownership, rent-to-buy schemes, or loans with low or no interest.

Home ownership

37. To be charitable, a scheme to assist people to buy their own home must be for one of the charitable purposes in the Charities Act. In this section we discuss home ownership in the context of the purposes of advancing social or public welfare through relieving the poverty, distress or disadvantage of individuals or families, or caring for and supporting the aged or individuals with disabilities.
38. A key factor in determining whether a home ownership scheme is for a charitable purpose is whether the intended beneficiaries have a recognised charitable need that the scheme will alleviate. For example, in Joseph Rowntree Memorial Trust Housing Association Ltd and others v Attorney-General the court had to decide if schemes to assist elderly people to purchase an interest in dwellings were charitable.^[45] The schemes involved the construction of small self-contained dwellings for sale to elderly people on long leases in consideration of a capital payment.
39. The court observed that:

[t]he word ‘relief’ [in the charitable purpose of ‘the relief of aged, impotent or poor persons’] implies that the persons in question have a need attributable to their condition as aged, impotent or poor persons which requires alleviating, which those persons could not alleviate, or would find difficulty in alleviating themselves from their own resources. The word ‘relief’ is not synonymous with ‘benefit’.^[46]

40. The schemes were intended to relieve the need for special housing of a group of elderly people who did not qualify for special housing provided by local authorities. The schemes were crafted to enable the elderly to purchase an interest in property to provide protection from inflation. The court was satisfied that the need to provide housing specially designed for the elderly in a form that allowed them to purchase an interest in the property, was attributable to age and that the schemes were for the relief of that need. The schemes were, therefore, charitable.
41. For a home ownership scheme to be for the relief of poverty, the beneficiaries of the scheme must be unable to provide, from their own resources, such accommodation as would give them a modest standard of living in the Australian community.^[47] Subject to an individual’s particular circumstances, including their geographical location and their need to obtain accommodation in that location or its surrounds, if a person is able to afford rental accommodation that would afford a modest standard of living, they are unlikely to be ‘poor’ in the charitable sense.^[48]
42. Providing housing through a home ownership scheme rather than rental assistance or access to other forms of accommodation may lead to beneficiaries receiving a private benefit that is not ancillary or not incidental to a charitable purpose.^[49]
43. The following would reduce the likelihood of private benefits that are not ancillary or not incidental to a charitable purpose:
    • Restrictions or conditions on the disposal of the home during the loan repayment period or on the death of the beneficiary.
    • Where individuals are not required to provide a significant deposit to qualify for a home ownership scheme because this may mean that they are able to provide from these resources accommodation which would give them a modest standard of living in the Australian community.
    • For a property co-owned by a charity and a household, each contributes equity and each is entitled to the proportionate share of equity on disposal.^[50]
    • Providing housing on condition that the property is not to be used other than as a residence for the individuals, or else it will not continue to be relieving their need for housing.^[51]
    • In a home ownership scheme for relief of poverty, including a mechanism to review the arrangements if a beneficiary’s financial position improves to the point that they can afford a commercial mortgage.^[52]
44. An example of the factor set out in the first point at paragraph 43 is the United Kingdom decision of Habitat for Humanity [1995] 4 Decisions of the Charity Commissioners 13. In that decision, the loans provided to beneficiaries were subject to the following conditions:
    • if the beneficiary disposed of the property within 20 years, they would have to repay the loan together with a proportion of the then market value of the house calculated by reference to the number of years the loan had existed; and
    • if the beneficiary died, or if there was any other disposition, then the loan and a similar proportion of the increase in value became payable to the company.

