Aid/Watch Decision a Win for Charities’ Freedom of Speech
2 December 2010 at 8:29 am
A majority High Court decision in favour of the charitable status of activist group Aid/Watch is being hailed as a significant win for Australian charities who engage in advocacy and lobbying activity.
The High Court of Australia has ruled that the activist group Aid/Watch is a charitable organisation exempt from tax.
The decision overturns a lower court ruling in favour of the Australian Taxation Office.
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But five of the seven High Court judges agreed that public debate on the efficiency of foreign aid directed towards poverty relief was a purpose beneficial to the community.
AidWatch says the decision ends a four year gag on free speech for many NGOs.
Aid/Watch and Maurice Blackburn lawyers say the decision has enormous implications not just for Aid/Watch but for any charity that seeks to influence government policy in the public interest.
The four-year legal battle started when Aid/Watch had its charitable status revoked in 2006 by the ATO after criticising Federal Government overseas aid policy.
Gary Lee, Aid/Watch director says the decision is a win for freedom of political communication in Australia and it resolves almost a decade of uncertainty for many charities and strengthens the ability of charities to advocate for the public good.
Lee says the ATO’s 2006 decision sent shockwaves through the charitable sector and had a chilling effect on the willingness of the charitable sector to speak out but this outcome finally resolves the issue.
Giri Sivaraman, senior associate at Maurice Blackburn says the case gives legal and financial certainty to charities and has broadened the definition of what charities could do ‘in the public interest’.
Sivaramen says the outcome makes it clear that charities can speak out fearlessly, can generate public debate and can push the government for change on issues that are relevant to the work they do – whether that be the advancement of education, eradication of poverty or the rights of refugees.
Aid/Watch says the High Court has agreed that engaging in public debate confirms implied rights in the Constitution and this puts Australia ahead of other western nations in the way charities will be able to engage in public debate on matters of ‘public benefit’.
Gary Lee adds that Aid/Watch is a small grassroots organisation and is only able to take this case on with the support of the charitable sector, members of the public and lawyers who were initially prepared to run the case pro-bono.
The ATO has agreed that the case qualifies for test case funding.
Maurice Blackburn lawyers, along with David Williams SC, Sheila Kaur-Bains and Rashelle Seiden represented Aid/Watch at the AAT, Federal and High Courts.
October 2006: the Australian Tax Office disqualified Aid/Watch as a charitable organisation arguing it was engaged in political activity. Aid/Watch appealed this decision to the ATO arguing that it was a charity with the aim of alleviating poverty. The ATO decision was affirmed. Aid/Watch and other charities say the case would have a devastating ripple effect throughout the charitable sector.
July 2008: Maurice Blackburn agrees to assist Aid/Watch to take the case to the Administrative Appeals Tribunal. President, Justice Downes, overturns the ATO’s decision.
February 2009: ATO appeals to the Federal Court of Australia.
22 September 2009: The Federal Court handed down a judgement in favour of the ATO and Aid/Watch announces its intention to seek Leave to Appeal to the High Court.
12 March 2010: High Court grants Special Leave to Appeal.
June 2010: High Court trial runs for 2 days in Canberra.
December 2010: High Court overturns Federal Court decision confirming the right of Aid/Watch to engage in political debate.