ACNC Decision Impact Statement: Global Citizen Ltd

Citation

Global Citizen Ltd and Commissioner of the Australian Charities and Not-for-profits Commission [2021] AATA 3313

Brief summary of the facts

1. Global Citizen Limited (the applicant) applied to the ACNC to add the subtype of Public Benevolent Institution (PBI) to its existing charity registration. The application was refused, and the ACNC Commissioner upheld that decision on objection.
2. A PBI is a type of charitable institution that has a main purpose of providing benevolent relief to people in need.
3. The applicant operates as part of a global network, advocating for and working towards the relief of poverty through this network, and seeking contributions from world leaders.
4. The facts found by the Tribunal were:
   • The applicant had sought to influence and enlist public opinion to obtain financial commitments from governments and philanthropists to fund overseas aid projects (paragraph 95).
   • The awareness-raising activities of the applicant were concerned with mobilising awareness to put pressure on leaders to make specific commitments to identified aid projects (paragraph 96) rather than advocating for general policy change (paragraph 125) or merely raising awareness for its own sake.

Issues decided

5. The Tribunal determined that the applicant was entitled to registration as a PBI under section 25-5(2), Item 14 of the Australian Charities and Not-for-Profits Commission Act 2012 (the ACNC Act).
6. The Tribunal found that the applicant was “organised” or “conducted” for the relief of poverty (paragraph 126) or “promotes” the relief of poverty (paragraph 127).
7. In reaching its decision, the Tribunal held that the applicant had only one purpose – the relief of global poverty – and that it engaged in educational and advocacy activities to achieve that purpose (paragraph 98). The Tribunal also held that if the applicant’s education and advocacy activities could be viewed as purposes, then they were incidental and ancillary to its main purpose of the relief of poverty.

Our view of the decision

8. We consider that as a result of this decision, entities that operate in a similar manner to the applicant – such as entities within a network of entities providing relief, that direct their advocacy or educational activities towards specific aid projects – may be entitled to registration as a PBI.
9. The Tribunal made several comments about the significance of minor purposes in assessing a main or predominant purpose for a PBI. This included a discussion of case law on main or predominant purposes from paragraphs 80 to 88.
10. However, the Tribunal did not reach a concluded view on the meaning of the term “main” purpose because it was not necessary for the decision (paragraph 89).
11. Given the Tribunal did not reach a concluded view on this issue, the ACNC Commissioner considers that the decision does not result in a change to our view of ‘purpose’ set out in paragraph 5.5 of the Commissioner’s Interpretation Statement: Public Benevolent Institutions.
12. In reaching its decision the Tribunal also stated that the ordinary meaning of the expression “public benevolent institution” does not require proof of the link between an entity’s activities and the provision of relief. It also noted that authorities are not prescriptive about the relationship between an entity and other organisations through which it may (indirectly) provide relief (paragraph 113).
13. However, the Tribunal agreed with Thawley J in Australians for Indigenous Constitutional Recognition Ltd v Commissioner of the Australian Charities and Not-for-profits Commission [2021] FCA 435 at [26], stating in paragraph 115:

115. GCL pointed out the comments by Thawley J were made without the benefit of full argument on the meaning of the term PBI. Even so, his Honour’s comments are undoubtedly correct. In the case where the entity does not provide relief directly but relies on providing relief indirectly, there is likely to be a spectrum and it is possible the activities of an applicant will be such that it is not possible to say the entity is ‘organised’ for, or ‘concerned in’ or ‘promoting’ the relief of poverty etc. But we are satisfied that is not the case here.

14. The Tribunal stated that the contemporary context suggests relief efforts require collaboration between “a variety of entities working with governmental and other NGOs to achieve positive results, using advocacy and awareness-raising as an integral part of that process to achieve their goals” (paragraph 118). Therefore, it was sufficient for the applicant to demonstrate that it undertook advocacy, educational and awareness-raising activities in furtherance of the relief of poverty as part of achieving a “common benevolent purpose” with other organisations.
15. However, the Tribunal also drew a distinction between advocating for changes in policy and advocating for specific financial commitments. The Tribunal stated that it did not need to decide the issue of “whether advocating for changes in government policy (eg, concerning levels of aid or legislative change relating to gender discrimination) would be concrete enough to amount to relieving poverty” (paragraph 125).
16. We consider that this distinction illustrates acceptance that there is a range of activities, and that some will be too remote to determine that an entity is “organised” for, or “concerned in” or “promoting” the relief of poverty. Specifically, the Tribunal appears to accept that activities that involve lobbying a government for law change, or to increase the aid budget as a whole without linking amounts to specific projects, are distinct from activities directed towards specific financial commitments. However, the Tribunal did not conclude whether such activities have enough connection to the delivery of aid.
17. While the Tribunal raised many interesting matters of law about the meaning of the terms “public benevolent institution” and “main purpose”, it did not reach a concluded view on these matters and the ultimate decision was not based on them. Instead, it reached a decision based on the specific facts of this case.
18. We look forward to further opportunities to clarify the law about PBIs, particularly on matters on which the Tribunal did not reach a concluded view.

Impact on guidance

19. As a result of this decision, we will update our guidance on PBIs, including the Commissioner’s Interpretation Statement: Public Benevolent Institutions, as necessary.

Published date: 9 December 2021