Commercial activities

45. Housing providers that are charities may fund housing by a variety of means. This includes commercial operations if they are carried out in furtherance of the charitable purpose, and the income generated is directed to that charitable purpose, as set out in Commissioner of Taxation v Word Investments (2008) 236 CLR 204 (Word Investments):

The activities of Word in raising funds by commercial means are not intrinsically charitable, but they are charitable in character because they were carried out in furtherance of a charitable purpose…^[53]

46. The principles from Word Investments apply to all charities, not only charities that provide housing. In this section, we apply the general principles to the housing sector to provide practical guidance.
47. An example of a commercial activity is a housing provider that builds and sells a proportion of housing to fund the housing it makes available to people in need as its charitable purpose.
48. Another scenario is where a housing provider offers rental accommodation at two price points - one level at lower cost and the second at a higher cost. The lower cost accommodation may be more easily identified as being for the relief of poverty provided the individuals meet the requirements outlined in paragraphs 11-20. If the higher cost accommodation is to be provided for the purpose of relieving poverty, the individuals concerned must either be in need of relief from poverty (in which case the rent may be discounted if appropriate) or the rental arrangement must be structured to fund its charitable purpose. If the latter is asserted, the charity must be able to demonstrate a clear intention to generate funds that can be applied to the core charitable purpose.
49. Based on the authority of Word Investments, a housing provider’s commercial activity may be unrelated to its provision of housing. For example, it may run a café or a car wash if the purpose of those activities is to generate and use income for its charitable purpose of providing housing, and the income generated is in fact used for that purpose.
50. Other commercial activities may include fee-for-service arrangements in property modifications, upgrades, maintenance, and management. Partnerships or joint ventures with private companies, such as credit unions or property developers, to acquire or develop affordable housing may also be commercial activities of a housing provider.
51. If a charity wants to enter into arrangements with other parties, including private sector entities, it must ensure that doing so furthers its charitable purposes.^[54] A charity is more likely to demonstrate that it is furthering its charitable purposes if any debt it enters into is on commercial, arms-length terms or if the terms are more favourable to the charity. It is less likely to be found to be furthering its charitable purposes if the debt is on terms more favourable to private sector entities.
52. The Charities Act states, ‘in determining the purposes of an entity, have regard to the entity’s governing rules, its activities and any other relevant matter’.^[55] The Commissioner will have regard to these matters in determining whether an organisation is providing housing to pursue a charitable purpose. If an organisation provides housing to people who are not in need of charitable relief, the evidence will need to demonstrate that this is merely a fundraising activity and does not amount to an independent non-charitable purpose.
53. An organisation that wants to undertake commercial activities to fund its housing provision should consider how it can evidence that the profits from any commercial activities are to be used to pursue a charitable purpose and do not amount to an independent non-charitable purpose. Evidence of its purpose could be in its governing rules, its operational or business plans, website, annual report and in financial records showing that profits from commercial activities are in fact used to fund housing to pursue a charitable purpose.

Government housing schemes

54. Australian governments have created,^[56] and may in the future create, schemes to encourage organisations to provide housing. The fact that a government has created a housing scheme does not necessarily mean that providing housing under the scheme is charitable under the Charities Act. The Commissioner will apply the principles in this Commissioner’s Interpretation Statement and in other guidance material to determine whether the purpose of the organisation is charitable.
55. On the other hand, an organisation providing housing in a manner coincidental with government policy or with the assistance of government funding, incentives, or subsidies, is not necessarily ineligible for registration as a charity.^[57] Again the focus is on determining whether the organisation’s purpose is charitable.

Not-for-profit

56. Charities are required to be not-for-profit.^[58] This means that they cannot distribute income or assets to individuals for private benefit either during operation or upon winding up (other than to the intended beneficiaries for charitable purposes).
57. Usually, a charity demonstrates this with appropriate clauses in its governing rules that apply during operation and upon winding-up.

Relationships with government

58. Ordinarily, upon winding up a charity, any assets remaining after its debts and liabilities are settled must be distributed for similar charitable purposes. Failing to ensure such a charitable distribution may mean that the organisation is not considered charitable.
59. Certain housing providers may obtain and manage housing assets through state or territory government schemes. In some cases, there may be a requirement to return these assets to the state or territory government upon winding up. As government is not charitable, returning these assets could be seen as not distributing assets for similar charitable purposes on winding up.
60. In such a case, the Commissioner will treat the housing provider as charitable on condition that the winding-up clause in the governing document is explicit that:
    • assets required by state or territory law or contract to be returned to the government on winding up will be returned; and
    • other remaining assets will be distributed for similar charitable purposes.
61. If an organisation is a ‘government entity’ (as defined in s 4 of the Charities Act), it will not be entitled to registration as a charity. For more on the meaning of ‘government entity’ refer to the Commissioner’s Interpretation Statement on the meaning of ‘government entity’ (CIS 2016/01).
62. Additionally, if an organisation has a ‘disqualifying purpose’,^[59] it will not be eligible for registration as a charity. Paragraph (b) of the definition of ‘disqualifying purpose’ concerns the purpose of promoting or opposing a political party or a candidate for political office.

Footnotes

[1] Charities Act 2013 (Cth), s 12.

[2] Charities Act 2013 (Cth), s 12(1)(c).

[3] Charities Act 2013 (Cth), s 15(1).

[4] Charities Act 2013 (Cth), s 15(2).

[5] Charities Act 2013 (Cth), s 15(3).

[6] Re Glyn's Will Trusts [1950] 2 All ER 1150; Re Bingham (deceased) [1951] NZLR 491, 494-5 (Hay J); Re Resch's Will Trusts [1969] 1 AC 514, 542-3 (Lord Wilberforce); City of Hawthorn v Victorian Welfare Association [1970] VR 205, 208 (Smith J).

[7] Charities Act 2013 (Cth), s7 (c)-(d).

[8] Charities Act 2013 (Cth), ss 5(b)(i), 6, 7(c)-(d).

[9] Trustees of the Mary Clark Home v Anderson [1904] 2 KB 645.

[10] Ballarat Trustees Executors and Agency Co v Federal Commission of Taxation (1950) 80 CLR 350, 355.

[11] [1951] Ch 661.

[12] Re Coulthurst [1951] Ch 661, 666.

[13] [1904] 2 KB 645.

[14] Trustees of the Mary Clark Home v Anderson [1904] 2 KB 645, 655-656.

[15] Inland Revenue Commissioners v Baddeley [1955] AC 572, 585 [52] (Simmonds VC).

[16] Trustees of the Mary Clark Home v Anderson [1904] 2 KB 645, 655.

[17] [1914] 1 Ch 662.

[18] Re Gardom, Le Page v A-G [1914] 1 Ch 662, 668 (Eve J).

[19] Guinness Trust (London Fund) Founded 1890, Registered 1902 v Green [1955] 1 WLR 872, 875 (Denning LJ); Re Niyazi’s Will Trusts [1978] 1 WLR 910, 915 (Megarry VC); Dano Ltd v Earl Cadogan [2003] H.L.R. 51.

[20] This decision was appealed in Community Housing Ltd v Clarence Valley Council (2015) 90 NSWLR 292.

[21] Community Housing Ltd v Clarence Valley Council [2014] NSWLEC 193, [55]. On the evidence in the case, the Court was satisfied that the persons and households identified as having ‘moderate income’ did not have sufficient household income to obtain adequate access to safe and secure housing and were in need of relief of poverty.

[22] Community Housing Ltd v Clarence Valley Council [2014] NSWLEC 193, [74] (Harrison J) upheld in Community Housing Ltd v Clarence Valley Council (2015) 90 NSWLR 292, [65]-[88]. The judgment of Harrison J refers to moderate income, ‘whatever “moderate” may mean at any particular time.’

[23] Yates J 2007, Housing affordability and financial stress, NRV3 Research paper 6, Melbourne: AHURI.

[24] AHURI, Understanding the 30:40 indicator of housing affordability stress (23 May 2019).

[25] Registered entities are required to keep records under Div 55 of the Australian Charities and Not-for-profits Commission Act 2012 (Cth).

[26] The provision of housing in this context could equally be for the purpose of relief of poverty: YWCA Australia v Chief Commissioner of State Revenue [2020] NSWSC 1798, [58].

[27] Re Darwin Cyclone Tracy Relief Trust Fund (1979) 39 FLR 260.

[28] The relief or redemption of prisoners or captives.

[29] Common Equity Housing Ltd v Commissioner of State Revenue (1996) 33 ATR 77; Trustees of the Mary Clark Home v Anderson [1904] 2 KB 645.

[30] The Commissioner considers this to be a relevant factor because eligibility for means tested social security payments is generally indicative of “poverty” in a legal sense, as is eligibility for rent assistance or public housing.

[31] The Commissioner considers that this factor is relevant to determining the level of resources required to provide accommodation as would provide a modest standard of living in the Australian community for a given household.

[32] The Commissioner considers that this factor is relevant to determining whether overall, the cost of providing the necessities of life, including housing, is such that a modest standard of living is not able to be achieved.

[33] See also paragraph 5.5.

[34] See also paragraph 5.5.

[35] Charities Act 2013 (Cth), s 15(2).

[36] Dal Pont, G.E. Law of Charity (LexisNexis Butterworths, 2010), [8.30], citing Hilder v Church of England Deaconess Institution Sydney Ltd [1973] 1 NSWLR 506, 512 (Street CJ); Trustees of Church Property of the Diocese of Newcastle v Lake Macquarie Shire Council [1975] 1 NSWLR 521, 524 (Moffitt P); West Australian Baptist Hospital & Homes Trust Inc v City of South Perth [1978] WAR 65, 72 (Lavan SPJ).

[37] Trustees of Church Property of the Diocese of Newcastle v Lake Macquarie Shire Council [1975] 1 NSWLR 521, 533-4 (Hutley JA).

[38] Trustees of Church Property of the Diocese of Newcastle v Lake Macquarie Shire Council [1975] 1 NSWLR 521.

[39] Trustees of Church Property of the Diocese of Newcastle v Lake Macquarie Shire Council [1975] 1 NSWLR 521.

[40] Cram Foundation v Corbett-Jones [2006] NSWSC 495; Taylor v Taylor (1910) 10 CLR 218. Additionally, the Explanatory Memorandum to the Charities Act 2013 (Cth) states that the purpose of advancing social or public welfare includes ‘providing housing and accommodation support for people with special needs or who are otherwise in a special disadvantage in terms of their access to housing’ at [1.124].

[41] Perpetual Trustee (1931) 45 CLR 224.

[42] Maclean Shire Council v Nungera Co-operative Society Ltd (1994) 84 LGERA 139; Toomelah Co-operative Ltd v Moree Plains Shire Council (1996) 90 LGERA 48.

[43] ACNC, Commissioner’s Interpretation Statement: Public Benevolent Institutions.

[44] Dal Pont, G.E. Law of Charity (LexisNexis Butterworths, 2010), [8.12].

[45] [1983] 1 All ER 288.

[46] ibid 295.

[47] See paragraph 11.

[48] Queenstown Lakes Community Housing Trust HC WN CIV-2010-485-1818 [24 June 2011], [41] (MacKenzie J).

[49] Queenstown Lakes Community Housing Trust HC WN CIV-2010-485-1818 [24 June 2011], [41] (MacKenzie J), [71]; Joseph Rowntree Memorial Trust Housing Association Ltd and others v Attorney-General [1983] 1 All ER 288.

[50] A similar arrangement was endorsed by the Court in Joseph Rowntree Memorial Trust Housing Association Ltd and others v Attorney-General [1983] 1 All ER 288.

[51] Sensible exceptions, for example, to seek medical treatment may be contemplated.

[52] Garfield Poverty Trust [1995] 3 Decision of the Charity Commissioners 7; Habitat for Humanity [1995] 4 Decisions of the Charity Commissioners 13.

[53] Commissioner of Taxation v Word Investments (2008) 236 CLR 204, 221 (Gummow, Hayne, Heydon and Crennan JJ).

[54] To be a charity an entity must have charitable purposes (s 5(b)(i) Charities Act) and must comply with the Governance Standards including s 45.5(2)(c) in complying with its purposes and character as a not-for-profit entity and s 45.25(2)(b) in taking reasonable steps to ensure that its responsible entities act in good faith in the entity’s best interests and to further its purposes.

[55] Note 1 to s 5 of the Charities Act 2013 (Cth), defining ‘charity’.

[56] One such scheme is the National Rental Affordability Scheme (NRAS).

[57] Central Bayside General Practice Association Ltd v Commissioner of State Revenue [2006] HCA 43.

[58] Charities Act 2013 (Cth), s 5.

[59] Charities Act 2013 (Cth), s 11.